COURT FILE NOS.: CR-20-10000209-0000 CR-20-10000369-0000

DATE: 20220526

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

Herculano MEDEI Pimentel

David A. Mitchell, for the Crown

David Shulman, for Mr. Pimentel

HEARD: April 20, 2022

FORESTELL J.

REASONS FOR SENTENCE

The Circumstances of the Offence

1On March 1, 2022, Herculano Pimentel entered a guilty plea to a charge of manslaughter in relation to the killing of his friend, Valland Spolarich.

2Mr. Pimentel admitted that on May 21, 2019, he hit Mr. Spolarich on the head with a baseball bat during an altercation in Mr. Pimentel’s home. The head trauma caused the death of Mr. Spolarich. Mr. Pimentel had injuries to his face that were consistent with him being in an altercation. He reported to witnesses after the incident that Mr. Spolarich had hit him in the face during an altercation. These witnesses also told police that Mr. Spolarich had punched Mr. Pimentel in the face during an incident about a month before the homicide. Mr. Pimentel admitted that his actions in striking Mr. Spolarich with the bat went beyond what was reasonable to defend himself.

Victim Impact

3The Victim Impact Statements filed in this case describe Mr. Spolarich as a gregarious and loving brother, cousin, and uncle. His family has lost a valued family member. They have been profoundly impacted by the violent death of Mr. Spolarich. I have taken into account the trauma and pain of Mr. Spolarich’s family in considering the appropriate sentence while recognizing that no sentence will relieve their grief.

The Circumstances of Mr. Pimentel

4Mr. Pimentel is 53 years old. He has a dated record. Most offences on his criminal record are alcohol related. The most serious offences are two assaults on former domestic partners.

5The Pre-Sentence Report sets out Mr. Pimentel’s personal history in detail.

6He emigrated to Canada from Portugal with his parents and siblings when he was four years old. He is a permanent resident of Canada. Mr. Pimentel has only a grade 8 education and limited literacy. He left school to work after grade 8. Mr. Pimentel had a consistent work history, including running his own business as a ceramic and marble tile-setter, from 2007 until 2018. After his business failed, he worked only occasionally for his brother or friends.

7Mr. Pimentel has a long history of alcohol abuse that began in his mid-twenties and grew worse over the years. He has not sought treatment for his alcohol problem except when required to do so by a probation order. In his interviews with the probation officer who prepared the presentence report for this offence, Mr. Pimentel admitted that he was an alcoholic.

8Mr. Pimentel completed an anger management programme when he was subject to supervision under a conditional sentence order.

9In his interview with the probation officer, Mr. Pimentel described Mr. Spolarich as someone who had been his friend for 20 years. They saw each other frequently and Mr. Spolarich would often stay with him on weekends. Mr. Pimentel became emotional in describing this friendship and expressed remorse for his actions.

10Mr. Pimentel has one daughter and three grandchildren. His daughter wrote a letter in support of Mr. Pimentel. She is aware of his serious alcohol problem and his need for support. She has offered that support. His brother Stephen also wrote a letter of support.

Time Spent in Custody

11Mr. Pimentel has been in custody at the Toronto South Detention Centre (the “TSDC”) for 1,100 days or just over three years. Just over two years of that time has been spent in custody during the COVID-19 pandemic. Lockdown records show that Mr. Pimentel spent about 54% of his time in lockdown during his incarceration. Some of the lockdown periods went on for three to five days. During lockdowns, inmates are confined to a small cell with a cellmate. There is no access to showers, exercise, telephones, programming, reading material or television. Lockdowns due to staff shortages were a significant issue at the TSDC before the pandemic. The problem was exacerbated by the pandemic.

12Mr. Pimentel described the impact of these conditions on him in his affidavit and in a letter filed with the Court on sentencing. His physical and mental health was affected by the conditions. He was isolated from his family and supports. Mr. Pimentel contracted COVID in the jail.

Positions of the Parties

13Counsel for the Crown submits that a sentence in the range of seven to nine years would be appropriate before consideration of presentence custody. The harsh conditions of detention serve to bring that sentence to the bottom of that range. The Crown submits that if any further mitigation for harsh conditions below seven years is to be considered, it should not serve to reduce the sentence below six years.

14Counsel for Mr. Pimentel submits that a sentence of seven years would have been appropriate if not for the harsh conditions of presentence custody. He submits that the harsh conditions, including the impact of the COVID-19 pandemic should reduce the sentence to the lower end of the range of sentence for this type of offence and this type of offender. He submits that the bottom end of that range is 4 years and four months.

