COURT FILE NO.: CR-19-4547
DATE: 2020-11-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MAL CHOL
Defendant
Ilana Mizel and Kim Bertholet, counsel for the Crown
Harpreet Saini, counsel for the Defendant
HEARD: October 16, 2020
CORRECTED DECISION
The text of the original judgment was corrected on November 9, 2020 and the description is as follows: the word “offender” in paragraph [41] was replaced with the word “victim”.
thomas, rsj.:
The Offence
[1] On the evening of February 13, 2018, Mal Chol and Nour Rabee attended a party on Tecumseh Road East in Windsor. There were a number of people there including 16-year-old Chance Gauthier. Chol himself was 20 at the time. After the consumption of some alcohol, Rabee confronted Chance Gauthier as he believed Gauthier was responsible for a stolen car for which Rabee’s friends had been arrested.
[2] Rabee and others assaulted Chance Gauthier over the course of the evening in the presence of Mal Chol.
[3] Near midnight, Rabee directed Gauthier to get in the trunk of the vehicle he was driving. Chol stood by while this happened. It seems providing Rabee with potential backup. Rabee then drove away from the party with Gauthier in the trunk and Chol in the front of the vehicle with him. Rabee made a number of stops and Chol remained in the vehicle. Rabee returned to the vehicle with a green duffle bag likely containing a shotgun.
[4] Within an hour of leaving the Tecumseh Road party, Rabee pulled into an alley behind Church Street. He loaded the shotgun. He removed Chance Gauthier from the trunk. He walked Gauthier down the alley and shot him once in the head. Rabee got back in the car and drove off leaving Gauthier dead in the street. Chol retrieved the spent shell casing and later gave it to Rabee, who dropped it down a sewer grate. It was later recovered by police.
[5] Chol was caught on video security cameras carrying the duffle bag after the murder. The firearm was never recovered. Rabee fled the country and has never been arrested. Mal Chol was arrested in Windsor on February 17, 2018.
[6] Mal Chol was charged with first degree murder and a number of other lesser offences related to the killing of Gauthier. He entered a guilty plea to the offence of manslaughter on July 27, 2020. He has been in custody since the date of his arrest almost all of that time at Elgin-Middlesex Detention Centre, (EDMC), in London.
The Offender
[7] Mal Chol is 22-years-old. He and his mother and two siblings left East Africa when he was 5-years-old and came to Canada. He is now a Canadian citizen. He was raised by his mother who worked hard to support her family. She has stood by her son throughout his troubled youth and was present in court with other friends and relatives at the time of the sentencing submissions.
[8] From the ages of 13 through 19, Mr. Chol amassed a serious four-page criminal record with 48 convictions, almost all under the Youth Criminal Justice Act. The record includes convictions for two robberies, two assaults, two assaults on police officers, one utter threat, one break and enter, theft, one unlawfully in dwelling, five thefts under $5,000, and four possessions of property obtained by crime. It also includes convictions for crimes against the administration of justice: 11 failures to comply with bail conditions, one failure to attend court, 11 failures to comply with disposition or sentencing terms, four obstructions, one escape, and one flight while pursued by police.
[9] At the time of this offence, he was bound by two probation orders.
[10] Mr. Chol has not completed high school, being 10 credits short. At an early age he fell in with a bad crowd and began to abuse drugs and alcohol. He was, however, a skilled basketball player and played in high school and with a community basketball club. Through basketball, he made several good friends who have stuck by him. In addition, his former coach, Craig Nikle and Jeremy Horne, who runs a community support program, both spoke positively about his ability. They have visited him since his arrest and vow to support him upon release.
[11] Mr. Chol left school when he was 18 so that he could work and assist his mother in the support of his family, but his substance use and his association with negative peers did not allow him to sustain employment.
[12] The author of the pre-sentence report prepared for this sentencing summarized Mr. Chol’s position as follows:
The subject’s personal problems include: a clear problem of compliance, problem solving and/or self management deficits, anger management deficits, poor social skills, assault history, substance abuse, anti-social peer group, and escape history. There are special considerations in respect to the subject’s ability to comply under supervision and make positive change, such as: lack of motivation when with the wrong people, cultural and ethnicity issues, and past compliance issues during community supervision. The subject’s strengths in life include: close and supportive family relationships, ability to have pro-social leisure and recreational activities, some strong and supportive pro-social companions and mentors in the community.
