COURT FILE NO.: CR-19-50000053-0000
DATE: 20201209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ENRIQUE CHRISTOPHER GORDON
Mr. R. Kenny and Ms. B. Donohue, for the Crown
S. A. Monaco and Mr. M. Hayworth for Mr. Gordon
HEARD: November 23, 2020
FORESTELL J.
reasons for sentencing
Overview
[1] Mr. Gordon was tried on an indictment charging him with the second degree murder of David Blacquiere. Mr. Gordon admitted killing Mr. Blacquiere but pleaded not guilty to the charge of murder, arguing that he acted in self-defence. On December 14, 2019, a jury found him guilty of manslaughter.
[2] The sentencing in this case was scheduled to proceed in early 2020. It was adjourned at the request of the defence to March 30, 2020. The sentencing was then delayed further by the COVID-19 global pandemic.
[3] David Blacquiere was killed on November 14, 2017. He died as a result of a stab wound that penetrated through his lungs to his heart. There were an additional three stab wounds inflicted on Mr. Blacquiere. All were towards the back of his body on the right side. None of the other wounds would have caused his death.
Circumstances of the Offence
[4] Much of the interaction between Mr. Gordon and Mr. Blacquiere on November 14, 2017 was captured on video. It is not disputed that there was a physical altercation between the two men. It is also agreed that the two men had a prior relationship. Mr. Gordon sold crack cocaine and Mr. Blacquiere was one of his customers. Mr. Blacquiere also regularly drove Mr. Gordon places. Mr. Gordon testified that the two men were close friends and that Mr. Blacquiere was a father figure to him.
[5] Mr. Gordon testified that he acted in self-defence when he stabbed Mr. Blacquiere multiple times with a knife. He testified that at the time he stabbed Mr. Blacquiere, Mr. Blacquiere was leaning on his throat and he could not breathe. The jury, by its verdict, found that the Crown had disproved self-defence beyond a reasonable doubt.
[6] In order to sentence Mr. Gordon, I must determine the facts underlying the finding of guilt. In making those findings I am bound by the express and implied factual implications of the jury’s verdict. My task is not to follow the logical process of the jury, but I must come to my own determination of the relevant facts. I must determine only those facts necessary to determine an appropriate sentence.[^1]
[7] Any aggravating facts must be proven by the Crown beyond a reasonable doubt. Any other relevant facts must be proven on a balance of probabilities.[^2]
[8] There are two routes to manslaughter on the evidence in this case. One route to a verdict of manslaughter is a finding that Mr. Gordon intentionally stabbed Mr. Blacquiere but did not intend to kill him or to cause him bodily harm that he knew was likely to kill him. Another route to manslaughter is a finding that Mr. Gordon intended to kill Mr. Blacquiere or intended to cause him bodily harm that he knew was likely to kill him but that he was provoked — the legal defence of provocation.
[9] For the reasons set out below, I find that Mr. Gordon did not intend to kill Mr. Blacquiere and he did not intend to cause him bodily harm that he knew was likely to cause death. I have not, therefore gone on to consider provocation.
[10] I find that there was a verbal dispute between Mr. Blacquiere and Mr. Gordon that began before Mr. Blacquiere pulled into the Shoppers Drug Mart parking lot, where the incident took place. I find that the dispute was over drugs and payment for drugs. It is an admitted fact that the two men were involved in drugs: Mr. Blacquiere as a customer and Mr. Gordon was his dealer. Mr. Gordon’s evidence that Mr. Blacquiere sought drugs without paying for them is credible. There were numerous telephone calls from Mr. Blacquiere to Mr. Gordon prior to their meeting. This is consistent with Mr. Blacquiere being insistent or desperate to obtain drugs.
[11] I find, based on video of the car in the parking lot, that the physical confrontation began inside the car. The car was rocking prior to both men exiting the car through the passenger door. Although there is no knife visible at the beginning of the fight outside the car, the knife can be seen in Mr. Gordon’s hand after he was thrown onto a guardrail. The video shows that Mr. Blacquiere punched Mr. Gordon. Once the knife is visible, Mr. Blacquiere appears to be holding the arm of Mr. Gordon to prevent Mr. Gordon from using the knife. Near the end of the struggle, Mr. McFarquhar enters the fray and attempts to pull Mr. Blacquiere off Mr. Gordon. It is at or near this point that Mr. Gordon stabs Mr. Blacquiere.
