COURT FILE NO.: CR-19-70000261-0000
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
Tyrelle Lee and Steven Macisaac
Anna Tenhouse and Jay Spare, for the Crown
Jennifer Penman and Renee Gregor, for Mr. Steven MacIsaac
HEARD: September 9, 2021
KELLY J.
Reasons for Sentence
Mr. Steven macisaac
[1] Mr. Tyrelle Lee and Mr. Steven MacIsaac were charged with second degree murder in the death of Mr. Isaiah Witt. Following a judge alone trial on the Zoom platform, they were both convicted of manslaughter. Mr. MacIsaac now appears before me for sentencing.[^1]
[2] Crown counsel seeks a sentence of 10 years’ imprisonment for Mr. MacIsaac.[^2] Counsel for Mr. MacIsaac seeks a sentence of five years (time served).[^3] Counsel agree on the applicable ancillary orders.
[3] For the reasons set out below, I sentence Mr. MacIsaac to 7.5 years’ imprisonment. He will be subject to a s. 109 order for life, and he will be required to provide a sample of his DNA.
[4] What follows are my reasons.
Factual Overview[^4]
[5] Mr. Witt and several others attended at Stan Wadlow Park (hereinafter referred to as the “park”) in the City of Toronto on October 7, 2017 for a Jam. A Jam is a party that is typically advertised on Snapchat and is directed to those mainly in grades 9 and 10, or to those who are 14 and 15 years of age. Mr. Witt attended with some friends. Messrs. Lee and MacIsaac attended with K.D. (a Young Person), as well as Mr. Dwight Francis.
[6] It is alleged that a group, associated to Mr. Witt, were “talking shit” about the group that included Messrs. Lee and MacIsaac. A verbal confrontation between Messrs. Lee, MacIsaac, and Francis and Mr. Witt’s group escalated from a verbal one to a physical one after Mr. MacIsaac swung a plastic Captain Morgan rum bottle, hitting a person associated with Mr. Witt’s group. Mr. Witt intervened to de-escalate the situation but became a victim instead.
[7] After approaching Messrs. Lee, MacIsaac, and Francis, Mr. Witt tried to run away. I found that he was pursued by Messrs. Lee and MacIsaac to a small hill. At some point, one or both of Messrs. Lee and MacIsaac grabbed Mr. Witt’s gym bag. Whether he fell to the ground because of that or tripped as they were chasing him, Mr. Witt was prevented from fleeing. He then became trapped between Messrs. Lee, MacIsaac, and the hill. He was killed by one stab wound to his chest, inflicted by Mr. Lee. Mr. MacIsaac assisted Mr. Lee by chasing Mr. Witt to the hill while armed with a knife and preventing Mr. Witt from escaping. Mr. MacIsaac was also stabbed in the backside during the incident. This incident started and finished quickly — within minutes.
[8] After the stabbings, Messrs. Lee and MacIsaac fled the park. Various items were discarded as they fled, including the knife used to stab Mr. Witt and the knife possessed by Mr. MacIsaac in the park. Messrs. Lee and MacIsaac were apprehended by members of the Toronto Police Service (the “TPS”) shortly thereafter.
[9] I found that Mr. Lee stabbed Mr. Witt. I found that Mr. MacIsaac was a party to the stabbing. As such, both were convicted of manslaughter.
[10] These are the facts upon which Mr. MacIsaac is being sentenced. I will now turn to the impact on Mr. Witt’s family and the community.
Victim Impact
[11] Victim impact statements were filed by Crown counsel. The family impact statement may be summarized as follows:
a. The family describes that they lost a son, grandson, nephew, cousin, and best friend when Mr. Witt died. They said that “our world will never be the same and our hearts will never heal. Isaiah was the love of all of our lives. He was smart, athletic, kind, generous and so loving. He was well loved by everyone which was evident on the day of his funeral when hundreds of people gathered together at the park where he lost his life.”
