COURT FILE NO.: 19-001

DATE: 20211125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DYRRIN DALEY

Raymond Williams and Kristin Smyth, for the Crown

James Harbic, for the Defendant

HEARD: November 3, 2021

REASONS FOR SENTENCE

V. CHRISTIE

Overview

[1] Dyrrin Daley was convicted on August 30, 2021, following a judge-alone trial, of two counts of second degree murder. The mandatory sentence for each of these offences is life. That will be the sentence in this case. The only issue this court is required to decide is the time Mr. Daley must serve in custody before he is eligible to be considered for parole. It must be understood that eligibility for parole is not the same as parole. Eligibility for parole simply means that Mr. Daley is entitled to the opportunity to appear before the Parole Board. The Parole Board will then decide whether Mr. Daley should or should not be granted parole and on what terms.

[2] The minimum time at which Mr. Daley could be eligible for parole is 10 years. The maximum time at which Mr. Daley could be eligible for parole is 25 years. The time that Mr. Daley has already spent in custody, since February 8, 2017, counts in relation to parole ineligibility. In other words, whatever parole ineligibility time is set by this court, the time commences at the moment Mr. Daley went into custody in February 2017. This is required by statute – s. 746 of the Criminal Code.

[3] Regardless of when Mr. Daley becomes eligible for parole, the fact remains that his sentence is a life sentence. Even if eventually granted parole, Mr. Daley will remain on parole, subject to supervision, for the rest of his life.

[4] The Crown and defence take different positions on the amount of time Mr. Daley should serve before being eligible for parole. The Crown submitted that parole ineligibility should be set at 20 years. The defence submitted that parole ineligibility should be set at 16 years. Considering the totality of the circumstances, this court must determine the appropriate parole ineligibility time. Again, this is not when Mr. Daley will be granted parole. This is when Mr. Daley will be eligible for a chance at parole.

[5] This court is fully aware that no sentence will bring Nickolas and James Pasowisty back to their loved ones. In fact, no sentence is likely to reduce the pain caused by Dyrrin Daley’s actions that night. Perhaps some feel that Dyrrin Daley should never have a chance at parole at all. For anyone who holds that thought, please understand that the law in Canada requires that a person in the position of Dyrrin Daley is entitled to be eligible for parole at some point. It is up to this court, having considered the totality of the circumstances, to determine when that point will come.

Facts

[6] In the early morning hours of February 8, 2017, father and son, James Pasowisty (51 years old) and Nickolas Pasowisty (19 years old) died in their home on 54 William Street in Barrie as a result of multiple stab wounds – 73 sharp force injury wounds in total – to various parts of their body.

[7] Dyrrin Daley caused those wounds with a knife he brought to the residence.

[8] These parties were known to each other. Dyrrin Daley was a regular customer of the Pasowistys, purchasing marijuana from them daily. Beyond that, the parties had known each other for many years, as James Pasowisty was in a short relationship with Mr. Daley’s mother years prior and the two remained friends and stayed in contact after the relationship ended.

[9] In its reasons for conviction (R. v. Daley, 2021 ONSC 5352), this court attempted to cover all of the relevant facts and circumstances in this case. Those will not be repeated now, however, those facts and circumstances are considered on this sentencing.

Background of Dyrrin Daley

[10] Dyrrin Daley was born on December 31, 1992 in Edmonton, Alberta. He is presently 28 years old. Mr. Daley has one biological brother, Tyrell, and a stepbrother, Clay. Mr. Daley is of mixed racial heritage. Mr. Daley’s father is Jamaican and his mother is European. Mr. Daley’s father is retired from the military where he worked for 30 years as a driver and equipment operator, however, even in his retirement, he continues to do this work.

[11] The family moved to Ontario before Mr. Daley started school. A few years later, Mr. Daley’s parents separated. After the separation, Mr. Daley moved back and forth between his parents.

[12] In grade 1, he underwent a psychoeducational assessment which found a general learning disability and special education services were recommended. He received speech and language therapy, and improvements were noted, along with improvements in his reading and fine motor skills. Mr. Daley attended Montessori school for some early grades where he excelled, however, when put back in public school, he had difficulties.

[13] In 2003, Mr. Daley was diagnosed with Attention Deficit Disorder (“ADD”)

[14] In grade 5, Mr. Daley displayed behavioural difficulties. Between July 2004 and early 2005, the family attended Pathways for Children and Youth for intensive child and family counselling.

[15] In grade 7, Mr. Daley moved back to Barrie with his mother. His marks fell for grades 7-8.

[16] Mr. Daley was described in various reports as a likeable, well-mannered child who struggled with academic problems caused by Attention Deficit Disorder and a general learning disability. Following his parent’s divorce, Mr. Daley’s childhood seemed to become destabilized and he was exposed to inconsistent parenting. He also spent long periods of time in what appeared to have been a chaotic home environment with his mother where drug and alcohol use was common. Mr. Daley lacked self-esteem.

[17] In September 2006, Mr. Daley commenced high school at Innisdale Secondary School. He continued there until he completed the first semester of grade 10, then moved back to Kingston with his father. For the second semester of grade 10, he attended Bayridge Secondary School. At this time, Mr. Daley missed school regularly and was using non-prescription drugs regularly. He was suspended on three occasions in February and May 2008. It was around this time that Mr. Daley, then 15 years old, was placed in a group home for four months due to his behaviour. After leaving the group home, Mr. Daley stayed with his father for a bit but then moved in with his mother.

[18] Mr. Daley’s parents continued to have very different parenting styles, his father being more strict and rule-oriented, whereas his mother would give him much more freedom.

[19] After Mr. Daley moved in with his mother this time, he had no contact with his father for about two years. They eventually started talking again and in 2012, Mr. Daley visited his father. At that time, Mr. Daley was described as less angry, more polite, and started to visit occasionally.

[20] Mr. Daley dropped out of high school just 3 credits short of graduating.

[21] After dropping out of high school, Mr. Daley worked for a company that recycled electronics for a couple of months, then for about a week he worked through a temp agency. He then attended the Adult Learning Centre and graduated from high school. At the time of these offences, Mr. Daley was working part time as a cleaner for Hydro One with his mother. He had been doing this for a few years. He was also in receipt of Ontario Works.

[22] Just prior to his arrest, Mr. Daley had applied to Seneca College. His plans were to take audio production to learn how to produce music. His parents were going to assist him financially, but he intended to pay his own way as much as possible. His ultimate goal was to become a music producer. He was planning to attend Seneca in 2017.

[23] Mr. Daley is single and has no children.

[24] Mr. Daley was described by some as a chronic cannabis user. He started using marijuana in grade 8, around the age of 13 or 14 and was using marijuana regularly at the time of the offences, however, there were periods in between that he stopped. At the time of these offences he was smoking marijuana daily, approximately 0.5 grams. Mr. Daley also sold marijuana for several years but reported that he stopped in 2015 or 2016. He reported that he tried cocaine 3-4 times at parties and had also tried mushrooms. As for marijuana, he stated that it “helps slow things down and put things in perspective and helps me deal with my ADHD.” Mr. Daley advised the pre-sentence report author that he did not consider his use of marijuana to have been problematic, but if he ran out, he would experience depression, suicidal thoughts and felt ill. With respect to alcohol, Mr. Daley started drinking when he was approximately 16 or 17 years old, but drank only socially, not to any excess.

Support of Friends and Family

[25] A number of character letters were filed from friends and family of Mr. Daley. Most of those letters expressed their understanding of the seriousness of the crime. Those letters can be summarized as follows:

a. Patrick Barss, cousin, described Mr. Daley as “the most caring and loving person I know”. He recalled countless times that he had witnessed Mr. Daley “go above and beyond” when taking care of family, friends, and strangers. He discussed Mr. Daley’s interest in the entertainment industry and opined that Mr. Daley “would be a perfect fit”.

b. Marilyn Nichol, aunt through marriage, stated that Mr. Daley had shown “nothing but kindness, compassion, love and care” towards her children. Ms. Nichol has discussed Mr. Daley’s dreams and aspirations with him, including his motivation to return to school.

c. Karlene Afflick, cousin of Dyrrin Daley’s father, described Mr. Daley as “loving, caring and family oriented” as well as “happy, balanced and intelligent”. Ms. Afflick spoke fondly of the time that Mr. Daley spent the summer with her and their family in Jamaica when he was about 7 or 8 years old, at which time he excelled at chess.

d. Clay Hayes, stepbrother, reported that he always looked up to Mr. Daley and talked about them playing football in the backyard. Mr. Hayes has visited Mr. Daley in custody a couple of times and reported, “I feel he is remorseful for what he has done”.

