Court File No. CR-18-000294
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
THOMAS LAKO
and
WILLIAM DWAYNE MCDONALD
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE H. RADY
on January 13, 2021 at LONDON, Ontario
APPEARANCES:
M. Gardiner Counsel for the Provincial Crown
K. De Koning Counsel for the Provincial Crown
K. Bhamra Counsel for the Thomas Lako
G. Grant Counsel for the Thomas Lako
D. Stoesser Counsel for William Dwayne McDonald
J. Stoesser Counsel for William Dwayne McDonald
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR SENTENCE PAGE 1
Transcript Ordered: January 21st, 2021
Transcript Completed: March 10th, 2021
Ordering Party Notified: March 10th, 2021
WEDNESDAY, JANUARY 13, 2021:
R E A S O N S F O R S E N T E N C E
RADY, J. (orally):
Mr. Lako and Mr. McDonald are being sentenced today, Mr. Lako for manslaughter and Mr. McDonald for second-degree murder arising from the senseless shooting and death of Jonathan Zak on May the 31st, 2012, almost a decade ago.
The crime might well have gone unsolved but for the dogged work of police investigators who suspected Mr. McDonald and Lako’s involvement early.
Before he was apprehended, and after Mr. Zak’s murder, Mr. McDonald killed his associate, Emmanuel Awai, for which he has been convicted of second-degree murder and sentenced to a life sentence with no eligibility for parole for 23 years. I mention this now because it is relevant to the sentence for Mr. Zak’s murder, which I will discuss in due course.
Mr. Zak had been playing board games with his friends on the evening of May the 30th. In the early morning hours of May the 31st, and as was his habit, Mr. Zak was walking home. He was carrying a knapsack containing some comic books. He was walking along a path beside St. Peter’s Cemetery when he had the terrible misfortune to encounter Mr. Lako and McDonald.
The evidence at trial established that in the course of an attempted robbery, Mr. Zak was shot with a shotgun, a shotgun that witnesses had seen Mr. Lako carrying while walking with Mr. McDonald in the direction from which Mr. Zak must have been coming.
Mr. Zak died almost instantly. He was left lying on the ground, on his back, partially over top of his backpack. The court heard disturbing evidence of the callous indifference of friends of Mr. Lako and McDonald who came to see Mr. Zak’s body and take pictures.
No one, including Mr. Lako or Mr. McDonald, called for help. Mr. Zak remained there until some hours later, when a woman en route to work came upon him. Ultimately first responders and police arrived. Although police interviewed residents and visitors to the Boullee Street complex, no one would talk for years until Nancy Gregory finally unburdened her conscience.
The Crown filed a sentencing brief that contained 17 Victim Impact Statements. Some were read in court by the authors. The statements were from Mrs. Zak, Jonathan’s mother; from family; from Jonathan’s aunts uncles and cousins. Some were from friends of Mrs. Zak and friends of Jonathan.
All expressed their grief and the loss of Mr. Zak from their circle. Family members commented about how their loss was heightened by witnessing Mrs. Zak’s grief at the death of her only child.
I was particularly struck by Mrs. Zak and her strength and quiet dignity. She told me that she has forgiven her son’s killer, not for their benefit, but for her own. It is very clear to me from what I read and what I have heard that Jonathan Zak was a man of small stature who had an enormous presence in the lives of family and friends. He is missed.
I will deal with each of Mr. Lako and McDonald separately, but the guiding sentencing principles are common to both. The purposes and principles are set out in Section 718 to 718.2 of the Criminal Code. They are well known, and I expect that both offenders are familiar with them given their criminal records and their involvement in the justice system.
It is clear to me that deterrence and denunciation are primary objectives. In Mr. McDonald’s case, his separation from society is of equal importance for the protection of the public. For both men the prospect of rehabilitation, if any, is also a consideration.
Even though Mr. McDonald is named second on the indictment, I will deal with his sentence first because it is, to some extent, more straightforward given its mandatory nature.
A second-degree murder conviction carries with it an automatic life sentence. Two issues arise: the first is parole ineligibility; the second, whether the period of parole ineligibility should be concurrent with or consecutive to that imposed in the Awai murder. In that case, as I have said, Mr. McDonald is not eligible for consideration until after 23 years.
The Crown seeks the maximum period of 25 years to be served consecutive and emphasizes the many aggravating factors, which I will discuss, as well as the absence of mitigating factors. It provided a book of authorities, which contains cases supporting the propositions that it makes respecting aggravating factors.
