Court File No. CR-19-00000025-00006
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JULIEN PERRY
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE MADAM JUSTICE M. K. FUERST,
on November 30, 2020 at Newmarket, Ontario
APPEARANCES:
L. Pasquino Provincial Crown
J. Navarette Counsel for Julien Perry
REASONS FOR SENTENCE PAGE 1
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
Date Transcript Ordered:
December 7, 2020
Date Transcript Completed:
January 4, 2021
Date Ordering Party Notified:
January 4, 2021
MONDAY, NOVEMBER 30, 2020
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
INTRODUCTION
Silverio Feola was shot and killed in his own home, in the presence of his wife and father.
Julien Perry pleaded guilty to manslaughter in the death.
Crown and defence counsel jointly submit that Mr. Perry should be sentenced to 7 years in jail. They disagree as to the quantum of pre-trial custody that should be credited against that sentence.
Mr. Perry entered his guilty plea in late May 2020. A sentencing hearing set to proceed in September 2020 was adjourned at the request of the defence, to November 2020.
THE CIRCUMSTANCES OF THE OFFENCE
Twenty-three-year-old Silverio Feola lived with his wife, his parents and his younger sister in his parents’ house in Vaughan. He sold marijuana from the residence.
On the night of September 21, 2016, Mr. Feola’s supplier delivered two pounds of marijuana to the house. Mr. Feola sold one pound to a regular customer.
Julien Perry, who had known Mr. Feola for some time, set up a home invasion of Mr. Feola’s residence. Mr. Perry intended that Mr. Silverio be robbed of drugs and money.
Mr. Perry took four other men to Mr. Feola’s home that night. The group travelled there in two vehicles, in tandem. Mr. Perry and another man were in one vehicle. Three other males were in the second.
Mr. Perry and his companion waited in their vehicle while the other three men entered the house just before 10:00 p.m. Unknown to Mr. Perry, one of those three men had a handgun. That man shot Mr. Feola once, in the chest. The shot struck Mr. Feola’s heart. He died in the living room, in the presence of his pregnant wife and his father. They were not injured.
York Regional Police conducted a 20-month long investigation that culminated in a wiretap operation.
Mr. Perry was arrested on May 9, 2018.
Mr. Perry did not intend or foresee that Mr. Feola would be killed. It is admitted, however, that he was a party to the homicide, and that he appreciated that bodily harm to Mr. Feola was the foreseeable consequence of the home invasion robbery.
THE VICTIM IMPACT INFORMATION
Mr. Feola’s mother, Mary Feola, provided a Victim Impact Statement. She expressed the unending heartache felt by the members of the Feola family. Mr. Feola’s death is a life sentence for them. Mr. Feola’s wife has been left to raise their son, born seven months after the shooting, without him. The child will never know his father. Mr. Feola’s own father has been unable to work and function. The family was destroyed by the killing of the man who was their son, husband, father, brother and grandson.
THE CIRCUSTANCES OF MR. PERRY
Mr. Perry is 26 years old. His parents split up when he was young. He was raised by his mother. He completed grade 10, then left school and worked in his stepfather’s kitchen cabinet business. He did that work up until his arrest.
He has been in a common law relationship for 8 years. He and his spouse have two children who are 6 and 2 years old.
Mr. Perry has a youth record, primarily for property offences and failing to comply with court orders. His adult criminal record is for production of a controlled substance, assault, and robbery.
On his release from custody, Mr. Perry plans to obtain his high school equivalency. He will be able to return to work in the family business.
Family members and friends describe Mr. Perry as a hard-working man and a loving father. He has the ongoing support of his spouse, mother, stepfather, and older brother.
During the sentencing hearing, Mr. Perry apologized to the Feola family for the grief he has caused them.
Mr. Perry has been in custody at Central East Correctional Centre (CECC) since his arrest on May 9, 2018, for a total of 937 actual days up to today.
THE POSITION OF THE PARTIES
Crown and defence counsel agree that Mr. Perry should be sentenced to 7 years in jail, less credit for his time in pre-sentence custody calculated at one and a half to one.
On behalf of Mr. Perry, Mr. Navarette seeks additional pre-sentence custody credit because of lockdowns and incarceration during the COVID-19 pandemic. He suggests that the additional credit should be one day for each day of lockdown, and one day for each day of incarceration during the COVID-19 pandemic. In the result, the sentence to be served would be one of two years.
On behalf of the Crown, Ms. Pasquino agrees that there should be some extra credit, but opposes additional credit to this degree. She submits that any additional credit should be capped at 6 months.
THE PRINCIPLES OF SENTENCING
The objectives of sentencing are set out in s.718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm caused to victims or the community by it, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that consecutive sentences not be unduly harsh in combination, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community be considered.
In every case, the determination of a fit sentence is a fact-specific exercise. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at paragraph 15,
The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.
The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.
SENTENCING IN MANSLAUGHTER CASES
Under s.236 of the Criminal Code, the maximum sentence for manslaughter is life imprisonment. Manslaughter is a serious offence because it involves the taking of a life, and ordinarily attracts a lengthy sentence: see, R. v. Head, [1985] O.J. No. 153 (C.A.).
However, a diversity of circumstances will found a conviction for manslaughter, and so the caselaw reflects a wide variation in the range of sentence. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity: see, R. v. Carriѐre (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at paragraph 10.
The Court of Appeal for Ontario directed in R. v. Simcoe, 2002 5352 (ON CA), [2002] O.J. No. 884 (C.A.) that to arrive at the appropriate sentence in a particular case of manslaughter, the sentencing judge must consider the context in which the manslaughter occurred, meaning the case-specific circumstances of the offence and the offender.
ANALYSIS
Although Mr. Perry did not know that a gun would be involved in the home invasion robbery, he set in motion the chain of events that culminated in the tragic killing of Mr. Feola. His moral blameworthiness is high.
The aggravating factors in this case include:
The killing of Mr. Feola occurred in his own home.
It occurred in the presence of his wife and father.
It occurred in the course of a home invasion robbery, itself a serious crime.
Mr. Perry was the one who knew Mr. Feola and was responsible for setting up the home invasion robbery.
The home invasion robbery was a group enterprise.
Mr. Perry has a criminal record including for crimes of violence.
Mr. Feola’s death destroyed the family left behind.
In mitigation, I take into account that Mr. Perry pleaded guilty, which is an expression of remorse and willingness to accept responsibility for his actions. He expressed remorse during the sentencing hearing. He is still a relatively young man, and he has the support of his family.
I recognize that the principles of denunciation and deterrence are not always paramount in manslaughter cases, nor is the goal of rehabilitation always subordinate to those objectives: see R. v. Jiwa, 2012 ONCA 532. But, in this case, where Mr. Perry is not a first offender and his specific deterrence is particularly important, rehabilitation assumes a subsidiary role.
I agree with Crown and defence counsel that a sentence of 7 years in jail is a fit and appropriate sentence, that meets the needs of denunciation and deterrence both general and specific.
The pre-sentence custody calculated at one and a half to one based on 937 actual days of custody is 1406 days. I treat this as 47 months of pre-sentence custody, to be deducted from the 7 year sentence.
The issue is the extent of any additional pre-sentence custody credit.
THE ADDITIONAL CREDIT
Mr. Perry testified about the conditions of his detention at CECC, and the impact on him of lockdowns as well as the impact on him of being incarcerated during the COVID-19 pandemic. He provided a doctor’s note indicating that he has asthma.
Mr. Navarette seeks additional credit of one day for each day Mr. Perry has been in custody since March 13, 2020, when the impact of the COVID-19 pandemic was recognized in Ontario. He seeks further credit of one day for each lockdown day, except for 23 days attributable to disciplinary measures taken in respect of Mr. Perry personally. Mr. Navarette otherwise does not distinguish between lockdown days due to staffing issues, and lockdown days for other reasons. He does not distinguish between lockdown days that were pre-COVID-19, and those that overlap with the COVID-19 period. He does not distinguish between partial and full lockdown days. In other words, the additional lockdown credit sought is an across-the-board credit.
I am unable to accept that such broad additional credit is appropriate in this case.
There can be no dispute that inmates of custodial facilities must be treated humanely. However, the operational requirements inherent in the day-to-day running of a provincial remand centre necessarily impact on conditions of detention. There will be occasions when the daily routine of the institution must be interrupted and lockdowns imposed for legitimate reasons related to the nature of a custodial facility, including the need to ensure the safety of those who are incarcerated and those who work on site, and the overall maintenance of the institution. I include in this broad category lockdowns to conduct searches and other investigations, lockdowns because of problematic inmate behaviour, and lockdowns to perform maintenance of building systems. Those kinds of lockdowns and other conditions that make pre-sentence detention more onerous than post-sentence detention are accounted for in the one and a half to one calculus: see R. v. Summers, 2014 SCC 26, at para. 70. I do not agree that they constitute the ”particularly harsh” conditions referenced in R. v. Duncan, 2016 ONCA 754.
The records provided by CECC make clear that there were occasions of lockdowns for operational reasons that had nothing to do with staffing issues. These occurred both before and after COVID-19.
Based on sentencing proceedings I have conducted and sentencing decisions of judicial colleagues I have read, it is clear that staffing shortages at CECC have become a predictable reality. CECC has adopted an operational model that responds to staffing shortages by locking down all or parts of the institution. This means that inmates are confined to their cells sometimes for an entire day and even for sequential days, because of staffing shortages.
Judges have repeatedly warned in sentencing decisions that lockdowns in response to staffing shortages are inhumane and unacceptable. Despite those warnings, CECC continues to resort to lockdowns as a means of addressing its persistent staffing shortages. It is perplexing that the Ministry of the Solicitor General seems not to have taken steps to ensure that this institution, which holds a large population of inmates awaiting trial before GTA courts, is adequately staffed.
The grant of enhanced credit against a custodial sentence because of lockdowns is a matter of judicial discretion. I have reviewed the decisions that counsel provided to me. It is clear that there is no standard mathematical formula or approach to lockdown credit. The credit extended will vary depending on the circumstances of the case.
CECC records a lockdown of 8 hours or more as a full day lockdown. The institutional records show that because of staffing issues, as of September 16, 2020, Mr. Perry spent approximately 103 days in full lockdown and another 69 days in partial lockdown. Mr. Perry testified that from September 16 to the sentencing hearing on November 10 he had roughly another 30 days of lockdown, but it is not clear that these were all lockdowns because of staff shortages, or their duration. I accept that some were due to staff shortages. And, I have no doubt that there were additional lockdown days due to staffing issues in the period from the sentencing hearing to today.
I grant credit for lockdown time due to staffing shortages on an approximate basis of one day for each full day, and one-half day for each partial day up to September 16, with some additional time because of such lockdowns since September 16. I emphasize that this is not intended to be a strict mathematical calculation, but rather a more general yardstick. In total, I grant 5 months’ credit for lockdowns related to staffing shortages.
With respect to the conditions of incarceration during COVID-19, Crown counsel provided a detailed, eleven-page Information Note issued by the Ministry of the Solicitor General dated November 9, 2020, which was filed as Exhibit 4 on the sentencing hearing. It details the healthcare procedures in place and actions being taken to prevent the spread of COVID-19 in the province’s adult correctional institutions. It contradicts defence assertions that inmates are housed at CECC with virtually no regard to health and safety protocols. The Information Note from the Ministry of the Solicitor General indicates that steps have been taken to limit or reduce the number of inmates held in provincial institutions. Non-essential transfers of inmates between provincial institutions is on hiatus, federal inmates continue to move out of provincial institutions, and there is a new early release process in place for inmates convicted of less serious crimes. Every inmate entering an institution is subject to an active screening process that includes a full health assessment, and is then placed in an intake unit for a minimum of 14 days where they are monitored for symptoms. They are moved into general population only once this intake screening process is completed. All staff entering the institution must sign an affirmation that they are not feeling unwell or exhibiting symptoms, and have their temperature taken before being permitted to enter the institution. Staff are required to wear masks in the institutions unless otherwise specified. Measures to keep the institutions clean, including inmate living areas, are in place. Any inmate who tests positive for the virus is immediately placed in medical isolation.
As of November 6, 2020, CECC had three cases of COVID-19 in inmates, all of which were resolved in some fashion. The institution had no ongoing positive cases in inmates or staff.
I am satisfied that the Ministry of the Solicitor General has taken and continues to take reasonable steps and precautions to protect the health and safety of inmates in provincial institutions during the pandemic, including Mr. Perry and others held at CECC. That said, I accept that persons held in pre-sentence custody during the pandemic have felt greater stress and been subject to a more tense environment than would ordinarily be the case. I agree that some additional credit for the psychological impact of pre-sentence incarceration during the pandemic is warranted.
I grant Mr. Perry an additional 3 months’ credit for the approximately 9 months he has been in custody since March of this year when the impact of the pandemic became significant in this province.
In total, the additional credit is 8 months.
In fashioning the total additional credit, I have taken into account that Mr. Perry has been convicted of an extremely serious offence of violence. I have attempted to strike a balance between the need that the sentence served going forward reflects the seriousness of this offence, and the fact that some aspects of Mr. Perry’s pre-sentence custody could legitimately be described as “particularly harsh” conditions.
CONCLUSION
Mr. Perry, I sentence you to 7 years in jail, less credit of 55 months for pre-sentence custody, leaving a sentence to serve of 2 years and 5 months in the penitentiary.
I make a DNA order, and a s.109 weapons prohibition order for life.
Is there anything that needs to be clarified Mr. Navarette?
MR. NAVARETTE: No, Your Honour. Thank you.
THE COURT: Ms. Pasquino?
MS. PASQUINO: No, Your Honour. Thank you.
THE COURT: Madam Registrar if you could with the Indictment please endorse the appearances today. Ms. Pasquino for the Crown and Mr. Navarette and Ms. Booth for Mr. Perry with Mr. Perry present by audio from the jail. Mr. Perry is sentenced to 7 years in jail less credit of 55 months for pre-sentence custody, leaving a sentence to serve of 2 years and 5 months in the penitentiary. There is a DNA order and a s.109 weapons prohibition order for life. And, I’m not sure Ms. Pasquino if there’s anything that needs to be withdrawn. I don’t think so.
MS. PASQUINO: I don’t believe there were any other counts other than the murder count but he entered a plea to the lesser included of manslaughter so I think that is everything.
THE COURT: One thing that wasn’t addressed, does there need to be a s.743.21(1) non-communication order in respect of anybody?
MS. PASQUINO: I haven’t asked for that Your Honour but yes thank you for reminding me of that. Lamar Hamilton remains in custody, the co-accused and the Crown would ask for that non-communication order in respect of Lamar Hamilton. It’s L-A-M-A-R, Hamilton, usual spelling.
THE COURT: Thank you. That order will be made and noted on the Indictment please Madam Registrar. This concludes our proceedings involving Mr. Perry.
E N D O F E X C E R P T O F P R O C E E D I N G