COURT FILE NO.: CR-21-0052 DATE: 2022-05-10 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Andrew Sadler, for the Crown

• and -

MARSHALL HARDY-FOX Michael Hargadon, for the Accused Accused

HEARD: February 22, 2022 at Thunder Bay, Ontario Regional Senior Justice B. R. Warkentin

Reasons on Sentence

[1] On February 23, 2019, Lee Chiodo was kidnapped by the accused, Marshall Hardy-Fox, David Hui and Musab Saboon because Mr. Chiodo, a drug addict, owed money to Mr. Hui and Mr. Saboon, who were known drug dealers. During the kidnapping, Mr. Chiodo was shot and killed. Mr. Hui and Mr. Saboon have been convicted of first-degree murder.

[2] Mr. Hardy-Fox was initially charged with first-degree murder, kidnapping, and acting as an accessory after the fact. The Crown withdrew the charge of first-degree murder and Mr. Hardy-Fox pled guilty to kidnapping pursuant to s. 279(1.1)(b) of the Criminal Code of Canada and acting as an accessory after the fact pursuant to s. 240 of the Code. Mr. Hardy-Fox has no criminal record.

Background Facts

[3] Sometime in 2018 Mr. Hardy-Fox began using crack cocaine and developed an addiction. His girlfriend, Stephanie Kamenawatimin, also a drug user, introduced Mr. Hardy-Fox to crack cocaine. Ms. Kamenawatimin permitted her home to be used as a location from which drug dealers would sell crack cocaine to other users.

[4] On the evening of February 23, 2019, Mr. Hardy-Fox was with his girlfriend at her home consuming drugs, when he met Mr. Hui and Mr. Saboon (“Hui and Saboon”) for the first time. He observed them selling drugs out of the home during the course of the evening.

[5] It was during this evening that Mr. Hardy-Fox became involved in a scheme to kidnap Lee Chiodo. Mr. Chiodo, a drug user and sometime drug trafficker, owed money for drug related debts. Hui and Saboon wanted to collect the money owed to them by Mr. Chiodo and enlisted Mr. Hardy-Fox’s assistance as their driver, with a promise to pay him in drugs.

[6] They determined that Mr. Chiodo was at a local bowling ally and the plan evolved that Hui and Saboon were going to kidnap Mr. Chiodo if he did not have the money he owed them. The plan, as Mr. Hardy-Fox understood it, was that they would lure Mr. Chiodo into the car and then take him to a remote location and force him to walk home. Mr. Hardy-Fox was aware that part of the plan included the possibility that Mr. Chiodo would be assaulted as a reminder that he owed money to drug dealers.

[7] Mr. Hardy-Fox’s role was to drive to a secluded location where Mr. Chiodo would be dropped. While driving, Saboon pulled out a handgun and began threatening Mr. Chiodo. Mr. Hardy-Fox, in his statement to the police described Saboon threatening to kill Mr. Chiodo if he did not pay his drug related debts. Mr. Hardy-Fox was then directed to pull over near a bridge while Saboon threatened to break Mr. Chiodo’s legs and throw him over the bridge. Mr. Chiodo was begging for his life.

[8] Mr. Hardy-Fox first drove to the Mission Marsh outside of Thunder Bay however, there were others present at the marsh, so Mr. Hardy-Fox drove to the Ontario Power Generation station nearby, at the direction of Hui. On arrival, Mr. Hardy-Fox stopped stopped the car, and got out to relieve himself. While outside the car he watched Saboon and Hui remove Mr. Chiodo from the car. They then told him to turn the vehicle around so it was facing the roadway, which he did.

[9] Mr. Hardy-Fox then got out of the car a second time and saw that Mr. Chiodo was lying on his side, on the ground. From the post-mortem findings, it was concluded that Mr. Chiodo had been beaten and may have been unconscious at this point. Mr. Hardy-Fox overheard Hui and Saboon express a concern that when Mr. Chiodo came to, he would probably contact the police about the assault. Mr. Hardy-Fox then heard Mr. Hui say that he would "do it” at which point Mr. Hardy-Fox got into the car in order not to see what would happen next.

[10] Mr. Hardy-Fox heard a gunshot followed by Hui and Saboon getting back into the car.

[11] Mr. Hardy-Fox then drove Hui and Saboon back to his girlfriend's home where he received his payment in drugs. He left the residence the next day but returned a few days later for more drugs supplied by Hui and Saboon.

