COURT FILE NO.: CR 19-36
DATE: 2020-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
L. Brock, for the Crown Attorney
- and -
JOEL SCALZO
G. Goldlist, for the accused
HEARD: September 11 and 25, 2020
REASONS FOR SENTENCE
A.J. GOODMAN J.:
[1] On July 20, 2020, Joel Scalzo (“Scalzo”) plead guilty to count 1 in the indictment, namely, manslaughter, contrary to s. 236 of the Criminal Code. The matter went over to allow counsel to draft an Agreed Statement of Facts and to prepare for sentencing. The sentence hearing required an additional day to complete the evidence and submissions.
[2] The Crown seeks a jail sentence in the range of 13 to 15 years, less appropriate credit for pre-sentence custody, plus various ancillary orders.
[3] The defence submits that this court ought to impose a sentence of 8 years in jail less appropriate and enhanced credit for pre-sentence custody. Ms. Goldlist also provided calculations for the quantum of the credit for pre-sentence custody, to which the Crown has endorsed and accepted. There are no issue with regards to the ancillary orders requested by the Crown.
Circumstances of the Offence:
[4] An Agreed Statement of Facts was filed as an exhibit.[^1] Jeffery Maxner (“Maxner”) was killed on January 1, 2018. Some of the facts include the various text messages exchanged between Scalzo and the shared Oakes/Maxner cell phone on the day in question, leading up to the shooting.
[5] In the afternoon of January 1, 2018, Katrina Oakes (“Oakes”) arrives at the Rexall Pharmacy in Brantford in her silver 4-door Honda Civic. The various messages between the parties convey that the situation escalated to a point where Oakes was fearful for her safety, having received a text message at 4:54 p.m. from Scalzo, while she was waiting alone at the pharmacy. Subsequently, Maxner arrives at the scene and Oakes enters into his truck, on the driver’s side.
[6] Other SMS messages and phone calls were exchanged or left unanswered.
[7] At approximately, 5:35 p.m., an hour and fifteen minutes after the accused originally threatened to shoot Oakes and/or Maxner, Oakes exited the driver seat of Maxner's truck. She took a few steps away from the vehicle to look for her car keys that had fallen.
[8] At that time, Scalzo discharged a handgun towards the driver side of the truck and five shots struck the driver side of the vehicle with Oakes standing just a few feet away from the door. Maxner was still seated in the passenger seat of his truck. He was struck by single bullet. The cause of death was determined to be a single penetrating gunshot wound to the chest. Forensic evidence established that one of the bullets fired into the driver's side of the vehicle traveled through the rear driver side door and through the front passenger seat striking Maxner in the back and passing through the chest, causing significant fatal injuries to him.
[9] Scalzo did not intend to shoot either Oakes or Maxner, but rather to shoot at the vehicle.
[10] Scalzo fled the scene and he was arrested on January 4, 2018, for other offences. He was later charged for this crime and has been in custody since his arrest.
Victim Impact Statements:
[11] There were approximately 49 Victim Impact Statements (“VIS”) presented at this sentencing hearing. This was the most significant volume of VIS that I have ever encountered in such a hearing. To the extent possible, the courtroom was full of the deceased’s family members, friends and other supporters. I am advised that other family members, friends and supporters were congregated outside of the courthouse. Many others viewed the proceedings by Zoom videoconferencing.
[12] There is no doubt how Jeffrey’s death has affected countless people both within and without the deceased’s family. The deceased’s relatives and friends provided eloquent and very moving VIS in which they described how he, she or they were affected by this tragic event. Most expressed that they continue to suffer with the loss of Jeffrey.
[13] I have heard and re-read all of the VIS. As one can appreciate, however, I can only refer to a few of them in these reasons.
[14] Jeffrey’s mother, Joanne Maxner described the emotions she has felt by Jeffrey’s death with feelings of sadness for her and the family. She shared the memories she had of him. His cooking, fishing and being a gifted guitar player. She provided a very emotional VIS infused with stories of the family dynamic. She also expressed the sorrow of other persons affected by Jeffrey’s untimely death at the hands of the accused. Her son will be missed by her and all family members.
[15] Jim Maxner described the loss of his children’s uncle. This is shared by Erica Maxner who looks into her husband’s eyes and sees deep sorrow and pain. The profound sense of loss is also shared by Gabrielle.
