Court File and Parties

Court File No.: CR 183/20 Date: 2022-04-26 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Crown Alex Cornelius and Veronica Puls, for the Crown

- and -

Patrick Doyle, Accused David Bayliss and Luca Rados, for the Defence

Heard: April 19, 2022

Reasons for Sentence

Petersen J.

[1] On February 2, 2022, after a jury trial, Patrick Doyle was convicted of manslaughter and of murder in the first degree. It is my task as the trial judge to sentence him for those offences.

Nature of the Offences

[2] Both homicides involved gun violence. The shootings occurred about six hours apart in the morning of September 2, 2018, on the streets of two different residential neighbourhoods in Peel Region.

[3] The victim of the first shooting was Cliff Correia. The victim of the second shooting was Derrick McKeown. Both men were shot multiple times at close range while seated in a stationary vehicle. Mr. Correia was in the back of a taxi with two other people, including his girlfriend Jessica Baycroft, when he was shot and killed. Mr. McKeown was behind the steering wheel of his own truck. Both homicide victims were unarmed and defenceless.

[4] The same Smith & Wesson handgun was used in both incidents. The gun belonged to Mr. Doyle. He disposed of it after he shot Mr. McKeown. It was never recovered.

[5] Although the shootings were committed with the same gun, they were not committed by the same person. The jury’s verdicts reflect their finding that Mr. Doyle killed Mr. McKeown in a planned and deliberate manner, but that he did not shoot Mr. Correia. In a somewhat unusual constellation of facts, Mr. McKeown – the victim of the second shooting – is the person who shot and killed Mr. Correia just hours prior to his own murder. [^1]

[6] The jury convicted Mr. Doyle of manslaughter in connection with the shooting of Mr. Correia because Mr. Doyle was a party to that homicide. By his own admission, he supplied Mr. McKeown with a loaded firearm, knowing that Mr. McKeown intended to use it to confront Mr. Correia and kidnap Ms. Baycroft. Mr. Doyle gave Mr. McKeown the gun with the intent of helping Mr. McKeown to commit that dangerous unlawful act. Mr. McKeown shot and killed Mr. Correia during the ensuring confrontation. Ms. Baycroft was also shot, but she survived her injuries.

[7] The fact that Mr. Doyle did not intend for Mr. McKeown to harm or kill Mr. Correia does not absolve him of legal culpability for his part in Mr. Correia’s death. The extent of his moral blameworthiness for that killing is a matter for me to determine in sentencing him.

Mandatory Minimum Sentences

[8] I have no discretion in sentencing Mr. Doyle for the murder of Derrick McKeown. Subsections 235(1) and 745(a) of the Criminal Code, R.S.C. 1985, c. C-46 dictate that a person convicted of murder in the first degree shall be sentenced to imprisonment for life, with no eligibility for parole until they have served 25 years.

[9] With respect to Mr. Doyle’s conviction for manslaughter in connection with Cliff Correia’s death, I have discretion regarding the sentence to be imposed. When a firearm is used in the commission of a manslaughter homicide, the Criminal Code stipulates that a person convicted of the offence is liable to imprisonment for a minimum of 4 years and to a maximum sentence of life imprisonment.

Positions of the Parties

[10] The Crown asks the Court to impose a sentence of 10 years’ imprisonment on Mr. Doyle for his manslaughter conviction. Defence counsel argues that 10 years is excessive in the circumstances. The Defence submits that an appropriate sentence would be 5 years’ imprisonment.

[11] For reasons articulated below, I have concluded that an appropriate sentence of incarceration falls in between the two positions advanced by the Crown and the Defence.

Difference Between Murder and Manslaughter

[12] For the benefit of the public, in particular the families and friends of the victims in this case, I first want to take a moment to explain why different mandatory minimum sentences apply to murder and manslaughter. Although they are both homicide offences, the elements of the offences are different. A conviction for first degree murder requires the Crown to prove beyond a reasonable doubt that the killing was intentional, planned and deliberate. Manslaughter, on the other hand, does not involve an intent to kill, nor even an intent to cause bodily harm that the offender knows is likely to cause death. The moral blameworthiness of the perpetrator of a manslaughter is therefore usually significantly less than that of a murderer.

[13] I recognize and want to acknowledge that Mr. Correia’s death was no accident. He was targeted in a senseless act of violence that was an intentional, planned, and deliberate murder. But the person who planned and executed his murder, Derrick McKeown, is now deceased and is not being sentenced today. My task is to sentence Mr. Doyle for his role in Mr. Correia’s death.