e. Dawn Daley, step-mother, described 12-year-old Mr. Daley as a “fun loving young man with lots of energy for life”, “always a polite well mannered gentle boy with a welcoming smile”, a person who “held high regards for his father”. She spoke of Mr. Daley’s helpfulness, his extreme passion for music and basketball, and the promising future which has now been put on hold. Ms. Daley stated: “I feel that Dyrrin is just starting his life and over the last 4 ½ years I have watched him mature into an easy to talk to well versed young man who has built a very strong connection with his father”. Ms. Daley feels that Mr. Daley “understands the impact on the victim’s family and has great remorse for his actions”. This court notes that Ms. Daley characterized this as “Dyrrin was put in a survival situation”.

f. Nalda Williams, family friend, stated that Mr. Daley was always a “happy, pleasant, respectable, thoughtful and considerate young man” in her presence. She also described him as “kind-hearted, conscientious, and honest”.

g. Gerard Charette, family friend, stated that Mr. Daley had always been respectful to their family and was considered a part of their extended family. Mr. Charette described an incident of blatant racism that he experienced and that Mr. Daley, in a “calm and mature manner” spoke to him about the comment.

h. Paul Daley, father, described Mr. Daley from a young age as a “loving, happy, caring boy who had a love for music and sports”, a love that increased as he got older. Paul Daley described the challenges that arose from the breakdown of his relationship with Mr. Daley’s mother, however, stated that his son was able to “maintain the core of who he is, a kind-hearted, considerate person which was always expressed to me by family and friends who cared for him when I was away”. Paul Daley also expressed his son’s motivation toward getting his driver’s licence, gaining employment, and moving toward a career in audio production. Paul Daley has maintained close contact with his son during his incarceration and has listened to “my son express deep remorse for the offence he committed…” Paul Daley also talked about his son’s dedication to studying the bible and discussing his faith and that this “has been the foundation for Dyrrin’s personal counselling and him understanding the gravity of taking two soles (sic)”. To the pre-sentence report author, Paul Daley advised that he maintained weekly contact with his son since his incarceration and had noticed a “big change” in his son after the second year, “accepting responsibility and expressing remorse that his actions resulted in the death of the two victims”.

i. Claridene Shackleford, grandmother, reported Mr. Daley to always be “happy, fun loving, amusing and jolly”. She stated that as he approached his teenage years, he demonstrated a “passion for truth and honesty”. Mr. Daley discusses his bible readings with her on their weekend phone calls.

j. Daniel Thomas, potential employer, described Mr. Daley as a “very bright young man with a positive attitude”, “a caring person”, and “very intelligent”. Mr. Thomas stated, “He carries himself well and shows important characteristics like empathy, integrity and shows respect to staff and inmates. Mr. Thomas is willing to offer him work as an apprentice in brick and stone masonry when the opportunity arises.

k. Pauline Shackleford, grand-aunt, described Mr. Daley as “a very caring and loving person”, “a very good conversationalist”, “available to assist others or share encouraging words or give advice”, “respectful and fun-loving”, and a person with a “positive outlook about life”.

l. Venice Afflick, cousin, described Mr. Daley as a “young man with so much promise and vibrance”, “fueled by both purpose and passion”. Venice Afflick spoke fondly of Mr. Daley’s visit to Jamaica in his “formative years”. The letter stated: “I have seen throughout this period a renaissance of the young man Dyrrin Daley and I believe and know that with continued support and guidance he will become that positive influence he was meant to be.”

Letters are found at Tab 1 of Exhibit 6, as well as Exhibits 7 and 8.

[26] In addition to the letters, other family members spoke to the pre-sentence report author and their comments can be summarized as follows:

a. Vicky Barss (Daley), mother, described her son as “a joyful person, outgoing and loving.” She described his love for basketball, rap music, and his bearded dragons.

b. Troy Daley, uncle, described Mr. Daley as “a person with a big heart, who cares deeply about his family.”

[27] Everyone demonstrated their commitment to continuing to support Mr. Daley now and in the future.

Psychological / Psychiatric Reports

[28] Mr. Daley was diagnosed with ADD in 2003, when he was 10 years old. He was prescribed Concerta for the condition, but when he lived with his mother, Mr. Daley used cannabis instead. He stated that this helped him concentrate. Mr. Daley was not taking any medication at the time of the alleged offence, but has been prescribed Vyvanse during his detention.

[29] Three psychological and one psychiatric report were provided in relation to Mr. Daley. Fortunately, these reports were prepared at different times in Mr. Daley’s life so as to really give the court a sense of Mr. Daley throughout the years. The reports will be referred to chronologically.

[30] On August 18, 2003, Dr. Peter Marshall and Nancy Knowles prepared a psychological assessment report on Mr. Daley, who was repeating grade 4 at the time of assessment. He would have been 10 years old. This report refers to an earlier report in 1999, at which time Mr. Daley was reported to be experiencing academic difficulties, particularly in language arts, and that it was determined at that time that he had a general learning disability and the need for continued special education services. By the time of this report in 2003, it was determined that, despite ongoing difficulties, Mr. Daley had made progress and developed greater self-esteem. This assessment was done to evaluate his learning abilities and needs. The report stated that the results of the psychological assessment were “very encouraging in certain areas”, as Mr. Daley had developed an excellent grasp of phonics, and his scores on tests of reading and arithmetic indicated significant progress. Writing remained a challenge.

[31] These professionals concluded that Mr. Daley's overall intellectual skills were below average, falling at the 6th percentile. Further the report stated that Mr. Daley got along well with adults and peers and was described as a “very likable fellow” who was always respectful. In the recommendations, Dr Marshall stated:

…Dyrrin would probably be eligible for identification on the basis of a ‘mild intellectual disability’, which has replaced the term ‘general learning disability’… This discrepancy [between placement and achievement] is particularly pronounced when account is taken of the fact that, for his age, he should be at the end of grade five. In contrast, his scores on tests of writing and reading comprehension fall in the grade one to two range.

I always emphasize that there are no definitive diagnostic tests for attention deficit disorders. Rather, diagnosis is based on the extent to which different sources of information are consistent in indicating primary problems with attention and concentration. For Dyrrin, the history, observations in the classroom, and formal test results are consistent in indicating problems of this nature. I concluded, therefore, that there was sufficient basis for diagnosis of an attention deficit disorder.

[32] On August 17, 2008, a further psychological assessment report was prepared in relation to Mr. Daley. At that time, Mr. Daley was 15 years old. He was referred for this report for an updated assessment of his cognitive and academic functioning to inform academic planning. The summary and recommendations of the report found that Mr. Daley did not meet criteria for a learning disability but stated that he would continue to require accommodations in the academic setting in writing and math. His attention and executive function difficulties remained consistent with the previous diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”). Further, at that time, Mr. Daley was demonstrating rule-breaking and aggressive behaviour which met the criteria for Oppositional Defiant Disorder (“ODD”). The report concluded:

Personality testing indicated that Dyrrin is experiencing a significant amount of stress and has very limited resources to cope. He tends to intellectualize and try to solve his problems in dependently through thinking. Dyrrin has trouble incorporating all of the necessary information in his environment prior to making decisions, and as a result, is likely to react hastily. Dyrrin has difficulty in complex, ambiguous environments and prefers structured over-learned situations. Thus, social situations are problematic for him. He has trouble coping interpersonally, and tends to avoid these situations, be hyper alert to his surroundings or keep relationships at arm’s length.

The report made a number of recommendations to assist Mr. Daley to manage his ADHD and ODD within the academic environment.

[33] On February 18, 2018, approximately one year after these events had occurred, a report was prepared by Dr. Milan Pomichalek, who practiced Clinical and Forensic Psychology in North Bay, Ontario. Leading up to this report, Dr. Pomichalek met and interviewed Mr. Daley on one occasion, had Mr. Daley complete a number of psychological tests, and also conducted telephone interviews with Mr. Daley’s parents. Prior to authoring the report, Dr. Pomichalek reviewed the synopsis of the allegations, a synopsis of Mr. Daley’s police interviews, a transcript of Vicky Daley’s police interview, a recognizance of bail from Youth Court in June 2008, and the prior psychological assessment report of Dr. Peter Marshall dated August 18, 2003.

[34] The personality assessment for Mr. Daley showed some interesting results. As for the results on the MMPI-2 (Minnesota Multiphasic Personality Inventory – 2nd Edition), the report stated as follows:

Individuals with the MMPI-2 profile similar to Mr. Daley’s typically experience significant psychological distress. The disturbance is long-standing, and in young people, this type of MMPI-2 profile can indicate struggle with identity problems and a need to define themselves through non-conformity.

Although individuals with this kind of MMPI-2 protocol in general feel in control of their emotional life and display culturally appropriate balance between emotional spontaneity an emotional constraint, they are typically resentful, angry, and distrustful individuals who approach life with vigilance. They believe that the world is unsafe and hostile place, and others are not to be trusted because they may use them or take advantage of them. They are typically hypersensitive to criticism or to demands by others, constantly prepared to defend their emotional and personal boundaries, and ready to project blame onto others. They crave attention and validation, feel easily rejected and criticized, and tend to jump to conclusions on the basis of inadequate data and little forethought. The thinking of individuals with this kind of MMPI-2 profile typically focuses on how they have been hurt or neglected, how others are “at fault”, and how they can protect themselves, and they have little awareness how they contribute to their difficulties. The extreme sensitivity of these individuals can shade towards paranoia.