[16] Amongst others, I was particularly moved by Crystal’s and Skye’s descriptive VIS. Ryan Sharland spoke to Jeffrey’s character; taking someone like him who was down on his luck and was homeless, and at the time, Jeffrey offering him a job and friendship. “In his eyes, Jeffrey saved his life”.
[17] Samantha Trickett writes: “ All I am left with now is hope. Hope that maybe one day the defendant will decide to turn his life around. Not harm another family and drag them into the chaos that he has chosen for his lifestyle. Hope that he will take his conviction as a sign to change his life and not wear it as a badge of honor. I Hope that he will take this third chance to do something good in his life that he gets to live.”
[18] Tyler MacDougall eloquently expresses that “I wish nothing more than to have him here putting a smile on my families’ faces. To be strumming his guitar and giving life to our houses. Filling us with love, laughter, and joy. But he's not. He will never be again. We love but it's broken. We laugh but it's off. There's joy but it's not full. Jeff will always be remembered and he will be celebrated but these tears will never fade.”
[19] Before I move on, and without taking anything away from the profoundly emotional and sincere comments referenced in the various VIS, I am unable to consider any of the statements therein with respect to what the various writers’ opine is the appropriate sentence.
[20] However, I want the family and friends to know that I am aware of the utter devastation caused by his death. No one in this courtroom could not help but not be moved by the heartfelt sense of bereavement and loss felt by Jeffrey’s mother, father, the immediate and extended Maxner family, uncles, aunts, many cousins, friends and other interested persons, all of which has been vividly described throughout this sentencing hearing. I have not failed to understand your pain and sorrow. Many of the letters, poems and diagrams are so very poignant. Frankly, I cannot begin to capture the emotive impact of all of the VIS and the very powerful words expressed by all those who provided their sentiments to this court.
[21] While Jeffrey can never be forgotten. After today’s proceedings, I do hope that there will be some sense of closure or an ability to move forward for the Maxner family, parents, siblings, aunts, uncles, cousins, relatives and friends.
Circumstances of the Offender:
[22] A Pre-Sentence Report (“PSR”) was completed. I have also been provided with numerous character references from Scalzo’s family and friends.
[23] Briefly, according to the author of the PSR, Scalzo had an “alright” upbringing. Apparently he was bullied as a child and this caused behavioral issues. Due to these behavioral and academic struggles, he was placed on medications and at the age of 13 discontinued his medication. Scalzo has had a limited employment history and from the age of 17 surrounded himself with people involved in the drug subculture. Scalzo claimed that all he wanted to be was successful and thought selling drugs would be the best avenue for him. Scalzo had a history of unhealthy relationships and has been convicted for domestic violence. Scalzo described one of his relationships as unhealthy, placing the majority of blame on the issues related to his partner.
[24] Scalzo reported that he started using marijuana at the age of 12 and it impacted him negatively. He started selling drugs at the age of 17, which included cocaine, while at the same time started using it. Scalzo claimed that he was no longer dependent on drugs after completing a custodial sentence at a treatment facility. His mother reported never witnessing her son using illicit drugs but he has admitted to her that he has struggled with them.
[25] The author of the PSR writes that Scalzo developed a pattern of offending related to violence domestic, violence drug possession weapon use. Scalzo admitted he continues to have a short fuse and is unsure why this is so. According to the accused and his mother, he was diagnosed with anxiety, depression and attention deficit disorder. However, as mentioned, since the age of 13, he has not taking any further medication. Mrs. Scalzo indicated that her son continues to struggle with anxiety.
[26] The probation officer writes that regarding his actions for the offence, Scalzo advised that he accepted responsibility, citing he pled guilty. He did, however, redirect the blame for the escalation of the situation and noted it was never his intent to harm anyone. He claimed that he was remorseful, stating he knew the victim personally and referred to him as a “good guy”. Overall, the PSR cannot be described as positive.
[27] Scalzo’s mother and father provided a sincere character reference. As loving parents, they continue to hope and love their son. Other family members and friends provided supporting letters that have been reviewed and considered.
