COURT FILE NO.: CR-17-30000737-0000
DATE: 20200908
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SINBAD KINGSIMBA MARSHALL
COUNSEL:
Craig Coughlan and David Steinberg, for the Crown
Christopher Hicks and Mitchell Huberman, for the Defendant
HEARD: August 5 and 7, 2020
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON SENTENCE
1. OVERVIEW
[1] Everything about this case is tragic.
[2] Sometime on November 9 or 10, 2015, Sinbad Marshall murdered Stella Tetsos. Mr. Marshall broke into Ms. Tetsos’s home through a basement window. Ms. Tetsos went to investigate the noise. Ms. Tetsos was a frail 82-year old grandmother. Mr. Marshall was a strong young man. He broke every rib in her chest. It was nothing like a fair fight. It was a cowardly murder of a defenceless woman involving extreme violence.
[3] The jury convicted Mr. Marshall of second-degree murder. He will be serving a life sentence. The question I must decide is his period of parole ineligibility. I am required to set his eligibility between 10 and 25 years.
[4] For the reasons that follow, I find that Mr. Marshall’s period of parole ineligibility should be 18 years. Mr. Marshall, however, spent more than two years, cumulatively, in segregation. That was a gross violation of his right not to be subjected to cruel and unusual treatment or punishment. I will credit him with a reduction in parole eligibility of 27 months as a remedy. For the reasons that follow, Mr. Marshall’s parole eligibility is set at 15 years and 9 months.
2. THE STATUTORY CRITERIA
[5] Pursuant to s. 745.4 of the Criminal Code, a judge setting the period of parole eligibility for second degree murder must have regard to three criteria:
• First, the character of the offender;
• Second, the nature of the offence and the circumstances surrounding its commission; and,
• Third, the jury’s recommendation.
[6] As a general rule, parole ineligibility should be set at 10 years but a judge has discretion to set a longer period, according to the criterial in s. 745.4 of the Criminal Code: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at para. 29.
[7] Sentencing principles such as denunciation, deterrence, and rehabilitation still play a role in determining parole eligibility: Shropshire at para. 25. Moreover, setting parole eligibility, which is a form of sentence, remains an individual process. A trial judge has a great deal of discretion in setting parole eligibility. That discretion reflects the wide range of seriousness. It is incorrect to say, therefore, that it is only in unusual circumstances that parole eligibility should be increased from the 10-year minumum: Shropshire at para. 33. As in all sentencing decisions, a judge must craft a fit sentence that reflects the purposes and principles of sentencing, bearing in mind the four statutory criteria in s. 745.4 of the Criminal Code.
(a) The Character Of The Offender
Mr. Marshall’s Background
[8] I have reviewed a number of documents about Mr. Marshall. In May 2018 Aboriginal Legal Services produced a Gladue report.
[9] Mr. Marshall is 25 years old. He was born in Toronto. He is a “Status Indian” pursuant to the Indian Act and a member of the Membertou Mi’kmaw Nation in Nova Scotia. He has 11 siblings. He was born when his mother was 16. His mother’s relationship with his father – with whom she had eight children – was tumultuous and abusive. His mother took the children to live with her parents on the ancestral reserve in Nova Scotia, which Mr. Marshall remembered fondly. When the family returned to Toronto, his mother had a relationship with Mr. Marshall’s step-father. That union produced three more siblings for Mr. Marshall. His step-father was also abusive.
[10] According to Mr. Marshall as well has his mother and sister, the step-father did not want Mr. Marshall to live in the house. Mr. Marshall went to live with his father when Mr. Marshall was around 10. His father introduced him to a criminal lifestyle, alcohol, and marijuana. The Gladue Report notes Health Canada research that there is an increased risk of mental illness to those with a family history of schizophrenia and psychosis for young people smoking marijuana.
[11] And Mr. Marshall did indeed have a family history of mental illness. He began getting into trouble as a young man. He began hearing voices. According to his mother and to members of his family, he also started hearing voices. He was fine when he took his medication, but he frequently did not, and he commenced a life of substance abuse. He began using ecstasy, and later crystal methamphetamine.
[12] In December 2019, Dr. Gojer, a forensic psychiatrist, also compiled a report. Mr. Marshall self-reported that he believes people can read his mind. He has also reported hearing voices. He reports that at a woman tried to perform voodoo on him. His mother and sister also noted that Mr. Marshall told them that he heard voices.
