Her Majesty the Queen v. Sonny Brokenshire, 2020 ONSC 534
Court File No. CR-18-00000155-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
SONNY BROKENSHIRE
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE M.K. FUERST on January 15, 2020 at NEWMARKET, Ontario
APPEARANCES:
M. Flosman and S. Sullivan, Counsel for the Crown M. Wyszomierska, Counsel for Sonny Brokenshire
REASONS FOR SENTENCE
FUERST, J. (Orally):
Sonny Brokenshire pleaded guilty to conspiracy to murder Joseph Simonds, a murder that was in fact carried out.
Mr. Brokenshire was originally charged with first degree murder, along with two other men. The trial of those two men is pending.
For the purpose of this sentencing decision I will summarize the facts Mr. Brokenshire admitted on his guilty plea. Those facts have not been admitted by the other two men, who I will refer to by their initials, in order to protect the integrity of their pending trial.
The Circumstances of the Offence
Mr. Brokenshire, was, at one time, in a relationship with Ms. L. They had two children. The relationship ended.
By early 2017, Ms. L. was in a relationship with Joseph Simonds. In early 2017, allegations surfaced that Mr. Simonds had inappropriately touched one of the children, who was a toddler at the time. As a result, Mr. Simonds was told by relatives of Ms. L., including Mr. F., that he was no longer welcome in their home and should leave town. In late March or early April, 2017, Mr. F., Ms. L., and a third person drove him to Orillia.
The Children's Aid Society investigated the allegations. No charges were laid, and the file was closed.
Mr. F. and Mr. Q. wanted to get revenge for Mr. Simonds' alleged acts against the child. They enlisted Mr. Brokenshire to help locate Mr. Simonds. There were electronic messages between Mr. F. and Mr. Brokenshire, and Mr. Q. and Mr. Brokenshire, in May and June, 2017, about Mr. Brokenshire's efforts to locate Mr. Simonds.
In late May, 2017, Mr. F. and Mr. Q. came to Orillia to look for Mr. Simonds. They went to Mr. Brokenshire's home, where Mr. Q. pointed a firearm at Mr. Brokenshire and said that he did not trust Mr. Brokenshire. Mr. Q. demanded that Mr. Brokenshire assist in locating Mr. Simonds.
In the days leading up to June 4th, Mr. Brokenshire communicated with Mr. Simonds electronically. Mr. Simonds seemed to know that Mr. Brokenshire was looking for him. The tone of the messages was confrontational and challenging.
On June 3rd, Mr. F. and Mr. Q. travelled to Orillia. They called Mr. Brokenshire while en route.
The three men met in Orillia. Mr. Q. was angry and said something along the lines that he wanted Mr. Simonds' blood and that he had, "a piece for it". Mr. Brokenshire said that there was no need for the piece. He was scared and said little else during the meeting. Both Mr. Q. and Mr. F. pressured Mr. Brokenshire to go with them. Mr. Q. confronted Mr. Brokenshire and told him to act like a father and assist them.
Ultimately, Mr. Brokenshire reluctantly agreed to go with Mr. F. and Mr. Q., knowing that they were intent on killing Mr. Simonds. Mr. Brokenshire armed himself with a bat. Mr. Q. gave him a knife.
Around 3:30 to 4:30 a.m., after Mr. Brokenshire received a text from a third party, the trio went to Mr. Simonds' home in Mr. F.'s car. They went to the rear of the house, to the entrance of the apartment where Mr. Simonds lived. Mr. Brokenshire left the baseball bat behind.
Mr. Brokenshire's role was to knock on the door to see if Mr. Simonds was there. When he knocked, Mr. Simonds challenged him to come in. Mr. Brokenshire did not. Mr. Q. forcefully pushed Mr. Brokenshire out of the way and shot Mr. Simonds at close range with a 20-gauge shotgun. Mr. Simonds' heart was shredded. He died a short time later.
Mr. Brokenshire was startled by what happened. He tried to run away from Mr. F.'s car, but was told to get in by Mr. F. and Mr. Q. Mr. F. drove off.
Mr. Brokenshire was dropped off a short distance away.
The Victim Impact Information
In her Victim Impact Statement, Mr. Simonds' mother describes her son as having been her best friend and her future. Her grief over his death is an emotional prison. Nothing will ever be the same for her. His three children were left without a father.
The Circumstances of Mr. Brokenshire
Mr. Brokenshire is 23 years old. He is of Indigenous background, through his father, who was Cree. Mr. Brokenshire had a somewhat difficult childhood, in that he had limited contact with his father, and was abused by others who should have protected him. His mother and grandmother attended court and are supportive of him.