[28] Although, it is readily apparent to me that many of these well-meaning individuals do not appear to really know the accused, his criminal antecedents or his lifestyle outside of the family setting. A few of Scalzo’s character references acknowledge his anger issues and other deleterious behaviour. Others do not. For example, one person writes “that Joel is a very kind generous and caring person, is not possible in my opinion that he could cause any harm to no one”. Several persons opine that it was the bad associations that had filtered into his life and lead Joel down a wrong path. Others hope that with proper support and guidance, Joel can be a good father and a better citizen to the community.
The Jurisprudence:
[29] Numerous cases were provided by counsel on the issue of the appropriate sentence to be imposed. I am satisfied that the ranges proposed by counsel are well within the diverse range of sentences that befall a conviction for manslaughter.
[30] Although the law is clear that each case turns on its own specific facts, generally, for manslaughter, the authorities provide for sentences from the low reformatory range to the high double digit penitentiary scale for this type of offence. In fact, there are some exceptional circumstances where some courts have provided for a non-custodial sentence for manslaughter, but that is extremely rare.
[31] Ms. Goldlist provided several cases in support of her position. All are distinguishable on their particular facts or the circumstances of the offender. Frankly, with defence counsel’s ultimate position on sentence, she did not emphasize both R. v. Sahal, 2016 ONSC 6864, and R. v. Wilson, 1991 CanLII 11817 other than for their overall guidance. I observe that both cases initially involved or stemmed from a charge of second degree murder and both accused had no prior criminal record. The other cases are also distinguishable, in particular R. v. Henderson, 2019 ABCA 223, where the accused entered an early plea, was an Indigenous accused and was segregated in the jail for 34 months.
[32] The Crown provided the case of R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966, where the Court of Appeal reduced a sentence of 14 years for manslaughter to 9 years. From my read of the brief endorsement, it seems that the original charge was murder. The aggravating factors included: the victim was frail and vulnerable and was attacked in his own home. The accused characterized himself going into a “pure rage” against a friend who had only slightly provoked him along with the devastating impact on the family of the deceased.
[33] In R. v. Carrift Jones-Solomon, 2015 ONCA 654, the appellant received a 13 year sentence. The original charge was first degree murder. The appellant was not the shooter and after trial was convicted of the lesser offence of manslaughter. This was a home invasion robbery with the accused and his associates entering the deceased’s apartment. The victim was physically beaten and eventually shot.
[34] In R. v. Warner, 2019, ONCA 1014, the appellant was originally charged with murder. The Court of Appeal reduced an 18 year sentence to 15 years on appeal for manslaughter. This case provides some details that are similar to the case at bar. The appellant and co-accused attended a house party. The appellant brought a gun as did the co-accused. A dispute arose at the party over a trivial issue, the kind of music that was played.
[35] A co-accused fired three shots, killing the victim and wounding another person. The appellant fired a shot that wounded another victim and was convicted of manslaughter as an aider. The aggravating factors included that firearms were used in acts of reckless and senseless violence. The victims were unarmed and targeted, the appellant had been prohibited from carrying a weapon. The appellant attended the party with a loaded firearm and his gun was never found. The appellant fled from the scene and then to another country. He had a criminal record for violence. The mitigating factors included that the appellant had no drug or alcohol issues and the appellant had significant family support.
[36] In R. v. Hanan, 2020 ONSC 1209, the accused received a 15 year sentence. Again, this was a case where the original charge was murder. The appellant was convicted of manslaughter after trial. The appellant intentionally and unlawfully shot two people, killing one and paralyzing the other. He did not act in lawful self-defence. He shot the deceased with a handgun that was illegal for him to possess.
[37] R. v. Reid, 2018 ONSC 7079, is another case where both the accused and his co-accused were charged with first degree murder. The jury returned a verdict of manslaughter in relation to Reid. The facts in this case are more aggravating, as the accused along with others, planned a robbery of the victim at his place of business. The victim was unarmed. One of the co-accused carried a loaded gun and shot the victim which resulted in his death. The accused was convicted by a jury of manslaughter on the basis of being an aider. The accused had a significant criminal record for crimes of violence, robbery and possessed a firearm while being subject to a mandatory weapons prohibition order. He received a 15 year sentence.