[14] The automatic sentence of life imprisonment for killing Mr. McKeown reflects Mr. Doyle’s role in planning and executing that murder. The fact that a lesser sentence will be imposed on Mr. Doyle for the offence that resulted in Mr. Correia’s death is not meant to suggest that Mr. Correia’s death was any less tragic or senseless, or that Mr. Correia’s life had any less value or worth than that of Mr. McKeown. Rather, the lower sentence for manslaughter reflects the lack of evidence of Mr. Doyle’s intent to kill or harm Mr. Correia, the lack of evidence that he was present when the shooting occurred, and ultimately, the lower degree of his responsibility for Mr. Correia’s death.

[15] I appreciate that, for surviving family members of the victims who were killed, the two types of homicide offences – manslaughter and murder -- have the same devastating consequences. The sentence that I impose for manslaughter, and the reasons that I provide for doing so, are not meant to diminish in any way the impact of Mr. Correia’s death on those who loved him. I recognize their loss and grief, and the profound and lasting impact of his passing.

The Fundamental Principle of Sentencing: Proportionality

[16] My task is to impose a sentence that is guided by the provisions of the Criminal Code and the principles set out in the jurisprudence. Sentencing requires me to consider and balance a multiplicity of factors, but proportionality is the organizing principle: R. v. Parranto, 2021 SCC 46, at paras. 9-10. I must fix a sentence for the manslaughter conviction that is proportionate to the gravity of the offence and to the degree of Mr. Doyle’s responsibility for Mr. Correia’s death: Criminal Code, s.718.1.

Gravity of the Offence

[17] Cliff Correia was an unarmed and innocent victim. He was enjoying a night out with friends, including his girlfriend, Ms. Baycroft. They were seated in the back of a taxi pulled over on the side of residential street when he was suddenly shot repeatedly at close range by Mr. McKeown, who ran up beside the car and fired several rounds into the vehicle. This was an unprovoked act of extreme violence, apparently motivated by Mr. McKeown’s obsessive jealousy over Ms. Baycroft’s relationship with Mr. Correia. The shooting has been accurately described by counsel as “an execution.” It abruptly ended the life of a young father and traumatized and injured others who were present.

Harm Caused

[18] At the sentencing hearing, I heard the victim impact statements of Cliff Correia’s mother, Gabi Correia, and of his stepmother, Marcia Resendes. More than three and half years after the shooting, their grief is still raw. As with any bereft parent, their emotional pain is overwhelming and enduring.

[19] Ms. Correia and Ms. Resendes spoke movingly about not only the harm caused to them personally, but also to other members of Cliff’s family, particularly his four young children, who must now grow up without their father. Their loss is immeasurable, profound, and lasting.

[20] Ms. Resendes also spoke of the fear she experiences because of the sudden and unprovoked nature of the act of violence that took Cliff’s life. She wonders whether she or another loved one might be taken next. Consequently, her life is marred by a state of constant hyper vigilance.

Mr. Doyle’s Degree of Responsibility for Mr. Correia’s Death

[21] The Crown did not prove that Mr. Doyle was present when Derrick McKeown shot Cliff Correia. The evidence adduced at trial suggests that Mr. McKeown was a lone shooter, who drove himself to and from the scene of the crime. There is no evidence that Mr. Doyle lured Mr. Correia into a trap, or assisted Mr. McKeown in tracking him down. In that regard, the assistance that he rendered to Mr. McKeown was limited to providing Mr. McKeown with the gun that was ultimately used to shoot Mr. Correia.

[22] While Mr. Doyle’s involvement in the homicide may have been minimal, his moral blameworthiness and the degree of his responsibility for Mr. Correia’s death should not be understated or trivialized. He not only supplied Mr. McKeown with a loaded firearm, which is an inherently dangerous act, but he did so in circumstances that made his actions egregiously irresponsible.

[23] The evidence at trial, including Mr. Doyle’s own testimony, establishes the following facts:

a) Mr. McKeown considered Jessica Baycroft to be his girlfriend. They had a child together. He was intensely jealous of Ms. Baycroft’s relationship with Mr. Correia. Mr. Doyle knew this because Mr. McKeown had been obsessing about it for weeks. b) In the hours just prior to the shooting, Mr. Doyle spoke on the phone with Mr. McKeown. He recalled that Mr. McKeown was “freaking out and going crazy” because Jessica was with Cliff again and had lied to him about it. Mr. McKeown told Mr. Doyle that he needed drugs but had no money. c) Mr. Doyle told Mr. McKeown to calm down and come to his condo, that he had drugs for him. He met Mr. McKeown in the parking lot of his condominium complex and gave Mr. McKeown heroin and crack, which Mr. McKeown immediately consumed in his presence. d) Mr. McKeown remained very upset about Jessica and Cliff. He did not calm down after he took the drugs. He told Mr. Doyle that he wanted to “go get her”. Mr. Doyle understood that he intended to take Jessica away from Cliff and bring her back with him to Mr. Doyle’s condo. Mr. Doyle did not know exactly how Mr. McKeown planned to do this. e) Mr. Doyle refused to accompany Mr. McKeown because he was entertaining friends in his condo. Mr. McKeown then requested one of Mr. Doyle’s guns. f) Mr. Doyle initially said no. He asked why Mr. McKeown needed a gun. Mr. McKeown told him that the guys with Jessica had guns. Mr. Doyle assumed that Mr. McKeown was talking about Cliff. He understood that Mr. McKeown wanted the gun for protection. g) Mr. Doyle was initially hesitant. Mr. McKeown started guilting him about not being a good friend, and he relented and gave Mr. McKeown a loaded handgun. Mr. McKeown then drove off in his truck with the gun. Mr. Correia was shot shortly thereafter.