15The Crown and defence agree that the actual time in custody of 1,100 days should be credited at 1.5:1 for a credit of 1,650 days or just over 4.5 years.

Analysis

16In determining an appropriate sentence I must consider certain principles and objectives established by the caselaw and by the Criminal Code, R.S.C., 1985, c. C-46.

17The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to “contribute …to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (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; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.

18Although all sentencing objectives are relevant, depending on the facts of the case, the court is entitled to give different weight to the various objectives. Deterrence and denunciation are generally the predominant sentencing objectives in sentencing for manslaughter. This is a serious offence that has had a serious impact on the victim’s family and on the community.

19Section 718.2(a) requires the court to consider any relevant aggravating and mitigating circumstances relevant to the offence or the offender.

20In this case, aggravating circumstances are that a weapon was used, that Mr. Pimentel left Mr. Spolarich without summoning help for him and that he later lied to the police. Also aggravating is that Mr. Pimentel has a criminal record.

21Mitigating factors are that there was an element of provocation and that Mr. Pimentel is remorseful as demonstrated by his guilty plea and his comments to the probation officer. It is also a mitigating factor that Mr. Pimentel has strong family support from his daughter and brothers. The harsh conditions of pre-sentence custody also mitigate the sentence but I will consider this factor separately below.

22Although denunciation and deterrence are the predominant objectives in sentencing for manslaughter, rehabilitation is an objective as well. One significant factor in assessing prospects for rehabilitation is Mr. Pimentel’s longstanding alcohol problem. There can be little doubt that alcohol has been the common thread running through all of Mr. Pimentel’s criminality.

23Mr. Pimentel did attend AA and programming when required to do so in the past under the supervision of a probation order or a conditional sentence order. He discontinued his attendance when supervision ended. In the past Mr. Pimentel denied that he had a problem with alcohol. When he was interviewed for the presentence report in this case, he admitted that he had a longstanding history of alcohol abuse and described himself as an alcoholic. This recent insight into his addiction improves his prospects for rehabilitation.

24I have also taken into account that Mr. Pimentel will be subject to deportation proceedings as a result of this conviction and sentence. This is neither mitigating nor aggravating but it is a serious collateral consequence of the sentence that can serve to reduce the sentence.

25I have considered the principle that similar sentences should be imposed for similar offences committed by offenders in comparable circumstances.

26The range of sentences imposed in manslaughter cases is very broad. The reason for the range of sentencing for manslaughter was explained by the Supreme Court of Canada in R. v. Creighton:¹

…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. …

27The cases of R. v. Clarke² and R. v. Punia,³ relied upon by the Crown as setting the range at 7 to 9 years, are cases with significant aggravating factors. In Clarke the offender brutally stabbed a frail and vulnerable victim in his own home. A sentence of nine years was imposed. The Court of Appeal set the range for this type of ‘aggravated manslaughter’ at 8-12 years. In Punia, the offender stabbed her sister-in-law in the neck while the victim was holding her baby. The Court of Appeal upheld a sentence of nine years.

28In R. v. Hanifan,⁴ the Court of Appeal upheld a six-year sentence in circumstances where the offender and victim got into an argument in a bar. After the victim left the bar, the offender approached the victim and struck him once in the face, causing the victim to fall to the ground and strike his head. Mr. Hanifan did not plead guilty but was convicted after a trial in which he argued that he acted in self-defence. In R. v. Fan,⁵ the accused got into an argument with the victim at the victim’s house, left and returned and ambushed the victim, pinning him on the sofa and punching him in the head and neck. He was found guilty after trial and received a sentence of five years.

29Sentencing is a highly individualized process and there is no case with circumstances identical to the offence or the offender before me. The cases do, however, provide guidance on the range of sentence. In my view the range of sentence for an offence like the one before me and an offender like Mr. Pimentel is 5 to 9 years. Absent harsh conditions of presentence custody a sentence in the middle of that range would have been appropriate. The remaining issue is the impact of the harsh conditions of pre-sentence custody as a mitigating factor on sentence.

30There are two distinct types of consideration for presentence custody. The first was explained by the Supreme Court of Canada in R. v. Summers.⁶

31In Summers, the Supreme Court of Canada held that credit for presentence custody may be awarded in accordance with ss. 719(3) and (3.1) of the Criminal Code at a rate of 1.5 to 1 to account for an offender losing eligibility for early release and parole and also to take into account the “difficult and restrictive” circumstances often faced during presentence custody. As later explained by the Court of Appeal for Ontario in R. v. Marshall,⁷ a 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”.