b. Time is not healing the hardship caused to the family by Mr. Witt’s death. They are haunted by nightmares, reliving the tragedy. Mr. Witt’s mother has suffered the most. She and her son were best friends and inseparable. The family describes that since Mr. Witt’s death, his mother has “left” as well. She is not the same, as she has not been able to return to work nor be an active member of our society. They describe that “it is soul crushing that for the remainder of her days she will never get to feel his embrace or hear the sweet words I LOVE YOU MOM.”
c. The death of Mr. Witt has impacted his mother’s ability to embrace her community. They miss her.
d. The family describes Mr. Witt as having a “smile that would light up a room”. He had the ability to make “everyone feel important, special, loved and appreciated”. They describe that he has left a “hole in our hearts that can never be filled”. That said, he will be remembered as a hero.
e. The family believes that Mr. Witt was destined for “greatness.” He demonstrated a commitment to physical and mental fitness. He did not drink or take drugs. He was an ideal citizen in his community who committed to volunteering in his church and youth groups. They describe the sadness they feel being unable to see what kind of man, husband, or father Mr. Witt would have become.
f. The family describes that they are “aching in pain and have been since the day Isaiah left us. This unimaginable event has left us all in shambles”. The family statement concludes by expressing the following: “[f]or those who say that time heals, they don’t know the excruciating pain that comes from such a horrific loss. Time doesn’t heal the pain; the pain is a life sentence.”
[12] Mr. Anthony O’Brien of Wexford Collegiate School for the Arts was Mr. Witt’s rugby coach. He describes Mr. Witt as someone who not only “stood out” for his athletics but also for his “attitude, temperament, behaviour, and maturity”. Mr. Witt was described as “emotionally mature,” well beyond his years. As an example, Mr. Witt made sure that a transgendered student felt included and part of the team. An award has been established in Mr. Witt’s name at the school. Mr. Witt’s loss created a tremendous void at the collegiate, as he would have been a great role model for future students.
[13] Pastor James Parker of the Pape and Cosburn Community of East York hosted programs that Mr. Witt attended. He held a vigil for the community after Mr. Witt’s death. At the vigil he heard, firsthand, of Mr. Witt’s impact on the community and witnessed how the tragedy of Mr. Witt’s death affected others. Mr. Park describes that:
a. As a church filled with positive people engaged in the lives of young people, they have tried to present the world as a generally good place and encourage youth to make positive and good choices in their lives. However, the fact that Isaiah — a mature and responsible young man — was senselessly stabbed to death has been very disorienting and very disturbing for the community.
b. There has been great fear in the community for the safety and security of their young people. If this tragic event could happen so quickly in a public park to such an honorable and likeable young man as Isaiah, it could happen to any young person. Many young people and many families have been paralyzed by fear as a result of what happened to Mr. Witt.
c. Pastor Parker also provided an essay entitled, “Lighting Up the World: Pastoral Reflections Amidst Tragedy.” In the essay, Pastor Parker talks about the gathering of Mr. Witt’s community on the day that he would have turned 16 years of age. About one hundred youth attended. Pastor Parker described Mr. Witt as somebody who was a “kind, respectful, engaging young man, someone who was not interested in drugs or violence or hate, someone who enjoyed lifting weights, eating pizza and listening to music”.
d. Pastor Parker described another community gathering which took place on the weekend of Mr. Witt’s death. Although they were expecting 15 to 20 people to come, approximately 140 people attended. For a couple of hours, many people told stories of how Mr. Witt “touched their life, made them laugh, stood up for them, or inspired them in some way”. Pastor Parker closed the essay with words written by Mr. Witt a few months prior to his death: “If we could turn all the hate into electricity, we could light up the whole world.”
[14] I will now turn to a consideration of Mr. MacIsaac’s background.