[24] The jury concluded that Mr. Doyle intended to assist Mr. McKeown in the unlawful act of kidnapping Ms. Baycroft when he gave Mr. McKeown the gun. It is clear from Mr. Doyle’s own evidence that he knew Mr. McKeown was planning to confront Mr. Correia, who Mr. McKeown believed had a gun. Mr. Doyle also knew that Mr. McKeown was agitated, high on drugs, and acting erratically. Despite this knowledge, he gave Mr. McKeown a loaded firearm to take with him on his mission to kidnap Ms. Baycroft.

[25] Mr. Doyle acted with extreme recklessness in the circumstances. Given Mr. McKeown’s frame of mind, determination to take Ms. Baycroft away from Mr. Correia, and belief that Mr. Correia was armed with a gun, Mr. Doyle must have known that, by giving drugs to Mr. McKeown and arming him with a loaded handgun, there was a substantial risk that someone was going to get shot.

[26] Kidnapping is an inherently dangerous unlawful act. Giving someone whose judgment is impaired by drugs a loaded gun to commit a kidnapping renders the act even more dangerous. Serious and potentially lethal harm to another person was foreseeable, but Mr. Doyle flagrantly disregarded that risk.

[27] Defence counsel argues that Mr. Doyle’s moral blameworthiness is diminished by the fact that his conduct that night constituted a momentary lapse in judgment. I do not agree. First, it was not an impulsive decision to give Mr. McKeown the loaded firearm. Mr. Doyle thought about it. He hesitated and reflected. He discussed it with Mr. McKeown. When he eventually agreed, he contacted a friend in the condo and asked the friend to bring the gun down to him in the parking lot. He had time to change his mind.

[28] Second, it matters not whether Mr. Doyle made a spur-of-the-moment decision, as submitted by Defence counsel, or reached a decision after considered reflection. The fact remains that the choices he made that night were instrumental in Mr. Correia’s death. Grievous harm and death were foreseeable consequences of his actions. His moral blameworthiness is exacerbated by his extreme recklessness. He bears more than minimal responsibility for the homicide.

Parity in Sentencing

[29] Sentencing judges must “calibrate the demands of proportionality by reference to the sentences imposed in other cases”: R. v. Friesen, 2020 SCC 9, at para. 33; R. v. Parranto, at para. 11. Section 718.2(b) of the Criminal Code requires that I impose a sentence on Mr. Doyle that is comparable to those imposed on similar offenders for similar offences committed in similar circumstances.

[30] The Crown and the Defence provided me with several manslaughter decisions to consider in determining the appropriate range of sentence in this case. The authorities include: R. v. Barreira, 2021 ONCA 455; R. v. Warner, 2019 ONCA 1014; R. v. Karim, 2014 ABCA 88; R. v. Almarales, 2008 ONCA 692; R. v. Phillips, 2008 ONCA 688; R. v. Cooney, [1995] O.J. No. 945 (ONCA); R. v. Walcot, 2001 BCCA 342; R. v. Ingram Piruzevski, 2019 ONSC 4470; R. v. Cole, [2004] O.J. no.1691 (ONSC); and R. v. Murdoch, [1988] O.J. 4658 (HCJ).

[31] These cases demonstrate the wide variety of circumstances that can result in a manslaughter conviction, and the infinitely diverse personal circumstances of the offenders involved. Accordingly, there is broad range of sentences.

[32] Not surprisingly, none of the cases provided by counsel is directly on point. Each has its own unique facts and circumstances that are distinguishable from those in the case before me. The cases bear some similarity to this one in so far as they involve the sentencing of offenders who were convicted of manslaughter as an aider to a dangerous unlawful act that was committed by someone else, and that resulted in someone’s death. In most of the cases, the assistance provided by the offender included supplying the weapon or loading the gun used to kill the victim.

