Court File and Parties

COURT FILE NO.: CR-19-4676 DATE: 20200206 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LAMAR DAY

Counsel: Jennifer Holmes, for the Crown Laura Joy, for the Defendant

HEARD: February 3, 2020

RESTRICTION on publication

This decision is subject to a common law publication ban in place until the verdict in the trial of the co-accused on the terms as endorsed on the indictment.

REASONS FOR SENTENCE

THOMAS, RSJ.:

Background

[1] Lamar Day was drinking alcohol and using methamphetamine on September 28, 2018. He was with his friends Raheem Washington and Willfredo Ortiz. At some point in the afternoon of the 28th, Washington told Day that he wanted to kill Ortiz as he believed Ortiz had stabbed his nephew. I accept that shortly after midnight, Washington grabbed a crowbar and began to beat Ortiz about the head and body. And that Washington continued to strike and kick him until the victim was unconscious when Washington chose to bind Ortiz’s wrists with duct tape and continue the beating.

[2] Lamar Day and Washington then wheeled the unconscious victim out of the apartment and left him in the hallway where he ultimately expired. Day and Washington attempted to clean up the blood in the apartment and then fled. Day was arrested at the beer store a short time later. Although Lamar Day told police, he tried to stop Washington, he did not call police or an ambulance. I accept his comments captured by police while he was in a cell with Washington that he in fact punched the victim twice during the course of the beating. The victim did nothing to provoke the attack. He had in fact never met Washington’s nephew.

[3] The limited participation of Lamar Day in the beating itself is something I must consider in finding an appropriate sentence. This factor, as well as the intoxication, undoubtedly influenced the Crown in accepting a guilty plea to the offence of manslaughter.

[4] Lamar Day is 29 years old. The pre-sentence report indicates he was raised by his mother. His father separated from his mother and was deported to Jamaica when the offender was young. The offender reports being a victim of discriminating comments and actions while attending school in Calgary and Winnipeg. His mother and three siblings reside in the area but his contact with them deteriorated as his drug and alcohol use escalated.

[5] He has been regularly using alcohol, methamphetamine and cocaine. This drug use coincides with the escalation of his criminal record, which includes two convictions for assault and several breaches of court orders. He has been on probation from 2014 to 2018 and was on probation at the time of this offence. His reaction to supervision has been poor with no real commitment to treatment in a community setting.

[6] He has achieved his high school diploma and one year of provincially funded trade school, but due to his substance abuse, his employment record is poor. He is supported for the most part by Ontario Works. It is reported that when under the influence of drugs and alcohol, he can become erratic and violent not inconsistent with the events leading to this homicide.

The Law

[7] The crime of manslaughter attracts a broad range of sentence depending on the circumstances of the offence and the offender (R. v. Stone, (1999), 134 C.C.C. 93d) 353 (S.C.C.) p. 446).

[8] The sentences for manslaughter could range from a suspended sentence to life imprisonment because 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.). An appropriate sentence must consider the circumstances of the offence, the personal characteristics of the offender and any relationship between the offender and the victim (R. v. DaSilva [1988] B.C.J. No. 1744 (C.A.) p. 2). As a result, there is a relatively broad range of acceptable sentences, however, ordinarily a lengthy sentence is imposed to reflect society’s concern for the sanctity of life (R. v. MacFarlane 2012 ONCA 82, para. 8).

[9] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The offence here is grave; the senseless loss of life of Willfredo Ortiz. I must consider, however, that while Lamar Day was a participant, the degree of responsibility is far more serious when considering the role of Raheem Washington.

[10] Section 718.2 directs that the sentence should be increased or reduced depending upon the presence of any aggravating or mitigating factors. The relevant sentencing cases hold that for the offence of manslaughter, the primary purposes of the sentence must be denunciation and deterrence consistent with s. 718(a) and (b).

[11] Let me consider the aggravating and mitigating factors in Lamar Day’s sentencing.

Aggravating Factors

[12] It seems Willfredo Ortiz was Lamar Day’s friend, yet the offender participated in the violent beating of Ortiz and then assisted in wheeling him into an area where, considering the early morning hours, he would undoubtedly not be discovered for some time. It is likely Ortiz died in the hallway while Day and Washington were attempting to clean up his blood spatter from the crime scene. Lamar Day did not call for assistance.

[13] Aggravating is the affect of this crime upon the family and friends of Willfredo Ortiz. The victim impact statement of his sister refers to the devastation this crime has caused to her and her mother. Aggravating as well is his criminal record and his negative participation in community supervision.