Although they experience anxiety, nervous tension, disturbed sleep, and problems with attention and concentration, individuals with this kind of MMPI-2 are self-controlled, and tend to counteract their feelings of being at odds with others and with life by valuing independence and self determination. They present outwardly as insouciant and imperturbable, and the overall effect is brittleness, with potential overreactions to the assertions and demands of others.

[35] As for the Personality Assessment Inventory (“PAI”), Mr. Daley responded as “someone who is relatively free of the shortcomings to which most individuals will admit”, which could be “either due to an overt attempt at positive self-presentation” or “due to a covert, automatic defensive process”, the latter being more “plausible”. Further, the report stated:

Inwardly, Mr. Daley is sensitive, easily insulted, and quick to feel that he is being treated inequitably. The PAI profile indicates that Mr. Daley is suspicious, distrustful, and when under stress his judgment and reality testing tend to deteriorate.

[36] As for the Bell Object Relations and Reality Testing Inventory (“BORRTI”), it was reported that most of Mr. Daley’s scores were in the normal range, with the exception of slight elevation on the Reality Distortion Scale. The report stated:

This elevation indicates the presence of paranoid projection of impulses, wishes and fears, and consequent feelings of vulnerability, helplessness, and the feelings of being watched, plotted against, and victimized. Despite the reality distortion flavor of the scale, and elevated RD scale alone has not been closely linked by research to psychotic disorders.

[37] In relation to psychopathy, the report concluded as follows:

In summary, in comparison to the offenders sample (comprised of men age 18 – 57) Mr. Daley’s content scales indicate a slight tendency toward anti-authority attitudes and lack of anticipatory anxiety. When compared to his age-peers in the community / college sample, Mr. Daley’s scores are all within the average range and do not indicate the presence of any of the affective or interpersonal deficits traditionally associated with psychopathy.

[38] The report concluded that Mr. Daley suffered from Attention-Deficit / Hyperactivity Disorder, Predominantly Inattentive Presentation (by history), and Cannabis Use Disorder, In Full Remission In a Controlled Environment. It was also suggested that Mr. Daley may suffer from Adjustment Disorder, With Mixed Anxiety and Depressed Mood.

[39] The most recent report provided was a psychiatric report prepared by Dr. Julian Gojer on April 11, 2018. In preparation for this assessment and report, Dr. Gojer reviewed the synopsis of allegations, the synopsis of Mr. Daley’s police interviews, a transcript of the police interview of Vicky Daley, the psychology report prepared by Dr. Milan Pomichalek. Dr. Gojer also conducted an interview with Mr. Daley. Dr. Gojer concluded as follows:

Mr. Daley’s history indicates that he had developmental problems along with an Attention Deficit Disorder. He had behavioral problems as a child and likely had a conduct disorder. He has been using cannabis but there is no evidence of any drug related psychosis. He has had problems in the past with mistrusting people in general. His intellectual functioning was assessed in the past as falling in the mild intellectually delayed range and more recently by Dr. Pomichalek whose testing indicates that he falls in the borderline range.

The offence has multiple components. If one accepts his account, he was attacked and was insulted by racial slurs. This combined with his poor attention with associated impulsivity, limited intellectual functioning and tendency to be mistrustful all likely contributed to the events that unfolded and culminated in the death of the two individuals.

Victim Impact Statements

[40] Three victim impact statements were filed on this sentencing, two of which were read in court by their authors.

[41] Rose Beaton, mother of Nickolas Pasowisty and former common-law partner of James Pasowisty, read her victim impact statement to the court which is provided below as it was written and read:

Dyron Daley this horrendous crime that you have committed has changed so many lives forever. You have taken away my only son and his father who happened to be my life long best friend. You have left my daughter Tracy with no sibling you have left her children with no grandfather you have taken away my son from people who love him. Nickolas has friends that were deeply affected by what you have done. This crime that you have committed has affected my whole family and many others. When I try and think about my son I can no longer think about him at all because when I do the images of what you have done to him and his father come to my mind first, which makes it impossible to even think about him. This disgusting animalistic satanic act will always be embedded in my mind I will never forget what you have done.

My daughter has been deeply affected as well she has not even been able to come to this court house because she can't even talk about what has happened she puts it in the back of her mind and pretend that it hasn't even happened.

My mother suffers from PTSD because her own sister and niece were murdered and so this crime has caused flashbacks of what happened to them.

To have to sit through this trial and see images of what you have done the barbaricness of stabbing my loved ones over 70 times and have to sit and listen to you telling the court that you were only trying to protect yourself is absurd. The brutalness and severity of what you have done I will never comprehend to me this was a hate crime.

(Exhibit 1)

[42] Jennifer Crockford, was in a relationship with James Pasowisty on and off for eight years and they share an 11-year old child together, named Jude. Ms. Crockford read her victim impact statement to the court which is provided below in part as follows:

My son and I, as well as two of my other children, have been greatly affected by this.

Jamie was a really good dad to Jude. Jude has autism and Jamie worked really hard to help him, such as teaching him to speak. Jamie supported me in caring for Jude. He also helped me with my other children, when needed.

Jamie was a very unselfish, giving person to everyone, even to strangers. It was really hard to hear him described as racist because he was definitely not.

Jude was also close to Nick who would play video games with him and occasionally babysit him.

These events have impacted me greatly so I moved my family 6 hours away to start a new life. I left behind friends and family and lost relationships/friendships.

I've lost my partner and my step-son. Our family gatherings are not the same anymore, such as Christmas gatherings. There will always be a void.

Dyrrin committed a crime that only God can forgive. I truly hope he takes advantage of the programs that are available to him in the system to change his life.

(Exhibit 2)

[43] Jude Crockford, 11-year old son of James Pasowisty and Jennifer Crockford, also provided a victim impact statement as follows:

Hi I am Jude Crockford. My daddy is Jayme. I really miss my dad and nick. I know longer to do things with my dad. He will never see me grow into a man. I LOVE them very much.

(Exhibit 3)

[44] It would be impossible for this court to truly convey the suffering those close to Nickolas and James Pasowisty experience day after day. In addition to the events themselves, many have now bore witness to the details shared at this trial and have suffered greatly as a result. Those who have not wished to attend or were unable to attend may have been witness to some of those details through the media. Even those who may have remained isolated from these proceedings would be affected simply by knowing that the trial was ongoing. The family and friends of Nickolas and James Pasowisty have had their lives changed forever.

Position of the Parties

[45] As previously stated, the mandatory sentence in this case is life. The issue to be determined is parole ineligibility.

[46] The Crown argued that the appropriate parole ineligibility period would be 21 years concurrent on both charges. However, the Crown acknowledged that Mr. Daley has been in custody throughout the COVID-19 pandemic, and many lockdowns, and takes the position that this is a mitigating factor that can be considered in determining the overall fitness of the sentence. Taking into account the unique circumstances of this pandemic, the Crown submitted that the parole ineligibility should be reduced from 21 years to 20 years concurrent on both charges. The Crown, of course, acknowledges that this period of time commences on the day that Mr. Daley was arrested and that he is entitled to have all of his pre-sentence custody subtracted from parole ineligibility time set by this court. In addition, the Crown asked for a number of ancillary orders, including a DNA order, a weapons prohibition order pursuant to s. 109, and a non-communication order as it relates to Rose Beaton, Jennifer Crockford and their immediate families.

[47] The Defence argued that the appropriate parole ineligibility period would be 16 years concurrent on both charges, taking all of the aggravating and mitigating circumstances into account, including a consideration of Mr. Daley’s experiences in pre-sentence custody. Again, the parole ineligibility time would have commenced on the day that Mr. Daley was arrested and must be reduced to account for all of that time on a 1:1 basis. The defence takes no issue with the ancillary orders.

Analysis

General Principles

[48] In sentencing an offender, the court must take into account the circumstances of the offence and the offender, together with codified principles of sentencing.

[49] The fundamental purpose of sentencing, described in section 718 of the Criminal Code, is 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.

[50] The objectives for sentencing judges to consider are set out in section 718(a) to (f) of the Criminal Code and are as follows:

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 acknowledgement of the harm done to victims or to the community.

[51] Pursuant to section 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is a cardinal principle of sentencing, therefore, whatever weight a judge gives to the objectives listed above, the ultimate sentence imposed must respect the fundamental principle of proportionality. See R. v. Nasogaluak, 2010 SCC 6, paras. 41-43; R. v. Safarzadeh-Markhali, 2016 SCC 14; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Omoragbon, 2020 ONCA 336, para. 28

[52] Section 718.2 of the Criminal Code directs the court to consider various relevant aggravating circumstances relating to the offence or the offender, such as:

a. Offences motivated by bias, prejudice or hate;

b. Abuse of offender’s spouse or child;

c. Abuse of a person under the age of 18 years of age;

d. Abuse of a position of trust or authority;

e. Evidence that the offence had a significant impact on the victim;

f. Benefit to criminal organization;

g. Terrorism offence;

h. Commission of offence while offender was subject to a conditional sentence order or released on parole

[53] Further, this court must consider the principles of parity, totality, and to not deprive the person of liberty if less restrictive sanctions are appropriate and consistent with the harm done to the victim and the community.

