Court File and Parties

COURT FILE NO.: CR-19-6269 DATE: 20220224 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – LEVI ALEXANDER, VEJAY ALEXANDER and LAMAR CYRUS Defendants

Counsel: Mr. P. Westgate and Mr. T. Hamilton, for the Crown Mr. J. Rosen, for the Defendant Levi Alexander Ms. D. Bygrave, for the Defendant Vejay Alexander Mr. J. Hershberg and Ms. K. Lau-Po-Hung, for the Defendant Lamar Cyrus

HEARD: February 14, 2022

Reasons for Sentence

FUERST J. :

[ 1 ] Alex Perlmutter and Chris Theobald wanted to sell a modified starter’s pistol. They contacted Levi Alexander. Mr. Alexander arranged to meet them. He was accompanied by his brother Vejay Alexander, and Vejay’s friend Lamar Cyrus. The three men planned to rob Mr. Perlmutter and Mr. Theobald of the pistol.

[ 2 ] During the course of the transaction, Mr. Perlmutter was unintentionally shot by a handgun Mr. Cyrus brought to the meeting.

[ 3 ] Mr. Perlmutter died of his injury. He was 22 years old.

[ 4 ] Levi Alexander, Vejay Alexander, and Lamar Cyrus were all charged with second degree murder. Each pleaded guilty to manslaughter.

The Circumstances of the Offence

[ 5 ] Alex Perlmutter and his friend Chris Theobald were in the business of selling handguns and ammunition to third parties. The handguns they sold were either authentic firearms, or modified starter’s pistols or other blank guns that Mr. Perlmutter converted to fire live ammunition. The ammunition they sold was either authentic ammunition or ammunition that Mr. Theobald made himself.

[ 6 ] On the evening of March 26, 2019, Mr. Theobald visited Mr. Perlmutter at the latter’s home. Mr. Theobald contacted Levi Alexander by Instagram to see if he was interested in purchasing a gun. Mr. Alexander confirmed that he wanted the gun. Mr. Perlmutter then used Mr. Theobald’s cell phone and Snapchat account to continue the conversation with Mr. Alexander. According to Mr. Theobald, Mr. Perlmutter did the communicating because he knew more about the gun, which was a modified starter’s pistol. Mr. Theobald provided ammunition for it.

[ 7 ] Mr. Perlmutter and Mr. Alexander agreed to meet the next day. Mr. Theobald would go with Mr. Perlmutter to the meeting.

[ 8 ] Unbeknownst to Mr. Theobald and Mr. Perlmutter, Mr. Alexander was planning to rob them of the pistol. Mr. Alexander asked his brother Vejay Alexander, and Vejay’s friend Lamar Cyrus, to drive him to the meeting from Toronto, and to help him with the robbery. They agreed.

[ 9 ] On the morning of March 27, 2019, Mr. Perlmutter and Levi Alexander agreed to meet at a restaurant in East Gwillimbury that afternoon. Mr. Perlmutter sent Mr. Alexander a video of a gun being fired to show that the gun worked.

[ 10 ] Mr. Perlmutter drove to the restaurant with Mr. Theobald in his girlfriend’s Jetta. They arrived around 1:30 p.m., before Mr. Alexander.

[ 11 ] When Mr. Perlmutter saw Mr. Alexander arriving in a car, he told Mr. Theobald to get into the back seat of the Jetta so he could talk to Mr. Alexander in the front seat.

[ 12 ] Levi Alexander arrived at the restaurant parking lot in a stolen Mazda driven by his brother Vejay Alexander. Mr. Cyrus, who was in the rear seat, was armed with a loaded handgun. The Alexander brothers knew that Mr. Cyrus was armed.

[ 13 ] Levi Alexander got out of the Mazda and got into the front passenger seat of the Jetta. Mr. Perlmutter was sitting in the driver’s seat. Mr. Theobald was sitting in the back seat.

[ 14 ] Mr. Perlmutter left the restaurant parking lot and drove a short distance around the block so that Mr. Alexander could test fire the pistol. Mr. Alexander did so by firing the pistol out of the open car window. After that he held the pistol in his lap for the return trip.