Pre-Sentence Custody
[13] As part of the sentencing hearing, the defence provided a summary of the cell assignments during Mr. Chol’s incarceration at EMDC, along with lockdown information from that facility.
[14] In addition, Brandon Reeves, the Security Sergeant at EMDC provided oral evidence.
[15] It is clear that Mr. Chol spent 109 days or approximately 10 percent of his time at EMDC in a partial lockdown situation. During partial lockdown, he would have been out of his cell for times ranging from 45 minutes to 3½ hours per day. There is no ability to determine how long he was in fact locked down. While Chol served some of his pre-sentence custody during the COVID-19 pandemic, the lockdowns were due to staff shortages and not COVID related.
[16] During the times out of his cell, Sergeant Reeves expressed that Chol would have been released as part of a smaller rotating group of inmates, and while he had less time to engage services, he also had less competition for access.
[17] Mr. Chol expressed that the randomly scheduled lockdowns had a cumulative effect of adding stress and anxiety as well as limiting his access to the services he desired.
[18] It would seem EMDC has done a good job of managing the pandemic, as have most correctional facilities in the Province. There is no doubt, however, that life in those institutions is different than it was before March, 2020. Part of that change is a significant reduction in the inmate population. Throughout the past 7 months, there has only been one positive test of an inmate at this facility, which was resolved some time ago.
[19] Mr. Chol agrees that he is a healthy 22-year-old male with no medical conditions that put him at risk. I recognize, however, that no one is immune from this virus and that correctional facilities continue to pose unique opportunities for COVID infections.
Victim Impact
[20] I received 23 victim impact statements in this proceeding from family and friends. Many of those victims were connected by video and read their statements into the record. The parents of Chance Gauthier attended in court and presented their statement.
[21] Their collective grief was clearly demonstrated. The comments also reflected their anxiety, anger and their desire for retribution. Chance Gauthier was a young man with some issues, but as well a young man with great promise, well-loved and desperately missed.
[22] The loss of life from a violent act is always disturbing, the loss of such a young life is particularly tragic.
Sentencing Principles
[23] I have considered the sentencing purposes and principles set out in s. 718 – 718.2 of the Criminal Code. It is clear to me in a case such as this, denunciation and deterrence must be my primary objective without losing sight of the fact that Mr. Chol is a 22-year-old offender who needs to be assisted in rehabilitation.
[24] The fundamental principle of sentencing is described in s. 718.1:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[25] The proportionality principle in this section requires that full consideration be given to both the gravity of the offence and the moral blameworthiness of the offender (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61).
[26] Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089). Here, Mr. Chol is a party to the offence of manslaughter. A serious violent crime, effectively an execution by a shotgun blast to the head of a defenceless youthful victim. But I recognize that this offender did not bring the gun and did not pull the trigger.
[27] Finally, s. 718.2(a) directs that a sentence should be increased or reduced to account for relevant aggravating and mitigating factors. Let me turn to those now.
Mitigating Factors
[28] Mr. Chol is 22 years of age. He is the product of a difficult background, socio-economically deprived and raised by a single parent who did her best to support her children. He is a young black man from a foreign country, growing up in a predominantly white community. As is too often the case, looking for a place to belong, he gravitated to the wrong crowd and began to drink alcohol and use drugs.
[29] He does continue to have community support with an attentive family, prosocial friends and two adult males who continue with their contact, even while their optimism in his future is tempered by his criminal record including this significant offence.
[30] I recognize that the Crown case on this offence was likely overwhelming, but still I must view this guilty plea as mitigating. It saved the victims weeks of reliving their loss over and over again. It was entered at a time when trial time is at a historic premium. The plea itself and the acceptance of his role in the homicide and its impact on the Gauthier family, is evidence of some remorse.
Aggravating Factors
[31] The nature of the crime itself, described above, is particularly aggravating. As this is an offence where a firearm is used in its commission, Parliament has directed a mandatory minimum sentence of 4 years. While the use of the firearm itself cannot be an aggravating factor, (R. v. Araya, 2015 ONCA 854, para. 26), how the firearm is used can be seen as aggravating.