I have considered them, but I do not cite them during the course of my decision because the propositions contained therein are well established and are not controversial or disputed by the defence.
Mr. David Stoesser, for Mr. McDonald, points out correctly that parole ineligibility does not mean parole will be granted. He makes note of his client’s upbringing, his early use of drugs and alcohol and the absence of moral guidance and modeling in his family.
Mr. Stoesser notes that regardless of the aggravating factors, one cannot give up hope. After all, the system does not. He suggests that a term of 20 years of parole ineligibility, to be served consecutively.
To begin, one of the things that I can consider, is the jury’s recommendations after they delivered their verdict. They were not unanimous. Unlike a verdict following trial, they were not required to be.
Three jurors recommended 20 years and seven recommended 25 years. I agree with them that the circumstances here warrant a long period of ineligibility considering the aggravating factors and the lack of mitigating factors as well as the poor rehabilitation prospects, to which the jury was not privy.
Mr. McDonald has a criminal record that includes entries for possession of a prohibited weapon, assault and the Awai murder. I will say this about his record. It is not particularly long but it bears noting that he has been in custody now for many years.
He has a record for institutional offences since 2017, for assaults on inmates and corrections officers and for possession of weapons. He is now 30 years old. At the risk understatement, his presentence report is not a good one.
While he presented as cooperative, he was not particularly candid or forthcoming. The author of the report noted:
The subject acknowledges his pro-criminal lifestyle and the unlikeliness of making any changes. He denied any gang affiliation noting that this is a label placed upon him by the institutions and police services. The subject recorded that his grandmother attributes his lifestyle to negative associations, but the subject was clear that he has made his own decision knowingly, although the majority of his peers and associates are involved in criminal activity or the drug subculture. Mr. McDonald is in my view....
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CLERK REGISTRAR: Your Honour? Your Honour, sorry, we didn’t catch – we just lost your volume. Your Honour, we still can’t hear you.
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THE COURT: Alright, so can everybody hear me?
CLERK REGISTRAR: Yes, the court can hear you and the court reporter can hear you as well.
THE COURT: Okay, very good. Alright, as I have kept track of the point at which my voice broke off, I was saying, and I believe that we are free to start at this – we are safe to start at this point.
Mr. McDonald is, in my view, totally committed to a criminal lifestyle. He has either no insight into his behaviour or he is willfully blind. But I fear that regardless, any programing that might be available will not be helpful, absent a marked change in attitude, acceptance of responsibility and a sincere wish to change. That might yet happen. Time, of course, will tell.
Specific aggravating factors are Mr. McDonald’s criminal record and the victim impact statements, which I have already reviewed. The offence involved the use of a shotgun and the shooting occurred during the course of another offence, a robbery, also aggravating.
Mr. Zak was unknown to Mr. McDonald. He was an utterly random and defenseless victim, killed in a public park in a residential neighborhood. Mr. McDonald’s conduct after the murder is as disturbing as it is inexplicable.
He was described by witnesses as agitated when he returned to the Boullee Street Complex. He bragged about the murder. He did a little dance. He laughed. He involved others in attempts to conceal his involvement in the murder, in particular, the late Ms. Gregory.
Having considered the circumstances of the murder, the aggravating factors and the absence, relatively speaking, of mitigating factors, I have concluded that a period of ineligibility of 25 years should be imposed.
I turn then to whether the period of ineligibility should be concurrent or consecutive to that imposed in the Awai case.
The analysis involves the same considerations as parole ineligibility as well as determining whether there is a factual nexus between the two murders. If there is not, a consecutive term is warranted....
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CLERK REGISTRAR: She’s out again.
THE COURT: I interpret that to mean, when one considers....
CLERK REGISTRAR: Your Honour....
THE COURT: A period of ineligibility adjustment...
CLERK REGISTRAR: She’s out again. You’re cutting in and out again. We have to change courtroom.
THE COURT: Alright. Let’s change courtrooms please.
CLERK REGISTRAR: Okay.
THE COURT: We’re going to change courtrooms. Unfortunately, we’re going to have everybody dial back again, unfortunately, okay. It’ll be the same login information as before. So just give us about 10 minutes, 15 minutes tops.
...CHANGE OF COURTROOMS
THE COURT: I am going to back up just a little bit.