[33] Beyond that similarity, however, the court decisions submitted by counsel all have distinguishing features that are relevant to the exercise of my judicial discretion in sentencing. In some of the cases, the offender had a greater degree of involvement as a party to the homicide and a commensurately greater degree of moral culpability for the victim’s death. For example,

a) In R. v. Ingram Piruzevski, in which a 7-year sentence was imposed, the offender not only supplied the knife that was used by someone else to kill the victim, but he also armed himself and was present at the scene of the stabbing, and he fled the scene without rendering assistance to the victim. b) In R. v. Cooney, in which the Court of Appeal for Ontario imposed a sentence of 8 years’ imprisonment, the offender had participated in placing an ad in a magazine to lure a gay victim to the scene where he was robbed and killed by the offender’s accomplice. c) In R. v. Barreira, in which the Court of Appeal for Ontario upheld a sentence of 15 years’ imprisonment (with a reduction for pre-sentence detention), the offender was not only present at the scene of the shooting, but he also led the search for the victim and called the shooter to attend the crime scene. d) In R. v. Warner, in which the Court of Appeal for Ontario imposed a sentence of 15 years’ imprisonment, the offender was not only present at the shooting, but he also brandished and fired his own gun. e) In R. v. Karim, in which the Court of Appeal for Alberta upheld a sentence of 16 years’ imprisonment for the manslaughter conviction of Robert Deer, Mr. Deer had asked his former employee, Mr. Karim, to intimidate and extort the victim. He supplied Mr. Karim with a disguise and a loaded handgun for that purpose, and drove Mr. Karim to the victim’s office, where the victim was shot and killed by Mr. Karim. He then drove Mr. Karim to his home, where Mr. Karim changed his appearance, then gave Mr. Karim money and dropped him off at a bus depot.

[34] Conversely, many of the cases provided by counsel had significant mitigating circumstances that are not present in this case, or they lacked some of the aggravating circumstances in this case (which are discussed in more detail below). For example,

a) In R. v. Walcot, in which the Court of Appeal for British Columbia imposed a sentence of 4 years’ imprisonment, the offender turned himself in, lead the police to the place where the firearm used to kill the victims had been thrown, and pleaded guilty to two counts of manslaughter. b) In R. v. Ingram Piruzevski, in which a 7-year sentence was imposed, the youthful offender had no criminal record, pleaded guilty very soon after the preliminary inquiry in circumstances where there were triable issues, and demonstrated genuine remorse for his actions and a willingness to accept responsibility for the offence. c) In R. v. Cole, in which a sentence of 4 years’ imprisonment followed by 2 years’ probation was imposed, the offender had no criminal record, pleaded guilty and accepted responsibility. d) In R. v. Phillips, in which a sentence of 9 years’ imprisonment was imposed, the offender pleaded guilty. e) In R. v. Murdoch, in which a sentence of 7 years’ imprisonment was imposed for the manslaughter conviction of Michelle Wood, Ms. Wood had an insignificant record of prior offences, pleaded guilty and expressed remorse for her involvement in the series of events that culminated in Mr. Murdoch shooting and killing the victim.

[35] In R. v. Warner, at para. 14, the Court of Appeal for Ontario noted that 12 or 13 years’ imprisonment is generally an appropriate sentence for aiders or abettors to manslaughter, where the offender has a high degree of moral culpability as a secondary participant in the homicide (i.e., cases that Defence counsel characterized as “near murders”). The jurisprudence summarized above suggests that the appropriate range of sentence in such so-called “near murder” cases is 7 to 16 years’ imprisonment.

[36] Those are not, however, the facts of this case. In this manslaughter case, the offender is an aider who has more than minimal responsibility for the homicide, but he was not a secondary participant and does not have the highest level of moral blameworthiness. The jurisprudence suggests that the appropriate range of sentence in a case such as this one is 4 to 10 years. Both the Crown’s and the Defence’s positions fall within this range.

Specific Circumstances of this Case

[37] In determining the appropriate sentence for Mr. Doyle within the applicable range, I must carefully consider the specific facts and circumstances of the offence and of the offender before me. “Individualization is central to the proportionality assessment”: R. v. Parranto, at para. 12. As the Supreme Court of Canada observed in R. v. Lacasse, 2015 SCC 64, at para. 58,

although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.

[38] Subsection 718.2(a) of the Criminal Code stipulates that a sentence should be increased or reduced to account for any aggravating and mitigating circumstances relating to the offence or the offender. There are several aggravating circumstances in this case. The most significant is Mr. Doyle’s extensive criminal record.

[39] Mr. Doyle’s criminal activities commenced in his youth and continued unabated throughout his first decade of adulthood. By the age of 27, he had 34 convictions, 10 of which involved violence or threats of violence against other persons. There are no significant gaps in his criminal record that would suggest an inclination, let alone an ability to curb his unlawful tendencies. He is a chronic recidivist, and his record shows a steady escalation in the seriousness of his offences. He has not been deterred by his prior sentences of incarceration, the longest of which was 2 years.

[40] Another aggravating factor is that Mr. Doyle was under a court-ordered firearms prohibition when he gave the loaded gun to Mr. McKeown.

[41] The final aggravating factor is that Mr. Doyle disposed of the gun (after he used it to murder Mr. McKeown) and the weapon was never recovered.

[42] There are other relevant circumstances surrounding the commission of the offence, namely that Mr. Doyle supplied Mr. McKeown with drugs just prior to giving him the gun, which further impaired Mr. McKeown’s judgment; the firearm he gave to Mr. McKeown was loaded; and he furnished the loaded gun despite knowing that Mr. McKeown was enraged and “freaking out” about Ms. Baycroft spending time with Mr. Correia. I have already considered these aggravating circumstances in assessing the degree of Mr. Doyle’s moral culpability and blameworthiness.

[43] I am mindful that the jury acquitted Mr. Doyle of a charge of aggravated assault against Jessica Baycroft, who was also shot while seated in the back of the taxi beside Mr. Correia. Mr. Doyle did not inflict Ms. Baycroft’s wounds, and the Crown did not prove beyond a reasonable doubt that he had the requisite knowledge and intent to be found guilty as an aider to Mr. McKeown’s aggravated assault against her. I therefore have not treated Ms. Baycroft’s injuries as an aggravating circumstance in sentencing Mr. Doyle for manslaughter. I have, however, considered the trauma she experienced as a proximate witness to Mr. Correia’s murder in assessing the harm caused by Mr. Doyle’s actions.

[44] There is a notable absence of mitigating circumstances in this case, apart from collateral consequences flowing from Mr. Doyle’s pre-sentence incarceration during the COVID-19 pandemic.

Collateral Consequences and “Duncan Credit”

[45] The Defence submits that Mr. Doyle should be granted “Duncan credit” for the 44 months he has spent in pre-sentence detention since September 4, 2018 because of deplorable conditions of incarceration, especially during the COVID-19 pandemic: R. v. R.I., 2022 ONSC 1615; R. v. Ahmed, 2021 ONSC 8157; R. v. Dalmer, 2021 ONCJ 89; R. v. Donison, 2022 ONSC 741. Defence counsel left it to my discretion to determine the appropriate reduction to Mr. Doyle’s sentence but noted that, in R. v. Ahmed, at para. 43, Schreck J. held that between 1 and 2 days for each day of pre-sentence detention would be an appropriate way to quantify “Duncan credit”.

[46] Given that Mr. Doyle has been incarcerated on remand for approximately 44 months, that formula would translate into a reduction in his sentence of roughly five and a half years, in addition to the credit for presentence detention to which he is entitled pursuant to s.719(3) and (3.1) of the Criminal Code. This strikes me as grossly inappropriate in the circumstances of this case. Such a generous credit would reduce Mr. Doyle’s sentence to the point where it becomes disproportionate and unfit.

[47] The Crown concedes that I have discretion to reduce Mr. Doyle’s sentence in recognition of the unusually harsh conditions of his pre-detention custody, pursuant to the Court of Appeal decision in R. v. Duncan, 2016 ONCA 754. The Crown submits, however, that any such reduction should not be more than 2 or 3 months. Given that Mr. Doyle has spent over two years of his pre-sentence detention in extremely restrictive pandemic-era conditions of incarceration, this submission strikes me as inadequate.

[48] The expression “Duncan credit” is, in my view, a misnomer that has led to unnecessary confusion. A so-called “Duncan credit” is conceptually different from the “Summers credit” of 1.5 days for each day of pre-sentence custody that Courts generally award pursuant to s.719(3.1) of the Criminal Code and the Supreme Court of Canada decision in R. v. Summers, 2014 SCC 26. As will be discussed later in these Reasons, the Defence is also seeking a Summers credit in this case.

[49] The Court of Appeal for Ontario recently provided the following helpful explanation of the difference between these two “credits” in R. v. Marshall, 2021 ONCA 344:

[50]…. 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), 187 O.A.C. 307 (C.A.). …

[50] In essence, what has commonly been referred to as a “Duncan credit” in the case law is not really a “credit” at all. It is more akin to a collateral consequence that should be taken into consideration in determining a fit sentence in the circumstances of a particular case.

[51] A collateral consequence is relevant to sentencing if (a) it arises “from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence” and (b) it “impacts the offender”: R. v. Suter, 2018 SCC 34, at para. 47. Examples of collateral consequences include: when the conviction or the length of the sentence negatively affects the offender’s immigration status; when the offender suffers a serious and lasting injury during the commission of the offence; or when the offender is attacked either by members of the public seeking vigilante retribution, or by fellow inmates during pre-trial custody because of the nature of the offence: R. v. Suter, at paras. 50-53.

[52] Collateral consequences are not, strictly speaking, a mitigating circumstance because they do not diminish the gravity of the offence or the level of responsibility of the offender, but they may nevertheless justify a reduction in sentence because a fit sentence must always be tailored to the offender’s individual circumstances. As the Supreme Court of Canada explained in R. v. Suter, at para. 48:

The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit.