[12] It is not clear from the video evidence precisely when Mr. Gordon began brandishing the knife. Mr. Gordon testified that he had the knife in his pocket before the fight began and took it out to use after he had been pushed onto the guardrail. This is consistent with the video. I find that Mr. Gordon was in possession of the knife before the fight began and used it during the fight. The Crown invites me to find that Mr. Gordon habitually carried a knife to protect himself while he dealt drugs; however, I am not able to make that finding beyond a reasonable doubt. I find only that Mr. Gordon possessed the knife before the fight began.
[13] I find that at the initial stages of the altercation, Mr. Gordon brandished the knife to defend himself. However, at the point that Mr. Gordon stabbed Mr. Blacquiere, Mr. Gordon was not overpowered or in danger. Mr. McFarquhar had intervened, and Mr. Gordon had the upper hand in the fight.
[14] His act of stabbing Mr. Blacquiere was motivated by anger and carried out in retaliation for Mr. Blacquiere’s assault. However, I find that Mr. Gordon did not intend to kill Mr. Blacquiere and did not know that the stab wounds were likely to cause the death of Mr. Blacquiere.
[15] Mr. Gordon left the scene and fled. He made no attempt to assist Mr. Blacquiere. Mr. Gordon discarded evidence and changed his clothing. I find that he did these things in an effort to avoid arrest and prosecution. He was successful in avoiding arrest for several weeks.
Victim Impact
[16] Victim impact statements were filed and read to the Court. Mr. Blacquiere’s wife and children all provided the Court with statements that set out the impact of this offence. The statements disclose the central role that Mr. Blacquiere played in his family and the profound loss suffered by those close to him.
[17] The pain suffered by Mr. Blacquiere’s family was greater because of the violence that caused his death; because their loved one died without them; and because of the time that passed before Mr. Gordon was apprehended.
[18] The effect upon them, as disclosed by their victim impact statements, has been significant. I have considered the impact of the offence as disclosed by the victim impact statements in determining the appropriate sentence while recognizing that no sentence can compensate them for their loss.
Positions of the Parties
[19] The Crown seeks a 10-year sentence of imprisonment. The Crown argues that a significant penitentiary sentence is necessary to further the sentencing objectives of general deterrence and denunciation.
[20] Counsel for Mr. Gordon submits that a sentence of 5 years is appropriate, in light of the circumstances of the offence and the offender.
Background and Character of Mr. Gordon
[21] Mr. Gordon is 21 years-old. He had just turned 18 at the time of the offence. He has a minor criminal record. The pre-sentence report that was prepared in this case indicates that he presently has a relationship with his mother, although there were issues between them prior to his arrest and incarceration. Mr. Gordon’s mother sought the assistance of Child Protection Services when Mr. Gordon was in his teens and was leaving the home for days or weeks at a time. Mr. Gordon was placed in a group home and ran away from that group home. After that point he had no fixed address and, on his evidence, appears to have drifted between the Kitchener Waterloo, Toronto and Barrie regions selling crack cocaine.
[22] Mr. Gordon was the victim of gang violence in his teens. The presentence report confirms that he has not, however, been a member of a gang.
[23] Mr. Gordon denied any mental health issues but the presentence report discloses that a psychiatric evaluation in 2018 identified issues with depression, anxiety, self-control and PTSD.
[24] During his incarceration while awaiting trial and sentencing, Mr. Gordon has availed himself of the limited programs available in the detention centre. These have been further limited in the past eight months because of the COVID-19 global pandemic.
[25] Letters filed on behalf of Mr. Gordon are evidence of the availability of pro-social supports for Mr. Gordon in the community when he is released.
[26] The presentence report indicates that Mr. Gordon expressed remorse for his actions. Mr. Gordon also expressed remorse at trial and at sentencing. Mr. Gordon appears to have had a friendship with the victim, although I do not accept his characterization of the relationship as akin to a father/son relationship. Mr. Gordon, in expressing remorse for the offence, spoke primarily of the impact of the offence on him and appeared to have little appreciation of the much greater impact on the family of Mr. Blacquiere. However, his expression of remorse is at least a step towards taking responsibility for his actions and rehabilitating himself.
Sentencing Principles
[27] The objectives of sentencing, set out in the Criminal Code, are the denunciation of unlawful conduct, general and specific deterrence, the separation of the offender from society where necessary, rehabilitation, reparation and the promotion of a sense of responsibility in offenders. A sentence is increased or decreased depending on the aggravating and mitigating circumstances.
[28] In cases of homicide, appellate courts have held that emphasis in sentencing must be placed on deterrence. At paragraphs 37 and 38 of R. v. Costa,[^3] Watt J. discusses deterrence in the context of homicide, saying,
Deterrence also has inherent in it the notion of denunciation. A sentence must make apparent society’s concern for the sanctity of human life, as well as its revulsion that anyone would take the life of another. [citations omitted]. …
It may be fairly said that the leading principle which emerges from the sentencing jurisprudence is that general deterrence and denunciation command the imposition of a custodial sentence in cases of unlawful killing, absent exceptional circumstances. [citations omitted]
[29] In determining the appropriate sentence, I must also consider the sentences imposed on similar offenders for similar offences. The range of sentences imposed in manslaughter cases is very broad. This was explained by the Supreme Court of Canada in R. v. Creighton:[^4]
…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. …
[30] One of the principal considerations in imposing a sentence for manslaughter, therefore, is the moral blameworthiness of the offender.
[31] The Alberta Court of Appeal, in R. v. Ferguson,[^5] explained the process of assessing moral culpability in manslaughter sentencing as follows:
An assessment of moral culpability involves a consideration of the particular circumstances of the case including: the nature, quality and gravity of the act; the method and manner by which the act was committed; the offender's awareness of the risk; and what should have been in the offender's mind, had he or she acted reasonably. One begins the analysis by classifying culpability on the basis of subjective and objective intent. …
Mens rea is only the starting point. To complete the moral blameworthiness assessment, the court must consider other circumstances that would aggravate and mitigate culpability. There are many relevant factors and all must be blended and balanced.
Analysis
[32] There are aggravating circumstances in this case. These are:
- The use of a knife;
- The fact that there were multiple stab wounds;
- The vulnerability of Mr. Blacquiere who was not armed;
- Mr. Gordon’s flight from the scene and his avoidance of arrest and prosecution;
- The context of the dispute and killing which I have found related to the drug trade;
- The fact that Mr. Gordon was on bail at the time of the offence with conditions that he not possess any unlawful drugs, remain in his residence and not possess any weapons; and,
- The significant impact on the family of the victim, David Blacquiere.
[33] Mitigating factors are:
- Mr. Gordon’s youth;
- His limited criminal record;
- His history of being the victim of violence in his teens and again while in custody;
- His efforts while in custody to engage in rehabilitative programs;
- His remorse, as evidenced by his admission of the killing at trial, and his expression of remorse at trial and at sentencing; and,
- The availability of community support.
[34] Counsel have provided me with cases that demonstrate the range of sentence for the offence of manslaughter. I will not review each of them. As stated by Fuerst J. in R. v. Reid[^6], the case law demonstrates that sentences as low as six years and as high as 12 years have been imposed in manslaughter cases with factors that significantly aggravate the offence. In Reid, the offender stabbed the victim during a fist fight. The aggravating circumstances of the offence in Reid were similar to the aggravating circumstances in this case. In Reid, the victim and offender were friends, the offender was on probation at the time of the offence, the offender failed to call for medical assistance and he took steps to deflect blame from himself. The mitigating circumstances were also similar. The offender in Reid expressed remorse, was relatively young and was the product of a somewhat unstable adolescence. He had taken some steps towards rehabilitation. Unlike this case, the offender in Reid had a prior conviction for violence which was proximate to the offence. In Reid, Fuerst J. concluded that a sentence at the bottom end of the range would not reflect the moral blameworthiness of the offence and that a sentence nearer the top end of the range would not accord sufficient weight to the mitigating factors. She imposed a sentence of eight years.
[35] In this case, as in Reid, a sentence at the lower end of the range would not adequately reflect the moral blameworthiness of Mr. Gordon. He stabbed an unarmed man multiple times in the context of the drug trade. A sentence at the higher end of the range is also inappropriate in light of Mr. Gordon’s youth, remorse and prospects for rehabilitation.