[12] Mr. Chiodo's body was discovered on February 24, 2019. Surveillance video from the bowling alley, showed Mr. Hardy-Fox together with Hui and Saboon. They were identified as possible suspects.

[13] Mr. Hardy-Fox provided a statement to the police shortly after his arrest on March 3, 2019, in which he admitted to his participation in the kidnapping of Mr. Chiodo and in which he described the actions of Hui and Saboon. Mr. Hardy-Fox later testified against Hui and Saboon in both the preliminary inquiry in the Ontario Court of Justice and at the criminal trial for Hui and Saboon in the Superior Court of Justice in March of this year.

[14] Hui and Saboon were subsequently convicted of the murder of Mr. Chiodo.

Position of the Crown and Defence

[15] The Crown noted that while Mr. Hardy-Fox was not the one who pulled the trigger, the fact of his involvement in a kidnapping scheme that ended in an execution style killing with a handgun must be treated as a significant factor in determining the appropriate sentence.

[16] The Crown argued that Mr. Hardy-Fox agreed to participate in the initial plan to kidnap Mr. Chiodo and he understood that Mr. Chiodo was likely to be physically assaulted and left in a remote location in freezing temperatures and forced to make his way home.

[17] There was no evidence that Mr. Hardy-Fox objected to the initial plan to kidnap Mr. Chiodo, or to his role in carrying it out. Mr. Hardy-Fox determined the initial location at which to drop off Mr. Chiodo.

[18] Similarly, there was no evidence that Mr. Hardy-Fox was aware that a handgun would be used to threaten and then murder Mr. Chiodo during the kidnapping.

[19] After the murder, Mr. Hardy-Fox then drove Hui and Saboon back to his girlfriend’s home where he was paid for his services with drugs. It was this conduct that resulted in the guilty plea to being an accessory after the fact.

[20] The Crown submitted the appropriate sentence in this case would be 4 to 6 years for the kidnapping charge and 2 years consecutive for the accessory after the fact charge for a total sentence of between 6 and 8 years less pre-sentence custody of 14 months and two days.

[21] Both the Crown and defence agreed that the kidnapping offence was more serious. The defence agreed that Mr. Hardy-Fox willingly participated in the kidnapping scheme at least until the handgun was produced.

[22] The defence contended that once the handgun was produced and the threats made using the handgun, Mr. Hardy-Fox became afraid for his own safety and was unable to take any steps other than what he was directed to do by Hui and Saboon. The defence did not introduce evidence in support of this theory. Instead, he asked the Court to draw the conclusion that Mr. Hardy-Fox did not have the courage or resolution to object to the plan that was evolving between Hui and Saboon to murder Mr. Chiodo. The defence argued that the Court should take judicial notice that most people would be too afraid of the consequences to themselves to stand up to a gun.

[23] The defence argued that Mr. Hardy-Fox’s role in the kidnapping changed from being a party to the kidnapping, to being coerced out of fear to continue his participation once the gun was produced. He also argued that the Crown’s position on sentence was an attempt to punish Mr. Hardy-Fox as a party to the offence of murder because of his role in the kidnapping without pursuing murder charges against him.

[24] It was the defence position that an appropriate sentence for Mr. Hardy-Fox would be 21 months together with 3 years’ probation. The defence contended that Mr. Hardy-Fox should be credited with a total of 21 months of pre-trial custody that includes both the 14 months and 2 days in actual custody together with an additional 6 months and 20 days for the restrictive bail conditions Mr. Hardy-Fox was subjected to for a period of 2 years, 2 months, and 15 days. In other words, Mr. Hardy-Fox should be sentenced to time served.

[25] The defence argued that it would not be in the interests of justice to sentence Mr. Hardy-Fox to a further custodial sentence.

Victim Impact Statements

[26] The Court received two victim impact statements. The first was from Mr. Chiodo’s mother, Sandra Hay and the second was from Mr. Chiodo’s brother, Peter Chiodo on his own behalf and that of his sister, Elizabeth Chiodo and other family members.

[27] Both victim impact statements described the incredible loss of a son and brother who was senselessly murdered over a drug debt. They described Mr. Chiodo as a caring and loving person who in turn was deeply loved by his family and friends.

[28] Sandra Hay described the effect on her life of the loss of her son in such a violent fashion. She now suffers from fear and anxiety as well as post traumatic stress disorder. Ms. Hay also described how the death of Lee Chiodo has permanently destroyed family relationships.