[13] Dr. Gojer concluded that Mr. Marshall has problems with impulse control, attentional problems, and a cognitive disorder. He likely has attention deficit disorder, and an alcohol and substance abuse disorder. Dr. Gojer noted that in the past Mr. Marshall has been diagnosed with schizophrenia, bipolar mood disorder, drug induced psychosis, and malingering. Although there are elements of malingering, Dr. Gojer seems confident of the diagnoses. Mr. Marshall currently takes an antipsychotic drug, Latuda; an antidepressant drug, Cymbalta; and an ADHD drug, Strattera.
[14] While he was in custody, Mr. Marshall did take courses towards improving his education. He has tried to improve himself. Unfortunately, his time in segregation has limited his ability to take courses. Also unfortunately, he has also managed to accumulate misconducts and charges while in custody.
Mr. Marshall’s Criminal Record
[15] Mr. Marshall managed to acquire a very serious criminal record during his young life.
[16] He has a youth record with offences from 2010 to 2012. In April 2010 he was convicted of sexual assault, three counts of fail to comply with a recognizance, one count of possession of a Schedule II substance, and one count of possession of a Schedule III substance. He was put on probation for two years on each count in light of 30 days of pre-sentence custody.
[17] In November 2010 Mr. Marshall was convicted of 3 counts of possession of property obtained by crime; theft over; and break and enter. He was again put on probation for two years in light of 108 days of pre-sentence custody.
[18] In November 2011, Mr. Marshall was convicted of two counts of fail to comply with recognizance; possession of property obtained by crime under $5000; assault police; escape lawful custody; and break and enter. He was again put on probation for two years in light of 111 days of pre-sentence custody.
[19] In March 2012 Mr. Marshall was convicted of two counts of break and enter; mischief over $5000; fail to comply with recognizance; and fail to comply with a disposition. He was again put on probation for two years in light of 94 days of pre-sentence custody.
[20] In July 2012 Mr. Marshall was convicted of possession of a firearm knowing its possession was unauthorized, and failure to comply with a disposition. He was sentenced to 72 days in custody and 36 days under community supervision in light of 48 days of pre-sentence custody. He was also placed on probation again for two years.
[21] Mr. Marshall’s adult record commences in September 2013 when he was convicted of assault. He received 20 days consecutive to any other sentence he was serving; he was also placed on a 10 year weapons prohibition. Later in September 2013 He was convicted of assaulting a police officer. He was sentenced to 20 days consecutive to any sentence he was serving and placed on probation for one year.
[22] In January 2014 Mr. Marshall was convicted of aggravated assault and failure to comply with a probation order. Otter J. of the Ontario Court of Justice sentenced him to 18 months in custody and three years on probation in light of 10 months of pre-sentence custody. He was also placed on a lifetime weapons prohibition. He was sentenced to 6 months concurrent on the fail to comply with a probation order.
[23] In December 2015 Mr. Marshall was convicted of assault. He was sentenced to 7 months in light of 2 months of pre-sentence custody. He was again placed on probation again for three years.
Circumstances Of The Aggravated Assault Conviction
[24] In June 2013 Mr. Marshall had been out of custody for about one month. He broke into a residence, using a knife to cut a screen out of a window. He then ransacked two bedrooms in the house. The homeowner – a 51 year-old woman living alone – arrived home while Mr. Marshall was still there. He grabbed the victim, demanded she give him her gold, and threatened to kill her if she called the police. The victim fought back. Mr. Marshall punched her in the face and chest. The victim suffered a broken tooth, other loose teeth, a broken wrist, bruises, and cuts.
[25] On December 12, 2013 Mr. Marshall pleaded guilty to aggravated assault and breach of probation before Otter J. As noted, Justice Otter imposed a sentence of 28 months, with credit for time served in custody. At the time of sentencing, Mr. Marshall addressed the Court. He stated that he was “done with all this jail time – you know, hurting my family, creating so much negative energy and negative things in my life.” He told Justice Otter that he simply wanted to go to university and become a good citizen.
Mr. Marshall’s Outstanding Conviction At The Time Of The Murder
[26] On May 22, 2015 Mr. Marshall went to the apartment door of a man he knew. The man knew Mr. Marshall as “Hustle”. Mr. Marshall forced his way into the apartment and attacked the man. He beat the man on the head and choked him. He took two gold chains from the man. Mr. Marshall was arrested and charged with robbery. On July 6, 2015 Mr. Marshall pleaded guilty to simple assault before Hall J. of the Ontario Court of Justice. Crown and defence joined in a submission for a further three months incarceration in light of pre-sentence custody.