[36] Balancing the considerations of deterrence, prevention and rehabilitation, I have concluded that a sentence of seven years would have been appropriate absent consideration of the collateral consequence of COVID-19.
COVID-19 and Collateral Consequences
[37] Counsel for Mr. Gordon submitted that Mr. Gordon should be credited an additional .5 day for every day spent in custody during the COVID-19 global pandemic or, 132 days. Crown counsel opposes any credit or reduction in sentence for the impact of COVID.
[38] I adopt the reasoning of Pomerance J. in R. v. Hearns[^7], that the impact of the pandemic should be treated as a collateral consequence. Mr. Gordon will serve the remainder of his sentence during the pandemic. The impact of the sentence will be greater on Mr. Gordon than it otherwise would have been. I also recognize that collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate or unfit. I find that Mr. Gordon’s sentence should be reduced by three months to reflect the impact of COVID-19. In reaching this conclusion, I have taken into account that Mr. Gordon suffers from asthma and that he has already sought medical attention in custody for the stress of COVID.
[39] Therefore, while I would otherwise have imposed a sentence of seven years, in light of the impact of COVID-19 I find the appropriate sentence before credit for presentence custody is six years and nine months.
Credit for Pretrial Custody
[40] I must also take into account Mr. Gordon’s time in pre-sentence custody.
[41] Mr. Gordon has been in custody for 1,039 days. There is no issue that Mr. Gordon is entitled to credit at 1.5:1 for his presentence custody or 1,559 days.
[42] Mr. Gordon has spent at least 321 days in lockdown at the Toronto South Detention Centre. Counsel for Mr. Gordon seeks an additional 321 days of credit for the onerous conditions of lockdown during presentence custody. The Crown concedes that Mr. Gordon should receive some credit for the conditions of detention but submits that .5 day for every day of lockdown is the appropriate credit.
[43] The conditions of lockdown are onerous. Inmates cannot shower, get fresh air or exercise. They cannot make phone calls or receive visits. When locked in their cells, they have no privacy. The affidavit filed by Mr. Gordon indicates that the time spent on lockdown was extremely difficult for him. In addition, Mr. Gordon was stabbed while in custody. This incident has caused him to be fearful. Finally, Mr. Gordon has been in presentence custody for 264 days through the COVID-19 global pandemic. This has caused him to be fearful of contracting the virus while in jail.
[44] I find that Mr. Gordon is entitled to credit to reflect the harsh conditions of presentence custody. He has spent almost a third of his presentence custody in lockdown. One period of lockdown was for 21 days. In addition, he was stabbed in jail. The ongoing issues at the Toronto South Detention Centre have repeatedly been the subject of judicial comment (see for example, R. v. Persad 2020 ONSC 188, [2020] O.J. No. 95 (S.C.J.)).
[45] There is no mathematical formula that must be applied in the exercise of discretion involved in credit for harsh conditions. I am of the view that Mr. Gordon should receive 321 days credit to reflect the time spent in lockdown.
Conclusion
[46] I therefore sentence Mr. Gordon to six years and nine months’ imprisonment before credit for presentence custody. The credit for pre-sentence custody of 1,039 days is 1,880 days. This leaves a sentence of 586 days to be served.
[47] There will be a s. 109 order prohibiting Mr. Gordon from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[48] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order Mr. Gordon to provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.
Forestell J.
Released: December 9, 2020
COURT FILE NO.: CR-19-50000053-0000
DATE: 20201209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ENRIQUE CHRISTOPHER GORDON
reasons for sentencing
Forestell J.
Released: December 9, 2020
[^1]: R. v. Ferguson 2008 SCC 6, [2008] S.C.J. No 6 at paras. 15-17 [^2]: Ferguson, supra, at para. 18 [^3]: [1996] O.J. No. 299 (S.C.J.) at para. 33 [^4]: 1993 CanLII 61 (SCC), [1993] S.C.J. No. 91 (S.C.C.) at para. 86 [^5]: R. v. Ferguson, 2006 ABCA 261, [2006] A.J. No. 1150 (C.A.), at paras. 60 and 61, aff'd 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.) [^6]: 2012 ONSC 7521 [^7]: 2020 ONSC 2365