[54] The Supreme Court of Canada recently considered the appropriateness of sentencing ranges and starting points in the case of R. v. Parranto, 2021 SCC 46. In discussing basic sentencing principles, the court stated:

[9] This Court has repeatedly expressed that sentencing is “one of the most delicate stages of the criminal justice process in Canada” (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1). More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in Part XXIII of the Criminal Code, it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing (Lacasse, at para. 1).

[10] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “Fundamental principle” (s. 718.1). Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

[12] As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53]

Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58).

Life Sentence and Parole Ineligibility – General Principles

[55] The sentence in this case is provided for in section 745 of the Criminal Code. That section reads as follows:

745 Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be

(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4.

[56] As for the considerations that the court can and must take into account on setting parole ineligibility, section 745.4 states as follows:

745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

[57] In the case of multiple murders, section 745.51(1) allows the court to set consecutive periods without eligibility for parole for each murder. The section states:

745.51 (1) At the time of the sentencing under section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.

(2) The judge shall give, either orally or in writing, reasons for the decision to make or not to make an order under subsection (1).

[58] It must be noted that the Crown in this case did not request consecutive parole ineligibility periods. This section has been the subject of great debate throughout this country since its enactment. Currently, the case of R. v. Brissonnette is before the Supreme Court of Canada, on appeal from the Quebec Court of Appeal, scheduled to be heard in March 2022. It remains to be seen whether this section will withstand constitutional scrutiny.

[59] This court does not feel that consecutive sentences would be warranted in this case. As stated, there is a great deal of uncertainty in this country about the constitutionality of imposing such sentences. Further, this did not occur as separate events, but rather as part of one continuous series of events. Finally, in this case, the Crown did not request consecutive sentences to be imposed and therefore there was no argument on this point.

[60] The starting point in second degree murder cases is that the parole ineligibility will be set at the minimum – 10 years. In R. v. Shropshire, 1995 47 (SCC), [1995] S.C.J. No. 52, the accused pleaded guilty to second degree murder. The offence was committed at his home during a marijuana transaction when, without warning, he shot the deceased as he and another individual were about to enter to complete the deal. Two days later, the accused turned himself in to police, expressing remorse. The accused had a prior criminal record. He was sentenced to life imprisonment without eligibility for parole for 12 years. The Court of Appeal allowed the appeal against sentence and reduced the period of parole ineligibility to 10 years. The Supreme Court of Canada allowed the appeal and the trial judge’s order was restored. The Court stated as follows:

[18] The determination under s. 744 is thus a very fact-sensitive process. The factors to be considered in fixing an extended period of parole ineligibility are:

(1)the character of the offender;

(2)the nature of the offence; and

(3)the circumstances surrounding the commission of the offence;

all bearing in mind the discretionary power conferred on the trial judge.

[19] No reference is made to denunciation or assessments of future dangerousness in the statutory language. By elevating "denunciation" and "assessment of future dangerousness" as the only criteria by which extended periods of parole ineligibility can be determined, the majority of the British Columbia Court of Appeal has, in effect, judicially amended the clear statutory language. This is not to say, however, that these two criteria should not be part of the analysis. For example, "denunciation" can fall within the statutory criterion of the "nature of the offence". Similarly, "future dangerousness" can fall within the rubric of the "character of the offender".

[21] "Deterrence" is also a relevant criterion in justifying a s. 744 order. Parole eligibility informs the content of the "punishment" meted out to an offender: for example, there is a very significant difference between being behind bars and functioning within society while on conditional release. Consequently, I believe that lengthened periods of parole ineligibility could reasonably be expected to deter some persons from reoffending. Such is also the position of a variety of provincial appellate courts, from which the British Columbia Court of Appeal presently diverges: R. v. Wenarchuk (1982), 1982 2600 (SK CA), 67 C.C.C. (2d) 169 (Sask. C.A.); R. v. Mitchell (1987), 1987 128 (NS CA), 39 C.C.C. (3d) 141 (N.S.C.A.); R. v. Young (1993), 1993 3272 (NS CA), 78 C.C.C. (3d) 538 (N.S.C.A.); R. v. Able (1993), 65 O.A.C. 37 (C.A.); R. v. Ly (1992), 1992 12781 (MB CA), 72 C.C.C. (3d) 57 (Man. C.A.), per Twaddle J.A. (Scott C.J.M. concurring), at p. 61: "Parliament's purpose in adding a minimum period of parole ineligibility to a life sentence was, in my view, twofold. It was to deter and denounce the crime".

[23] The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility. This clearly indicates that parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy. As such, it must be concerned with deterrence, whether general or specific. The jurisprudence of this Court is clear that deterrence is a well-established objective of sentencing policy. In R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, La Forest J. held at p. 329:

In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.

Section 744 must be concerned with all of the factors cited in Lyons. In R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711, the importance of structuring sentences to take into account the individual accused and the particular crime was emphasized. This is also a factor that any order made pursuant to s. 744 ought to take into consideration.

[26] I also find it necessary to deal with Lambert J.A.'s conclusion that a period of parole ineligibility in excess of 10 years will not be justified unless there are "unusual circumstances". This conclusion resonates in the earlier decisions of the British Columbia Court of Appeal in R. v. Brown (1993), 1993 6882 (BC CA), 83 C.C.C. (3d) 394, and R. v. Gourgon (1981), 1981 328 (BC CA), 58 C.C.C. (2d) 193. In my opinion, this is too high a standard and makes it overly difficult for trial judges to exercise the discretionary power to set extended periods of parole ineligibility. The language of s. 744 does not require "unusual circumstances". As a result, to so require by judicial pronouncement runs contrary to Parliamentary intent.

[27] In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

[29] Section 742(b) of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole "until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 744". In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is "unusual"…

[31] If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness" being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.

[34] On another note, I do not find that permitting trial judges to extend the period of parole ineligibility usurps or impinges upon the function of the parole board. I am cognizant of the fact that, upon the expiry of the period of parole ineligibility, there is no guarantee of release into the public. At that point, it is incumbent upon the parole board to assess the suitability of such release, and in so doing it is guided by the legislative objectives of the parole system: see ss. 101 and 102 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. However, it is clear that the parole board is not the only participant in the parole process. All it is designed to do is, within the parameters defined by the judiciary, decide whether an offender can be released. A key component of those parameters is the determination of when the period of parole eligibility (i.e. when the parole board can commence its administrative review function) starts to run. This is the manner in which the system is geared to function -- with complementary yet distinct input from both the judiciary and the parole administrators. It is the role of the sentencing judge to circumscribe, in certain statutorily defined circumstances, the operation of the parole board…

[61] Setting parole ineligibility is part of sentencing and that time period becomes part of the sentence. This court does not agree with the defence that the life sentence, on its own, satisfies all of the sentencing factors that the court must consider. Shropshire explains that denunciation and deterrence, retribution, and rehabilitation are all considerations when setting a parole ineligibility period.

Parole Ineligibility in Cases Involving Two Murders

[62] A number of cases were provided to this court in order to assist to determine the appropriate parole ineligibility time in this case. This court has reviewed all of the case law provided in its entirety, as well as other cases that were not provided, but refers to only some here. The following cases were of note:

a. R. v. McCotter, 2007 BCSC 1646, affirmed 2014 BCCA 27, found guilty after trial of two counts of second degree murder, murdered a former girlfriend and her new partner, previously harassed the victim, premeditation to cause harm to the victims, no criminal record, serious psychological problems which were unknown other than a consensus that he suffered from maladaptive personality traits, expressed remorse, showed no insight, poor prospects for rehabilitation. The Crown requested 18 to 20 years. The defence conceded that the starting point, where there are multiple murders, was 15 years and sought that period. Parole ineligibility was set at 20 years.

b. R. v. Sirois, 2008 CarswellOnt 9700 (SCJ), affirmed 2011 ONCA 370, 29 year old pleaded guilty to two counts of second degree murder (one victim was an 87 year old fragile woman), and two counts of aggravated assault (one of the assaults was in relation to the same person subsequently murdered), victims were stabbed multiple times in their own home, 5- year old criminal record which included forcible confinement, demonstrated violent history of thoughts and tendencies, determined to be a sociopath or psychopath, defence conceded dangerousness, accused demonstrated impulsivity, anger, and a high energy that might lead to him lashing out impulsively to those he perceived as having hurt him, anti-social personality disorder and Schizophrenia, minimal to no prospects of rehabilitation. The Crown and defence requested 18 years and 14-16 years of parole ineligibility respectively. Parole ineligibility was set at 21 years, concurrent.

