Reasons for Sentence

Mr. Tyrelle Lee

[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.

[2] Mr. Lee now appears before me for sentencing.[^1]

[3] Crown counsel seeks a sentence of 11 years’ imprisonment for Mr. Lee. Mr. Lee, through Amicus, seeks a sentence of time served (69 months or 5 years 9 months) plus 3 years’ probation. (Mr. MacIsaac, who was a party to the offence, was sentenced to 7.5 years’ imprisonment). Counsel agree on the applicable ancillary orders.

[4] For the reasons set out below, I sentence Mr. Lee to 9 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.

[5] What follows are my reasons.

Factual Overview[^2]

[6] 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) and Mr. Dwight Francis.

[7] It is alleged that a group of people associated with 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.

[8] 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 by preventing Mr. Witt from escaping. Mr. MacIsaac was also stabbed in the backside. This incident started and finished quickly — within minutes.

[9] 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.

[10] 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.

[11] These are the facts upon which Mr. Lee is being sentenced. I will now turn to the impact on Mr. Witt’s family and the community.

Victim Impact

[12] 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: “For 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.”

[13] 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.

[14] 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. Pastor Parker 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 have tried to encourage youth to make positive and good choices in their lives. However, the fact that Mr. Witt — 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 a young man as honorable and likeable as Mr. Witt, 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.”

[15] Ms. Zoe Horler was a witness at trial. She was a friend of K.D. and at the time she knew of Mr. Lee. She was present in the park when Mr. Witt was stabbed. Ms. Horler had met Mr. Witt previously, and they had mutual friends. Her Victim Impact Statement may be summarized as follows:

a. Ms. Horler testified that after witnessing the stabbing, she suffered “severe emotional impacts”. She found it difficult to go to school, causing her to fall behind in grade 9. Her depression and anxiety issues have been exacerbated by the events of October 7, 2017. Signs of confrontation make her panic and feel uncomfortable.

b. Ms. Horler expressed fear for her safety because of her prior relationship with the offender. She has worried about confrontation as a result of testifying. She stated that testifying on the Zoom platform made her feel uncomfortable and created more anxiety for her because she worried about who was watching.

Personal History: Mr. Lee

[16] The following is a summary of Mr. Lee’s background:

a. Mr. Lee is now 22 years of age. He was six months over the age of 18 when he stabbed Mr. Witt.

b. He is a youthful first offender.

c. Mr. Lee was born in St. Vincent. He came to Canada at age 6 or 7.

d. When he was 13 years of age, he returned to St. Vincent.

e. Both grandparents died in his presence and within a short time of each other. His paternal grandfather died of COVID-19.

f. He lived in Surrey, British Columbia (“B.C.”) until he was 16 years of age. At that time, he and his father moved to Toronto.

g. Mr. Lee attended school until grade 12. He is a couple of credits short of his diploma. He attended Westview Centennial Secondary School in Toronto. He was then sent to a boarding school in Bancroft.

h. At the beginning of his incarceration, he was attending classes and programs. The records from the Toronto South Detention Centre (“TSDC”) show that Mr. Lee was attending school and working with a teacher to obtain his GED. That ended or was curtailed as a result of the lockdowns and the pandemic.

i. Mr. Lee worked as a scrap metal collector in B.C. He had an employer and worked for Lush Lifestyle doing general maintenance. He also worked at the Weston Bakery during the summer before the incident occurred.

j. He previously had a cash job removing insulation.

k. He advises that he is qualified for construction demolition.

l. Mr. Lee’s relationship with his father is complicated. His father applied physical discipline using rulers and belts. He was thrown out of his home at the age of 17. He was living at a youth centre when he was “rushed” by several people and his watch was stolen. He suffered a concussion.

m. Mr. Lee does not have any addiction issues. There is no actual diagnosis of mental illness nor a history of mental illness in the family that he is aware of. The jail records provided by the Crown suggest that Mr. Lee suffers from anxiety and depression.