Personal History: Mr. MacIsaac
[15] The following is a summary of Mr. MacIsaac’s background:
a. Mr. MacIsaac is now 23 years of age. He was 19 years of age at the time of this offence.
b. Mr. MacIsaac grew up in Toronto in the East York area. He was raised by his mother. His parents were divorced. He has a sister who is eleven years older, but she moved out of the home at the age of 16.
c. His mother had addiction issues relating to prescription drugs and alcohol. Mr. MacIsaac’s upbringing is easily characterized by neglect.
d. Notwithstanding the difficulties in his upbringing, he is close to his mother and sister.
e. At the time of his parents’ separation, there was a custody dispute. Mr. MacIsaac was only permitted to see his father every other Sunday. As he grew older, he increased the amount of time he saw his father. At the time of his father’s death (due to a massive heart attack), Mr. MacIsaac was 16 years of age and had established a good relationship with his father.
f. Mr. MacIsaac was close to his grandmother. She died when he was 17 years of age.
g. His mother has been diagnosed with stage 4 lung cancer. She has been in the palliative care unit of a hospital. He has seen her very little due to his incarceration and the pandemic.
h. Mr. MacIsaac has a learning disability and had an Individualized Education Plan (“IEP”) in place. This made schooling very difficult as he was anxiety ridden. He dropped out of school in grade 9.
i. Once released, Mr. MacIsaac hopes to learn a trade. He is interested in elevator repair. His father’s daughter’s boyfriend is in this business and can provide some guidance.
j. While incarcerated, Mr. MacIsaac intended to pursue his education. Due to the pandemic, he has been unable to do so.
k. He has family support as indicated in their letters, which will be set out further below.
l. Mr. MacIsaac has shown remorse through communication with members of his community, which is set out in the letters of support. He also demonstrated insight and remorse when addressing the Court before the sentencing hearing was adjourned.
m. Mr. MacIsaac does not have a criminal record. After his arrest, he pleaded guilty to an assault committed prior to the manslaughter. He received a conditional discharge and probation for 12 months.
n. At the time of the manslaughter, he was on bail with a condition not to possess weapons.
o. There were two misconducts while he was incarcerated — the use of foul language and an assault on another inmate.
[16] Letters were filed on behalf of Mr. MacIsaac. They may be summarized as follows:
Ms. Barbara MacIsaac: Barbara is Mr. MacIsaac’s mother. She was shocked to hear of his involvement in this crime. She assures the Court that Mr. MacIsaac “understands the severity of the situation and is very remorseful”. It was at the time of the passing of his father that Barbara noticed that he was “acting out more, stopped coming home at night and started not to listen to the rules”. She confirmed her diagnosis of stage 4 cancer.
Ms. Jennifer MacIsaac: Jennifer is Mr. MacIsaac’s sister. She was “shocked and heartbroken” to hear of her brother’s involvement in this matter. She says that he is not a “bad person or a malicious guy”. He made a terrible decision, which will affect him for the rest of his life. She has assured the Court that Mr. MacIsaac “grasps the seriousness of the situation and is truly regretful and remorseful”. She describes her brother as a “charismatic guy” who makes friends with ease. He is loyal and kind. She can provide a place for Mr. MacIsaac to live upon his release from custody and intends to be her brother’s “major support system”.
Ms. Shayleen McFarlane: Ms. McFarlane is Mr. MacIsaac’s best friend. She describes that Mr. MacIsaac was nothing but a “smart, caring, responsible child growing up”. She was shocked to hear of the charges as “it did not reflect anything of the boy I know”. She says that Mr. MacIsaac is “deeply regretful for the offence he committed”. He has “shown nothing but acceptance and willingness to overcome his problem as it has affected him deeply”.
Ms. Nicole Roach: Ms. Roach is a cousin of Mr. MacIsaac. She describes Mr. MacIsaac as kind and helpful. He enjoys animals and fishing. She was “shocked and saddened” to hear of Mr. MacIsaac’s involvement in this matter. She has spoken with him, and he is remorseful. She will support him to “become the good man we know he is and do something great with his life”. She believes that Mr. MacIsaac is a “good human being who made a poor choice”.
Ms. Kaizlee Brooks: Ms. Brooks has had a “close bond” with Mr. MacIsaac for 15 years. She sees his potential and describes him as “smart, dependable and [a] loving friend”. She views him as family, as does her own family. She describes him as a “genuine and honest man”. He has a big heart “and even bigger dreams”. He is remorseful for what occurred that “sorrowful night”. In conclusion, Ms. Brooks wrote:
Steven MacIsaac is a young man full of promise. I know this experience has taught him lessons beyond value that he will carry on throughout his life. Although I have already seen a great deal of change in Steven, I am eager to see the man he is continuously working toward becoming.