c. R. v. Singh, [2010] B.C.J. No. 2446 (BCSC), 68 year old pleaded guilty to two counts of second degree murder and one count of attempted murder, murdered teenage sons of his third wife sleeping in their beds one in front of his mother, attempted to kill his third wife, no criminal record, turned himself in, expressed remorse albeit late in the proceedings. The Crown requested 20 years. Defence counsel requested 10 years. Parole ineligibility was set at 17 years, concurrent on each count of murder and he also received a life sentence for attempted murder.

d. R. v. Koopmans, 2015 BCSC 2120, 51 year old indigenous man, found guilty after trial of two counts of second degree murder and one count of attempted murder, daily consumer of alcohol although alcohol not involved in the offences, no criminal record, denied involvement. The Crown requested a combined parole ineligibility period of 30 years (15 years for each, consecutive). The defence requested no possibility for parole for 17.5 years. Parole ineligibility was set at 22 years, concurrent, in addition to a concurrent life sentence for attempted murder.

e. R. v. Sharpe, 2017 MBQB 6, 44 year old man found guilty after trial of two counts of second degree murder, killed former domestic partner in her home who he had previously threatened with violence and then set upon the other person, pulled down the pants of both victims after the fact and posed them, no criminal record, turned himself in to police before the murders were discovered. The Crown requested 20 years for one murder and 15 years for the other to be served consecutively and reduced to 30 years for the principles of totality. The defence requested 10 years on each murder, to be served concurrently. Parole ineligibility was set at 22 years, concurrent on each count.

f. R. v. Berry, 2017 ONCA 17, [2017] O.J. No. 160 (C.A.), found guilty after trial of one count of second degree murder, accused and deceased were involved in the drug trade but had a falling out, 20 years old at the time of the offence, reduced cognitive abilities, record for violence as a youth and adult, lured deceased out of his apartment. Parole ineligibility was set at 17 years.

g. R. v. Kionke,[2018] M.J. No. 123 (QB), found guilty after trial of two counts of second degree murder, 48 years old, prior record with two out of seventeen being violent entries, severely abused as a child, promise of rehabilitation, multiple stab wounds, attacked in their own home, extensive post-offence conduct including pressuring his girlfriend to lie. The Crown requested 25 years for each murder, concurrent to each other. Defence counsel requested 15 years for each murder, concurrent to each other. Parole ineligibility was set at 20 years, concurrent on each count.

h. R. v. McLeod, [2018] M.J. No. 140 (Q.B.), found guilty after trial of two counts of second degree murder, indigenous, alcohol was involved, criminal record for violence, negative incarceration record. The Crown requested 25 years for each murder, concurrent to each other. Defence counsel requested 15 years for each murder, concurrent to each other. Parole ineligibility set at 19 years, concurrent on each count.

i. R. v. Salehi, 2019 BCSC 698, pleaded guilty to two counts of second degree murder, accused followed the victims who were his former domestic partner and her new romantic partner, entered home through unlocked door, former domestic partner was sleeping when she was stabbed, multiple sharp force injuries, new domestic partner was stabbed when he got involved in the initial attack, 58 year old with Parkinson’s Disease, no criminal record, expressed remorse, good prospects for rehabilitation. The Crown and defence requested 21 years and 12 years of parole ineligibility respectively. Parole ineligibility was set at 20 years, concurrent on each count.

j. R. v. Kyle Sparks MacKinnon, 2019 ONSC 3436, found guilty after trial of two counts of second degree murder and two counts of wounding, 29 year old, indigenous man, with a criminal record for violence, showing no remorse or acceptance of responsibility. The Crown requested 30 years (15 years on each count consecutively). The defence requested 12 years on each count to be served concurrently. Parole ineligibility set at 22 years, concurrent, in addition to imprisonment for 7 years for each count of wounding concurrent to each other and to the parole ineligibility.

k. R. v. Guimond, 2020 MBQB 63, pleaded guilty to two counts of second degree murder, highly intoxicated at the time of the events, went to the residence to confront the two victims over drug dealing, indigenous accused, prior non-violent record, expressed remorse, joint recommendation for sentence was accepted by the court. Parole ineligibility was set at 14 years, concurrent on both counts.

[63] It is recognized that in the case of Kyle Sparks MacKinnon the court suggested that the range of ineligibility in multiple murder cases, arising from a single event, in which concurrent periods of parole ineligibility have been imposed, is 18 to 25 years. (para 79) This court is unable to agree that such a range exists, or that it is that narrow. In the case of parole ineligibility, Parliament has already provided a range – the range is between 10 years and 25 years. As the legislation currently stands, the periods of parole ineligibility can be served concurrently or consecutively. As previously stated, there is no request for consecutive sentences requested or warranted in this case. Therefore, the range is between 10 years and 25 years in total. All cases turn on their own individual facts. The judge must have the discretion to weigh and analyze those facts in accordance with the criteria set out in s. 745.4, in addition to considerations of denunciation and deterrence, retribution, and rehabilitation.

[64] Even where ranges have been pronounced, the Supreme Court of Canada recently held as follows in Parranto:

[4] …Sentencing ranges and starting points are simply different tools that assist sentencing judges in reaching a proportionate sentence.

[16] Quantitative appellate guidance generally takes one of two forms: starting points, or sentencing ranges. These tools are best understood as “navigational buoys” that operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code. Busy sentencing judges face a challenging task; the Code often provides for a wide range of possible sentences and the factual circumstances of each case vary infinitely. Sentencing must begin somewhere, and both starting-point and range methodologies assist sentencing judges by providing a place to start in the form of either a single number or a range. As this Court has recognized, however, “there is no such thing as a uniform sentence for a particular crime” (M. (C.A.), at para. 92). Neither tool relieves the sentencing judge from conducting an individualized analysis taking into account all relevant factors and sentencing principles.

[36] The key principles are as follows:

1. Starting points and ranges are not and cannot be binding in theory or in practice (Friesen, at para. 36);

2. Ranges and starting points are “guidelines, not hard and fast rules”, and a “departure from or failure to refer to a range of sentence or starting point” cannot be treated as an error in principle (Friesen, at para. 37);

3. Sentencing judges have discretion to “individualize sentencing both in method and outcome”, and “[d]ifferent methods may even be required to account properly for relevant systemic and background factors” (Friesen, at para. 38, citing Ipeelee, at para. 59); and,

4. Appellate courts cannot “intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied” (Friesen, at para. 37). The focus should be on whether the sentence was fit and whether the judge properly applied the principles of sentencing, not whether the judge chose the right starting point or category (Friesen, at para. 162).

… Sentencing judges retain discretion to individualize their approach to sentencing “[f]or this offence, committed by this offender, harming this victim, in this community” (R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). There is no longer space to interpret starting points (or ranges) as binding in any sense.

The Court referred to starting points and ranges as “tools and not straightjackets”. (para. 36)

[65] Beyond any suggested range, the case law is most helpful in that it provides the court with a sense of what factors will move the parole ineligibility up and down this range. The following principles emerged from the case law provided:

a. Whether sentencing for one murder or more than one, the objective is to arrive at a total period of parole ineligibility that is fit and appropriate for the offences and the offender. (Kyle Sparks MacKinnon, para 49)

b. The killing of more than one person reflects a higher degree of moral blameworthiness. (Salehi, para 47)

c. One would expect that the range of parole ineligibility for causing multiple deaths would be higher than the range for causing a single death. (Kyle Sparks MacKinnon, para 60)

d. If the respect for the rule of law is to be maintained, misguided and dangerous values that led to the deaths must be unequivocally denounced and respect for the sanctity of human life must be clearly affirmed (Kyle Sparks MacKinnon, para 69)

e. The vulnerability of the victim(s) is a relevant factor in considering the nature of the offences and the circumstances surrounding their commission. (R. v. Latoski, 2005 30697 (ON CA), [2005], O.J. No. 3565 (C.A.) (para 62)

f. A murder committed in the victim’s home has been considered to be an aggravating factor. (Koopmans, para 100) (Sirois, para 48)

g. The brutality of the murder has been held to be an aggravating factor. (Koopmans, para 106; Sharpe, para 21)

h. The real emphasis with respect to parole ineligibility should be the protection of society by way of specific and general deterrence and denunciation of the offence (Sirois – SCJ, para 38 – citing R. v. Leduc [1995] CarswellOnt 1792 (C.A.)

i. Fixing the period of parole ineligibility is a fact-sensitive process. To determine a fit sentence, each crime must be assessed on its own facts and circumstances. While sentencing is a fact sensitive process, the period of parole ineligibility to be fixed in this case should be similar to the period imposed on similar offenders for similar offences committed in similar circumstances. Similar of course does not mean identical and it is virtually impossible to find identical cases (Sirois, SCJ, para 23)

j. Home invasions are frightening to members of a community because they threaten the very place where people look for safety and comfort. (R. v. Goddard, 2016 ONSC 730, para 10)

