COURT FILE NO.: 15-4953
DATE: November 16, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
K. Malkovich, for the Crown
- and -
Joshua Barreira
M. Moon and L. Gensey, for Mr. Barreira
SENTENCING HEARING: October 1, 2020
The Honourable Mr. Justice H.S. Arrell
REASONS FOR SENTENCE
INTRODUCTION:
[1] The Defendant entered a plea of guilty to the charge of manslaughter before me on August 6, 2020. An agreed statement of facts was read into the record and acknowledged and signed as true by the defendant. I found him guilty; and he was before me on October 1, 2020 for his sentencing hearing.
[2] The defendant is before me today for sentencing.
FACTS:
[3] On November 30, 2013 in the Hess Village district of the City of Hamilton, Tyler Johnson was shot and killed. Three individuals were charged including the defendant. Ultimately it became clear that the defendant was not the shooter but based on the agreed statement of facts he was clearly involved and the elements of the charge of manslaughter were made out as the defendant admits he was a party to the unlawful killing of Mr. Johnson but did not have the state of mind required for murder.
[4] Joshua was called by his brother Brandon in the early morning hours of November 30, 2013 and attended at Hess Village expecting a physical fight with Mr. Johnson.
[5] Mr. Johnson was located and while he was exiting a store, he was followed by the defendant and Chad Davidson who had a gun and who proceeded to shoot Mr. Johnson in the chest, according to the agreed statement of facts.
CRIMINAL RECORD:
[6] The defendant has a lengthy criminal record starting in 2003 in youth court with numerous convictions for trafficking, fail to obey court orders, possession of a loaded firearm, counselling to commit murder and obstruct police.
[7] The defendant had only recently been out of custody when arrested on these charges.
PRESENTENCE REPORT:
[8] No presentence report was requested, and none was ordered by the court. There is sufficient information on the record regarding the background of the defendant to enable the court to impose a just and proper sentence.
VICTIM IMPACT STATEMENTS:
[9] Linda Johnson is the mother of the deceased Tyler Johnson. She was unable to attend before me so in her place, her sister read into the record Ms. Johnson’s victim impact statement.
[10] Tyler was an only child. He was 30 years of age and an engineering student in his fourth year at McMaster University. He had a very promising and fulfilling career and life ahead of him.
[11] The comments of Ms. Johnson make it clear she has suffered greatly as a result of the loss of her only son. She continues to grieve and will for the rest of her life. She lost her job of seven years because of her issues over the loss of her son. Her life in her view is now pointless and the “very heart of her existence was snuffed out”.
[12] I accept the deep and long lasting emotional hurt that Ms. Johnson has suffered and will continue to suffer, as will the rest of Tyler’s family.
LETTERS OF SUPPORT FOR THE DEFENDANT:
[13] The defendant’s family have filed a letter with the court. The essence of the letter is the perception of the family that the defendant has grown, matured, and takes responsibility for his actions and his life going forward. He has acknowledged his guilt and his remorse to his family members.
[14] He has been clear with them that he has no desire to go back to his old lifestyle. The family is also clear that they are supportive of their son and sibling.
[15] I also received a letter from the defendant’s wife Jennifer Dagenais. They have been together for 11 years. She acknowledges that his past lifestyle had him in and out of jail and associating with a bad crowd. She believes the defendant’s incarceration for the past 7 years has been of real assistance in changing her husband who now appears to have a positive view of the future. He is making plans to leave Hamilton and have a clean start in another community, starting a small family business with his father. All of which she supports.
[16] The defendant has expressed remorse to his wife on several occasions about what he did to Tyler Johnson. She truly believes he is a changed and better person than he was 7 years ago.
[17] I received a letter from the defendant’s cousin who has also witnessed his expressions of remorse for Tyler and his family. He has as well been very clear with his cousin that he has positive plans for the future. She believes he is a changed person and he will not go back to his old lifestyle.
[18] Finally, I received a letter from Launch Pad Recovery Centre dated October 17, 2020 indicating the defendant reached out to this release recovery organization in Windsor of his own accord while in the South West Detention Centre. His purpose was to organize and get assistance for his future when released from custody. Through this organizations contact with the defendant they believe he is showing a desire to change his life going forward and this group would be more than prepared to assist him when he is released.
POSITION OF THE PARTIES:
[19] The Crown takes the position that an appropriate penalty is 16 - 18 years less pretrial custody of 1.5 to 1. Both counsel agree that credit should be rounded out to 10 years.
[20] The defendant argues that an appropriate penalty is 13 - 14 years less pretrial credit of 1.5 to 1 or 10 years.
[21] The real issue before me is whether there should further enhanced credit beyond the R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 at para 88, of 1.5 to 1.
[22] The defendant urges me to find that due to the number of lockdowns the defendant endured while incarcerated, the harsh conditions while in custody, and especially during COVID, as well as his future incarceration, he should be entitled to an additional credit of 1 year.
ANALYSIS:
[23] Section 718 of the Criminal Code of Canada sets out the purpose and principles of sentencing. Those include denouncing unlawful conduct, deterring the offender and others from committing offences, sometimes separating the offender from society, assisting the rehabilitation of the offender and promoting a sense of responsibility in the offender. The fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful, safe society by imposing just sanctions.
[24] It is trite law that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[25] The defendant has filed his records from the various institutions he has been in since his initial incarceration. In review of that material it is obvious that there have been lockdowns for security breaches, lack of staff, and other reasons.
[26] The defendant filed an affidavit outlining his experiences in custody and during lockdowns. The evidence before me would indicate that lockdowns can result in a lack of showers, exercise, lack of programs, phone access and visitor access. As well, lockdowns can encompass a full day or more which results in confinement to one’s cell. Some lockdowns are considered partial encompassing part of a day. The defendant estimated he was subject to some form of lockdown about 25% of the time that he was in custody. He has also been subject to 40 days of segregation for various custodial breaches during his time in custody as well as simply because there was a lack of space to stay in the general prison population.
[27] I accept that over the last 7 months with COVID, the conditions in custody for inmates has been more difficult than prior to COVID. There have been more lockdowns, staff shortages because of COVID and a lack of programing, lack of phone access and lack of visitation.
[28] In R v. Summers, 2014 SCC 26 the court allowed credit for presentence custody pursuant to S. 719(3.1) Criminal Code of Canada “…if the circumstances justify it, the maximum is one and one half days for each day spent in custody.” This was allowed on the basis that pre-trial detention did not count towards parole eligibility for the accused. As the court stated, the loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh and parole is unlikely.
[29] In R v. Duncan, 2016 ONCA 754 the court stated at para 6;
“We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.
[30] The crown concedes that I have judicial discretion to allow further enhanced pre-trial credit over and above 1.5 to 1 for harsh pre-trial detention conditions including COVID and such enhanced credit “is not subject to any rigid formula or calculus.” See; R. v. D.B., 2020 ONCA 512, at para. 10; R v. Brown, 2020 ONCA 196.
[31] The institutional records before me cover a number of years, however, they are not totally complete as some institutions have no records remaining for some reason. I have reviewed these records carefully as well as this offender’s affidavit and his oral testimony. I conclude that generally the records before me coincide with his recollection of being in some form of lockdown approximately 25% of the time that he has been incarcerated.
[32] I further conclude that during these lockdowns, food service could be affected, there was often a lack of showers, clean laundry, phone service, family visitation, and difficulty consulting with counsel as well as a lack of programing, and triple bunking.
[33] The offender has a serious arm injury that occurred prior to his arrest. He had had three surgeries up to that point and was undergoing physio-therapy. Initially he had some physio when first incarcerated, but that treatment diminished over time and I accept that his arm condition has deteriorated as a result of this lack of any ongoing medical treatment which has not been forthcoming from the institutions where he has been incarcerated.