[53] In assessing the attenuating effect of the collateral consequence of exceptionally harsh conditions of pre-sentence detention, a sentencing judge must take into consideration the length of time spent in custody subject to such conditions, and the effect that the conditions have had on the offender: R. v. Ahmed, at para.42; R. v. Duncan, at para. 6; R. v. Brown, 2020 ONCA 196, at para.6.

[54] In this case, Mr. Doyle has been incarcerated alternately at the Maplehurst Correctional Complex and the Toronto South Detention Centre (TDSC) for approximately three years and eight months. No evidence was lead with respect to the conditions of incarceration during his period of pre-sentence detention. Defence counsel argues that I should take judicial notice that the conditions in these two institutions are exceptionally harsh.

[55] In R. v. Donison, at para.58, Schreck J. found that the “conditions at the TSDC are notorious.” He cited R. v. Powell, 2020 ONCA 743, in which the Court of Appeal stated (at para. 30),

[T]he Toronto South Detention Centre is the principal detention facility for the entire City of Toronto. It is capable of housing 1,650 individuals awaiting trial. It has also been the subject of scathing criticism for several years from many judges regarding the manner in which it is operated, and the consequent impact on the individuals housed there. A consistent theme in this criticism is the excessive number of lockdowns that occur in that facility: see, for example, the summary in R. v. Persad, 2020 ONSC 188, at para. 29.

[56] In R. v Ahmed, at para. 40, Schreck J. stated, “In my view, the Ministry of the Solicitor General's refusal to ameliorate the conditions at the TSDC in the face of a mountain of judicial criticism and the findings of the [Ontario Human Rights Commission] is an affront to the administration of justice.”

[57] Similarly, in R. v. Dalmer, at para. 101, McLeod J. remarked, “The stories that I have heard from Maplehurst are mind-boggling in their awfulness.” She made that comment in the specific context of the oppressive conditions of incarceration at Maplehurst during the COVID-19 pandemic. She stated (at para. 88) that, for inmates at Maplehurst, the pandemic “brought consequences so dire to call them a ‘loss of privileges’ is inappropriate.” She noted that, at the time of her sentencing of Mr. Dalmer in February 2021, Maplehurst had been completely closed for a number of weeks due to a major outbreak of COVID-19.

[58] I am prepared to take judicial notice of the following facts:

a) The World Health Organization declared COVID-19 a global pandemic in mid-March 2020. Governments subsequently imposed restrictive public health guidelines, including social distancing requirements. b) TSDC and Maplehurst are very large congregate settings in which social distancing is difficult to achieve and the risk of infection with SARS-CoV-2 (the virus that causes COVID-19) is therefore high. Prior to the availability of COVID-19 vaccines, the inmates and staff in these institutions were especially vulnerable to infection and severe illness. c) During the pandemic, programming in these institutions (such as it was) ceased for extended periods of time due to government-mandated social distancing requirements and outbreaks of COVID-19. d) TSDC and Maplehurst have been operating under severe and chronic staffing shortages since March 2020 due to COVID-related circumstances. Large numbers of staff have been off work because of COVID-19 illness or because of public health requirements to isolate after exposure to someone with COVID-19. e) A substantial number of unvaccinated staff at Maplehurst were forced onto unpaid leave in early December 2021, following an order by Halton Public Health under s.22 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7. f) These institutional staffing shortages have had a negative impact on the inmate populations in the two correctional facilities, including limited access to showers, meetings with counsel, telephone calls, and fresh air. g) Since the beginning of the pandemic in March 2020, there have been numerous prolonged periods of lockdown during which inmates were effectively confined to their cells and visitor access was denied.

[59] These staffing shortages and lockdowns have been widely reported in the media. They are facts commonly known by reasonably informed members of the public, and they are amenable to proof by reference to readily accessible sources of reliable accuracy, including government websites. I note that the Crown did not dispute them or object to the Defence’s request that I take judicial notice of them.

[60] Although the Defence called no evidence of the effects of these conditions on Mr. Doyle personally, some of the impact on him is self-evident and may reasonably be inferred from the known facts. As the Court of Appeal stated in R. v. Bristol, 2021 ONCA 599, at para. 11, “Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects…”

[61] I am not, however, prepared to take judicial notice of exceptionally harsh and deplorable conditions of incarceration, or of the personal impact of such alleged conditions on Mr. Doyle, prior to the emergence of the COVID-19 pandemic in March 2020. For the Court to treat Mr. Doyle’s pre-sentence detention conditions from September 2018 to March 2020 as a mitigating collateral consequence, it was incumbent on the Defence to lead some evidence of the hardship experienced by Mr. Doyle.