I turn then to whether the period of ineligibility should be concurrent or consecutive to that imposed in the Awai case. The analysis involves in the same considerations as parole ineligibility, as well as determining whether there is a factual nexus between the two murders. If no, a consecutive term is warranted unless the result is unduly harsh.
I interpret that to mean that when one considers the entire period of ineligibility, an adjustment can be made to ameliorate any harshness.
The Crown seeks a consecutive term. As I understood Mr. Stoesser’s submission, he essentially conceded that this was to be the likely result. For this reason, he urged a period of parole ineligibility of 20 years, by which time Mr. McDonald’s age will have outrun his criminality, as Mr. Stoesser put it.
This underpins his submission that 20 years of ineligibility is appropriate, as well as offering Mr. McDonald an incentive for good behaviour and change.
In my view, a consecutive period of parole ineligibility is appropriate and warranted. The Zak murder, the first temporally, was unrelated to Mr. Awai’s. To this extent, the case is similar to the decision in R. v. Millard.
The issue becomes whether in totality the result is unduly harsh. It is unquestionably harsh. Very harsh indeed. However, I cannot say it is unduly so in the sense of an unwarranted or inordinate degree, given the circumstances.
The mandatory ancillary orders shall issue. There will be a DNA order, this is a primary offence; a weapons ban for life; and a Section 743.1 non-communication, non-contact order with individuals to be named. What I will do is leave it to the Crown at the conclusion of today’s hearing to provide the names.
With respect to Mr. Lako, the Crown seeks a term of imprisonment of twelve years with credit for pre-sentence custody on what has come to be known as a customary one and a half to one basis.
It emphasizes Mr. Lako’s extensive criminal record and the absence of apparent mitigating factors, as well as instances of institutional misconduct.
It relies on a number of sentencing decisions that bear a factual similarity to this one, involving robbery in some and possession of a firearm for example, in Husbands, in Deere, in Warner and White. I will provide the actual citations to Madam Reporter at the conclusion of today.
In R. v. Deere, the offence provided the loaded handgun to the co-accused in both Deere and White, as here, the co-accused was the shooter.
I do not intend to review each of the cases cited because, as has often been said, sentencing is a highly individualized process that takes account this offender and this offence.
The cases are very useful to the extent of establishing a range of sentence for similar offenders for similar crimes. The cases cited by the Crown tend to support a wide range of sentence, ranging from eight years to approximately 16 years.
Mr. Grant seeks a term of imprisonment of eight years with credit for pre-sentence custody on the customary basis. He also asks for what is referred to as a COVID credit to account for conditions at the institutions where Mr. Lako has been kept during the pandemic. He suggests a credit of seven months as of the date of his sentencing hearing.
Mr. Grant outlined his client’s background. Mr. Lako was 20 when the shooting occurred. He was raised, as I understand it, by his mother after his parents separated. He is of biracial heritage. He suffers from ADHD and dyslexia and has only a Grade 10 education.
...AUDIO OF THE COURT IS CUT OUT
CLERK REGISTRAR: Your Honour, we just lost you.
THE COURT: Can you hear me now?
CLERK REGISTRAR: Yes, I can hear you now.
THE COURT: Alright.
Mr. Grant also referred to a number of cases that support the conclusion that the lower end of the range is six or seven years. See, for example, Arrai and Styverson and Chol, where a sentence of eight years was imposed.
In arriving at a just and appropriate sentence, I have taken into consideration Mr. Lako’s lower level of culpability, in the sense that he did not know that Mr. McDonald would kill Mr. Zak. However, the jury found that the Crown had proven beyond a reasonable doubt that: Mr. Lako and McDonald agreed to rob Mr. Zak. Second, during the course of carrying out the robbery, Mr. McDonald caused harm to Mr. Zak resulting in his death. And third, that Mr. Lako knew, or should have known, that Mr. Zak would likely be harmed during the robbery.
Further, the evidence established that Mr. Lako was in possession of the firearm when he and Mr. McDonald headed toward the park. The evidence also establishes that he gave it to Mr. McDonald.
Mr. Lako has an unenviable criminal record. Indeed, it has more entries than Mr. McDonald’s record. It includes offences dating from 2006 as a youth and continues essentially unbroken until 2014.
It includes assault, multiple failures to comply with court orders, theft with a weapon and finally armed robbery. He had only been released from custody for about one month when Mr. Zak was killed.
The record, which I say is essentially unbroken, shows an escalating pattern of criminal activity.