[29] Peter Chiodo described the difficult upbringing that he and his brother, Lee Chiodo had and how it shaped their lives. Peter was raised primarily by their father and Lee primarily with their mother and extended family. Peter Chiodo described the struggles that Lee Chiodo underwent during his life that caused him to become addicted to drugs.

[30] There is no question that the loss of a son and brother is heart wrenching particularly when the death was a result of a needless and senseless act of violence.

[31] Sandra Hay summed up the loss of Lee Chiodo with a poem:

“You don’t know what pain is until you know the light has gone out of the eyes of someone that you love.”

General Principles of Sentencing

[32] A list of sentencing principles and objectives are set out in section 718 of the Criminal Code. These apply when a court considers a fair and just sentence. The principles in that section require that unlawful conduct should be denounced while also deterring the offender and others from committing similar crimes. At the same time, the court is required to consider sentences that assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.

[33] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81, Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”

[34] The principle of deterrence is set out in section 718(b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.

[35] It is the task of the sentencing judge to assign the relative weight to the particular aspects of the case before the Court so that the sentence is shaped in a way that is specific to the accused while following a uniform approach.

Mitigating and Aggravating Factors

[36] To assist a trial judge in arriving at a “just and appropriate punishment”, Parliament has enacted section 718.2 of the Criminal Code that sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence.

[37] Judges are also required to consider the principle of restraint pursuant to section 718.2(d) when the offender is facing his first sentence of imprisonment. Similarly, the Judge must consider the principle of totality so that any combined sentence is not unduly long or harsh.

Mitigating Factors

[38] Defence counsel identified the following factors that mitigate in favour of a shorter sentence:

a) Mr. Hardy-Fox has no criminal record; b) He has a supportive family; c) He pled guilty at an early stage in the prosecution; d) He has shown sincere remorse; e) He assisted in the investigation of the murder charges against Hui and Saboon and testified against them both in the preliminary inquiry and their homicide trial; and f) The court must consider the Gladue factors that are set out in both the Pre-Sentence report and the Gladue Report.

Aggravating Factors

[39] The Crown has submitted the following were aggravating factors that militate in favour of a longer custodial sentence:

a) The kidnapping and murder of Mr. Chiodo were connected to illegal drug trafficking activity, and Mr. Hardy-Fox was assisting Hui and Saboon in enforcing a drug debt; b) Mr. Hardy-Fox was involved from the outset of the kidnapping and was the person who initially decided where to drop Mr. Chiodo; c) A firearm was used during the course of the kidnapping, albeit, not by Mr. Hardy-Fox; and d) The firearm was used to murder Mr. Chiodo.

Pre-Sentence and Gladue Reports

[40] Mr. Hardy-Fox is Indigenous. Both the Crown and defence agreed that in determining a just sentence, it is important to take into consideration the Gladue factors. To this end a pre-sentence report and a Gladue-like report were produced for consideration. The pre-sentence report was prepared by Sarah Bernier and the Gladue report was prepared by Mr. Hardy-Fox’s adoptive father, Michael Fox.

[41] The Supreme Court of Canada has set out factors that the sentencing judge must consider when sentencing an Aboriginal offender. These were first enunciated in the Supreme Court of Canada case of R. v. Gladue [1999] 1 SCR 668 and they have been affirmed since then as stated in the Supreme Court of Canada case of R. v. Ipeelee:

“To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of higher levels of incarceration for Aboriginal peoples”. (R v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, para 60.)

[42] Section 718.2(e) of the Criminal Code requires the sentencing judge to consider “all available sanctions other than imprisonment that are reasonable in the circumstances… with particular attention to the circumstances of the Aboriginal offender.”

[43] Mr. Hardy-Fox’s mother is a member of the Bearskin Lake First Nation and his biological father, a member of the Rocky Bay First Nation. Mr. Hardy-Fox’s adoptive father is a member of the Weenusk First Nation.

[44] Mr. Hardy-Fox’s immediate and extended family is steeped in the negative legacy of the residential school system. His maternal grandparents both attended residential schools. His adopted paternal grandmother attended residential school. His adopted father was part of the "sixties scoop." Mr. Hardy-Fox had no relationship with his biological father. Both the Gladue report and the pre-sentence report demonstrate a family history that includes examples of primary relationship disruption due to the residential school system and the abuses against Indigenous peoples by the state. There were disrupted parent-child attachments because of the abuse suffered while in care, child abandonment, and substance abuse as a means of addressing underlying trauma.