Ms. Roberta Brooks: Ms. Brooks is a family friend. Mr. MacIsaac and her daughter (Kaizlee) are friends, and she has enjoyed watching him grow into the “friendly, confident young man that he is today”. He is loyal to his friends and can be relied upon. She has spoken to him many times and describes him as remorseful. Despite his current circumstances, Ms. Brooks still believes Mr. MacIsaac to be dependable and a “strong individual and a good human being overall”. She believes that his involvement in this matter has changed him and taught him valuable lessons.
[17] Mr. MacIsaac addressed the Court and apologized to the Witt family for his involvement in this incident. He is deeply ashamed, and he is sincerely apologetic.
[18] Mr. MacIsaac has been incarcerated both before and during the pandemic. His time in custody is as follows:
| From | To | Amount of Time |
|---|---|---|
| October 9, 2017 | August 21, 2018 | 316 days (10 months) |
| July 16, 2019 | October 13, 2021 | 821 days (27 months) |
| Total: | 37 months |
[19] During Mr. MacIsaac’s incarceration, I am advised that there were 431 days of lockdown at the Toronto South Detention Centre (“TSDC”). Most of the lockdowns were the result of staff shortages. Of those days, 48 days were full days of lockdown, the others were partial.
[20] In an affidavit filed, Mr. MacIsaac described the conditions of incarceration during the pandemic. In summary, he advised of the following:
a. During lockdowns, there is limited access to showers and the telephone. There is little, if any, access to fresh air.
b. Accessing his lawyer for consultation has been difficult and at times, non-existent.
c. Visits with family are particularly difficult due to the pandemic. The few times that Mr. MacIsaac was able to visit with his mother and sister have been through a “blurry screen” or more rarely, through glass. Family visits are often cancelled, as well as programming.
d. In December 2020, a male on his range tested positive for COVID-19. This resulted in a lockdown of the range for 29 days. Cleanliness issues are significant.
e. In lockdown, Mr. MacIsaac feels “stressed, anxious, frustrated and confined”. His mental well-being has been affected. Time passes more slowly when in lockdown.
[21] I will now turn to a consideration of the law.
The Law
a. The Positions of the Parties
[22] All counsel agree that there are a wide range of sentences that can be applied in cases of manslaughter. Crown counsel submits that the circumstances surrounding the killing of Mr. Witt call for a sentence of 10 years. If accepted, this would result in a remaining sentence of approximately five years to be served (after accounting for the pre-sentence custody of approximately five years).
[23] Counsel for Mr. MacIsaac submits that because Mr. MacIsaac is a party to the stabbing, a sentence below the range proposed by Crown counsel is warranted. Counsel submits that five years is appropriate. Defence counsel submits that such a departure is supported by the facts giving rise to the conviction and the personal circumstances of Mr. MacIsaac (including that much of his pre-sentence custody was served during the pandemic). If the position of counsel for Mr. MacIsaac is accepted, he would have already served his sentence of five years and as such, should be released into the community immediately.
b. General Principles
[24] In determining an appropriate sentence for Mr. MacIsaac, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, R.S.C., 1985, c. C-46, which provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[25] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^5]
[26] Due to the age of the deceased, Mr. Witt, the court is also required to consider s. 718.01, which provides as follows:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
c. The Range
[27] The maximum sentence for manslaughter is life imprisonment. However, there are a wide range of circumstances that may result in a conviction for manslaughter. The spectrum of manslaughter convictions can range from an “unintentional and almost accidental killing” to “those approaching murder at the opposite extremity”. The varying circumstances in manslaughter cases give rise to the wide variation of sentences imposed. As such, there is a broad range of moral culpability to be considered.