Like Mr. McDonald, it is difficult to discern mitigating factors. And like Mr. McDonald he has not expressed any remorse, which would be mitigating, although I hasten to add that it is not an aggravating factor.
One can only hope that Mr. Lako will make progress toward rehabilitation while in custody and once this case is finally concluded.
In the circumstances, I am persuaded that a sentence of 12 years is justified. Mr. Lako is entitled to credit on a one and a half to one basis as set out in Section 719(3) and (3.1) of the Criminal Code. On this, the Crown and the defence are agreed.
As noted, Mr. Grant submits that a further reduction or credit is warranted to account for the risks of, and conditions in custody occasioned by the COVID pandemic.
He relies, in particular, on the decision of Regional Senior Justice Thomas in the R. v. Chol case from October of last year.
The Crown submits that the court cannot give credit in excess of one and a half to one, which is the maximum permitted by the Code. The Crown recognizes that credit can be given as a result of the conditions of pretrial custody, for which the defence has the onus to prove on a balance of probabilities. See Section 724(3)(d) of the Code.
The Court of Appeal dealt with the issue of credit in R. v. Duncan, ruling that the Code did not establish an absolute cap on pretrial credit, and time in excess of one and a half to one could be granted in appropriate cases for particularly harsh conditions.
There is ongoing debate about how Duncan is to be reconciled with the Supreme Court of Canada’s decision in R. v. Summers. See, for example, R. v. Gregoire, a decision of the Court of Appeal.
In any event, the cases tend to support the proposition that if additional credit is to be given, evidence is required about the conditions of pre-sentence custody upon the offender.
In R. v. Larivière, the Court of Appeal noted at paragraph 16:
The COVID-19 pandemic does not impel us to intervene and disturb a sentence that is fit. We adopt the approach from R. v. Morgan, 2020 ONCA 279, in which this court recognized the impact of this virus on our society, at para. 8:
‘We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.’
However, there is nothing about the particular circumstances of the appellant’s incarceration, nor any indication of a unique or personal vulnerability, that would justify shortening the fit sentence that was imposed.
See R. v. Cabral as well, a November decision of the Ontario Court of Appeal. I view these cases as binding on me.
I will say that there is a very large body of case law developing from the Superior Court of Justice on the issue of whether additional credit can be granted at all, if so on what basis and what evidence, if any, is required.
There is an emerging discussion about whether credit can be granted against the sentence yet to be served because it will be served at least in part during the COVID pandemic.
This request was not explicitly made by Mr. Grant in his submissions, oral or written. It is important, however, to deal with it.
First, I accept that in appropriate cases an otherwise properly crafted and suitable sentence can be reduced to account for the impact of the pandemic on custodial conditions into the future.
There are certain conditions which the court can consider absent specific evidence. See R. v. Hearns, a decision of Pomerance, J. from April, 2020, early in the pandemic.
In her decision, Justice Pomerance noted, and I quote at paragraph 11:
The risk of infection is, by necessity, higher in custodial institutions, where conditions – cramped quarters, shared sleeping and dining facilities, lack of hygiene products – make it difficult, if not impossible, to implement social distancing and other protective measures. This is not to say that the virus is rampant in jails, or that government officials are not trying to protect inmates. It is only to say that, as a matter of logic and common sense, the risk of contracting the virus is higher in an environment where people are forced to habitually congregate with one another.
She went on to observe at paragraph 12:
There is no suggestion that Mr. Hearns has any enhanced vulnerability flowing from age or underlying medical conditions. This does not negate the concern. The virus does not discriminate. There are reports of otherwise healthy individuals succumbing to severe illness and, in some cases, death. We must assume that no one is immune from the disease or the full range of potential consequences.
Her words make good common sense. She excerpted from some of the cases that had been decided by that time, which was April of last year. She considered the impact of the pandemic on sentencing principles and discussed the concept of collateral consequences, which does not, as she put it “neatly encompass the pandemic”.
She concluded:
There is nothing collateral about the conditions of imprisonment – they are as direct a consequence as one can imagine. Yet, the impact of the pandemic is a matter that is extraneous to the pillars of proportionality – the gravity of the offence and the moral blameworthiness of the offender. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail.
Ultimately, she concluded by saying this:
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.
In R. v. Yusuf and Ahmed, Justice Monahan did not reject the notion that credit against sentence yet to be served could be granted. However, he noted that evidence was required because otherwise the court was left to speculation and guess work.