[27] Justice Hall, who is well known for his humanity and compassion, was not prepared to treat Mr. Marshall as just another cog in the criminal justice machine, especially after hearing that Mr. Marshall really wanted to get himself together and go back to school. He found Mr. Marshall’s record troubling. He wanted to give Mr. Marshall a chance to get his life back on track, which was what Mr. Marshall suggested he wanted to do. Mr. Marshall told Justice Hall – as he had told Justice Otter – that he wanted to back to school. Justice Hall granted Mr. Marshall bail and deferred sentencing in order to see whether Mr. Marshall was able to pull himself together in the ensuing months.
[28] Mr. Marshall came back before Justice Hall in September 2015. He had done little except register for some classes at that point. Sentencing was deferred again. Unfortunately, Mr. Marshall did not pull himself together during that time period. Instead, he murdered Ms. Tetsos in November 2015. Mr. Marshall came back again before Justice Hall in December 2015. At that point, he was facing the murder charge. Justice Hall concluded that Mr. Marshall had not taken the opportunity he was given, and sentenced him to a further period of incarceration and probation.
Conclusions On The Character Of The Offender
[29] Mr. Marshall is a troubled young man with a history of mental illness, substance abuse, and violence. He has shown no regard for court orders. He has continually made promises to change his life and improve his circumstances. Those promises have largely not been kept. I understand that he has completed courses while in custody, and under very difficult circumstances – segregation, lockdowns, and mental illness. Nonetheless, when given opportunities out of custody, he has repeatedly squandered them. His violence escalated to the point where he committed murder. I do not want to give up on Mr. Marshall given that he is a young man, but I must reluctantly conclude that his prospects for rehabilitation are poor.
(b) The Nature Of The Offence And The Circumstances Surrounding Its Commission
[30] Stella Tetsos was 82 years old in November 2015. She lived alone in the family home where she and her late husband had raised their family. She was a beloved mother and grandmother. She was frail and lived with diabetes but she still lived an active life. She gardened, she ran many of her own errands, and although she had help from a personal support worker she lived independently.
[31] Sometime between the evening of November 9 2015 and November 11 2015, Mr. Marshall broke into 68 Elfreda Avenue, the home of Stella Tetsos. Mr. Marshall says that he panicked and only hit her a few times. He testified that he did not intend to kill Ms. Tetsos. The jury clearly rejected that testimony and for good reason: the beating was ferocious.
[32] After Mr. Marshall finished beating Ms. Testsos, he proceeded to ransack the house and to rob it. He also cut the telephone lines so that in the unlikely event she was able to reach a telephone, she could not call for help. Mr. Marshall helped himself to some cans of pop, and drank them as he ransacked the house and Ms. Tetsos lay dying in the basement. When the police later arrested him he was in possession of Ms. Tetsos’s jewellery.
[33] I agree that Mr. Marshall did not intend to kill Ms. Tetsos when he entered the home, that the killing was not planned and deliberate, and that Mr. Marshall did not exploit a position of dominance. My ruling on the directed verdict application sets out my conclusions: R. v. Marshall, 2020 ONSC 7082. That ruling only deals with Mr. Marshall’s intent. His moral culpability is another matter entirely. His moral culpability is at the high end of the spectrum. Mr. Marshall, a strong young man, callously and brutally murdered Stella Tetsos. This crime calls for a significant denunciatory sentence.
(c) The Jury’s Recommendation
[34] The jury unanimously recommended that Mr. Marshall’s period of parole ineligibility be set at 10 years. As with all second-degree murder cases, the jury was asked to deliberate immediately after announcing their verdict in the courtroom. They were given no further information about Mr. Marshall’s background.
[35] The defence position is that the jury’s recommendation should play a significant role in setting the period of parole ineligibility. The jury had sympathy for Mr. Marshall’s plight and accepted his testimony in that regard. The jury must have believed that Marshall did not break into and enter Ms. Tetsos’s residence with a plan to kill her. Finally, the defence argues that the jury likely accepted Mr. Marshall’s expression of remorse.
[36] I agree that it is quite possible to characterize the jury’s recommendation as the defence suggests. At the time of the Corbett application I said the following at para. 30 about Mr. Marshall and his record:
I am not entirely convinced that the jury will look at Mr. Marshall's record and find that he is a hardened criminal who lives a criminal lifestyle and is therefore more likely to have the intent to commit murder. It is also possible that the members of the jury, being a cross-section of major urban population, are well acquainted with the systemic racism and difficulties faced by Aboriginal youth. The jury are aware that Mr. Marshall is Aboriginal. There was a challenge for cause based on his Aboriginal status. It is possible that rather than assuming that Mr. Marshall is a hardened criminal, they will use a very different kind of reasoning. The jury may well look at Mr. Marshall's record and assume that it is the product of a troubled and difficult upbringing. Unfortunately, the difficulties faced by Aboriginal youth are not unknown in this country: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128 at para. 58; R. v. Gladue, [1999] I S.C.R. 688 at paras. 67-69. In Gladue at para. 67 the Court described these difficulties as "well known”… Williams was 21 years ago. Gladue was 20 years ago. It is just as possible that Mr. Marshall's record will engender some sympathy.