Mr. Brokenshire left high school at an early stage because he became a father. He has three children. He held various short-term jobs, including in a restaurant.
He has a relatively minor youth record, but no prior adult criminal record.
Mr. Brokenshire was arrested on June 7th, 2017. At one and a half to one, I treat his pre-trial custody as three years and 11 months.
He provided an affidavit that indicates he experienced about 30 to 45 days of lockdown at the institution, which impacted his emotional wellbeing.
While in pre-trial custody, Mr. Brokenshire completed his high school diploma. He also worked as a range server.
Defence counsel advised me that Mr. Brokenshire does feel some connection to his Indigenous background. He waived the preparation of a Gladu report.
After Mr. Brokenshire entered his guilty plea about a week ago, he provided a statement to the police, which Crown counsel acknowledges appears to be truthful. It is anticipated that Mr. Brokenshire will be a Crown witness at the trial of his former co-accused.
The Positions of the Parties
Crown and defence counsel jointly submit that Mr. Brokenshire should be sentenced to a term of five to six years in jail, less credit for pre-sentencing custody, including some credit for lock-down conditions. A DNA order, and a s. 109 order for life are sought by the Crown and not opposed by the defence.
The Principles of Sentencing
The principles of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society, where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
The caselaw indicates that there is a wide range of sentence for the offence of conspiracy to commit murder. Precisely where in the range a given case falls depends on the facts of the case, and the particular aggravating and mitigating factors. It is plain, however, that deterrence and denunciation are the primary considerations in sentencing for this offence, at least in part because a conspiracy to commit murder is not something done in the heat of passion, but rather involves planning and deliberation: see R. v. Brown, [1984] O.J. No. 1148 (H.C.J.); R. v. Chase, (1979) 10 C.R. (3d) S-1 (Ont. H.C.J.).
Analysis
The aggravating factors in this case include:
This was a conspiracy that resulted in the actual commission of the most serious of criminal offences.
While Mr. Brokenshire was not the instigator, his participation in the conspiracy was critical to its culmination in the brutal, point-blank shooting of Mr. Simonds.
Mr. Brokenshire knew for at least a period of days that Mr. F. and Mr. Q. were looking for Mr. Simonds for no good reason. He had plenty of time to alert Mr. Simonds, if not the authorities as well. He did not do so.
In the hours before the murder, Mr. Brokenshire had the opportunity to take steps to thwart the conspiracy, given that he was seen going into a Tim Horton's on his own. He did nothing to derail the plan.
The murder of Mr. Simonds has imposed a kind of life sentence on his mother.
There are important mitigating factors. They include:
Mr. Brokenshire pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his actions.
He pleaded guilty in the face of triable issues, given that his post-arrest statement was ruled inadmissible.
This is his first adult offence.
He is a relatively young man and of Indigenous background.
It is very clear that Mr. Brokenshire was subjected to pressure and threats by his former co-accused. While this does not negate his mens rea for the offence of conspiracy, it provides some explanation for his participation, which I accept would not have occurred otherwise.
Mr. Brokenshire co-operated with the prosecution by providing a statement in anticipation of being called as a Crown witness at the trial of his former co-accused. That is a substantial mitigating factor.
He has family support and his prospects of rehabilitation are good.
Conclusion
The primary objectives of sentencing in this case are denunciation and deterrence. Rehabilitation cannot be overlooked, in light of Mr. Brokenshire's age and lack of an adult criminal record.
By entering into a conspiracy to murder Mr. Simonds, Mr. Brokenshire committed a despicable offence. A significant penitentiary sentence must be imposed, albeit one that will be reduced by the pre-trial custody credit, which I treat as four years after allocating one month because of lock-down conditions.
I accept the joint submission put to me by Crown and defence counsel as one that meets the relevant objectives of sentencing.
Mr. Brokenshire, please stand. I sentence you to five and one half years in jail, less credit for 48 months for pre-trial custody. That leaves a sentence to be served of 18 months.
There is a DNA order and a s. 109 weapons prohibition order for life.
I recommend that the sentence be served at the St. Lawrence Valley Detention Centre.
Form 2 Certificate of Transcript Evidence Act, Subsection 5(2)
I, Julie Volkmann, certify that this document is a true and accurate transcript of the recording of R. v. Sonny Brokenshire, in the Superior Court of Justice, held at 50 Eagle Street, NEWMARKET, Ontario, on January 15, 2020, taken from Recording No. 4911_402_20200115_090336_30_FUERSTM.dcr which has been certified in Form 1.
January 27, 2020 "Electronic Copy"
(Date) Julie Volkmann ACT ID: 9735690149 julievolkmann@rogers.com