Mitigating Factors

[14] It is significant that the offender has entered a guilty plea. I accept as well that he is genuinely remorseful. He was under the influence of alcohol and drugs at the time of this offence and his issues with substance abuse must be considered by me. In addition, I must consider his difficult home life in the years growing up and the racial taunting in his early school placements.

[15] Lamar Day has completed his high school education and a year of training in the Brick and Stone Masonry apprenticeship program. While in pre-trial custody for this offence, he has participated in educational programing in the areas of substance use, anger management, changing ways and effective fatherhood. He has now been prescribed an anti-depressant to assist with this anxiety and depression. Upon release, Day intends to remain in regular contact with the Canadian Mental Health Association (CMHA). However, his community support with family remains strained due to his substance abuse. I recognize that his mother has been present here throughout the proceedings. Although he has a seven-year-old son, his contact has been limited.

Analysis

[16] Counsel have provided sentencing cases which they offer to assist me in my task of finding a fit and proper sentence for Lamar Day. Because the sentences emphasize the need to determine the level of moral blameworthiness of the offender, driven by the specific facts of each case, perfect comparisons can never be achieved. I have, however, drawn on those precedents that involve multiple assailants with differing levels of participation:

a) R. v. Henderson (2004 BCCA 3) where two males beat a man to death in a crack house. Henderson punched and kicked the victim and he and the co-accused left him in a parking lot where he was found later by a security guard. The accused was 30 with a record for robbery. He was on probation at the time. The sentence was eight years.

b) R. v. MacFarlane (2012 ONCA 82) where the accused was 21 and the victim 18. The accused had just been released from custody and was on probation but had no convictions for violent offences. He and the co-accused had ill will towards the victim and both chased him down and beat him with their fists. Unbeknownst to the accused, MacFarlane, the co-accused, possessed a knife and stabbed the victim in the heart. The accused plead guilty. The court accepted a joint submission of four years. The issue on appeal was the proper credit for pre-sentence custody.

c) R. v. Hoffman (2019 ONSC 6031) where the victim was intoxicated and tried to pick a fight with Hoffman. Hoffman was then part of a group who attacked the victim. The accused participated in the attack but struck the victim only once with a tree branch. Hoffman was 52, had a partner with two children and community support. He was supported by social assistance. He was sentenced to six- and one-half years.

d) R. v. Turner, (2019 ONSC 5435) where the accused was found to aid and abet a number of other individuals where he knew bodily harm would befall the victim. There was no evidence that Turner knew his co-accused intended to shoot the victim. The accused had a lengthy criminal record for minor offences and was a crack dealer. The sentence was four years.

Positions of the Parties

[17] The Crown argues that this is a case of manslaughter with aggravating factors and as a result, the range of 8 – 12 years is appropriate (R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966, para. 7). Specifically, the Crown seeks a sentence for Lamar Day of 8 – 10 years.

[18] The defence suggests that since Day has been in custody since September 29, 2018, no further custodial time is necessary but if I disagree, a sentence of a further 18 months with probation to follow would satisfy the purposes of sentencing here. Beyond the mitigating factors already considered, the defence asks that I import the Gladue factors into the sentencing of Lamar Day (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688).

The Issue of Race

[19] Lamar Day is 29 years of age. His mother is white. His father is black. His father is Jamaican and as previously mentioned, has been deported. It seems clear that the offender’s mother did her best to raise her son along with his three siblings.

[20] There was an absence of a male figure in the home. In the pre-sentence report, both the offender and his mother report that Day was the subject of racism in his school years before finally coming to reside in Windsor when Lamar Day was 13. It is suggested that this racism has fueled some of the anger the offender exhibits when he drinks or uses drugs.

[21] Defence Counsel draws my attention to the decision of Justice Nakatsuru in R. v. Jackson, 2018 ONSC 2527 (Jackson). In Jackson, Justice Nakatsuru was considering a sentence for firearms possession. Mr. Jackson was a black man. Justice Nakatsuru found that African Canadians have been subject to systemic discrimination and that judicial notice should be taken of that fact and further that sentencing Judges should seek additional information about the offender pursuant to s. 723 of the Criminal Code (Jackson, para. 99).

[22] Justice Nakatsuru found that judicial notice in the sentencing of African Canadians was necessary since many would be unable to financially afford the kind of expert evidence available to the Court in Jackson (Jackson, para. 90). He also found that the sentencing Judge should not require a direct casual connection between the systemic racism and the offender because to do so would create “a systemic barrier that would perpetuate inequality…” (Jackson, para. 112).