[62] I will therefore treat the unusually harsh pandemic-related conditions of Mr. Doyle’s incarceration from March 2020 to present as a mitigating collateral consequence that justifies some “Duncan credit” in determining his appropriate sentence.

[63] I appreciate Schreck, J.’s statement, in R. v. Ahmed (at para. 42), that “[q]uantifying the amount of ‘Duncan’ credit promotes transparency in the sentencing process and also allows the state to know what effect its failure to maintain appropriate custodial conditions has on a sentence.” However, I prefer not to quantify the amount of “credit” because it should not be treated as a deduction from Mr. Doyle’s sentence, but rather as one of a multiplicity of factors that I must consider, balance and weigh in arriving at a fit, fair, and proportionate sentence.

Purposes of Sentencing

[64] In determining an appropriate sentence, I must be mindful of the fundamental purpose of sentencing namely, to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe society: Criminal Code, s.718. Mr. Doyle’s sentence must serve one or more of the following objectives: denunciation of unlawful conduct and of the harm done to victims or the community, general and specific deterrence, separation of the offender from society, 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.

[65] In homicide cases where gun violence is involved, the court gives primary consideration to the objectives of denunciation and deterrence. The sentence I impose must reflect the Court’s and the public’s condemnation of the fact that the life of a young man was ended in a brazen and senseless act of gun violence on a residential street. Serious harm was caused, not only to Cliff Correia, whose life was taken, but also to those who loved him, to others who were present and were traumatized by the incident, and to the peace and security of the community in which the shooting took place.

[66] Mr. Correia’s execution-style killing was abhorrent. Although Mr. Doyle did not commit the shooting, and was not present during the shooting, his actions facilitated the shooting and were instrumental in bringing about Mr. Correia’s death. His sentence must serve to express society’s denunciation of his extreme recklessness.

[67] The manslaughter sentence should also serve, in so far as possible, to deter Mr. Doyle from re-offending in the future, and to deter other would-be offenders from engaging in similarly reckless conduct with firearms.

[68] Rehabilitation is always an important consideration in sentencing, even in cases of serious crime in which deterrence and denunciation are the paramount objectives. Where an offender has rehabilitative potential, the sentencing judge should do what they can to ensure its actualization: R. v. Donison, at para. 43. In this case, however, rehabilitation is more of an aspirational goal than a realistic prospect. Mr. Doyle does not have strong rehabilitative potential.

[69] Mr. Doyle’s lengthy criminal record discloses a longstanding pattern of disregard for the law and for court orders. He has been making consistently poor life choices for many years. He is almost 31 years old and was 27 at the time he committed these offences. He dropped out of school as an adolescent and made no effort to complete his high school education as an adult. He has no demonstrated ability to maintain legitimate employment. Rather, he has earned his living by trafficking illicit drugs. There is no evidence before me of family or community supports to assist him. In the circumstances, it will be challenging for him to turn his life around.

[70] I do not mean to suggest that rehabilitation is an irrelevant consideration in this case. Given Mr. Doyle’s relatively young age, despite the long period of incarceration that awaits him for the murder of Derrick McKeown, there is still a likelihood that he will eventually be released into the public. He can seize the opportunity to choose a different path.

[71] Another objective of the sentence I impose for the manslaughter conviction is to induce in Mr. Doyle a sense of responsibility for his actions and an acknowledgment of his contribution to the devastating harm caused to Mr. Correia and Mr. Correia’s family.

Sentence for Manslaughter

[72] Taking all the above into account, I have concluded that a fair and proportionate sentence for the manslaughter conviction in this case is eight years’ imprisonment.

[73] The sentence of five years’ imprisonment suggested by Defence counsel would not sufficiently serve the purposes of denunciation and deterrence. It would not adequately take account of the relevant aggravating circumstances and would not be proportionate to the degree of Mr. Doyle’s moral blameworthiness in connection with Mr. Correia’s death.

[74] Conversely, the sentence of 10 years’ imprisonment sought by the Crown would be disproportionate to the gravity of Mr. Doyle’s unlawful conduct and to the degree of his responsibility for Mr. Correia’s death, given the limited assistance that he provided to Mr. McKeown. It would also fail to give sufficient weight to the mitigating collateral consequence of unusually harsh pandemic-era incarceration that Mr. Doyle has endured for the past two years.

Sentence for Murder

[75] As noted earlier, the mandatory sentence for the murder of Mr. McKeown is life imprisonment without eligibility for parole for 25 years. Since I have no discretion in imposing that sentence, it is unnecessary for me to review the factors that are relevant to sentencing. It is nevertheless appropriate, in my view, to acknowledge the harm caused by Mr. McKeown’s murder.