[28] As the sentencing Court, I have considered the sentencing precedents in cases involving convictions for manslaughter as provided by both counsel. Sentencing in manslaughter cases is case specific. However, the Ontario Court of Appeal has held that in cases where the conduct of the offender was accompanied by aggravating features, the applicable range of sentence is usually between 8 to 12 years.[^6]
[29] In support of their position on sentencing Mr. MacIsaac to 10 years’ imprisonment, Crown counsel relies on a number of cases. While I have considered all of them, I have paid particular attention to the case of R. v. Krstic,[^7] involving a party to the offence of manslaughter.
[30] In Krstic, the victim died following two stab wounds to the chest. The stabs were inflicted by the co-accused. Ms. Krstic had previously been in a romantic relationship with the deceased and was romantically involved with the co-accused at the time of the killing. She did not stab the deceased but was convicted of manslaughter due to her involvement in the killing.
[31] While on a bus, Ms. Krstic engaged in a verbal argument with the deceased. She advised the deceased that he would have to answer to her current boyfriend. A meeting was set up for the fight between Ms. Krstic’s former and current boyfriends. During the altercation, with Ms. Krstic close by, the co-accused produced a knife and pursued the deceased who was unarmed. Ms. Krstic soon became involved, hitting the deceased from behind after picking something up from the sidewalk. At almost the same time, the co-accused thrust the knife towards the deceased. Two stab wounds were inflicted to his chest. One of them penetrated the heart of the deceased. The entire incident lasted less than two minutes. Ms. Krstic and the co-accused fled the scene. Eventually, they cancelled their cell phone services and left the city.
[32] Ms. Krstic pleaded guilty to the offence of manslaughter and did so before a trial date was set. She was 18 years-old at the time of the offence. She did not finish high school, had sporadic employment, and was a mother of a four-year-old child at the time of sentencing. She apologized during the hearing. She used her time in custody productively, engaging in some counseling services and pursuing her education. She was diagnosed with an unspecified depressive disorder and ADHD.
[33] In his reasons, at para. 56, Grace J. made the following observations, which I adopt:
I have reviewed the bound volumes of cases supplied by counsel. After reading those decisions I make these observations:
a. The range of sentences in cases involving manslaughter is very broad because the circumstances of the offence can vary widely from actions straying close to negligence at one end to near murder at the other: R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 (C.A.) (‘Clarke’), at para. 7; R. v. Henry, 2015 ONSC 3905(S.C.J.), at para. 63;
b. The challenge facing sentencing judges in such prosecutions is well-recognized. As the Manitoba Court of Appeal said in R. v. C.C., 2003 MBCA 51, [2003] M.J. No. 101 (C.A.), at para. 6:
It has often been stated...that the imposition of the correct sentence in a case of manslaughter is one of the most difficult tasks that a court faces. There is a reduced blameworthiness to be attributed to an offender because of a lack of intent or because of provocation, but the result of the offender's actions still culminate in a death in circumstances that absent that lack of intent or because of that provocation would otherwise result in murder. [footnote omitted]
c. Further, as the British Columbia Court of Appeal wrote in R. v. Eneas, [1994] B.C.J. No. 262 (C.A.), at para. 53:
...it matters not if the deceased is young, promising and much loved, or old, deranged and despised by all who knew him. The law ought not to measure the value of the life taken, for to do so would diminish every person's essential right to live out his or her appointed span.
d. Not surprisingly, a lengthy sentence is ordinarily imposed ‘to reflect society's concern for the sanctity of life’: R. v. McFarlane, 2012 ONCA 82, at para. 8;
e. Nonetheless, it is important to remember the words of Watt J. (as he then was) in R. v. Costa, [1996] O.J. No. 299:
No sentence will ever breathe life into the deceased person or restore him to his...family and friends. Would that it were that simple;
f. Incidents that carry substantial moral culpability are often referred to as cases of “aggravated” manslaughter: Clarke, supra, at para. 7; R. v. Cleyndert, 2006 CanLII 33851 (ON CA), [2006] O.J. No. 4038 (C.A.) ("Cleyndert"), at para. 12;
g. While each case must be decided on its own facts, the appropriate range for such cases has been said to be 8 to 12 years' imprisonment: Clarke, supra, at para. 7;
h. Lesser sentences have been imposed in other cases where the offender's role in the victim's death was more limited: R. v. Thompson, 2010 ONCA 463 (‘Thompson’), at para. 41;
i. Ultimately, of course, the court's task is to impose a sentence that is fit and just taking into account all relevant considerations and the purpose and principles of sentencing to which I have just referred: Thompson, supra, at para. 33.