[23] At para. 79 of Jackson, Justice Nakatsuru said the following:

It is the remedial nature of s. 718.2(e) that provides the authority for me to address the disproportionate imprisonment of African Canadians. While Parliament did single out Indigenous persons for special attention, its enactment benefits all offenders. For African Canadians, given the evidence presented to me, disproportionate incarceration is an acute problem. Section 718.2(e) can be resorted to in order to address this particular problem. It is further meant to encourage restorative approaches in the application of the sentencing principle of restraint.

[24] Jackson has not found universal favour in subsequent decisions. Justice LeMay in R. v. Brissett, 2018 ONSC 4957, refused to apply the Jackson reasoning. Justice LeMay was considering charges of living off the avails of juvenile prostitution and related offences.

[25] Justice LeMay declined to take judicial notice of systemic racism for African Canadians and then to automatically consider it in individual cases (Brissett, para. 58). He found as well that he lacked the specific information necessary to determine if systemic racism mitigated the sentence (Brissett, para. 61).

[26] Justice LeMay relied upon the Court of Appeal decision in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (Hamilton). Hamilton was a decision involving the sentencing of young black women acting as drug couriers and charged with drug importation. The Court of Appeal was critical of the sentencing Judge who embarked upon an inquiry of his own and filed a body of information before concluding the accused were victims of systemic and racial bias.

[27] In Hamilton, at para. 133, Doherty J.A. raised the concern about mitigation simply for being part of a group:

The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence. Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality.

[28] He went on, at para. 99, to describe the special circumstances recognized for aboriginal offenders:

Parliament has chosen to identify aboriginals as a group with respect to whom the restraint principle applies with particular force. If it is shown that the historical mistreatment and cultural views of another group combine to make imprisonment ineffective in achieving the goals of sentencing, it has been suggested that a court may consider those factors in applying the restraint principle in sentencing individuals from that group: see R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 supra, at pp. 427-28 O.R., p. 236 C.C.C. There was no evidence in the mass of materials adduced in these proceedings to suggest that poor black women share a cultural perspective with respect to punishment that is akin to the aboriginal perspective.

[29] I adopt the comments of Doherty J.A. at para. 140 of Hamilton:

Even where the crime committed is very serious, however, factors going to personal culpability for the crime must still be considered. For the reasons outlined above, the circumstances which led the respondents to commit these crimes entitle them to some mitigation. It must, however, be stressed that consideration of the circumstances which led an offender to commit a crime is only part of the overall assessment that must be made in determining personal culpability for the purposes of imposing a sentence which complies with the proportionality principle. Our criminal law rejects a determinist theory of crime. The respondents had a choice to make and they made that choice knowing full well the harm that the choice could cause to the community. The economic circumstances of the respondents made their choice more understandable then it would have been in other circumstances, but it remains an informed choice to commit a very serious crime. The blunt fact is that a wide variety of societal ills – including, in some cases, racial and gender bias – are part of the causal soup that leads some individuals to commit crimes. If those ills are given prominence in assessing personal culpability, an individual’s responsibility for his or her own actions will be lost.

[30] The societal ills that faced Lamar Day while he was growing up must be considered by me in arriving at a fit sentence. These are relevant considerations, but they cannot overwhelm the other sentencing factors. (Brissett, para. 69).

[31] With regard to the serious crime of manslaughter, it must be remembered that the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, para. 79, stated that:

“Generally, the more violent and serious the offence, the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same…”.

[32] And so, having come full circle, I have considered the limited evidence before me regarding the role racism has played in the criminal conduct of Lamar Day. While his background is a mitigating factor, it is of limited significance.

[33] Lamar Day on September 28, 2018, while intoxicated by alcohol and drugs made a choice and that choice made him a party to the offence of manslaughter.

Conclusion

[34] Having considered all of the above, I find the appropriate sentence to be six years imprisonment.

[35] I have determined the equivalent to be 2,190 days. Lamar Day is entitled to a credit for pre-sentence custody of 370 days. The defence requests that I consider a credit of two days for every one served for the four months Day spent at the Sarnia jail and for the one month he slept on the floor at the Southwest Detention Centre. To grant that request, I need more than submissions from counsel, I need facility records and evidence in some form from the offender himself. I have none of that.

[36] As a result, Lamar Day will be given credit for his pre-sentence custody on a 1.5 to 1 basis amounting to a credit of 740 days. That leaves a net sentence to be served of 1,450 days or three years and 355 days.

[37] There will be a compulsory order for the collection of a DNA sample and a s. 109 weapons prohibition for life.

Original Signed by “RSJ Bruce Thomas”

Regional Senior Justice B. G. Thomas

Released: February 6, 2020

COURT FILE NO.: CR-19-4676

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – LAMAR DAY

REASONS FOR SENTENCE

THOMAS, RSJ.

Released: February 6, 2020