[45] Notwithstanding these historical traumas, Mr. Hardy-Fox's mother and adopted father are both professionals with good incomes. Mr. Hardy-Fox struggled academically and was diagnosed with a learning disability when he was in high school. He found an outlet as a competitive hockey player throughout his youth and until shortly before these offences. Mr. Hardy-Fox has an identical twin brother and a sister with whom he is close.

[46] Despite his parents’ successes, they are both recovering alcoholics who at times in Mr. Hardy-Fox’s childhood, relapsed. Because of alcohol abuse, his parents separated approximately 11 years ago but remain amicable and available to support Mr. Hardy-Fox and his siblings.

[47] Mr. Hardy-Fox was described by those interviewed in the pre-sentence report as being of good character, a truth-teller, a man who adores children and shares a deep relationship with his grandmother. Mr. Hardy-Fox admitted that he began abusing alcohol and experimenting with drugs while in high school. It was not until he began a relationship with his girlfriend, a drug addict herself that he became addicted to crack-cocaine.

[48] Since his arrest and release from pretrial custody, Mr. Hardy-Fox has been on strict bail conditions that he has adhered to. The pre-sentence report recommends that Mr. Hardy-Fox be provided with drug and alcohol addiction supports as well as support from Indigenous programming should he be sentenced to a custodial sentence.

Analysis and the Law

Kidnapping

[49] The Crown and defence agreed that the kidnapping charge is the more serious of the two charges. I have reviewed the case law provided to me in this sentencing hearing and find that based upon the authorities produced the range of sentence for kidnapping with the type of violence that occurred in this case and that included an accused who played a lesser but more active role than Mr. Hardy-Fox, in the kidnapping and subsequent violence that took place. In those cases, the accused in a role where they were not the main offenders of the kidnapping or harm caused received sentences in the range of 5 to 7 years. (See: R. v. Oppong, [2017] O.J. No. 5822 (S.C.J.), R. v. Stephens, [2013] O.J. No.3138 (S.C.J.) and R. v. Brar, 2014 BCCA 175).

[50] Defence counsel argued that Mr. Hardy-Fox’s circumstances do not fall within the facts set out in the cases where the sentences of 5 to 7 years were provided because Mr. Hardy-Fox:

a) Has no criminal record and is of good character; b) Committed these offences while in the throes of a drug addiction that is now in remission; c) Admitted to his role and pled guilty in an early stage of the prosecution; d) At the outset he expressed remorse for his role in the kidnapping; e) Assisted in the prosecution of Hui and Saboon; f) Spent time in custody and then abided by strict bail conditions and is at low risk to reoffend; and g) The Gladue factors present militate in favour of consideration when determining a just sentence.

[51] It was the defence position that general deterrence has been met by the time Mr. Hardy-Fox has already spent in custody and that specific deterrence can be accomplished with a sentence that addresses rehabilitation and reintegration.

[52] The Crown has recommended a sentence of 4 to 6 years for the kidnapping offence based upon the jurisprudence regarding offences that are similar in nature. It was not apparent from the Crown’s submissions how the Gladue factors should affect the sentence.

Accessory After the Fact

[53] The Crown and defence agreed that the leading case when assessing a sentence for the offence of accessory after the fact is the case of R. v. Wisdom, P1137/91 (Toronto), January 9, 1992 (Ont. S.C.) in which Justice Watt set out a list of non-exhaustive factors to be considered in arriving at a fit sentence, while acknowledging that there is no set range.

[54] Both the Crown and defence agreed that an appropriate sentence for this charge would be in the range of 2 years based upon the specific circumstances of this case. Where they disagreed was that the Crown sought to have the sentence for accessory after the fact be consecutive to the kidnapping sentence and the defence argued the sentences for the two offences be concurrent.

Sentence

[55] Hui and Saboon were both charged and convicted of first-degree murder in the death of Mr. Chiodo. The evidence demonstrated that it was Hui and Saboon who orchestrated the kidnapping and decided to murder Mr. Chiodo. They convinced Mr. Hardy-Fox, a drug addict, to participate as their driver in the plan to kidnap Mr. Chiodo with the promise of payment in drugs. Mr. Hardy-Fox was not a drug dealer, nor was he an associate of Hui and Saboon.

[56] Mr. Hardy-Fox’s role in this was secondary to that of Hui and Saboon. In crafting an appropriate sentence, it is important for the court to consider the totality principle for both offences while considering the elements of rehabilitation and the aggravating and mitigating factors already discussed.