[76] At the sentencing hearing, I was provided with a victim impact statement prepared jointly by Ms. Baycroft, Mr. McKeown’s father, Peter McKeown, and Mr. McKeown’s young son, Joshua. The child drew a picture for the Court, depicting a man behind bars, as well as a house and the family that he would have had if his father had not been taken from him. The picture speaks volumes about the loss that Joshua has suffered.

[77] Peter McKeown expressed his grief as a bereft father, which has caused him to seek counselling. Derrick’s murder had a devastating impact on him, not only emotionally, but also in terms of his reliance on Derrick for personal support. He has progressive vision loss and says that he is already “legally blind.” He was depending on his son as a safety net as he ages. He is left not knowing how he will cope with his disability without Derrick. Finally, Peter McKeown also wrote about the cost of raising a child, which he and Ms. Baycroft will now be required to bear (in relation to Joshua) without the benefit of any income from Derrick.

[78] I can appreciate that it might be difficult for the family of Cliff Correia to listen to the Court acknowledge the harm and pain caused by Derrick McKeown’s death, given that Mr. McKeown is the person who murdered Mr. Correia. However, Mr. McKeown’s actions do not diminish the grief and loss suffered by those who loved him.

[79] Mr. McKeown ought to have been held accountable in a court of justice for his conduct that night. Instead, Mr. Doyle decided to murder Mr. McKeown to prevent disclosure of his own implication as an aider to the shooting of Cliff Correia and Jessica Baycroft. Mr. Doyle committed an appalling and intolerable crime that is not rendered any less serious by Mr. McKeown’s conduct in the hours prior to his death.

“Summers Credit” for Pre-Sentence Detention

[80] Mr. Doyle was arrested on September 4, 2018 and has been continuously incarcerated for the past 1331 days. [^2] He is entitled to credit toward his manslaughter sentence for the time he has been in detention. As explained below, the Defence has proposed a formula to calculate the credit. The Crown is taking no position on the issue.

[81] Pursuant to s.746(a) of the Criminal Code, Mr. Doyle’s sentence of life imprisonment for murder is deemed to have commenced on the day he was arrested. Each day that he has spent in detention on remand will therefore be counted toward his life sentence.

[82] With respect to his eight-year sentence for manslaughter, which commences today, the Defence submits that he should receive enhanced credit for pre-sentence detention pursuant to s.719(3.1) of the Criminal Code. I see no reason not to grant the enhanced credit, for the reasons articulated by the Supreme Court of Canada in R. v. Summers.

[83] Enhanced credit is statutorily capped at 1.5 days for each day of pre-sentence detention. In order to avoid “double dipping” with the 1:1 credit that Mr. Doyle is effectively receiving toward his life sentence for murder, the Defence suggests that award 0.5 days credit for each day of Mr. Doyle’s pre-sentence detention toward his manslaughter sentence. That is a sensible proposal. I will therefore credit him with 666 days.

Conclusion

[84] Mr. Doyle, please rise.

[85] For the murder of Derrick McKeown, I hereby sentence you to imprisonment for life, with no eligibility for parole until you have served 25 years.

[86] For the manslaughter conviction in connection with Cliff Correia’s death, I hereby impose on you a concurrent sentence of eight years’ imprisonment, minus 666 days’ credit for the time you have spent in pre-sentence detention on these offences.

[87] You are prohibited from possessing any firearm and all other items described in s.109(1) of the Criminal Code for life. Pursuant to s.487.051 of the Criminal Code, you must provide samples of your DNA for inclusion in the national databank.

Petersen, J. Released: April 26, 2022

[^1]: I should explain the basis upon which I make the statement that Derrick McKeown shot and killed Cliff Correia, since Mr. McKeown was neither charged nor convicted of any offence in connection with the shooting of Mr. Correia. The jury verdicts in this case are only in respect of Mr. Doyle’s culpability. The jury found Mr. Doyle not guilty of murder but guilty of manslaughter in connection with Mr. Correia’s death. Clearly, the jury had reasonable doubt about whether Mr. Doyle shot Mr. Correia. Had the jury concluded, beyond a reasonable doubt, that Mr. Doyle was the shooter, based on the agreed facts and the instructions that I provided, they would have convicted Mr. Doyle of murder in the first degree. The jury was not tasked with rendering a verdict about Mr. McKeown’s culpability, but the fact that they found Mr. Doyle guilty of manslaughter indicates that they concluded that Mr. McKeown was the shooter, and that Mr. Doyle aided Mr. McKeown in an attempt to kidnap Ms. Baycroft, which ultimately resulted in Mr. Correia’s death. I note that Mr. Doyle testified at trial that Mr. McKeown confessed to shooting Mr. Correia with the gun that Mr. Doyle had given him. [^2]: September 4, 2018 to April 26, 2022 inclusive = (27 + 31 + 30 + 31) + 365 + 366 +365 + (31 + 28 + 31 + 26) = 1331 days