[17] Mr. Lee has been incarcerated both before and during the pandemic. The records filed as exhibits in this proceeding show the following with respect to Mr. Lee’s medical and mental health issues:

a. Mr. Lee received medical attention for both dental and hearing concerns.

b. On March 18, 2019, Mr. Lee had swelling on his left eye area. He refused treatment, indicating that he was “good.”

c. On March 10, 2021, he tested positive for COVID-19. He was monitored, and his vital signs remained stable.

d. He was booked for medical attention due to muscle spasms in his lower back.

e. Shortly after his arrest, he was involved in a mental health screening process. It appears that he was prescribed Zoloft for depression.

f. On October 9, 2017, he was admitted to a health care bed.

g. On October 16, 2017, Mr. Lee was seen by Dr. Jones at the Centre for Addiction and Mental Health (“CAMH”). The record of that visit indicates that Mr. Lee had “past psychiatric history,” but Mr. Lee denied any admissions to a psychiatric facility or ever being placed on a form pursuant to the Mental Health Act.

h. Dr. Jones indicated that Mr. Lee has “auditory hallucinations most likely due to drug misuse”. The note indicates that Mr. Lee has “current mild symptoms” and that he is “not currently certifiable under the Mental Health Act”. A “psych” referral was made for depression.

i. A CAMH record from December 27, 2017 indicates that Mr. Lee “reported challenges with situational depression related to the lack of clarity in his legal situation.”

j. A CAMH record from January 10, 2018 indicates “affect quality – anxious depressed”.

k. On January 15, 2018, a CAMH record indicated that Mr. Lee’s symptoms (described immediately above) were resolved and that his anxiety symptoms were “mild.” The note also states, “Supportive psychotherapy and counseling provided with focus on adaptive coping strategies for stress, distress, frustration and anger management.”

l. On January 17, 2018, a CAMH note stated that Mr. Lee reported that he had been experiencing ongoing anxiety and stress related symptoms. The note states, “affect quality – anxious, calm and euthymic”.

m. Notes from CAMH on November 28, 2018 and December 2 – 7, 2018 indicate that he was receiving care.

n. On January 12, 2019, Mr. Lee appears to request a transfer to the SNU unit, stating that he believed it would help reduce tension and improve his mental health.

o. On March 28, 2019, there is a note stating that, “Mr. Lee reported that he was feeling agitated this morning, almost lost it during a panic attack. Indicated his feelings of panic and frustration are closely related though he was able to resolve the issue noting he did not feel like discussing the source of the problem.” Mr. Lee advised that he no longer wished to be transferred to an SNU unit and that he felt comfortable on the SHU.

p. A note on April 29, 2020 suggests that someone observed Mr. Lee exhibiting erratic behaviour. He was shouting that he wanted penicillin. A commanding officer was instructed to “keep a close eye” on Mr. Lee.

q. It appears that Mr. Lee voluntarily discontinued his medication, suggesting that he felt that he did not need it anymore. Thereafter, there is a note from a psychiatrist suggesting that Mr. Lee did not feel “any worse” since stopping his medication. The note described that Mr. Lee is “pleasant and he’s appropriately smiling”.

[18] The misconduct records from the TSDC for Mr. Lee show the following, most of which were admitted by Mr. Lee, with an explanation:

Date	Offence	Punishment
April 16, 2018	Creates/Incites a Disturbance	15 days of close confinement, 5 days of no unit phone or access to canteen, and 4 weeks of no canteen ordering.
October 6, 2018	Willfully disobeys order of an officer.	Change of program.
April 22, 2019	Willfully disobeys order of officer.	Close confinement and regular diet for one day.
July 2, 2019	Creates/incites a disturbance.	Loss of canteen privileges for 14 days.
February 13, 2020	Commits/Threatens Assault (Staff)	Loss of canteen privileges for 60 days.
February 17, 2020	Commits/Threatens Assault (Staff)	Close confinement for four days.
March 4, 2020	Commits/Threatens Assault (Staff)	Close confinement for four days.
May 16, 2020	Commits/Threatens Assault (Staff)	Loss of canteen privileges for 14 days.

[19] The factual context of the misconducts for which Mr. Lee was found guilty include: refusing to enter his cell; throwing combustible materials on a fire; counseling others to participate in a stand-off; covering the window to his hatch and throwing clear liquid at the officer who checked on him; and calling an employee a “faggot” after he failed a body scan.

[20] Mr. Lee has been incarcerated since his arrest on October 7, 2017. As such, he has spent 1,500 days in the TSDC. During that time, the records show that he has been subject to 346 lockdowns, both partial and full days.