[32] Next there is the lengthy criminal record of Mr. Chol acquired despite the fact that he was only 20-years-old when detained for this offence. He expressed to the author of the pre-sentence report that he wants to return to school and to basketball, but it is hard to be optimistic about community supervision considering his record for abusing court orders.
[33] Finally, there is the devastating impact upon the family and friends of Chance Gauthier, which must, as well, be viewed as aggravating.
Position of the Defence
[34] Mr. Saini argues for a sentence of 5 years, taking into account the young age of his client, his role in the offence and the other mitigating factors.
[35] It is the defence position that there be 4 years credit for the PSC calculated a 1.5 – 1 pursuant to the terms of s. 719(3.1) and R. v. Summers (2014), 2014 SCC 26, 308 C.C.C. (3d) 471 (SCC). He suggests that credit be given for the 109 days of partial lockdown, as well as the seven months of time served during the pandemic, all on a 1:1 basis. This would place the offender in close to a “time served” position.
Position of the Crown
[36] The Crown seeks a sentence of 10 years less a 4 year Summers credit. It is the Crown position that the Court lacks jurisdiction to provide enhanced credit for pre-sentence custody for either lockdown or COVID related conditions, due to the clear terms of s. 719(3.1). It is the Crown position that if the Court chooses to recognize the conditions of incarceration as a factor in reducing a sentence, it must do so by reducing the sentence itself before pre-trial custody crediting.
[37] The Crown draws upon the position of Pomerance J. at para. 22 of R. v. Hearns, 2020 ONSC 2365:
[22] First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.
[38] The Crown suggests, however, that no further reduction from the sentence is appropriate.
Crafting the Sentence
[39] The crime of manslaughter attracts a broad range of sentence, depending on the circumstances of the offence and the offender. The contextual determination of the level of the moral blameworthiness of the offender is the key to the determination of the fit sentence in manslaughter cases (R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, para. 247). The offence captures a “well-established spectrum of culpability ranging from near accident to near murder” (R. v. E.H., 2005 BCCA 3, [2005] B.C.J. No. 4 (C.A.)).
[40] Justice Quigley, at para. 11 of R. v. Robert-Stevens, 2019 ONSC 257, offered this view of an appropriate range of sentence for the manslaughter case before him which involved a shooting in a residential area of Toronto:
[111] … sentencing in manslaughter cases is quintessentially case-specific. However, the Court of Appeal of this Province has held that in cases where the conduct of the offender was accompanied by aggravating features, the appropriate sentence will usually fall within the range of 8 to 12 years.[^12]
[41] I accept that the involvement of Mal Chol in the execution-style shooting of a 16-year-old offender victim, amounts to the aggravating features necessary to make the appropriate range of sentence here 8-12 years.
[42] Having adopted a range, my analysis must move on to a specific sentence and assess pre-sentence and post-sentence considerations.
[43] I recognize the circumstances of this violent death and all the other aggravating factors mentioned above. However, the limited participation of Mr. Chol, his young age at the time of the offence, and his limited adult record, including a lack of a “prior” penitentiary sentence, lead me to fix the sentence at the bottom of the appropriate range, or 8 years.
[44] The Court of Appeal in para. 6 of R. v. Duncan, 2016 ONCA 754, paved the way for the kinds of credits against sentence requested by defence counsel:
[6] On our reading of the trial judge’s reasons, we agree with counsel. The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. 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. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in “lockdown” conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.
[45] There is an adoption of this position taken by the Court of Appeal in R. v. Ledinek, 2018 ONCA 1017 and R. v. Deiaco, 2019 ONCA 12. Since then, a number of sentencing cases in the Province, including those set out below, have granted enhanced credit for pre-sentence custody conditions related to staffing and the impact of COVID-19 (R. v. Clarke, 2020 ONSC 3878; R. v. Charley, 2019 ONSC 6490; R. v. Audet, 2020 ONSC 5039).
[46] While I accept, as I must, that this enhanced credit is available, it clearly runs up against the statutory limit in s. 719 (3.1) of the Code:
719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.