[34] Ms. Krstic was sentenced to imprisonment for eight years. Grace J. found that Ms. Krstic “bears a high level of responsibility for the untimely death of Mr. James, notwithstanding the fact she did not wield a knife or inflict a fatal blow”.[^8]
[35] In support of the position of five years’ incarceration, Counsel for Mr. MacIsaac relies on several cases, some of which may be summarized as follows:
R. v. Thompson:[^9] After pleading guilty to manslaughter, Mr. Thompson was given an equivalent sentence of four years. The Ontario Court of Appeal upheld the sentence. Mr. Thompson attended a party. The victim was initially asleep but awoke to the partygoers going through his things. He was upset and threw several of the party goers around. The group responded, ganging up on the victim. They inflicted 27 blunt force injuries and three stab wounds. Two of the stab wounds penetrated the lungs of the victim. It was found that Mr. Thompson joined the melee once it had begun. He admitted that he picked up the knife and stabbed the victim once as he lay on the ground. He was remorseful and soon after his arrest, he wrote a letter of apology to the family of the deceased. The sentencing judge found that Mr. Thompson inflicted a non-fatal stab wound (i.e., it neither caused nor contributed to the death of the victim) and that provocation would have been a live issue had the matter proceeded to trial. The Court of Appeal concluded, at para. 41, that “while the four-year sentence imposed is at the low end of the range” it was not “demonstrably unfit”.
R. v. MacFarlane:[^10] Mr. MacFarlane attended a house party and consumed some alcohol. He had been released from custody earlier that day and was on probation. He left the party and saw the deceased. He believed that the deceased had stolen a bicycle from him in the past. He and a friend chased the deceased. He beat the deceased with his fist. His friend stabbed the deceased in the heart, causing his death. Mr. MacFarlane was aware that his friend had been carrying a knife at the time. After this, Mr. MacFarlane and his friend returned to the party. Mr. MacFarlane pleaded guilty. After doing so and while incarcerated, he was assaulted by or at the direction of the friend who had actually done the stabbing, eight different times. A joint submission of four years was accepted by the sentencing judge. The Ontario Court of Appeal recognized that, “[o]rdinarily a lengthy sentence is imposed for the offence of manslaughter to reflect society’s concern for the sanctity of life” and that the offence committed by Mr. MacFarlane was serious, calling for a significant penitentiary sentence.[^11] The Court of Appeal found that the sentence of four years was fit.
R. v. Taylor:[^12] Mr. Taylor was 18 years of age when he fatally stabbed the victim. He was convicted of manslaughter by a jury. Mr. Taylor became involved in a fight during a party in his apartment. He sucker punched the deceased, following which the deceased invited him outside to fight. Mr. Taylor accepted and picked up a steak knife. He concealed it and told some others that if the deceased did not stay out of the home, he would use it. Within minutes, the deceased came back into the home and attacked Mr. Taylor. It is clear that Mr. Taylor received a beating at the hands of the deceased, who was encouraged by others at the party. Mr. Taylor testified that he “flailed away” with the knife as the deceased was beating him in order to defend himself. The deceased received eight stab wounds, three of which were to the torso — one of which was to the heart.
In sentencing Mr. Taylor to six years’ imprisonment, Hackland R.S.J. concluded that “a somewhat reduced sentence is warranted due to the severity of the beating that Mr. Taylor received at the time he employed the knife.”[^13] He concluded that provocation reduced the moral blameworthiness surrounding Mr. Taylor’s use of the knife. He also considered Mr. Taylor’s youth (18 years of age at the time of the offence) and his excellent prospects for rehabilitation.
[36] The cases referred to demonstrate that sentencing is a very individualized process. For example, unlike the cases submitted there was no plea of guilt, no provocation, and no joint submission. No set of facts are the same and the personal circumstances of each offender differ. It is not an exact science. As Doherty J.A. noted in R. v. Hamilton:[^14]
Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. [T]he fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender.
d. Other Considerations: Pre-sentence Custody
[37] Mr. MacIsaac should be given credit for the time he has spent in pre-sentence custody pursuant to s. 719(3.1) of the Criminal Code and R v. Summers.[^15] Certain circumstances, particularly in the instance of harsh pre-sentence incarceration conditions, can be relevant in the determination of an appropriate sentence: see R. v. Duncan.[^16] The approach to be taken in considering the harsh conditions of pre-sentence incarceration was clarified by Doherty J.A. in R. v. Marshall:[^17]
The ‘Duncan’ credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the ‘Summers’ credit will be deducted. Because the ‘Duncan’ credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
[38] In light of Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of pre-sentence custody is not to be encouraged. The reason? It may skew the fact that the harshness of pretrial custody is only one of many factors that go into the determination of an appropriate sentence.[^18] That said, it is a relevant consideration on sentencing.
e. The Fit Sentence
[39] In considering the fit sentence for Mr. MacIsaac, I find the following to be the aggravating factors:
a. Mr. MacIsaac was knowingly in possession of a knife when he attended the park that night. It was contained in a sheath and concealed in a cross-body bag that he was wearing at certain points that evening.
b. At the time that Mr. MacIsaac possessed the knife, he was subject to a recognizance that ordered him not to be in possession of weapons.
c. With the knife accessible, he joined an ongoing melee. At that point, the altercation was only verbal and involved Messrs. Lee and Francis. Mr. MacIsaac threw the first punch (swinging a Captain Morgan bottle). He hit a member of the group associated with Mr. Witt, which escalated the conflict.
d. Mr. Witt intervened, using his words to try and de-escalate the situation. Mr. MacIsaac chose to possess a knife in the context of a fight where no weapons were being used. The knife was not used for protection. He was never provoked.
e. Mr. Witt was isolated and chased. Mr. Witt was retreating, alone and without a knife or any other weapon. As they pursued Mr. Witt, Mr. MacIsaac wielded the knife in a threatening manner.
f. Mr. Witt was on the ground and essentially pinned between Messrs. Lee, MacIsaac, and the hill when attacked. As such, Mr. Witt was a vulnerable victim.
g. Mr. MacIsaac did not provide any assistance to Mr. Witt after being stabbed. He failed to call 911 following the attack. He fled, as did many others who were in the park that night.
h. Mr. MacIsaac discarded his knife and bag when fleeing the park. He appears to have directed Mr. Lee to get rid of his knife, which would result in the disposal of evidence that may implicate him in the stabbing.
i. The death of Mr. Witt caused significant loss to his family and community. The grief they have suffered and will continue to suffer is unfathomable. The impact of the loss of Mr. Witt is nothing less than devastating to his family and the community.
j. Mr. Witt was 15 years of age at the time of his death. Mr. MacIsaac was 4 years older at the time.
[40] I consider the following to be the mitigating factors:
a. Mr. MacIsaac is young (now 23 years of age). He was 19 years of age at the time of the offence.
b. He is a youthful first offender. He had no criminal record at the time.
c. He was under the influence of alcohol and possibly drugs.
d. He did not intend for the victim to die.
e. He was incarcerated at the TSDC and subject to lockdowns. He was incarcerated during COVID-19. Both caused hardships as set out above.
f. Mr. MacIsaac has considerable family support. His family situation is sympathetic; his mother’s health has significantly deteriorated due to cancer and his father has died. Despite his difficult upbringing, he is close to his mother and was close to his father.
g. Mr. MacIsaac has shown remorse, which provides a basis for the belief that he will refrain from similar conduct in the future.
h. Mr. MacIsaac has support in the community upon his release.
[41] As I have stated above, the offence of manslaughter can be made out in a wide ranging set of factual circumstances that vary from serious negligence to near murder. The sentencing judge engages in a difficult balancing of the goals of denunciation, deterrence, and rehabilitation. This is particularly so when dealing with youthful first offenders.