He adopted the analysis of Justice Smith in R. v. Audet, where the court noted at paragraph 42:
As the experts cannot proffer any reliable prediction about the length of the pandemic, I have no evidence whatsoever to use as a basis for calculating an appropriate reduction. Any reduction that I might choose to make to the length of Mr. Audet’s sentence would therefore be arbitrary and capricious. The National Parole Board will be in a much better position, some months down the road, to decide what to do about the COVID 19 problem, as it relates to Mr. Audet, than I am today. That being the case, I will not make a COVID 19 reduction.
The court declined to give additional credit in R. v. McNichols where evidence was in fact led about the impact of COVID on the offender.
Justice Akhtar concluded that the impact on the offender was not measurably different from that on members of the community.
I would pause here to note that the development of and the introduction of a vaccine that is said to be, or will be available to any Canadian who wants it might be, one might say, a game changer.
There has been discussion about whether incarcerated individuals might receive some priority. For this reason in particular, I favour the approach taken in Audet and leave it to the National Parole Board, which will be far better situated than I am today to consider the issue.
For these reasons, I decline to give a COVID credit either enhanced for time spent to date in custody or against time yet to be served.
The ancillary orders mandated for Mr. McDonald are mandated in Mr. Lako’s case.
As of the date of sentencing submissions which was November the 17th, 2020, Mr. Lako had been in custody 1,247 actual days according to Mr. Grant. The Crown submitted that it was 1,158 days.
I would like, and I give direction to counsel to discuss the discrepancy between their positions to see if they can reach a consensus. It is, after all, I suggest, a question of fact. Absent of agreement, I will require further submissions.
MR. GRANT: I believe Mr. De Koning agreed that he made a mistake. I say that the – is 1,302 days and this comes from the 21st of June, 2017. It’s very simple to do. There’s lots of calculators on the internet, as of till yesterday - that’s 1,302 days, in my understanding, Your Honour is handing up a 1.5, that will be 1,953 days.
THE COURT: Thank you. Does the Crown agree? Does the Crown agree?
CLERK REGISTRAR: They can’t hear you.
THE COURT: Okay, can you hear me now?
CLERK REGISTRAR: I can hear you, but I just can’t hear anything from Ms. Meredith Gardiner.
MS. GARDINER: Can you hear me now, Your Honour?
THE COURT: We can, yes, thank you.
MS. GARDINER: Okay, good. And I take no issue with my friend’s calculation.
THE COURT: That is good, thank you, that is helpful. So when I endorse the back of the indictment, I will make that, that stipulation with respect to the sentence.
MR. GRANT: Thank you, Your Honour.
THE COURT: Alright.
MR. GRANT: Thank you.
THE COURT: So I will leave it to counsel, the Crown and the defence to confer about the names to be given to the registrar with respect to the non-communication order.
MS. GARDINER: I’ve provided them to Madam Registrar.
CLERK REGISTRAR: Yes. I did receive it.
MS. GARDINER: Perhaps she could read them out so that the accused are aware of them as well. THE COURT: Yes.
MS. GARDINER: And then we can determine whether there’s any issues with respect to them.
THE COURT: Let’s do that please.
CLERK REGISTRAR: Okay.
THE COURT: Madam Registrar?
CLERK REGISTRAR: Yes. Jean Zak. Khasheequia Gregory. Carrie Whitmore. Trevor McGregor. William Cote. Clifford Bruce Hubley. Jonathan Merrow. Stacey Shoemaker. Robert Springett.
Justine South. Jessica Nixon. And for the accused for each other, William McDonald and Thomas Lako.
THE COURT: Any issue, counsel?
MS. BHAMRA: Your Honour, may I just advise the court, the actual date Mr. Lako was arrested was June the 19th, not the 21st. Just to clarify.
THE COURT: Thank you.
MS. BHAMRA: Thank you.
THE COURT: Alright.
MR. GRANT: I have no issues with those names being on there.
THE COURT: Alright, Mr. Stoesser?
MR. STOESSER: We have no difficulty with those names, Your Honour.
THE COURT: Alright, thank you. Alright, so I will endorse the back of the indictment in accordance with the reasons that I have just delivered. Was there anything else, counsel?
MR. GRANT: None from me.
MR. STOESSER: Nothing, thank you.
THE COURT: Thank you, that will conclude then the sentencing.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED