Court File and Parties
COURT FILE NO.: CR-21-70000411
DATE: 20220902
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALAN RUDOLPH SMITH
Defendant
COUNSEL:
Donald Pyper, for the Crown
Tyler Smith, for the Defendant
HEARD: October 22, December 15, 2021 and July 26, 2022
Reasons for Judgment
JUSTICE S. NAKATSURU
[1] Homelessness is a societal evil. It lurks in the shadows. Unimaginable and remote for most of us. Yet it can mercilessly cast a dark pall upon anyone’s existence. It just takes an ill-fated turn in life: sickness, a loss of a job, a break-up, an addiction, some time in jail. It can be unexpected. It is always unwelcome. And hard. It causes serious harm. Tragically, in this case, a fatal one.
[2] On July 9, 2020, Mr. Allin Smith, a homeless man who had resorted to sleeping on a couch in front of a well-known Toronto men’s shelter, killed Mr. Daniel Carmichael, a homeless man and a long-term resident of that shelter. Both men struggled with common afflictions of the homeless: poverty, addiction, and mental illness.
[3] For the offence of manslaughter, the Crown sought a sentence of 7 to 8 years. Mr. Smith, your lawyer argued for 5 years. I sentenced you to a sentence of 5 years 6 months. Here is why.
[4] The sentence must fit the crime. What is that crime? In the early morning hours of that fateful night, you sat on the couch that had been dragged onto the street by someone and left there, looking at the goings-on in front of the shelter where, at a time when most citizens of the city were asleep, a few men wandered about heedless of the boundary between road and sidewalk. Police arrived to deal with a distraught Mr. Carmichael who was an animal lover and had tried to bring a baby possum into the shelter. In his anger at being kicked out, Mr. Carmichael had lashed out at shelter staff using racial and homophobic epithets including the N-word and threats of violence and spitting at them. The police removed him. Then they left. Mr. Carmichael aimlessly paced the street in front of the shelter, listless and angry at the world. I accept that he directed the N-word at you, Mr. Smith, as you testified to at the sentencing hearing. I accept this made you upset. Enough that you assaulted Mr. Carmichael four times over the course of about a half an hour. The last time, you had thrown some drugs on the ground at Mr. Smith. As he bent to pick it up, you ran over and struck him in the lower left torso with your skateboard. You returned to your couch. Mr. Carmichael banged on the shelter entrance door a few times and then left holding his left side. He gathered his few belongings and walked to a nearby community housing building and asked for an ambulance. He was taken to the hospital. In the operating room it was discovered that his ribs were broken and his spleen had been ruptured. Despite the efforts of the doctors, Mr. Carmichael succumbed to his injury in hospital two days later.
[5] I agree with the Crown there are some aggravating factors about this crime. Mr. Carmichael being homeless was vulnerable. Also, it was not a one-punch manslaughter. Mr. Smith, you attacked Mr. Carmichael more than once. Using your fists and the skateboard. Yet, I am mindful that this was not a sustained brutal beating. The blows you struck, including the strike by the skateboard, were episodic, spaced apart in time. While Mr. Carmichael did not strike you back, it was not as if you had beaten a defenceless or unconscious man. You wanted to hurt him, but that was all.
[6] The most mitigating factor was the provocation by Mr. Carmichael. You are a Black man, Mr. Smith. The Enhanced Pre-Sentence Report (EPSR) has told me how anti-Black racism has affected your life. This is especially important in your case as the racist utterances by Mr. Carmichael played a role in this offence. But let there be no question; it is not so much about what he did, as what you did Mr. Smith that must remain central to my decision. No one should be physically harmed let alone killed for the mistakes they make, or the things they say, no matter how awful.
[7] On the other hand, I find that Mr. Carmichael’s racist and derogatory words and his erratic and violent behaviour that night- things quite uncharacteristic for him- is a context that must be properly considered in my sentence. It does not justify your actions but explains it. The Crown argued that you had time to reflect and back off. I do not fully accept that submission. The pain caused by such insults as the N-word, properly appreciated, can be more than fleeting and can trigger past trauma. In your case, that includes the abuse suffered at the hands of your mother. Viewed this way, in the face of Mr. Carmichael’s ongoing repugnant conduct, your repeated loss of self-control does not diminish the strength of this mitigating circumstance. Ultimately, this factor lessens the seriousness of the offence and your moral blameworthiness.
[8] The sentence must also consider who you are and how your life has brought you to this point.
[9] There are some aggravating factors. Your criminal record is bad. It started with an assault when you were a youth in 2000. The convictions are consistent for violent offences. Assaults, assaults cause bodily harm, and the like. The most serious sentence was in 2019 for a robbery, attempt fraud, and assault cause bodily harm where you received 6 months on top of an equivalent of some 19 months of pre-sentence custody. This tells me that despite what you say about being reformed, there remains a concern for this sentence to deter you. Prior sentences have not.
[10] There are significant mitigating factors. You have plead guilty. I understand that you had wanted to do this early but that did not turn out. You have taken responsibility for your actions. I accept that you show true remorse. And based upon your lengthy statement read to me at the sentencing hearing, you have some understanding of the root causes of your crime.
[11] The EPSR has revealed other mitigating factors. Your mother was cruel and beat you and was absent when you were young. Your education was cut short. You suffer from schizophrenia that for years went undiagnosed. Poverty and substance abuse have been your constant companions. The racist attitudes, comments, and behaviour of others has had lasting effects. Your lived experience and the systemic barriers faced by Black Canadians, catapulted you at 39 years of age to that marginal and precarious existence on a tattered George Street couch. For many periods of your life, you were homeless.
[12] But there is hope for your rehabilitation. Your time in custody seems to have led to greater insight in the value of having compassion and empathy for others. You have made as much productive use of the time in pre-trial custody that circumstances could permit. Your future ambitions about helping the vulnerable and the homeless, others might say are just pie-in-the-sky dreams that you can never achieve. I say Mr. Smith that though achieving those plans may not be easy, or your life may not turn out exactly as you plan, the mere fact that you can still dream of better things, not just for yourself, but for others, gives me some optimism for your rehabilitation despite the criminal mistakes you have made.
[13] My sentence must deter you and others. It must also denounce this crime. When someone dies at the hands of another, the need for denunciation is obvious. That need is tempered in this case by its specific facts. Then there are the broader systemic issues of homelessness and anti-Black racism. Finally, I must also not forget rehabilitation.
[14] After looking at all the appropriate factors and the case law provided to me, the fit and proportionate sentence for you is a further 17 months in jail followed by 18 months of probation on the terms and conditions outlined in court.
[15] I have arrived at this sentence after applying the law to the facts of your case, paying close attention to the arguments of the prosecution and the defence and after taking account of the 2 years 19 days that you have done in pre-trial custody. I have given you credit for that time on a 1 to 1.5 basis that is permitted in the Criminal Code. And I have also considered the harsh conditions of custody you have endured. I accept the general approach agreed to by the Crown and the defence on the overall mitigation and credit you should receive. So, before mitigation for the harsh conditions and the statutory credit for pre-trial custody, the effective sentence would have been 5 years 6 months.
[16] For these reasons, that is the sentence I imposed.
Justice S. Nakatsuru
Released: September 2, 2022
COURT FILE NO.: CR-21-70000411
DATE: 20220902
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALAN RUDOLPH SMITH
Defendant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: September 2, 2022