[38] In R. v. Jiwa, 2011 ONSC 4071, after a trial on a charge of first degree murder, the jury convicted the accused of manslaughter. The accused had no prior criminal record, however at the time of the offence he was on bail. The trial judge reviewed the aggravating factors. In mitigation, the accused was only 19 years old when he killed the police officer and had strong family and community support with integration back into society. He expressed some degree of remorse. The judge imposed a jail sentence of 12 years.
[39] In R. v. Cheveldayof, 2018 ONSC 6154, the accused was facing a second degree murder charge and plead guilty to manslaughter. The Crown did not accept the plea. However, after trial, the jury returned a verdict of manslaughter. The facts of this case are more egregious than the case at bar. The accused approached a donut store and encountered three men standing outside the door. All exchanged words with each other. When the accused tried to exit the store he was blocked by the same men outside the door. A fight ensued. Eventually the accused pushed the victim away. As the victim was walking away the accused produced a gun and shot him six times in the back, killing him. The accused’s rehabilitation prospects were very poor based on his criminal record, offending while on bail, and carrying a loaded gun while prohibited. The judge found that the case was one that was close to murder: at para. 60. The accused had been involved in two previous robberies on strangers with the use of a knife. He had a lengthy and unenviable criminal record. There were few mitigating factors. The accused received a 16 year jail sentence for manslaughter.
[40] I note that Akhtar J. in Cheveldayoff referred to other cases, in particular at para. 30. In R. v. Docherty, 2010 ONSC 3603, the accused was convicted of manslaughter for killing the victim by stabbing him several times. He received a 12 year sentence. In R. v. Gill, 2010 ONSC 2598, the accused shot and killed the victim at an engagement party after the victim had struck him in the head with a bottle during a fight. The offender was sentenced to 10 years imprisonment for manslaughter.
[41] Appellate courts have recognized some general ranges for offences of this nature. It has been suggested that the usual range of sentence for aggravated manslaughter is in the range of 8 - 12 years: R. v. Hong, 2016 ONSC 2654, at para. 110; R. v. Jones-Solomon, 2015 ONCA 654, at paras. 82-83; R. v. Grattan, 2011 BCSC 217, at para. 38; R. v. Devaney, 2004 CanLII 11337, [2004] O.T.C. 230 (S.C.), aff’d (2006), 2006 CanLII 33666, 213 C.C.C. (3d) 264 (Ont. C.A.); R. v. Norman, [2005] O.J. No. 1073 (S.C.), at para. 81; R. v. Tsega, 2017 ONSC 2256, at para. 18.
[42] While some of the authorities suggest such a range for aggravated manslaughter, I refrain from categorizing this case. As stated by the Court of Appeal and cited by other jurists, it is not always useful to attach a label to a subcategory of the offence. Adding a descriptive label to a set of facts within the defined offence adds a level of complexity to the sentencing exercise.
[43] Although quite useful, sentencing ranges are guidelines and are not meant to be fixed or inflexible. As stated by Moldaver, J.A. (as he was then) in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 33:
The ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.
[44] In considering these cases and the jurisprudence generally, I can only conclude that the range of penalty is very broad. While I have guidance from Hong and related cases, the sentence to be imposed must reflect the circumstances of the offence and offender, bearing in mind the specific mitigating and aggravating circumstances present in this case.
Discussion:
[45] The court is guided by the principles of sentencing as set out in ss. 718 and 718.2 of the Criminal Code.
[46] As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a peaceful and safe society by imposing just sanctions that reflect enumerated objectives. Those objectives, relevant to this case, are clearly denunciation of the unlawful conduct, deterrence of other potential offenders and rehabilitation of Scalzo. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
[47] Section 718.2 addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. I have also considered all of the other principles listed in ss. 718 to 718.2 of the Code. While rehabilitation is always a consideration, the appellate authorities provide that denunciation of the unlawful conduct is a very important consideration.
The Mitigating Factors:
[48] Scalzo has a few factors working in mitigation. His family background, and “alright upbringing”, albeit growing up with bullying at a young age and recognized behavioural issues. Scalzo is still a relatively young man.
[49] Scalzo has support of his family, in particular his mother, and some close family friends. Although as mentioned, some of these individuals seem to have a limited awareness of Scalzo’s criminal antecedents.