The Character of Dyrrin Daley

[66] Mr. Daley’s character must be factored into this sentencing analysis. The following things are of note:

a. Mr. Daley was 24 years old at the time of these events and is 28 years old at the time of this sentencing. He is still a young man.

b. Mr. Daley has no criminal record.

c. Mr. Daley has a great deal of support from friends and family. Some members of Mr. Daley’s family attended this trial each and every day. Many other friends and family members have provided letters of support to Mr. Daley. Not everyone has this level of support. Many people who come before the court have no support whatsoever. Mr. Daley will benefit from this support as he continues his incarceration, and the support will also be available to him one day in order to reintegrate into society. This support will assist with rehabilitation.

d. This court accepts that there is, unfortunately, systemic and individualized racism in our society. Mr. Daley, as a visible minority, would have been subjected to this in overt and subtle ways. This court agrees that Mr. Daley was described as a happy, energetic young man, who participated in sports, was popular, had friends, played video games, wrote music, travelled, and had the opportunity to attend Montessori school. Despite that, the reality is that Mr. Daley has grown up in and lived in a society that demonstrates racism on a regular and ongoing basis. Mr. Daley reported experiencing racism to the pre-sentence report author, specifically hearing racial slurs from his mother’s boyfriends and their friends.

e. Mr. Daley has expressed remorse as part of this sentencing hearing, and in fact did so during his testimony. This court wholeheartedly agrees with the Crown that Mr. Daley showed no true remorse when interviewed by police on February 8 and 9, 2017, shortly after these events. Mr. Daley was cold and callous, minimizing the events, devaluing the lives that he had just taken, blaming everyone but himself, and focused on his own, relatively speaking, insignificant injuries and the positive things he was doing in his life. By the time of the second interview, he appeared to be incensed at the fact that he was still in custody and focused on how these events were going to affect him moving forward. Also, considering the police statements, the psychological reports and the trial testimony, it would appear that Mr. Daley has told at least four different versions of what happened that night at 54 William. However, almost 5 years have now passed since these events. Mr. Daley expressed remorse to the pre-sentence report author. During this sentencing hearing, he turned to the family and friends of Nickolas and James Pasowsity and expressed his feelings of remorse. He read a letter that he prepared which stated in part as follows:

To the family and friends of James and Nick Pasowisty

From the bottom of my heart I feel truly sorry and true remorse for the deaths of James and Nick Pasowisty. I pray all the time for James and Nick and for the family and friends of James and Nick. It wasn't my intent for things to transpire the way they did... If I could take back what happened and rewind the hands of time I would in an instant. It breaks my heart that James and Nickolas Pasowisty are gone and I've cried about it many of times. Because I can remember good times I had with them like when James used to live with me and we used to talk and throw the football around or when Nick used to come over and visit James and we would hang out and play video games. For the rest of my life I'll have to live with the deaths of James and Nickolas Pasowisty on my conscience. Even though the family and friends of James and Nick probably want me to die or do the rest of my life in jail I still feel for them and I will still pray to God for them and ask God to ease their pain and for God to do everything he can for them. I can only imagine the pain and grief they feel and it breaks my heart knowing that they feel that grief and that pain and I've cried about the deaths of James and Nick so many times and I can't say it enough that I feel truly sorry and true remorse that James and Nick Pasowisty are gone and that I wish they weren't and wish I could bring them back.

This court accepts that statement as genuine. Mr. Daley has stated that he thinks about these events regularly. This court is hopeful that Mr. Daley, when thinking about these events, owns the role he played in taking the lives of two people who were valued and loved by others.

f. Mr. Daley has prospects for rehabilitation if he chooses to address the issues that he has faced in the past. The psychological reports note that Mr. Daley “feels easily rejected and criticized, is suspicious and mistrustful, and the need to protect himself figures strongly in his psychological makeup”. This would seem to be a very negative, and in fact dangerous, way to approach life. This may well provide some insight into Mr. Daley’s mindset on that fateful night. It is unfortunate that this court did not have the benefit of a more up to date report so as to understand whether these attitudes remain, given Mr. Daley’s current circumstances and new medication regime. Given that the psychological reports expose these attitudes of Mr. Daley, there is real opportunity for Mr. Daley to address these attitudes if he chooses to do so. This court strongly encourages Mr. Daley to get the assistance he needs in this regard. Otherwise, this court is concerned that if these attitudes continue, such as paranoia, feelings of vulnerability, helplessness, and the feelings of being watched, plotted against, and victimized, Mr. Daley could very well pose a danger in the future. This needs to be addressed and it is not clear to this court what has been or is being done to assist Mr. Daley.

The Nature of the Offences

[67] The actions of Mr. Daley, in taking the lives of Nickolas and James Pasowisty, was vicious, excessive and brutal.

a. The injuries to Nickolas can be summarized as follows:

i. In total, there were 35 sharp force injuries to the body of Nickolas Pasowisty, including four to the head (temple, cheek, chin and ear), six to the neck, including a 12 cm incised wound which commenced near the bottom of the ear and wrapped around to the back of his neck, nine to the torso, including gaping wounds and many that entered the lungs, one where a portion of the lung tissue protruded through the wound, and sixteen to the extremities, including two injuries to his left arm where the knife entered one side and went through the other.

ii. Three stab wounds entered his body cavity, and one perforated his trachea. There was a very deep injury to his right lower thigh, a stab wound that partially severed his left sciatic nerve, and an incised wound that severed over 75% of his right Achilles tendon.

iii. Several of the sharp force injuries may have led to incapacitation (inability to make sound, ambulate, breathe), such as the injuries to the chest, injury to the trachea, injury to the sciatic nerve, and injury to the Achilles tendon.

iv. There were defensive-type sharp force injuries present on the hands and arms.

v. Nickolas was stabbed while he was on or near the ground. Bloody wisps of his hair were located on the balcony door and near the floor. There was also a significant amount of blood located on the lower wall, baseboard, and threshold of the balcony door. There was evidence that Nickolas was down low at points when he was stabbed.

b. The injuries to James can be summarized as follows:

i. In total, there were 38 sharp force injuries to the body of James Pasowisty, including four to the head, three to the neck, including a 13.5 cm incised wound in the lower neck, fourteen to the torso, some which penetrated the lungs, one of which penetrated the muscle of the heart, and one that resulted in fat being pulled back and out of the open wound, and seventeen to the extremities. There were several wounds to the back of James.

ii. James had twelve penetrating stab wounds to his head, neck and torso. The depth of many of the stab wounds could not be estimated as the wound track entered the body cavity.

iii. Several of the wounds injured the chest and lungs, which would have resulted in difficulty breathing, and may have impaired the ability to speak or phonate.

iv. There were defensive-type sharp force injuries present on the hands and arms.

[68] The Crown referred to an element of pursuit as it related to Mr. Daley causing the death of Nickolas. In its earlier ruling, this court analyzed this issue very carefully and was unable to conclude that a pursuit occurred. There is no question that this event occurred throughout multiple rooms in the apartment. However, the Crown did not prove, beyond a reasonable doubt, that a pursuit occurred. In my view, this would be an aggravating factor, however, one that has not been proven in this case.

The Circumstances Surrounding the Commission of the Offence

[69] In this case, the following circumstances must be considered:

a. Illicit motive for attending the residence – From the evidence at trial, it did not appear to this court that Mr. Daley went to 54 William with the primary intention of harming or certainly killing anyone. However, Mr. Daley was intending to get marijuana one way or the other. He may well have had no intention of meeting anyone at all but, if he ran into trouble, he was prepared to fight. Mr. Daley attended the Pasowisty residence unannounced in the middle of the night for an illegitimate purpose – to get marijuana – at a time when the residents would be expected to be asleep.

b. The location where this occurred – James and Nickolas were murdered in their home, located in a quiet neighbourhood in Barrie. They would often leave their door open for people to enter and their door was open on that night.

c. The time this occurred left Nickolas and James Pasowisty vulnerable – Mr. Daley chose to go to the Pasowisty residence at 2:30 or 3:00 a.m. on a cold February night. In other words, he attended at the home of James and Nickolas Pasowisty in the middle of the night, at a time when people would be expected to be sleeping, unannounced. He brought a flashlight to assist him to navigate the stairs and the residence. Nickolas was likely in bed in the darkness of his home. He was likely sleeping. Nickolas was found wearing only his underwear and pyjama pants, with nothing on his feet. He was unarmed. The last person to see Nickolas was Brian Alvarenga, who said that Nickolas looked like he was just passing out. There were no sounds in the room – no music or TV. Nickolas, who was on his stomach, jumped out of bed like he was scared by Brian waking him up. This being many hours earlier, one could expect that Nickolas was asleep when Mr. Daley arrived. As for James, he was found wearing a t-shirt, underwear and pyjama pants. Mr. Alvarenga did not see James when he had been there earlier and believed he was in his room. James was also unarmed. Given the time that Mr. Daley arrived, sometime between 2:30 am and 3:19 am, it is likely that James and Nickolas were sleeping.