[57] There is no requirement that the sentences imposed for the kidnapping and accessory after the fact offences be consecutive. Based upon the case law presented, the facts surrounding Mr. Hardy-Fox’s role, and after applying the Gladue factors that are present in this case, I agree with defence counsel that this is a case that warrants a novel range of sentence.

[58] I disagree with defence counsel that a global sentence of 21 months that after the credit sought for pretrial custody would result in a sentence of time served together with probation is appropriate on the facts of this case.

[59] I find that the appropriate sentence for Mr. Hardy-Fox for his role in the kidnaping of Mr. Chiodo is 3 years and 8 months or 44 months. The appropriate sentence for being an accessory after the fact is 2 years to be served concurrently with the kidnapping charge. I accept the position of the defence regarding the time to be awarded for presentence custody, including the credit proposed for restrictive bail conditions. During the period while on bail a total of 804 days to the date of the sentencing submissions on February 22, 2022 with a further approximately 76 days from February 22 to today, May 10, 2022 for a total of 880 days. Mr. Hardy-Fox was confined to his home with only limited exceptions. He was unable to work and suffered from the isolation imposed by the bail conditions. I also note that he complied with all his conditions.

[60] It is an appropriate case to provide credit based for the period of house arrest on the ratio of one days’ credit for every four days of the restrictive bail conditions. For this sentence, I have rounded the total presentence custody to the 21 months proposed by the defence.

[61] Therefore, the custodial sentence still to be served by Mr. Hardy-Fox is 23 months.

[62] In crafting this sentence, I have considered the benefit adding a probation order, thus permitting a further period of supervision with conditions. Had I made the sentence longer than 3 years and 8 months, the sentence would then have been served in a penitentiary and I would not have had the ability to impose a probationary period on Mr. Hardy-Fox. I refer to the Supreme Court of Canada’s decision in R. c. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723 where Justice Fish, speaking for the court, commented at paragraphs 21 and 22 of his reasons:

21 The reasons of Beauregard J.A. of the Court of Appeal in R. c. St-Germain are also particularly apt:

[TRANSLATION] While a probation order may curtail the liberty of the accused, it is above all a way to test the accused and a way to protect society.

Parliament presumes that, if an accused serves time in a penitentiary and receives the services he or she needs, there is no point in testing the accused further once he or she is released from the penitentiary.

Finally, a probation order is a useful tool for a judge who, whether the accused has been in pre-sentence custody or not, believes it is wiser to sentence the accused to imprisonment for two years or less with a period of probation rather than sentencing the accused to a term in a penitentiary. The issue of probation is therefore directly related to post-sentencing custody. (2007 QCCA 310 (Que. C.A.), at paras. 17-19).

22 Indeed, if it were to be concluded that a probation order is not available in cases where the total of the time spent in pre-sentence custody and the sentence of imprisonment imposed by the judge is more than two years, this could have a harmful consequence, as the judge might decide to impose a longer period of incarceration. This interpretation, which must be rejected, would have the unfortunate effect of unjustifiably increasing the length of time to be served in prison; in addition, the probation order’s effect of facilitating an offender’s reintegration into society would be unavailable to offenders who might benefit from it.

[63] I therefore add a period of probation of three years to the sentence imposed, thus by design, extending the sentence by a further three years. The probationary period shall have the following conditions:

a) Mr. Hardy-Fox shall be subject to all statutory terms, including the requirement to keep the peace and be of good behavior; b) He shall report and remain under the supervision of a probation officer; c) He shall take any program of counselling or rehabilitation as directed by his probation officer, with specific reference to substance abuse; d) He shall abstain from the purchase, possession, and consumption of alcohol or drugs, except with a valid medical prescription in his name; and e) He shall have no communication with Mr. Chiodo's family.

[64] Both convictions attract certain mandatory orders. The kidnapping offence is a primary designated offence and the accessory after the fact is a secondary designated offence; that require Mr. Hardy-Fox to surrender a sample of his DNA for forensic analysis and an order to that effect is made. Mr. Hardy-Fox is also prohibited from possessing non-restricted firearms for a period of ten years and restricted and prohibited firearms and weapons for life, pursuant to s. 109 of the Criminal Code.

Regional Senior Justice B. R. Warkentin Released: May 10, 2022

COURT FILE NO.: CR-21-0052 DATE: 2022-05-10 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen Crown

• and – Marshall Hardy-Fox Accused REASONS ON SENTENCE B. Warkentin R.S.J. Released: May 10, 2022