[34] Since COVID the offender has indicated that there has been an increased lack of services, visitation from family, out of cell time, and a lack of masks, hand sanitizer or other measures of self-protection.
[35] I accept that for this particular offender these pre-trial conditions have had a negative impact on his emotional, psychological and physical well-being based on his testimony before me.
[36] I therefore conclude that this offender should receive enhanced credit of 6 months in addition to the Summers credit agreed to by counsel of 10 years.
[37] There are a number of aggravating factors involved in this case making the moral blameworthiness of this offender high. A gun was involved. The extensive criminal record of this offender. This offender called the shooter to attend the scene. The defendant can be said to be the one leading the search to find the victim. This offender was with the shooter when the victim was killed. The victim was unarmed and unaware of what was to befall him. He was a young man with a very promising future. Any plausible reason for this attack has not been put before this court.
[38] The crown suggests that R v. Karim, 2014 ABQB 58, 2014 A.J. No. 214 (C.A.) and R v. Dhillon, 2019 ONCA 159 are the more appropriate sentencing ranges for the case at bar.
[39] In Karim the sentence was 16 years where the offender had no criminal record however, he provided the gun to his co-accused and arranged the confrontation between the co-accused and the victim. In the case at bar, the offender did not provide the gun nor is there any evidence before me as to whether he knew Davidson had a gun or not.
[40] In Dhillon the offender arranged the kidnapping of the victim who was then killed. The offender ordered the victim’s body moved and ordered that his car with his body inside be burned. The court concluded he was the leader and the others followed his orders. He was given 14 years for the manslaughter conviction and 2 years consecutive for offering an indignity to a body. I find that case distinguishable from the case at bar as there was not an indignity to a body.
[41] The defence relies on a number of mitigating factors. First and foremost, the defendant’s plea of guilty and his acknowledgement of his moral blameworthiness and culpability. This shows remorse especially when done so quickly after a new trial was ordered. He has saved the community a lengthy trial and witnesses the difficulty of testifying once again. The defence emphasizes that the defendant is a secondary participant. He has substantial support of family as well as positive plans for the future. There was a lack of any incidents when released by me in August for several weeks to visit his dying grandmother. He also appears to have made progress in custody with such programs as were available to him and appears to have taken the initiative in planning for his future. I further note the defendant is still relatively young at 32 and rehabilitation is a real consideration for this court, along with the other principles of sentencing.
[42] I also acknowledge his lengthy remarks to the court and more importantly what appeared to be a sincere apology to the victim’s family and acceptance of his significant fault for all that has transpired.
[43] The defence suggests that the appropriate sentence is 13 - 14 years less pre-trial credit. It recommends the court follow R. v. Almoarales (2008), 2008 ONCA 692, 237 C.C.C. (3d) 148, where 12 years was imposed on the appellant who was a secondary participant and who had no gun and fired no shots. Counsel for the defendant also cites R v. Warner, 2019 ONCA 1014 for guidance to this court. In that case the appellant was given 15 years for manslaughter where he had a gun although was not the shooter.
CONCLUSION:
[44] I conclude after reviewing all of the cases submitted by both counsel that each is somewhat different than the case at bar. This is a normal phenomenon as sentencing is a very personalized to the offender, the victim and is fact specific. I conclude further that the range of sentence on facts such as these is between 13 - 17 years of incarceration.
[45] I have decided based on all of the circumstances before me that 15 years’ incarceration is the appropriate sentence for this defendant, less 10.5 years of credit for pre-trial custody under Summers and enhanced credit for overly harsh conditions up until now and into the future as COVID continues (see; R. v. Hearns, 2020 ONSC 2365); leaving 4.5 years remaining to be served.
[46] There will be the usual DNA order and a weapons prohibition for life.
[47] There will also be a S. 743.21 no contact order with those people listed by the Crown.
Arrell J.
Released: November 16, 2020
COURT FILE NO.: 15-4953
DATE: November 16, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Joshua Barreira
REASONS FOR SENTENCE
Released: November 16, 2020