[37] The jury’s recommendation, however, is not controlling: R. v. Salah, 2015 ONCA 23 at para. 271. As Watt J.A. pointed out at paras. 272 and 273 of that case, jury instructions on parole eligibility are brief. Jurors are not instructed about the purposes and principles of sentencing, sentencing ranges, or the factors that a sentencing judge must ordinarily consider. Moreover, the jury has an incomplete picture of the offender. I would add that jury deliberations on parole recommendation usually come after prolonged, emotional, and exhausting deliberations.
[38] That was the case here. The jury knew little of Mr. Marshall’s criminal record. They had no idea that he had been convicted of breaking into another woman’s home, ransacking it, and then committing an aggravated assault. They had no idea that he was on bail for another assault in a man’s home. They received a highly sanitized version of his record. They had deliberated for a lengthy period of time before deliberating on parole eligibility. Respectfully, I cannot give the jury’s recommendation much weight.
3. POSITIONS OF THE CROWN AND DEFENCE
[39] The Crown’s position is that Mr. Marshall’s period of parole eligibility should be set at 18 years. Mr. Marshall is a repeat offender. This is hardly his first violent offence. Indeed, he had recently been convicted of assaulting another elderly woman during the course of a home invasion and was on bail for another assault when he killed Ms. Tetsos.
[40] The defence position is that Mr. Marshall’s parole eligibility should be set at 10 years. He has a lengthy and unfortunate history of mental illness and drug abuse. He has suffered significant racism as a result of his Aboriginal heritage. The principles in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 should apply. In addition, he should receive credit for the lengthy amount of time he has spent in lockdown and in segregation.
[41] Crown and defence counsel filed numerous parole eligibility cases. I need only refer to a few.
[42] The defence relies on R. v. Pandurevic, 2013 ONSC 3323. The offender and the victim were mutually hostile. The offender attacked the victim on an elevator. The victim defended himself, and in the course of the fight the offender stabbed him fatally. MacDonnell J. described the murder as out of character for the offender, who had no criminal record. MacDonnell J. imposed the minimum 10-year period of parole ineligibility.
[43] The defence also relies on R. v. Smith, 1993 CarswellOnt 1863, 63 O.A.C. 181. The offender, with a confederate, committed a “senseless and savage” murder. The offender was 22 years old. He had a record of property offences committed when he was 16, but no other record. The trial judge imposed a period of parole ineligibility of 14 years. The Court of Appeal, noting that the trial judge had failed to consider the offender’s prospects for rehabilitation, lowered the period to 10 years.
[44] Pandurevic and Smith arguably represent the lowest level of moral blameworthiness for second-degree murder. As well, the offenders did not represent an ongoing threat. In contrast, attacking a person in their home and beating them severely is very much in character for Mr. Marshall. I do not agree that those cases are on point.
[45] The Crown relies on R. v. Weese, 2016 ONCA 449. The offender and one Reddick had an altercation at a Toronto bar. The offender believed that Reddick had touched his girlfriend. He left the bar and came back with a gun. He fired 14 founds at people outside the bar. An innocent bystander died, and five other people were hit. The offender had a lengthy criminal record that included crimes of violence and a previous shooting. The trial judge, Benotto J. (as she then was) found that the offender showed “no possibility of rehabilitation, a complete disregard for court orders, and possesses a significant risk to the safety of the public.” She imposed a period of parole ineligibility of 22 years. The Court of Appeal noted that the shooting was a “very serious and violent crime” and upheld the sentence.
[46] The Crown also relies on R. v. Brunet, 2010 ONCA 781. Karakatsanis J.A. (as she then was) described the crime: “This was a brutal, vicious, violent murder. The appellant entered through the window of a basement apartment and raped, beat, and strangled an 81-year old woman in her home.” The offender was young, had no criminal record. He claimed that he had amnesia and had no recollection of the attack, although his fingerprints and DNA were found at the scene. He was young, had health problems (although no psychiatric conditions) and no criminal record. The Court of Appeal reduced the period of parole ineligibility from 20 years to 16 years. In doing so, Karakatsanis J.A. stated at para. 20:
Where a particularly egregious offence is coupled with the most aggravating of offender characteristics such as a history of violence and a high risk of recidivism, the uppermost range of 20 to 25 years will be appropriate.
[47] In my respectful view, cases such as Brunet and especially Weese have much more application to Mr. Marshall. The description of Mr. Weese as a violent offender with limited prospects of rehabilitation, a history of disregarding court orders and high risk to the safety of the public unfortunately applies to Mr. Marshall. Crown counsel’s submission of 18 years is well within the range.
4. CREDIT FOR PRE-SENTENCE CUSTODY AND THE CHARTER APPLICATION
[48] Mr. Marshall was arrested on November 12, 2015. His period of parole ineligibility runs from that date. Thus, he had been in custody for almost five years.
[49] Mr. Marshall has spent a cumulative total of 27 months in segregation while in custody. He went into segregation immediately upon admission and stayed in segregation for 8 months. He was then out for 11 days and then sent back into segregation for a further 7 months. I set out the time spent in segregation in the following table:
| Start Date | End Date | Total Time |
|---|---|---|
| November 13, 2015 | July 4, 2016 | 8 months |
| July 17 2016 | February 13 2016 | 7 months |
| March 9, 2017 | March 13, 2017 | 4 days |
| March 30, 2017 | April 11, 2017 | 12 days |
| May 29, 2017 | July 3, 2017 | 1 month (approximate) |
| September 1, 2017 | November 1 2017 | 2 months |
| January 9, 2018 | February 8, 2018 | 1 month |
| March 27, 2018 | May 10, 2017 | 1 ½ months (approximate) |
| July 8, 2018 | July 12, 2018 | 4 days |
| July 21, 2018 | August 8, 2018 | 17 days |
| January 17, 2019 | January 21, 2019 | 6 days |
| July 3, 2019 | July 4, 2019 | 1 day |
| August 7, 2019 | January 5, 2020 | 5 months |
[50] Mr. Marshall filed an affidavit setting out some of the detrimental effects of segregation or the “stabilization” unit. During the first four years or so in the Toronto East Detention Centre he spent about half of his time in segregation or the stabilization unit. The evidence persuades me that there is no meaningful difference between segregation and the stabilization unit. Mr. Marshall described the regimen:
While in segregation, I would often spend virtually the entire day locked down and alone in my cell. Being constantly confined in my cell meant that I often did not get any meaningful human contact, would often miss my daily showers, would not get access to the phone or get access to yard time. This exacerbated the feelings of loneliness and despair since I could not reach out to my lawyer, family or friends for any kind of emotional or legal support. In addition to this lack of support, I was also left on my own by the fact that I was not able to access any rehabilitative programs during my time in segregation which would have greatly improved my mental health. I also did not receive any visits from any doctors, nurses, psychiatrist or other support workers during my time in segregation.
My time in segregation had severe negative impacts on my mental health. Prior to my arrest I was already suffering from the previously mentioned mental health issues. However, my time in segregation increased the severity of the symptoms normally associated with these mental health issues. I constantly felt that I was going to lose my mind. I often had suicidal thoughts and engaged in self harm. I once attempted to take my own life. In addition to suicidal thoughts, I also began to experience auditory hallucinations during my time in segregation as a result of my lack of human contact.
[51] Mr. Marshall then went on to describe the lack of fresh air, access to yard time, or access to the shower.
[52] I have some doubts about whether Mr. Marshall is a particularly accurate historian, given his history of malingering. I do, however, accept the thrust of his evidence: being placed in segregation for such lengthy and extended periods of time has been highly detrimental to his mental health.
[53] Crown counsel argued that there was no s. 12 violation because Mr. Marshall was the author of his own misfortune. Institutional records from the Toronto East Detention Centre show that he was charged with institutional misconducts on 25 occasions between December 28, 2015 and September 25, 2019. He was found guilty of 19 of those misconducts. Some of the misconducts involved using racial epithets on correctional officers; throwing urine at correctional officers; or assaulting other inmates. Crown counsel asks a reasonable yet difficult question: what, exactly, were the jail authorities supposed to do with an ungovernable inmate like Mr. Marshall?