d. Mr. Daley brought multiple weapons – Mr. Daley brought a duffle bag containing a pellet gun, which was loaded, and an extendable baton. Also in the duffle bag was his special forces tactical flashlight. In his pocket, Mr. Daley had a double-bladed bat knife. The knife had two three-inch blades.

e. After this vicious attack, Mr. Daley took the time to steal the PS3 console from Nickolas’ bedroom.

f. Mr. Daley knew that Nickolas and James were seriously injured yet did not notify authorities or obtain any medical attention. Nickolas was obviously alive when Mr. Daley left the residence, as he tried to call 911 twice, 8 minutes apart. Rather than notifying someone, Mr. Daley went home and attempted to conceal his clothing and the PS3.

g. The impact on the family and friends of Nickolas and James Pasowisty – These crimes have had and will continue to have a life-altering and life-long impact upon the friends and family of Nickolas and James Pasowisty. The victim impact statements and witness testimony only provide a glimpse into the magnitude of the grief and loss being suffered. One cannot even imagine a mother who cannot think about her son without thinking about this horrifying event. Many good memories have been replaced by the vivid details of their deaths.

h. The impact on the community as a whole - Police officers first on scene described the intensity of entering into this upstairs apartment, having already observed blood on the wall through the upstairs open balcony door. They did not know what they were walking into. As they climbed the stairs, and went further inside the residence, their descriptions of what they could smell and see were troubling. Harold Green and his wife, the owners of the home, were asleep on the main level when they awoke to these events having just unfolded and the presence of multiple police officers. Further, this occurred in a quiet, residential neighbourhood in Barrie. When daylight came, the violence of these events would have been obvious to anyone in the area from the evidence in plain sight. Until the early afternoon, there was no known suspect.

Time in Custody

[70] Mr. Daley has been in custody since February 8, 2017, serving time at both the Central North Correctional Centre (“CNCC”) and at the Toronto East Detention Centre (“TEDC”). It would appear from the records provided, Mr. Daley spent most of his time at CNCC, apart from two periods at TEDC, which were from January 4, 2018 to July 15, 2018 and September 13, 2018 to December 4, 2018.

[71] At TEDC, Mr. Daley was subjected to 29 occasions of lockdown due to staffing levels or for security reasons, 4 of which were full days, and 25 of which were partial days amounting to no more than 2 or 3 hours. During lockdown periods, the institution generally runs all programs (showers, visits, medical, phone calls, etc.) but under a more restrictive protocol. Showers are sometimes forbidden during full day lockdown, however it is not clear if that occurred for Mr. Daley. Out of the total 244 nights at the institution, he was housed alone for all but 11 nights when he was housed with one other inmate. He was entitled to yard time 133 times during those days, amounting to 55% of the time he was at the institution. According to the correspondence provided, this is higher than the institutional average of 38%.

[72] At CNCC, Mr. Daley has resided in various units over his time there. Mr. Daly was subjected to 167 occasions of lockdown, all of which were full day lockdown, except for 10 of those occasions. Privileges such as phone use, visits or programs can be suspended during lockdown, but this is determined on the level of threat posed at the time. Each lockdown is unique. Due to COVID-19, all public visitors coming in to visit with inmates from March 16, 2020 onward were discontinued. Visits on the weekend commenced again on June 11, 2021.

[73] In R. v. McKenna, 2020 NBCA 71, the issue on appeal was whether the court had jurisdiction to grant a credit for remand time when sentencing offenders for second degree murder. In the McKenna case, at first instance, after applying the remand credit, the offender was entitled to seek parole before the 10-year minimum. The Court held as follows:

[18] I make mine the view expressed in R. v. Toor, 2005 BCCA 333, [2005] B.C.J. No. 1382 (QL), at para. 13, that s. 746 is "designed to fix the time when an offender might be eligible for parole and is directed to the calculation of the date of parole eligibility by corrections officers charged with that duty". Section 746(a) does not vest in the sentencing court jurisdiction to reduce, by any remand time, the parole ineligibility period it set on the basis of the statutorily prescribed considerations: the character of the offender, the nature of the offence and the circumstances of its commission.

[24] The minimum sentence for second degree murder is life imprisonment, and there can be no credit for remand time in respect of such a sentence. Correlatively, the Code compels sentencing judges to prescribe at least 10 years of parole ineligibility while conferring upon them discretion to increase that minimum on the basis of considerations that do not include remand time. The trial judge lacked jurisdiction to grant credit for time on remand against the sentence of life imprisonment. Nor did he have jurisdiction to order any credit against the period of parole ineligibility he set at 14 years. The effect of remand time on parole availability is a matter within the exclusive jurisdiction of the parole authorities under s. 746(a).

It would appear to this court that the New Brunswick Court of Appeal takes the position that there can be no consideration of remand time whatsoever in calculating parole ineligibility, as it is not provided for in s. 745.4. This would include Summers credit (R. v. Summers, 2014 SCC 26) and Duncan credit (R. v. Duncan, 2016 ONCA 754). According to this reasoning, neither should be considered.

[74] It is clear that there is no enhanced credit argument available to a person being sentenced to life imprisonment with the only question being parole eligibility. However, both the Crown and the defence agree that this court can consider the circumstances of the pre-trial custody as a mitigating factor on sentence.

[75] There is no question that Duncan mitigation is distinct from credit under s. 719(3) of the Criminal Code – or Summers credit. It is not a deduction from an otherwise appropriate sentence, rather it is one of the factors that is considered in determining the appropriate sentence. Typically, courts may consider particularly harsh conditions in pre-sentence custody as a mitigating factor in determining the appropriate sentence. In determining whether any such mitigation should be given, the court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused. In Duncan, the court stated:

[6] On our reading of the trial judge's reasons, we agree with counsel. The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.

[7 ] While the pattern of "lockdowns" endured by the appellant is worrisome, without further evidence as to the effect of those conditions, we cannot say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit. Consequently, although we agree that the trial judge misinterpreted the relevant provision, we would not reduce the sentence to reflect any added mitigation for the conditions of presentence incarceration.

[76] Even more recently in R. v. Marshall, 2021 ONCA 344, the court discussed the concept of Duncan mitigation and what is required to earn it. The court stated:

[50] Before I move to Marshall #2, I propose to make some observations about the calculation of the "Duncan" credit. A "Duncan" credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 "Summers" credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 279.

[51] It is also important to appreciate and maintain the clear distinction between the "Summers" credit and the "Duncan" credit. The "Summers" credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The "Summers" credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The "Summers" credit is statutorily capped at 1.5:1. It is wrong to think of the "Summers" credit as a mitigating factor. It would be equally wrong to deny or limit the "Summers" credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

[52] 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.

[53] Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

[77] It is the view of this court that this is not a typical sentencing akin to that contemplated in Summers or Duncan. As previously stated, the mandatory sentence in this case is life imprisonment. The only discretion this court has is in setting the period of parole ineligibility. In setting parole ineligibility, the only considerations a court has are those codified in s. 745.4, which specifically include the character of the offender, the nature of the offence and the circumstances surrounding the commission, and the recommendations, if any, of the jury. It is the view of this court that consideration of any other circumstance requires a Charter application.

[78] For example in R. v. Marshall, 2020 ONSC 5360, Justice Goldstein, in the context of a s. 12 Charter application, held that the accused spent more than two years, cumulatively, in segregation which amounted to a gross violation of his s. 12 rights. He was, therefore, credited with a reduction in parole eligibility of 27 months as a remedy. The court stated:

[69] What is the remedy? Ordinarily, a trial judge may reduce a sentence to account spent for time in lockdown or segregation. In R. v. Duncan, 2016 ONCA 754, the Court of Appeal held that a sentencing judge can consider enhanced credit based on harsh conditions of pre-sentence custody. Several judges have reduced sentences for time spent in segregation. See, for example R. v. Prystay, 2019 ABQB 8; R. v. Roberts and R. v. Burton, previously referred to.

[70] The remedy of enhanced credit for a violation of s. 12 of the Charter is not available in a murder case. The sentence of life imprisonment is mandatory. Counsel have not referred me to any murder cases, and I am not aware of any, where parole ineligibility was reduced for time spent in segregation.

[71] It cannot be that there is no remedy for a violation of a right, particularly a gross violation of a fundamental right. That is a "basic tenet of our legal system": Reference re: S. 94(2) of the B.C. Motor Vehicles Act, 1985 81 (SCC), [1985] 2 S.C.R. 486 at paras. 35-37; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151 at para. 72.

[73] LeBel J. for the Supreme Court [in R. v. Nasgaluak, 2010 SCC 6] agreed at para. 38 that the police use of force was excessive. It constituted a breach of s. 7 of the Charter. He also found that it was not necessary to invoke s. 24(1) of the Charter to reduce a sentence. Rather, in crafting an appropriate sentence a trial judge could take account of a Charter violation within the existing statutory sentencing framework. For example, a Charter violation may be treated as a mitigating factor. LeBel J. stated at para. 55:

Thus, a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach. Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn to the Charter for a remedy. However, if a Charter breach has already been alleged and established, a trial judge should not be prevented from reducing the sentence accordingly, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime.