[50] In the PSR, the accused claims, to use the vernacular, that he sees the light. According to the PSR, Scalzo described the event as eye-opening and felt certain people, such as himself, need to find a certain path to figure things out. He indicated that he wants to get out of his lifestyle that he's been in for many years.
[51] Although as Mr. Brock points out, after all of his previous crimes of violence and periods of incarceration, does it take a killing for an awareness to come to fruition or to realize that one’s behaviour needs serious modification?
[52] Another mitigating factor is that Scalzo has plead guilty to a very serious offence. In my view, a plea of guilt is a significant mitigating factor, as it demonstrates some remorse and acceptance of responsibility for the misconduct. While this plea arrives at a later stage in the proceedings, after the preliminary inquiry, I still accept it as a mitigating factor as it avoids the necessity of a trial.
Aggravating Factors:
[53] In this case, there are many aggravating factors.
[54] First, the accused’s prior related criminal record. Scalzo’s record commenced in 2010 and continued up to the date of this incident. His record is replete with convictions for theft, possession of controlled substances, carrying concealed weapon, forcible entry and unauthorized possession of a weapon. In February, 2013, he was convicted of aggravated assault, assault with a weapon and failing to comply with probation. The facts of that proceeding were filed with this court. Scalzo received an 18 month jail sentence.
[55] On October 5, 2018, in relation to this incident, he was convicted of unauthorized possession of a prohibited or restricted weapon and possession of a Schedule 1 drug for the purposes of trafficking, and received the equivalent of a lengthy reformatory term based on a time-served disposition.
[56] Not an enviable record. Escalating over time, with a degree of seriousness towards violence. It is not lost on me that just a few years prior to this event, Scalzo was sentenced for crimes of violence with weapons and/or firearms. Firearms are no stranger to this accused.
[57] Moreover, previous court orders prohibiting Scalzo from possessing or owning weapons or firearms appear to have no effect on his behaviour. They are all but disregarded.
[58] The lack of addressing his anger or violent behaviour and underlying issues, despite having already been sentenced for crimes of violence, seems to be of either no utility or not pursued.
[59] I am advised that Scalzo committed various misconducts whilst in jail awaiting disposition for this case. Six of them in total, with the majority related to assaultive behaviour. Scalzo attempted to explain his conduct in jail in his comments to me, which I will address in a few moments. As Mr. Brock points out, the last misconduct for assault on another inmate was in Hamilton Wentworth Detention Centre, a mere 5 days after entering the plea before me in July 2020.
[60] The offence itself. Scalzo used language in text messages implying the use of a gun to cause bodily harm and later implying death by putting the victim in a box to settle a trivial, irrelevant dispute about being bothered by text messages/phone calls on New Year’s Eve. The accused took part in a plan to meet at a local pharmacy in a very busy part of Brantford adjacent to a hospital at a time where there would likely be pedestrian traffic.
[61] The accused arrived at the pharmacy discreetly out of sight of Oakes but sending a text message meant for the victim’s eyes to the effect that he has observed his girlfriend alone at the pharmacy. This message is actually read by Oakes who immediately became worried that she was being watched by the accused.
[62] Eventually, both Maxner and Oakes were waiting for the accused to arrive at the pharmacy as planned, when suddenly the accused appears and fires five rounds from a gun into the truck with Katrina standing inches away from the driver’s door. Both Oakes and Maxner were unarmed.
[63] Scalzo sent self-serving text messages mere moments after the shooting implying that he changed his mind and wasn’t attending the pharmacy.
[64] No doubt, a serious aggravating factor is Scalzo’s use of a loaded firearm in a public place. The Brantford Police never located the firearm. A continuation of using illegal guns by a person cannot help but draw a greater concern for a serious sentence to a person in Scalzo’s position. Denunciation of violent conduct coupled with the use of an illegal gun becomes an important part of the sentencing process. Such denunciation sends a message to both the offender and the public at large to deter such unlawful and dangerous conduct.
[65] As Mr. Brock submits, Scalzo was sentenced to 18 months for aggravated assault, another very serious, violent offence wherein he had stabbing two individuals outside a bar. From the transcript of the proceedings, Coroza J. as he then was, opined that the sentence was at the extreme low end of the range. I agree entirely. But for the joint position, there is little doubt in my mind that the 2013 sentence for aggravated assault would have been served in the penitentiary. In his statement to me, notwithstanding his prior conviction, Scalzo claimed that he was jumped by others and it was self-defence. Again, it appears that he did not learn from that experience and subsequent convictions.
[66] Again, in returning to the PSR, the probation officer opines that Scalzo is a 31 year old recidivist offender with a criminal record consisting of violence. Over the years Scalzo's criminal activity has continued to escalate and custodial community sentences have not been a deterrent. He has further been afforded the opportunity to participate in treatment and counselling and custodial community settings. However, it is evident that it has not curbed his lifestyle choices. The subject has established a longstanding issue of unwillingness to show weakness and has ongoing struggles with impulsivity, violence, lack of problem solving skills, substance abuse and criminality. I agree with this assessment.
[67] Scalzo indicates that he is fully intending to seek the appropriate counselling. There is some information that gives rise to supports in the community. Yet, I am not entirely convinced that Scalzo is going to follow through with his stated intention. These may be just hollow words as Scalzo has not demonstrated any insight into his conduct to overcome in his behavioural issue and reintegration back into society.
[68] Scalzo asserts that he didn’t even know that Maxner was in the truck. From the text messages in the ASF and the timing of the events leading up to the shooting, I am not entirely persuaded that the accused did not know that Maxner was situated either in the pickup or, at least, in the vicinity of the truck.
[69] As I mentioned a moment ago, a plea of guilt is a sign of remorse and acceptance of reasonability. There appears to be some expression of remorse and Scalzo has also shown some contrition by virtue of the comments in the PSR and his statement to the court and to those family members assembled in the courtroom and elsewhere.
[70] However, one may remain skeptical as to its genuineness. His comments to the probation officer appear to deflect the responsibility for his actions. His comments to me and to the family in court, while expressing the right words were, to some extent, shifting the blame to others, “being caught up in a life”, loosing himself with drug addicts and drugs for so long. He wanted to explain away his misconducts while in the jail. Scalzo stated that shooting at the truck was reckless and irresponsible. He claimed that “it was an overreaction and immature, a single act of foolishness”. He was angry and confused from consuming drugs and alcohol the night before”. He stated that “he went there with the intention to give Katie a wake up call”. He figured that she was alone. He saw her crouched outside the driver’s side door and he pointed the gun away from her, yet aimed at the front of the drivers side to the back of the truck. “Jeff was not supposed to be there”. Scalzo stated that he shot a truck and “that is just the reality of the situation, it is was it is”.
[71] While I must be careful not to place inordinate weight on his comments, in my opinion, Scalzo’s lack of insight into his conduct is unmistakable. Overall, his presentation to me in court was less than convincing as to his sincerity and acceptance of responsibility for his actions.
[72] Before moving on, I feel obliged to address another matter. Several authors in their respective VIS criticized defence counsel’s conduct in representing her client during the course of the preliminary inquiry. While I appreciate the emotional impact of this situation, I say to those persons that any and all criticism raised against Ms. Goldlist is entirely misdirected and unfounded.
[73] Moreover, in their respective VIS, several individuals expressed their dissatisfaction about the potential sentence to be imposed. Others stated in court or wrote comments such as a “Life for a life”. Many victims urged a sentence of life imprisonment, offered their suggestions about maximum sentencing considerations, or robust remarks related to retribution. Those statements tend to go beyond the scope of VIS in criminal sentencing proceedings.[^2]
[74] I feel compelled to address these comments in two respects.
[75] First, it may be of little comfort, but a plea to manslaughter, unlike a plea to murder, does not automatically invoke a life sentence. While I mentioned earlier that the offence of manslaughter has perhaps the widest range of carceral terms available in the Criminal Code and related jurisprudence, it is exceedingly rare to ever impose any sentence even close to life imprisonment for this offence.
[76] Second, the accused plead guilty to manslaughter. Such plea was accepted by the Crown. The intent or state of mind required to commit murder is not established. In this case, given the overall range proposed by both Crown and defence counsel in this case; namely, a jail term of between 8 and 15 years, along with the relevant jurisprudence, Scalzo’s ultimate sentence will not be anywhere close to a life sentence.
[77] That does not mean that I am not cognizant of the angst and sadness felt by Maxner’s family and friends.
[78] However, I am guided by the principles that I mentioned earlier in this judgment. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court of Canada stated at para. 57:
The ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.
Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge. (R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24)
[79] As Watt J., as he then was, opined in R. v. Browne, [2002] O.J. No. 900, at para. 17:
The criminal law does not restore life. The objectives, principles, and factors that govern the imposition of sentence are not meant to represent the value of the life that has been unlawfully taken. They are designed to reflect the moral blameworthiness of the person who commits an offence and the gravity of the offence, so far as the law is concerned, that he or she has committed.
[80] I am mindful of the comments in Jiwa, at para. 34:
In sentencing an offender for manslaughter, the principles of denunciation and deterrence, both general and specific, are paramount. Rehabilitation cannot be ignored, particularly for a young first offender, but it assumes a subordinate role in manslaughter cases. Society must express, through the courts, its abhorrence of the criminal conduct involved in the taking of a life by an unlawful act. Additionally, it must be made clear to the community, as well as to the offender, that the taking of a life by an unlawful act will incur a significant penalty. Vengeance, however, is no part of the sentencing calculus.
[81] While it falls within the general range for this offence, with respect, I conclude that the defence position would not address the relevant principles and purposes of sentencing in this case as set out in Part XXIII of the Criminal Code.
[82] Overall, I am persuaded by the Crown’s submissions as to the appropriate disposition on sentence, with a qualification. Recall that the Crown seeks a jail term that lies beyond the guideline or range for similar cases as discussed in Hong and other jurisprudence.
[83] I have reviewed the authorities provided by Mr. Brock in support of his position. Most, if not all, of these cases where jail sentences were imposed by the trial judge or endorsed by the Court of Appeal, that fell beyond the 8 to 12 year guideline for manslaughter, involved an original charge of either first or second degree murder. Indeed, in those cases it was only after a trial, where an accused or appellant was convicted of the lesser offence of manslaughter. That is not a consideration found in the case at bar.
[84] As alluded to earlier in these reasons, when I consider the particular circumstances of this offence and of the offender, denunciation of the unlawful conduct is paramount. As Lamer C.J. stated in R. v. M. (C.A.), 1996 CanLII 230 (SCC), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 81:
Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code..
Disposition:
[85] In conclusion, the sentence that I impose now is not intended as a measure of the value or worth of Jeffrey Maxner’s life or the impact of his tragic death on all those who love him and are close to him.
[86] Sentencing remains an individualistic process requiring a careful exercise of judicial discretion. If a judge is considering going towards the high end of a well-established guideline or range, or even beyond it, there must be a measured and articulable reason for doing so. In this case, all of the prominent aggravating factors are an indication that specific deterrence and denunciation are required at a high level.
[87] In balancing the aggravating and mitigating factors and considering all of the relevant principles of sentencing for this offender and this offence, I impose the following disposition.
[88] Scalzo is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code.
[89] A s. 109 order is imposed for life. Again, Scalzo is prohibited from owning or possessing weapons, prohibited devices, prohibited ammunition, restricted firearms and a whole host of other devices and weapons, as defined in the Criminal Code, and will be listed in the order.
[90] A s. 743.21 order is made with respect to certain members of the deceased’s family. A list of names is to be provided by the Crown to the Registrar to be included in the order.
[91] I conclude that a fit and appropriate sentence in this case is a term of imprisonment of 13 years.
[92] Pre-sentence custody and the appropriate credit is to be applied in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575 and its progeny. Included in the calculus are the lockdowns at the jail and the overall situation in the institution during the current COVID-19 pandemic. The parties have agreed that the appropriate credit for pre-sentence custody is 44 months.
[93] Therefore, the warrant of committal shall be endorsed to reflect that Joel Scalzo is to serve 9 years and 4 months in a federal penitentiary.
A.J. GOODMAN J.
Date: October 7, 2020
COURT FILE NO.: CR 19-36
DATE: 2020/10/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JOEL SCALZO
REASONS FOR SENTENCE
A. J. GOODMAN, J.
Date: October 7, 2020
[^1]: With no disrespect intended, for ease of reference, I employ the surnames of the various parties throughout this ruling.
[^2]: Criminal Code, s. 722(8).