[21] Prior to the lockdown, he was engaged in addiction and behavioural programs. Various services and privileges were curtailed as a result of the lockdowns due to staff shortages and the pandemic. These included access to showers, telephones, programs, and visits.

[22] Amicus submitted that Mr. Lee’s offer to plead guilty is a relevant consideration on sentencing. He submitted that email exchanges between himself (when he was counsel to Mr. Lee) and the Crown are relevant. These may be summarized as follows:

Date	From	Content
June 10, 2019	Assistant Crown	"Given your comments, during the JPT, today, that your clients would be in a position to consider a plea to manslaughter, the Crown is requesting that you outline the facts, you would be agreeable to it, that should take place. Please get back to us as soon as possible so that we can consider your offers."
June 18, 2019	Mr. Reid (Counsel for Mr. Lee at the time.)	Mr. Lee "would resolve to a manslaughter plea". He would admit the following facts: that "he was in possession of a knife that evening; he pursued the complainant across the park; he delivered the single, fatal stab wound; he had consumed a significant amount of alcohol such that he was not able, and did not, form the requisite intent to murder the complainant." Mr. Reid asked the Crown to provide additional facts if required and said that he will seek instructions from Mr. Lee. He submitted that "it is inappropriate to hold Mr. Lee's resolution hostage by making it contingent upon both defendants resolving".
July 11, 2019	Crown	Mr. Reid's proposal for Mr. Lee to plead guilty to manslaughter was rejected. The email stated, "We cannot agree to your proposed facts given the evidence that is currently before the court which provides the Crown with a reasonable prospect of conviction for second degree murder."

[23] I will now turn to a consideration of the law.

The Law

a. The Positions of the Parties

[24] All counsel agree that there are a wide range of sentences applicable to convictions for manslaughter. Crown counsel submits that the circumstances surrounding the killing of Mr. Witt call for a sentence of 11 years.

[25] Amicus submits that a sentence of time served (69 months) plus probation is appropriate. Amicus submits that such a departure is supported by the facts giving rise to the conviction and the personal circumstances of Mr. Lee (including that much of his presentence custody was served during the pandemic and subject to lockdowns due to staff shortages). If the position of Amicus is accepted, Mr. Lee would have already served his sentence and would be released into the community immediately.

b. General Principles

[26] In determining an appropriate sentence for Mr. Lee, 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.

[27] 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)).[^3]

[28] 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

[29] 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”.[^4] The varying circumstances in manslaughter cases give rise to the wide variation in the sentences imposed. As such, there is a broad range of moral culpability to be considered.

[30] As the sentencing Court, I have considered the sentencing precedents in cases involving convictions for manslaughter that were 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.[^5]

[31] For example, in R. v. Clarke,[^6] the Ontario Court of Appeal held that the range for a manslaughter involving a stabbing was 8 to 12 years’ imprisonment due to the presence of aggravating factors in the case. That said, the range does not set a maximum or minimum sentence for such cases.

[32] The Crown provided cases involving a single stab wound to a vital area, some of which included the following:

R. v. Punia:[^7] Ms. Punia had stabbed her sister-in-law in the neck. The Court of Appeal considered the basic facts of the stabbing, the blood loss, death with no effort to obtain medical aid, and the concealment of the death for three years. The Court concluded that the act constituted aggravated manslaughter as set out in R. v. Clarke. It upheld the sentence of twelve years imposed by the trial judge.

R. v. Nicholls:[^8] Mr. Nicholls was 18 years-old at the time he fatally stabbed the victim, once in the heart. He pleaded guilty to manslaughter and was sentenced to six years’ imprisonment.

R. v. Cioppa:[^9] Mr. Cioppa was 18 years-old with no prior record. He was carrying a knife and became involved in a fistfight in a park. He drew the knife and stabbed the victim once in the chest, causing their death. He had good rehabilitative prospects and was identified as having a low risk to reoffend. Following a jury trial, Mr. Cioppa was sentenced to eight years’ imprisonment.

R. v. Hermiz:[^10] Mr. Hermiz pleaded guilty to manslaughter. He was 19 years of age when he was struck in the head with a full beer bottle. In retaliation, he stabbed his attacker once, killing him. He had no prior record. Mr. Hermiz was sentenced to eight years’ imprisonment.

[33] In support of the position of 69 months (time served), Amicus relies on Nicholls as well as other cases, some of which may be summarized as follows:

R. v. Thompson:[^11] 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 3 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. 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.