[42] That said, the appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of Mr. MacIsaac. Mr. MacIsaac also deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts. Additionally, the life of a valuable member of our community was lost.
[43] In coming to my conclusion about the appropriate sentence, I am cognizant of the principles set out in R. v. Priest, at p. 296: [^19]
[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.
[44] In reaching my conclusion about the fit sentence I am mindful of the fact that this is Mr. MacIsaac’s first visit to the penetentiary and of the direction of Rosenberg J.A. in R. v. Borde,[^20] that a “first penitentiary sentence should be as short as possible”. Mr. MacIsaac is a young man. That said, the jump principle is not applicable in light of the seriousness of this offence, including the moral blameworthiness of Mr. MacIsaac.
[45] Having considered the aggravating and mitigating factors, and the principle that a sentence should be similar to sentences imposed on similar offenders in similar circumstances, I was of the view that a sentence of nine years would be appropriate. I am satisfied that Mr. MacIsaac’s moral culpability for this offence is in the medium range.[^21]
[46] However, I am persuaded that an adjustment of Mr. MacIsaac’s sentence is appropriate due to the conditions of his pre-sentence custody. I find that he has experienced conditions that are more difficult or punitive than the restrictions normally associated with pre-trial detention. This is due to the lockdowns resulting from staff shortages at the TSDC and the pandemic conditions. As such, I find that the fit sentence is 7.5 years (90 months).
[47] Mr. MacIsaac has spent 37 months in custody. Enhanced at 1.5 days for each day spent in pre-sentence custody (pursuant to Summers), Mr. MacIsaac will be given credit for 55.5 months (37 months + 18.5 months).
Conclusion
[48] Mr. MacIsaac is sentenced to 7.5 years (90 months) for the offence of manslaughter. Mr. MacIsaac will be given credit of 55.5 months. This requires that Mr. MacIsaac serve another 34.5 months in custody.
[49] Mr. MacIsaac has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment. As such, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), I direct that Mr. MacIsaac be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, and explosive substance for life.
[50] Manslaughter is a primary designated offence within the meaning of s. 487.04, paragraph (a) of the Criminal Code and accordingly, a DNA order is mandatory. Therefore, I direct that Mr. MacIsaac provide a sample of his DNA.
Kelly J.
Released: October 13, 2021
COURT FILE NO.: CR-19-70000261-0000
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Tyrelle Lee and Steven Macisaac
REASONS FOR sentence
Mr. Steven macisaac
Kelly J.
Released: October 13, 2021
[^1]: Mr. Lee’s sentence was adjourned for submissions and Mr. MacIsaac wished to have sentence passed in advance thereof. As such, Mr. Lee’s sentence will be dealt with in separate reasons.
[^2]: Crown counsel is seeking a sentence of 11 years’ imprisonment for Mr. Lee.
[^3]: Mr. Lee is self-represented. Amicus submits that the appropriate sentence for Mr. Lee is 5 to 7 years’ imprisonment.
[^4]: The facts giving rise to the convictions are set out in my Reasons for Judgment, cited as: R. v. Lee, 2021 ONSC 4064.
[^5]: See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773
[^6]: R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.); R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.); R. v. Cleyndert, 2006 CanLII 33851 (Ont. C.A.); R. v. Tahir, 2016 ONCA 136
[^7]: 2017 ONSC 5204
[^8]: Krstic, at para. 98
[^9]: 2010 ONCA 463, 256 C.C.C. (3d) 51
[^10]: 2012 ONCA 82, 288 O.A.C. 114
[^11]: MacFarlane, at para. 8
[^12]: 2013 ONSC 3370
[^13]: Taylor, at para. 29
[^14]: (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 87
[^15]: 2013 ONCA 147, 114 O.R. (3d) 641; aff’d 2014 SCC 26, [2014] 1 S.C.R. 575
[^16]: 2016 ONCA 754, at para. 6
[^17]: 2021 ONCA 344, at para. 52
[^18]: Marshall, at para. 53
[^19]: (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.)
[^20]: (2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 3
[^21]: R. v. LaBerge, 1995 ABCA 196, [1995] A.W.L.D. 588```