[ 15 ] At some point, Mr. Alexander made a phone call to his brother, Vejay.

[ 16 ] When they returned to the restaurant parking lot, Mr. Perlmutter parked the Jetta nose first beside the Mazda, which was backed into a spot. The drivers’ sides of the two vehicles were beside each other.

[ 17 ] Mr. Alexander got out of the Jetta and went over to the driver’s side of the Mazda. It appeared to Mr. Theobald that he was getting money. Mr. Alexander returned to the Jetta and got back into the front passenger seat. He told Mr. Perlmutter and Mr. Theobald that his “buddy” was going to look at the pistol because he knew about guns.

[ 18 ] Mr. Cyrus and Vejay Alexander got out of the Mazda. Mr. Cyrus had his loaded gun in his hand, which he placed in his waistband. Vejay Alexander stood in front of the Jetta while Mr. Cyrus got into the rear passenger seat beside Mr. Theobald. Mr. Theobald was wedged between Mr. Cyrus and a baby car seat affixed behind the driver’s seat.

[ 19 ] It is unclear who handled the pistol in the car, or what was said about it, but at some point, it was passed to Mr. Cyrus. He looked at it and either passed it back to Levi Alexander or to Mr. Perlmutter. What is clear is that after Mr. Cyrus passed the pistol back to the front seat, he turned, pointed a silver revolver at Mr. Theobald and said, “You guys aren’t getting paid for shit.” He told Mr. Theobald to give him his chain. Mr. Theobald did.

[ 20 ] Levi Alexander told Mr. Perlmutter to give him the pistol. Mr. Perlmutter refused.

[ 21 ] A scuffle occurred inside the Jetta. One of the customers at the restaurant saw fighting in the car, with people punching each other in the head and hands flying everywhere. During the fight, Mr. Cyrus’s gun unintentionally discharged, and Mr. Perlmutter was shot.

[ 22 ] After the shot, Levi Alexander and Mr. Cyrus quickly got out of the Jetta. The three accused got into the Mazda. Vejay Alexander drove out of the restaurant parking lot and back to Toronto. Later that evening, each of them obtained new SIM cards and numbers for their cell phones.

[ 23 ] After the shot, Mr. Theobald heard Mr. Perlmutter say, “They shot me.” He told Mr. Theobald to “go”. Mr. Theobald got into the driver’s seat beside Mr. Perlmutter, who was slumped over towards the passenger seat. Mr. Theobald drove quickly out of the restaurant parking lot.

[ 24 ] Mr. Theobald called his girlfriend, Jessica Hughes, and told her that Mr. Perlmutter had been shot. She told him to meet her at a nearby church. As Mr. Theobald drove to the church, Mr. Perlmutter appeared to lose consciousness. Mr. Theobald thought Mr. Perlmutter was dead.

[ 25 ] At the church, Ms. Hughes, her friend, and Mr. Theobald moved Mr. Perlmutter from the Jetta into Ms. Hughes’s van. Mr. Perlmutter was barely alive. They attempted CPR, but were unable to revive him. They called 911.

[ 26 ] Emergency personnel responded to the call. They attempted to revive Mr. Perlmutter, but he was pronounced dead at the scene.

[ 27 ] The examining pathologist later determined that Mr. Perlmutter died from a single gunshot wound to the torso. The bullet entered his back right shoulder, travelled down through the body injuring the right lung and heart. It lodged under the skin at the front left side near the bottom of the ribcage.

[ 28 ] Neither the modified starter’s pistol nor the gun that fired the fatal shot were recovered during the police investigation.

The Arrests

[ 29 ] Vejay Alexander was arrested and charged on April 25, 2019. He has been in continuous custody since that date. For part of the time, he served the remanet of a youth sentence.

[ 30 ] Levi Alexander was arrested and charged on May 1, 2019. He has been in continuous custody since that date.

[ 31 ] Lamar Cyrus was arrested and charged on July 3, 2019, when he arrived at an office to attend a meeting with his probation officer. In the car in which Mr. Cyrus had been seated, the police found a .40 calibre Smith and Wesson handgun with a transparent high capacity magazine loaded with .40 calibre Smith and Wesson ammunition. The gun was a prohibited firearm.

[ 32 ] Mr. Cyrus pleaded guilty before me to the additional offence of unauthorized possession of a loaded prohibited firearm.

[ 33 ] Mr. Cyrus has been in continuous custody since July 3, 2019.

The Victim Impact Information

[ 34 ] At the time of his death, Mr. Perlmutter was living with his girlfriend Melissa Perry and their 9 month old son at her parents’ home in Sunderland. In her Victim Impact Statement, Ms. Perry expressed her feelings of anger, guilt and sadness over Mr. Perlmutter’s killing. Mr. Perlmutter was her spouse, her teammate in parenthood, her best friend, and their son’s loving father. In an instant, her family and her life were ripped away from her. She has been left alone to raise their son, who will never know his father or have him in his life. She dreads the years to come, with the confusion and sadness that their son will experience. There is pain in her heart, and a void in her soul. A part of her died along with Mr. Perlmutter. She said, “This is a life sentence for us”, and asks “What did my little boy do to deserve this”.

[ 35 ] Mr. Perlmutter’s mother wrote that Mr. Perlmutter was a son, brother, grandson, and new father. Her life, and that of her family, changed forever when he died. Family gatherings are sombre without him. Her new norm is anxiety, depression, and nightmares.

The Circumstances of the Offenders

[ 36 ] Levi Alexander was 23 years old at the time of the shooting. He lived in Toronto. He knew Mr. Perlmutter and Mr. Theobald.

[ 37 ] He has a prior adult criminal record that includes convictions for possession of a weapon, multiple breaches of court orders, and human trafficking offences related to the sex trade.

[ 38 ] Vejay Alexander was 19 years old at the time of the shooting. He lived in Toronto. He did not know either Mr. Perlmutter or Mr. Theobald.

[ 39 ] He has a lengthy and very serious youth record. It includes four findings of guilt for robbery in 2015, 2016, and 2017, and two findings of guilt for possession of a loaded prohibited or restricted firearm in 2017 and 2018, as well as multiple breaches of court orders.

[ 40 ] Lamar Cyrus was 21 years old at the time of the shooting. He lived in Toronto. He did not know either Mr. Perlmutter or Mr. Theobald.

[ 41 ] Mr. Cyrus has a prior adult criminal record that includes convictions for robbery and aggravated assault in 2017.

The Principles of Sentencing

[ 42 ] The objectives of sentencing are set out in s. 718 of the Criminal Code. They are the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.

[ 43 ] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

[ 44 ] In every case, the determination of a fit sentence is a fact-specific exercise. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.” The facts of the offence, the circumstances of the accused, and his or her moral blameworthiness are all considerations.

[ 45 ] Manslaughter ordinarily attracts a lengthy sentence: see, R. v. Head, [1985] O.J. No. 153 (C.A.). Indeed, under s. 236 of the Criminal Code, the maximum sentence for manslaughter is life imprisonment.

[ 46 ] However, a diversity of circumstances will found a conviction for manslaughter, and so the caselaw reflects a wide variation in the range of sentence. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity: see, R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10.

[ 47 ] The Court of Appeal for Ontario held in R. v. Simcoe, [2002] O.J. No. 884 that identifying the appropriate sentence in a particular case of manslaughter requires the sentencing judge to consider the context in which the manslaughter occurred, meaning the case-specific circumstances of the offence and the offender.

Analysis

[ 48 ] Manslaughter is a serious offence because it involves the taking of a life. The circumstances of this manslaughter are particularly egregious. Mr. Perlmutter was killed during the course of a planned robbery, a crime of greed and of inherent violence. Levi Alexander formulated the plan and enlisted not just one but two other men. By this plan, Mr. Perlmutter and Mr. Theobald would be outnumbered and intimidated.

[ 49 ] The objective of the robbery was to obtain the modified starter’s pistol, notwithstanding that all three offenders were bound at the time by court orders prohibiting them from possessing firearms. Moreover, Mr. Cyrus brought a loaded handgun to the March 27 rendez-vous, with the knowledge of Levi and Vejay Alexander. Notwithstanding the shooting of Mr. Perlmutter, Mr. Cyrus again was in possession of a loaded prohibited firearm months later, this time as he went to report to his probation officer. The firearms prohibition orders, imposed by courts to protect the public, clearly had no meaning to the offenders.

[ 50 ] In addition to the firearms prohibition orders, Vejay Alexander and Mr. Cyrus were on probation at the time Mr. Perlmutter was killed. Crown counsel advised that the conditions of the probation orders included that the two were to have no contact with one another. Again, the offenders blatantly ignored those court orders.

[ 51 ] All three offenders have serious adult or youth criminal records. Those records, combined with the commission of this manslaughter, reflect the danger the offenders pose to others in the community.

[ 52 ] Last but not least, Mr. Perlmutter’s death has devastated his immediate and extended families. No-one who watched and listened to Melissa Perry’s Victim Impact Statement in particular could fail to appreciate the pain and suffering caused by the killing of this young man. The offenders have left many ruined lives in their wake, but none so much as those of a young woman whose spouse has been taken from her and a child who will never know his father.

[ 53 ] In mitigation, I take into account that the offenders pleaded guilty. These were not early pleas, as they came just a few weeks before the start date of the joint trial. Nonetheless, the pleas are signs of remorse on the part of the offenders, and of willingness to take responsibility for their actions. The guilty pleas avoid the need for a trial at which issues would have been raised about the legal liability of each offender for the shooting.

[ 54 ] I also consider that the offenders have been held in pre-sentencing custody throughout the COVID-19 pandemic. The pandemic has made pre-sentencing custody even harsher than usual, with the jails frequently locking-down inmates in their cells because of staffing shortages, and the increased risk of transmission of the COVID-19 virus because of the congregate living structure of detention centres. Indeed, at least one of the offenders contracted the virus while in custody.

[ 55 ] I acknowledge that Vejay Alexander’s role in the offence was somewhat less than that of the other two men. This should be reflected in the sentences imposed.

Conclusion

[ 56 ] In R. v. Anthony-Cook, 2016 SCC 43, at para. 42, the Supreme Court of Canada held that trial judges should reject joint submissions as to sentence only where the proposed sentence “would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.” This is not such a case.

[ 57 ] I accept counsels’ joint recommendations as to sentence for each offender. The joint positions reflect the sentencing principles of denunciation, deterrence both general and specific, and the need to separate the offenders from society that are paramount in this tragic case involving the loss of a young man’s life. The joint positions also take into consideration the aggravating and mitigating circumstances of the offence.

[ 58 ] Levi Alexander, I sentence you for the offence of manslaughter to 11 years and 5 months in jail, less 1031 days of pre-sentence custody credited as 4 years and 3 months, leaving 7 years and 2 months in jail to serve. There is a DNA order and a s. 109 firearms prohibition order for life.

[ 59 ] Vejay Alexander, I sentence you for the offence of manslaughter to 10 years and 11 months in jail, less 961 days of pre-sentence custody credited as 4 years, leaving 6 years and 11 months in jail to serve, consecutive to any other sentence being served. There is a DNA order and a s. 109 firearms prohibition order for life.

[ 60 ] Lamar Cyrus, I sentence you for the offence of manslaughter to 11 years and 3 months in jail, less 968 days of pre-sentence custody credited as 4 years, leaving 7 years and 3 months in jail to serve. For the firearms offence I sentence you to 3 years in jail consecutive. In total, you have a sentence left to serve of 10 years and 3 months in jail. There is a DNA order and a s. 109 firearms prohibition order for life.

Justice M.K. Fuerst

Released: February 24, 2022

NOTE: As noted in court on the record, these written reasons are to be considered the official version and take precedence over the oral reasons read into the record. In the event of discrepancies between the oral and written versions, it is the written reasons that are to be relied upon.