[54] The answer to that question is not obvious, of course, but I cannot agree that 27 months in segregation, some of it for months and months at a time, is justified. Mr. Huberman, counsel for Mr. Marshall, called the amount of time that Mr. Marshall has spent in segregation “shocking, deplorable, and unconscionable.” I agree. It is shocking, deplorable, and unconscionable. Little analysis is required to find that the authorities violated Mr. Marshall’s s. 12 rights. Dostoyevsky supposedly once said that “the degree of civilization in a society can be judged by entering its prisons.” There is some controversy about whether Dostoyevsky – who knew a thing or two about spending time in prison – actually said it. There is no controversy that the sentiment is widely shared. Judging by the Dostoyevsky standard our society has failed miserably with Mr. Marshall.
[55] Section 12 of the Charter states that “everyone has the right not to be subject to any cruel and unusual treatment or punishment.” Segregation may or may not have been a punishment; undoubtedly it was a treatment: Ogiamien and Nguyen v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667 at para. 7; Canadian Civil Liberties Association v. Attorney General of Canada, 2019 ONCA 243 at para. 85.
[56] Treatment or punishment violates s. 12 of the Charter where it is grossly disproportionate to the punishment that is appropriate: R. v. Lloyd, 2016 SCC 13 at para. 22. Violations of s. 12 are rare. It is a high bar to meet. The punishment or treatment must be more than merely disproportionate or excessive. Rather, "[i]t must be 'so excessive as to outrage standards of decency' and 'abhorrent or intolerable' to society”: R. v. Boudreault, 2018 SCC 58 at para. 45.
[57] A court must follow a two-step approach in evaluating whether a punishment violations s. 12. The court first determines a proportionate sentence; the court then asks whether the punishment is grossly disproportionate compared to a fit sentence or a reasonable hypothetical offender: Boudreault at para. 46. As Benotto J.A. stated in Canadian Civil Liberties Association at para. 92, “the proper comparison is between the actual treatment against what would be appropriate in the circumstances.” A sentencing judge therefore considers the effects of segregation against incarceration in a regular prison range: Canadian Civil Liberties Association at para. 97.
[58] In Ogiamien and Nguyen, the applicants were subject to frequent lockdowns at Maplehurst Correctional Complex, a remand facility. Ogiamien was being held on an immigration warrant; Nguyen was detained pending trial. If the lockdowns were grossly disproportionate to normal conditions, then a violation would have been established: para. 10.
[59] In Canadian Civil Liberties Association, the CCLA challenged the constitutionality of the administrative segregation provisions of the federal Corrections and Conditional Release Act. Those provisions permitted the correctional authorities to place inmates in administrative segregation. The warden of an institution (or his or her delegate) could order a prisoner into segregation. The prisoner stayed in segregation until the warden ordered the prisoner back into the general population. In other words, prisoners could be subject to indefinite solitary confinement. The legislation required that the Correctional Service issue regulations for regular detention reviews. The legislation also required that a registered health care professional visit an inmate in segregation once per day; and that the institution head visit the administrative segregation area once per day and meet with prisoners upon request. The weight of the evidence, however, was that prolonged segregation “exposes inmates to a risk of serious and potentially permanent psychological harm”: CCLA at para. 99.
[60] Benotto J.A. for the Court held that the appropriate standard was expressed in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). The “Mandela Rules” hold that no one should spend more than 15 days in segregation. The Mandela Rules also hold that segregation should be “used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review:” see para. 23. Benotto J.A. also found that prisoners with mental illness should not be placed in segregation at all. There was, however, no medical evidence about the types of mental illness that would be exacerbated by segregation. She left open the prospect of a separate rule for those with mental illness, and simply relied on the 15-day cap.
[61] Prior to CCLA, the Ontario Ministry standard was that no one should spend more than 29 consecutive days in segregation. After CCLA, the Ministry adopted the 15-day standard.
[62] There have been multiple studies regarding the harmful effects of segregation. Several judges have taken judicial notice of the harm, and I agree with them. For example, in R. v. Roberts, 2018 ONSC 4566, Morgan J. stated the following at para 32:
In a report by the Ontario Ombudsman entitled "Segregation: Not an Isolated Problem", April 27, 2016, at para 40, the Ombudsman states that, "Segregation can have profoundly negative impacts on inmate health and welfare . . . In his three-year review of federal inmate suicides, the federal Correctional Investigator found that segregation is an independent risk variable for inmate suicide."
[63] Morgan J. then noted that Mara Greene J., in R. v. Burton, 2018 ONCJ 153, had taken judicial notice of the harm caused by segregation. He went on to state at para. 34:
I agree with that approach. In the record there is ample evidence from Mr. Roberts that the long term confining of him in segregation had serious psychological consequences for him. But even if he had not deposed to that fact, it could today be taken as a matter of judicial notice. One does not need an affidavit to say that a gunshot to the arm hurts the arm; likewise, one does not need an affidavit to say that over a year in segregation, with almost no yard or other recreational time and simply sitting alone in a small cell for up to 23 hours a day, will turn a person into himself and create anxiety in dealing with others. Of course Mr. Roberts was adversely impacted by spending 426 days in segregation.