[74] LeBel J. found that a sentencing judge could not, however, invoke s. 24(1) of the Charter to reduce a sentence below a mandatory minimum.

[79] Also in the context of a Charter application, in R. v. Hall, 2021 ONSC 6169, Justice Goodman considered the accused’s lengthy periods of segregation. In Hall, the parties agreed that the accused was eligible for a Charter remedy in the nature of a credit or reduction and that prolonged administrative segregation, those in excess of 15 consecutive days and over 22 hours per day in solitary confinement, had been ruled as contrary to the Charter. The only question was the length of that credit. The court found that Mr. Hall was entitled to a reduction of three years for prolonged administrative segregation. With respect to COVID-19, the court stated as follows:

[98] There is a distinction to be made. I find that this latest phase of lockdowns due to the pandemic does not fall under administrative segregation principles or the "Mandela Rules" per se, premised on the factual matrix. According to Vieira and Hall's own evidence, Hall was housed in his own cell - a single cell - during the COVID-19 pandemic, and even prior to the pandemic. His period of lockdown or constraint was no different than all of the other inmates. I agree with the Crown that these lockdowns or constraints of liberty are not based on an arbitrary administrative segregation rationale, that has been the subject of Charter litigation, but rather on a unique pandemic situation that forced the institution to take extreme measures for all inmates, based on valid health concerns. It is not lost on me that these extraordinary steps were affected in order to protect staff and inmates during various outbreaks and to impede the spread of the virus. In any event, I am persuaded that Hall was, in fact, better off than most inmates who were similarly situated and have endured the COVID-19 pandemic at HWDC.

[99] Moreover, the mere fact of institution-wide constraints or lockdowns as a result of the pandemic per se, do not warrant a reduction of time where there is a minimum of a life sentence. In other words, I find that the lockdown period, due to the health emergency arising out of COVID-19 and the ubiquitous measures taken at HWDC, ought not to be framed as non-disciplinary segregation for the purposes of this application for Charter relief. The jeopardy that befell this offender along with all of the other inmates in the jail do not engage the relevant Charter principles or additional relief as described in the appellant jurisprudence. Indeed, no court could have foreseen these extraordinary circumstances that arose as a result of health mitigation strategies arising from the pandemic. In this context, I am not persuaded that any additional reduction in parole ineligibility ought to be afforded based on the evidence presented before me for the pandemic period post-April 9, 2020 to date.

[80] As previously stated, the Crown and defence have jointly submitted that Mr. Daley’s time in pre-sentence custody can be considered as a mitigating factor in determining the appropriate parole ineligibility. Both have also submitted that incarceration during a pandemic is a relevant factor for consideration in determining a fit sentence. The defence has pointed to a number of cases in which the COVID-19 pandemic has been considered in mitigation of sentence, including:

R. v. O.K., 2020 ONCJ 189

R. v. Abdella, 2020 ONCJ 245

R. v. M.W., 2020 ONSC 3513

R. v. Hearns, 2020 ONSC 2365

R. v. Kandhai, 2020 ONSC 1611

R. v. Fulton, Unreported, September 16, 2020, T.A. Brown, J. Ottawa

The reality is that, by now, there are a multitude of sentencing cases that deal with COVID-19 and recognize it as a factor to be considered on sentencing. However, this is not a typical sentencing.

[81] In the absence of a Charter application, this court does not agree that having been subjected to pre-sentence custody during the COVID-19 pandemic is a relevant consideration on setting parole ineligibility. This conclusion is based on a plain reading of the Criminal Code. It is the view of this court that s. 745.4 does not permit this court to consider the conditions of remand time at all, absent a Charter application.

[82] Having said that, even if a Charter application had been brought in this case, this court would not be prepared to reduce the ineligibility period on the basis of the evidence presented here. While it is clear from R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978 (C.A.) para 8 that the court can take judicial notice of the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge, including its mode of transmission and recommended methods to avoid its transmission, there is absolutely no evidence in this case as to the effect the COVID-19 pandemic has had on Mr. Daley in custody. The institutional records submitted do refer to there being no in-person visits for a period of time, however, this court is unable to say whether Mr. Daley would have otherwise had visits during that time. Even if this court were to accept that COVID-19 led to limited inmate movement in the facility and reduction of programming, this court is unable to assess what if any impact these factors had on Mr. Daley. Duncan mitigation is neither an entitlement nor routinely granted upon the filing of institutional records. As stated in R. v. Omoragbon, 2020 ONCA 2381 at para 32, “In the absence of evidence of any adverse effect of the lockdown conditions on the appellant, enhanced credit is not warranted.”

Applicability of Charter Violations in the Context of this sentencing

[83] In respect of mitigation, the defence also argued that this court should take into account the pre-trial decision of Justice Boswell in this case, in which he found violations of s. 8 of the Charter. Specifically, Justice Boswell stated in his ruling found at R. v. Daley, 2020 ONSC 926:

[141] In summary, I find that the entry into 11 Marcus fell within a recognized police duty to protect life and safety. I find that such a duty is eminently reasonable.

[142] On the other hand, I find that the entry was neither justified nor reasonably conducted because of the handcuffing of Mr. Daley, which was not reasonably necessary in relation to a check on his well-being.

[143] In the result, I find that the police breached Mr. Daley’s s. 8 right in the manner in which they carried out the well-being check.

Justice Boswell also found that the police seized a vial of Mr. Daley’s blood before they had a warrant to do so and that the Crown had not established the reasonableness of the seizure. This was also found to be a violation of s. 8. Despite the findings of breach, however, Justice Boswell declined to exclude evidence under s. 24(2).

[84] The defence relied on the seminal case of R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. The court stated:

[3] As we shall see, the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence.

[47] The sentencing principles described above must be understood and applied within the overarching framework of our Constitution. Thus it may, at times, be appropriate for a court to address a Charter breach when passing sentence. This may be accomplished without resort to s. 24(1) of the Charter, given the court's broad discretion under ss. 718 to 718.2 of the Code to craft a fit sentence that reflects all the factual minutiae of the case. If the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence. Section 718.2(a) of the Code provides that a court should reduce a sentence "to account for any relevant ... mitigating circumstances relating to the offence or the offender". It would be absurd to suggest that simply because some facts also tend to suggest a violation of the offender's Charter rights, they could no longer be considered relevant mitigating factors in the determination of a fit sentence.

[85] The defence also referred to the case of R. v. Morris, 2018 ONSC 5186, in which the court held that a Charter violation that occurred during detention and arrest should be considered as a mitigating circumstance on sentence and did so in that case. This was upheld on appeal, found at 2021 ONCA 680.

[86] This court questioned whether this should be a consideration in the context of parole ineligibility considerations. Again, the considerations this court is authorized to consider are those contained in s. 745.4. None of the cases referred to at the sentencing hearing were in the context of parole ineligibility considerations. Having said that, this court does accept that such a violation of Mr. Daley’s Charter rights should be considered in the context of the circumstances surrounding the commission of the offence, specifically provided for in s. 745.4

[87] Justice Boswell determined that the breaches were at the high to middle range of the seriousness spectrum, however, he concluded that the impact of the breaches in this case tended toward the “less invasive end of the spectrum”. (para 171) In terms of the entry into 11 Marcus Street, Justice Boswell concluded that “it was therefore only a matter of seconds between an unjustified restraint and a justified one” and that “nothing occurred during the unjustified restraint that impacted negatively upon Mr. Daley”. (para 173) As for the blood sample, the impact was found to be “fleeting” (para 174). Accepting that these factors can be considered in the context of parole ineligibility, this court has concluded that it warrants slight mitigation.

Conclusion

[88] For all of the foregoing reasons, having carefully considered the entirety of the circumstances, this court has concluded that the total period of ineligibility for parole that would be proportionate to the gravity of the offences and the nature of the offender is a period of 18 years on each count, to be served concurrently. This time will commence from February 8, 2017. It is essential to remember that a parole ineligibility period only means that Mr. Daley will be eligible for parole, not that he will be granted it. His sentence is life imprisonment.

[89] In addition, because Mr. Daley has been convicted of indictable offences, involving the use of violence, that are punishable by imprisonment for 10 years or more, an order under s. 109(1)(a) of the Criminal Code is mandatory. Given the violent nature of these offences, that order will be for life.

[90] Murder is considered a “primary designated offence” in s. 487.04 of the Criminal Code and, accordingly, a DNA order is mandatory. Mr. Daley’s DNA will be taken as required.

[91] Finally, there will be an order under s. 743.21(1) of the Criminal Code, prohibiting Mr. Daley from communicating, directly or indirectly, with:

a. Rose Beaton and any member of her immediate family

b. Jennifer Crockford and any member of her immediate family.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.

Released: November 25, 2021