[47] I note as well the comments of Miller J.A. at paras. 14 and 15 in R. v. Gregoire, 2018 ONCA 880:
[14] The parties rely on R. v. Duncan for the proposition that sentencing judges, where circumstances warrant, have authority to give sentencing credit in addition to the 1.5:1 credit established by s. 719 (3.1) of the Criminal Code. They disagree, however, as to what those circumstances are.
[15] It seems to me that further guidance is needed from this court as to what circumstances may justify enhanced credit. This may also require an explanation of the doctrinal foundation for the practice of granting enhanced credit outside of s. 719(3.1), with specific reference to the interpretation of s. 719(3.1) provided by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 and other judgments. Given the absence of submissions on these issues, it would not be appropriate to address them in the present appeal.
[48] A contrary position was taken by Pomerance J. in Hearns, who found she was unable to provide the enhanced credit (Hearns, para. 22). But she determined Mr. Hearns was in a “time served” situation by recognizing the difficulties to be encountered by that offender serving further time in a pandemic.
[49] To provide a fit sentence, in the case of Hearns, Pomerance J. provided a reduction in the sentence by the means described in para. 19 of that decision:
[19] The Supreme Court has, in other cases, used extraneous circumstances to reduce a sentence. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, it was held that state misconduct, falling short of a Charter violation, could operate in this fashion. This flowed from the operation of basic sentencing principles and did not require a constitutional analysis. In R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, the court found that misconduct by private citizens, who engaged the offender to a brutal act of vigilante violence, warranted a reduction in penalty. Characterizing the violence as a collateral consequence, the court clarified the scope of that doctrine, in three respects:
A collateral consequence includes “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender”;
“The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances”; and
There is no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing.
[50] I chose in this particular circumstance to adopt the reasoning in Nasogaluak and Suter. I am troubled by the 109 days Mr. Chol spent in partial lockdown as a result of staff shortages, on the evidence before me, totally unrelated to the COVID-19 pandemic. These staff shortages are not limited to EMDC, as evidenced by other sentencing cases, nor are they limited to 2020. The Province has a responsibility to adequately supervise those it imprisons. I am aware as well that the sentence yet to be served by Mr. Chol will be more difficult in a COVID climate, even if only because of the psychological affect of an awareness of a lingering pandemic and a confined environment. I believe that both these retrospective and prospective concerns amount to a “consequence arising from the commission of an offence” (Suter, para. 47).
[51] As a result, I exercise my discretion to reduce the 8 year sentence to 7 years. Mr. Chol will then have the Summers credit directed by s. 719(3.1) of 1.5 days credit for each day served in pre-sentence custody. Bringing up to date counsel’s calculation at the time of sentencing submissions, I find that to be 1,000 days or 1,500 days after enhancement.
[52] Considering this in terms of years and days, I determine that to be 4 years 40 days credit. The sentence yet to be served is then 2 years and 325 days.
[53] This sentence is clearly in excess of the sentence sought by the defence. It would be inappropriate to reduce this sentence further, as cautioned by the Court of Appeal in R. v. Morgan, 2020 ONCA 279, para. 11:
[11] ... To reduce the sentence any further would result in a sentence that is unfit, one that would be disproportionate to the gravity of the offence. As was observed by Wagner J. in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 18:
It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender.
I find this to be so in this case.
[54] In addition, there will be an order under s. 487.05 of the Criminal Code that Mr. Chol will provide a sample of his blood for the purpose of analysis and then storage in the National DNA Databank. There will also be a s. 109 order prohibiting his possession of the weapons mentioned in that section for his lifetime.
“Regional Senior Justice B. G. Thomas”
Regional Senior Justice B. G. Thomas
Released: November 9, 2020.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MAL CHOL
REASONS FOR JUDGMENT
THOMAS, RSJ.
Released: November 9, 2020.
[^12]: See e.g, R. v. Clarke, 2003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.); R. v. Devaney (2006), 2006 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), at paras. 35, 38; R. v. Cleyndert, 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), at para. 12; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at para. 83; R. v. Tahir, [2012] O.J. No. 6449 (S.C.), at paras. 8-55, aff’d 2016 ONCA 136 (C.A.), at para. 2.