[34] The cases referred to demonstrate that sentencing is a very individualized process. For example, unlike the cases submitted, in this case 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:

i. Presentence Custody

[35] Mr. Lee should be given credit for the time he has spent in presentence custody pursuant to s. 719(3.1) of the Criminal Code and R v. Summers.[^15] Certain circumstances, particularly in the instance of harsh presentence 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 presentence 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.

[36] In light of Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of presentence custody is not to be encouraged. The reason? It may skew the fact that the harshness of pre-trial custody is only one of many factors that go into the determination of an appropriate sentence.[^18] That said, presentence custody is a relevant consideration on sentencing.

ii. Offer to Plea

[37] Crown counsel submitted that “Mr. Lee does not get the benefit of a guilty plea,” while also recognizing that those who plead guilty get significant credit for admitting their guilt. He does not suggest that this is an aggravating factor but that it is “the lack of a significant mitigating one.” Amicus submits that I should take into consideration Mr. Lee’s offer to plea (referred to above), relying on R. v. Shyback.[^19]

[38] In Shyback, the accused was acquitted of the murder of his domestic partner but was convicted of manslaughter and improperly interfering with his partner’s human remains. In and around the time of Mr. Shyback’s preliminary hearing, he offered to plead guilty to manslaughter. The Crown rejected the offer and proceeded to trial on second degree murder. Mr. Shyback was convicted of manslaughter. The trial judge considered his offer to plead guilty to manslaughter as “significant and a matter for reduction of the sentence.”[^20]

[39] The Crown submitted, at the Alberta Court of Appeal, that the trial judge committed an error because: (i) an offer to plead guilty to a lesser offence is not mitigating; (ii) the offer was too vague; (iii) the settlement discussions were privileged; and (iv) Mr. Shyback argued self-defence at trial. The Alberta Court of Appeal disagreed.

[40] With respect to the first argument (which was raised before me), the Alberta Court of Appeal held as follows at para. 26:

[T]he law is clear that it is not mitigating for an accused to offer to plead guilty to a lesser included offence if the accused is ultimately convicted of the offence as charged. So, for example, an offer by an accused charged with second degree murder to plead guilty to manslaughter is not mitigating if the accused is subsequently convicted of second degree murder: R. v Ryan, 2015 ABCA 286 at paras. 28-33, 607 AR 47. The circumstances here, however, are the opposite. The respondent offered to plead guilty to the lesser offence, and was only convicted of the lesser offence. It was the Crown who insisted on proceeding with a charge that it failed to establish. It is open to a sentencing judge to consider such an offer as demonstrating remorse, and being mitigating: R. v Osei-Agyemang, 2011 ABCA 2 at paras. 5, 22, 493 AR 363; R. v Tschetter, 2009 ABPC 291 at para. 19, 466 AR 239.

The Fit Sentence

[41] I will now turn to a consideration of the fit sentence.

[42] In considering the fit sentence for Mr. Lee, I find the following to be the aggravating factors:

a. Mr. Lee was knowingly in possession of a knife when he attended the park that night.

b. The knife was concealed.

c. The gold knife was a switchblade. That was the knife used to stab Mr. Witt.

d. Mr. Lee started the confrontation by approaching the group associated with Mr. Witt and asking, “are you talking shit”?

e. Mr. Witt intervened and used his words to try to de-escalate the situation. Mr. Lee 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.

f. It was a two on one attack. Mr. Lee attacked Mr. Witt in the company of Mr. MacIsaac.

g. The pursuit of Mr. Witt was an aggressive one, as Mr. Lee threatened to stab him.

h. Mr. Witt was isolated and chased. Mr. Witt was retreating, alone, and without a knife or any other weapon when he was stabbed.

i. 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.

j. Mr. Lee 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.

k. Mr. Lee discarded his knife when fleeing the park.

l. 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.

m. Mr. Witt was 15 years of age at the time of his death. Mr. Lee was just over three years older at the time.