[64] Those words could equally apply to Mr. Marshall. Dr. Gojer also noted the harm to Mr. Marshall from ongoing segregation.
[65] I accept the evidence of Sgt. Lawson that Mr. Marshall needed to be separated from the main jail population at least for a time for his own safety: a man accused of beating an elderly woman to death in her home would be in danger from other inmates. I also accept that Mr. Marshall presented an enormous challenge to the jail authorities. He is violent, anti-social, and suffers from serious mental health challenges. On the other hand, it is obvious that segregation made everything worse, and likely fuelled at least some of the behaviour that led to his misconducts.
[66] Let me be very clear: the time that Mr. Marshall spent in segregation is absolutely unacceptable. Time in segregation amounting to 5 months, 7 months, and 8 months is grossly disproportionate. A cumulative total of 27 months in segregation outrages standards of decency. I understand the difficulty of dealing with Mr. Marshall, and I am aware of the potential for malingering, but he so clearly presents as a person with mental health issues, even to this layman. He should have spent less, not more time in segregation.
[67] I also want to be very clear that whether Mr. Marshall received 20 minutes of fresh air every three days instead of every day; or whether he was denied access to the shower for four days instead of one; or even whether he had visits from his lawyer is simply quibbling over details. When I say “quibbling over details” I do not mean to diminish the importance of these things. Those things are very important. What I mean is that extended periods of segregation would still be a shocking and outrageous violation of standards of decency even if Mr. Marshall had received his daily yard time, shower, or visits.
[68] I have also examined the detention review records. Mr. Marshall’s detention was reviewed on a regular basis. As best as I can tell from the records, the reviews were perfunctory at best. Any meaningful review would have addressed the fact that a mentally ill prisoner was being warehoused in segregation because the authorities didn’t know what else to do with him. This treatment is also completely unacceptable.
[69] What is the remedy? Ordinarily, a trial judge may reduce a sentence to account spent for time in lockdown or segregation. In R. v. Duncan, 2016 ONCA 754, the Court of Appeal held that a sentencing judge can consider enhanced credit based on harsh conditions of pre-sentence custody. Several judges have reduced sentences for time spent in segregation. See, for example R. v. Prystay, 2019 ABQB 8; R. v. Roberts and R. v. Burton, previously referred to.
[70] The remedy of enhanced credit for a violation of s. 12 of the Charter is not available in a murder case. The sentence of life imprisonment is mandatory. Counsel have not referred me to any murder cases, and I am not aware of any, where parole ineligibility was reduced for time spent in segregation.
[71] It cannot be that there is no remedy for a violation of a right, particularly a gross violation of a fundamental right. That is a “basic tenet of our legal system”: Reference re: S. 94(2) of the B.C. Motor Vehicles Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 at paras. 35-37; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at para. 72.
[72] In R. v. Nasgaluak, 2010 SCC 6, the police received a tip about an impaired driver. The police found him and engaged in a high-speed chase. Eventually he stopped and the police forced the driver, Nasgaluak, out of his car at gunpoint. During the arrest one officer punched him while the other officer held him down. The use of force led to broken ribs and other injuries. The trial judge found that the actions of the police constituted excessive force leading to a violation of Mr. Nasgaluak’s s. 7 Charter rights. The trial judge granted a remedy under s. 24(1) of the Charter. He lowered Mr. Nasgaluak’s sentence below the mandatory minimum. A majority of the Alberta Court of Appeal dismissed the Crown’s appeal.
[73] LeBel J. for the Supreme Court agreed at para. 38 that the police use of force was excessive. It constituted a breach of s. 7 of the Charter. He also found that it was not necessary to invoke s. 24(1) of the Charter to reduce a sentence. Rather, in crafting an appropriate sentence a trial judge could take account of a Charter violation within the existing statutory sentencing framework. For example, a Charter violation may be treated as a mitigating factor. LeBel J. stated at para. 55:
Thus, a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach. Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn to the Charter for a remedy. However, if a Charter breach has already been alleged and established, a trial judge should not be prevented from reducing the sentence accordingly, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime.
[74] LeBel J. found that a sentencing judge could not, however, invoke s. 24(1) of the Charter to reduce a sentence below a mandatory minimum.