32In R. v. Duncan,⁸ the Court of Appeal for Ontario held 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”.

33In R. v. Marshall, the Court of Appeal clarified that a “Duncan credit” is not a deduction from the otherwise appropriate sentence, but it is a mitigating factor to be considered in arriving at the appropriate sentence. Once Duncan factors are considered and an appropriate sentence arrived at, the Summers credit is deducted from that sentence.

34There are limits on granting a Duncan credit: “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.” (Marshall, at para. 52).

35In this case, Mr. Pimentel has provided evidence of the exceptionally harsh conditions of his pre-sentence incarceration and the impact of those conditions upon him. The impact of COVID-19 on those in congregate settings is well-known. I accept that the conditions at the TSDC during Mr. Pimentel’s time in that facility were extremely onerous. I accept that the conditions impacted his physical and mental wellbeing. These conditions and their impact serve to mitigate the sentence.

36In this case, I conclude that the harsh conditions of presentence custody should mitigate the sentence and reduce it to a sentence of five years before Summers credit. This takes the sentence to the very low end of the range of sentence for manslaughter in similar circumstances but does not render it ‘inappropriate’.

37The sentence that I would have imposed before Summers credit is five years’ imprisonment. Mr. Pimentel has served 1,100 days in presentence custody which are credited at 1.5:1 or 1,650 days. This leaves a sentence of 175 days (or about 5.5 months) to serve. I also place Mr. Pimentel on probation for a period of three years. The conditions of the probation are:

(1) Report as required to a probation officer

(2) Attend counselling and rehabilitative programmes as recommended by his probation officer including programmes for anger management and alcohol treatment;

(3) Sign any consents necessary for the probation officer to monitor his attendance and participation in such programmes.

(4) Have no contact with any member of the family of Mr. Spolarich.

(5) Possess no weapons as defined by the Criminal Code.

38There will be a s. 109 order prohibiting Mr. Pimentel from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

39Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Pimentel provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

40As a result of his conviction, I recognize that there may be immigration consequences for Mr. Pimentel. I am told by counsel for Mr. Pimentel that because of his conviction for this offence, Mr. Pimentel will likely be found to be inadmissible to Canada on the grounds of serious criminality and he will be subject to deportation. A permanent resident who is sentenced to less than six months’ imprisonment retains their right to appeal the deportation. A sentence of more than six months results in the loss of the right to appeal.

41I have imposed a sentence of less than 6 months in this case. The sentence of imprisonment that I am imposing is one of 5.5 months.

42Counsel for Mr. Pimentel has submitted that in order for Mr. Pimentel to retain his right of appeal, my decision must explicitly state that the time spent in custody does not form any part of the sentence. The request to have this statement in my reasons for sentence is unusual.

43Section 719(3.3) requires that I record the amount of time spent in pre-sentence custody on the indictment and on the warrant of committal and that I record the term of imprisonment that would have been imposed before any credit. I have done so in this case. The Court of Appeal in Marshall explained that s. 719(3.3) of the Criminal Code provides information to correctional authorities and to subsequent sentencing judges but it does not reflect the actual sentence imposed.⁹

44The law is clear that pre-sentence custody is not part of the sentence except in certain cases involving minimum or maximum sentences or eligibility for a conditional sentence.¹⁰ The actual sentence of imprisonment is the sentence that the offender must serve, in this case, a sentence of 175 days.

45I should also add that I believe that Mr. Pimentel has good prospects for rehabilitation. I am concerned that those prospects for rehabilitation will be lost if he is deported to Portugal. Mr. Pimentel has lived in Canada since he was four years old. All of his family and community support is in Toronto. I recommend that he be permitted to remain in Canada in order that he have the opportunity to rehabilitate himself. His rehabilitation will ultimately also provide the best protection for the public.

Forestell J.

Footnotes

1. 11993 61 (SCC), [1993] S.C.J. No. 91 (S.C.C.) at para. 86
2. 22003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.)
3. 32018 ONCA 1022
4. 42001 4000 (ON CA), [2001] O.J. No. 1576 (C.A.)
5. 52019 ONSC 6403
6. 62014 SCC 26
7. 72021 ONCA 344 at para. 51
8. 82016 ONCA 754
9. 9Marshall, supra, at para. 36
10. 10R. v. Mathieu, 2008 SCC 21 at paras. 17-20; R. v. Walker, 2017 ONCA 39