[43] I consider the following to be the mitigating factors:

a. Mr. Lee has had a tumultuous upbringing. He was kicked out of his home at age 17.

b. Mr. Lee appears to have little support in his community.

c. Mr. Lee is a youthful first offender. He had no criminal record at the time.

d. He was under the influence of alcohol and possibly drugs.

e. He did not intend for the victim to die.

f. The health records produced would suggest that Mr. Lee does suffer from anxiety and depression but not to the point where he is struggling from a severe mental illness.

g. He was incarcerated at the TSDC and subject to lockdowns. He was incarcerated during COVID-19 and got it. All of these factors caused hardship as set out above.

h. Mr. Lee advised that he was sorry to the family for what happened, which showed remorse.

[44] 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. Mr. Lee’s act of stabbing caused Mr. Witt to die. His moral blameworthiness is high.

[45] In this case, there is a difficult balancing of the goals of denunciation, deterrence, and rehabilitation. This is particularly so when dealing with youthful first offenders such as Mr. Lee.

[46] 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. Lee. Mr. Lee 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.

[47] In coming to my conclusion about the appropriate sentence, I am cognizant of the principles set out in R. v. Priest, at p. 296: [^21]

[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.

[48] In reaching my conclusion about the fit sentence, I am mindful of the fact that this is Mr. Lee’s first visit to the penitentiary and of the direction of Rosenberg J.A. in R. v. Borde,[^22] that a “first penitentiary sentence should be as short as possible.” Mr. Lee 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. Lee.

[49] Having considered the aggravating and mitigating factors of this case, including the fact that Mr. Lee was subject to lockdowns and that he offered to plead guilty to manslaughter (admitting he was the stabber and for which he was found guilty following trial), I was of the view that a sentence of 10 to 10.5 years would be appropriate. I am satisfied that Mr. Lee’s moral culpability for this offence is in the high range.[^23]

[50] However, I am persuaded that an adjustment of Mr. Lee’s sentence is appropriate due to the conditions of his presentence 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 at the TSDC and the pandemic conditions (Mr. Lee contracted COVID-19). As such, I find that a fit sentence is 9 years (108 months).

[51] There has been hardship suffered due to the lockdowns, most of which are the result of staff shortages. I echo the sentiments of my colleagues that although the message is being sent to our government that they must properly staff institutions to permit inmates to reside in humane conditions, that issue has remained, for the most part, unresolved.[^24]

[52] Mr. Lee has served some of his presentence custody and is being sentenced during the global COVID-19 pandemic. The circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution, both presentence and post sentence. This observation has been made by several jurists, including Harris J. in R. v. Kandhai.[^25]

[53] Mr. Lee has spent 1,500 days in custody. I am advised that 80 (120 enhanced) of those days were used for time served on another offence. As such, 1,380 of those days will be applied to this offence. Enhanced at 1.5 days for each day spent in presentence custody (pursuant to Summers), Mr. Lee will be given credit for 2070 days (1,380+690=2070) or 69 months.

Conclusion

[54] Mr. Lee is sentenced to 9 years (108 months) for the offence of manslaughter. Mr. Lee will be given credit of 69 months. This requires that Mr. Lee serve another 3 years and three months (39 months) in custody.

[55] Mr. Lee 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. Lee be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, and explosive substance for life.

[56] 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. Lee provide a sample of his DNA.

Kelly J.

Released: November 24, 2021

[^1]: Prior to trial, Mr. Lee was represented by Mr. Scott Reid. During the pre-trial conferences, Mr. Reid was removed as counsel for Mr. Lee. McMahon J. appointed Mr. Reid as Amicus. During the trial, Mr. Lee asked no questions and made no submissions in his own defence. During the sentencing proceeding, he simply answered questions posed by the Court.

[^2]: The facts giving rise to the convictions are set out in my Reasons for Judgment, cited as: R. v. Lee, 2021 ONSC 4064.

[^3]: 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.

[^4]: R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10; R. v. Kehl, 2019 ONSC 7561, at para. 37.

[^5]: R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.), at para. 8; R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), at paras. 33-34; R. v. Cleyndert, 2006 CanLII 33851 (Ont. C.A.), at paras. 12-13; R. v. Tahir, 2016 ONCA 136.

[^6]: Supra note 5.

[^7]: 2018 ONCA 1022.

[^8]: 2015 ONSC 8136.

[^9]: 2013 ONSC 1242.

[^10]: [2007] O.J. No. 1589.

[^11]: 2010 ONCA 463, 256 C.C.C. (3d) 51.

[^12]: 2013 ONSC 3370.

[^13]: Ibid, at para. 29.