[75] Nasgaluak is not precisely on point. The Court was concerned with emphasizing that sentencing judges did not need to find a Charter breach in order to craft a fit sentence where there had been state misconduct. In any event, cannot reduce Mr. Marshall’s mandatory life sentence. Nonetheless, I think that the overarching concept in Nasagluak applies: a sentencing judge must have the tools to remedy a Charter violation or address other forms of state misconduct that do not rise to a Charter violation.
[76] R. v. Husbands, 2019 ONSC 6824, is also not entirely on point but is instructive. The offender was convicted of two counts of manslaughter and six counts of aggravated assault. Husbands had, notoriously, opened fire on two perceived enemies in the food court of the Eaton Centre in downtown Toronto. He had been found guilty of murder at his first trial but that verdict was overturned and a new trial ordered. Husbands had mental health issues, although not to the same degree as Mr. Marshall. He had spent some 7.5 years in custody including 529 days in segregation at the Don Jail and 140 days at the Toronto East Detention Centre. There do not seem to have been any segregation reviews. There was no evidence as to why he was placed in administrative segregation. B. O’Marra J. found a violation of s. 12 of the Charter based on the length of time in segregation. His remedy was not to subject Mr. Husbands to a half-time parole order on the aggravated assault counts, something he otherwise would have done.
[77] Mr. Marshall was also subject to frequent lockdowns. I am not prepared to find that the lockdowns constituted a violation of s. 12: Ogiamien and Nguyen at para. 6. I do agree that they added to the harsh conditions.
[78] Mr. Marshall spent approximately 27 months in total in segregation. I reject the notion that he deserved to be placed in segregation for extended periods because of his own misconduct. It will almost always be the case that an offender is placed in segregation for misconduct. Misconduct may or may not be a justification for constitutionally permissible periods of time in segregation of up to 15 days; it is no justification at all for months upon months spent in segregation with no meaningful review. See R. v. Roberts, at paras. 39-40. I will treat the s. 12 violation and the lockdowns as a mitigating factor and reduce his parole eligibility accordingly. I must, however, balance the remedy against the fact that Mr. Marshall remains a very dangerous and violent man and parole ineligibility must not be set too low. In my view, a reduction of 27 months is appropriate.
5. ANCILLARY ORDERS
[79] There will be the following ancillary orders:
• A DNA order pursuant to s. 487.051 of the Criminal Code;
• A prohibition order pursuant to s. 109 of the Criminal Code for life;
• A non-communication order with all members of the Tetsos family pursuant to s. 743.21 of the Criminal Code.
6. SENTENCE TO BE IMPOSED
[80] I agree with the Crown’s position that a period of 18 years of parole ineligibility is fit. Mr. Marshall is a violent and dangerous man with few prospects for rehabilitation. I am very much aware that as an Aboriginal person, Mr. Marshall has been subject to systemic racism all his life. As the Ontario Court of Appeal noted in Weese, however, at para. 26: “The Gladue principles do not apply in a mechanical fashion, nor do they require reductions in sentences for offences committed by aboriginal persons.”
[81] As both Crown and defence counsel agree, it is impossible to read of Mr. Marshall’s background without feeling a great deal of sympathy. I think it is fair to say that he has had no breaks in life. The song “Born Under A Bad Sign” by Albert Blake applies to Mr. Marshall: if weren’t for bad luck, he would have had no luck at all.
[82] Despite feelings of sympathy for Mr. Marshall and sadness at the social conditions that helped to lead us here, I cannot be blind to the danger he poses. When I balance all the factors I find that the protection of the public must take precedence. All of the evidence strongly suggests that another serious crime of violence would follow a release. I understand that some might feel that I am simply giving up on Mr. Marshall and letting him languish. In response, I simply say that there is an excellent chance that another innocent person will pay a heavy price if he is released too early.
[83] I also cannot be blind to the terrible circumstances of this murder, and the harm it has caused to the Tetsos family. They lost a beloved mother and grandmother in the most senseless and horrific way. Feelings of outrage and anger at the treatment of Mr. Marshall in no way reduces the horror and shock of the murder of Ms. Tetsos.
[84] I accept that Mr. Marshall was sincere when he told Justice Otter, Justice Hall, and me that he wanted to go back to school and that he wanted to be a productive citizen. What I do not accept is that he is capable of doing that, at least not at this point. Unfortunately, he has shown that no matter his intentions, he cannot seem to control his impulses and find the discipline to set himself on the right path.
[85] Mr. Marshall will, therefore, serve 15 years and 9 months before he is eligible for parole.
Released: September 8, 2020