COURT FILE NO.: CR-20-30000477-0000
DATE: 20220912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PETER WIGHT AND FANTASIA HOO-HING
Julie Battersby and Anna Gilmer, Counsel for the Crown
Lydia Riva and Leah Shafran, Counsel for Peter Wight
Steven Stauffer and Kateryna Zadorozhnya, Counsel for Fantasia Hoo-Hing
HEARD: May 25, July 25 and September 12, 2022
M.A. CODE J. (Orally)
REASONS FOR SENTENCE
A. OVERVIEW
[1] The accused Peter Wight and Fantasia Hoo-Hing (hereinafter, Wight and Hoo-Hing) were charged with the September 22, 2019 murder of Edwin McGowan. They were co-accused with O’Neil Thompson. It was alleged that Thompson and Wight committed first degree murder and that Hoo-Hing committed second degree murder.
[2] After rulings on a number of pre-trial motions, the trial proceeded before a jury during a five week period in March and April, 2022. The jury deliberated on April 8 and 9, 2022, before returning verdicts finding Thompson guilty of first degree murder, Hoo-Hing guilty of second degree murder, and Wight guilty of manslaughter.
[3] I sentenced Thompson on May 25, 2022 to the mandatory minimum sentence for first degree murder, namely, life imprisonment with no parole eligibility for 25 years pursuant to s. 745(a) of the Criminal Code. Victim impact statements were read in on that date and I made certain findings of fact about the offence and the roles of the three offenders, which I will repeat below. The sentencing hearing in relation to Wight and Hoo-Hing was adjourned for two more months, until July 25, 2022, because counsel required additional time to prepare. In particular, Wight was being assessed by a forensic psychologist.
[4] On July 25, 2022, written sentencing materials were filed by Wight and Hoo-Hing and sentencing submissions were made by counsel. I reserved judgement until September 12, 2022. These are my Reasons for Sentence.
B. FACTS RELATING TO THE OFFENCE
[5] The evidence heard at trial is summarized in detail in the Charge to the Jury. The final written Charge, which the jury used during their deliberations, is a public document that was made an exhibit at trial. I adopt the detailed account of the evidence found at pp. 174-304 of the written Charge for purposes of this sentencing.
[6] I have previously summarized the evidence and the issues at trial in Reasons for Judgement that relate to certain pre-trial and mid-trial rulings. See: R. v. Wight, Thompson, and Hoo-Hing, 2022 ONSC 2808 at paras. 9-13. I will substantially repeat and adopt that summary in the following paragraphs, for purposes of this sentencing.
[7] The evidence relating to the murder of Edwin McGowan was a combination of direct and circumstantial evidence. The Crown relied mainly on a body of circumstantial evidence inferring that McGowan was in a relationship of some kind with Hoo-Hing. The evidence was ambiguous as to whether it was a romantic relationship (which is what McGowan appeared to be seeking) or a business relationship between a sex trade worker and a client (which is what Hoo-Hing described in her testimony, with some circumstantial support). There was overwhelming evidence that McGowan was beaten to death around 9:00 p.m. on September 22, 2019, while confined in his own apartment. The autopsy revealed that McGowan had 27 lacerations to different parts of his head, broken bones in his nose and cheek, “widespread” internal bleeding in the muscles of his face, bleeding on the surface of his brain, deep muscle bleeding in the chest, and a cut to his liver. There was evidence inferring that one blow may have been struck with a 20 pound dumbbell towards the end of the attack.
[8] Wight had pleaded guilty to manslaughter on arraignment and he was admittedly and undoubtedly one of the perpetrators. Hoo-Hing also admittedly and undoubtedly let Wight and another man into the apartment building at about 8:45 p.m., after meeting up with these two men in a nearby parking area at about 8:39 p.m. There was persuasive evidence that the motive for the severe beating of McGowan was robbery, as he owned some apparently expensive watches and jewelry, his apartment was extensively ransacked, the beating continued for a period of time with numerous blunt force blows to the head, the watches and jewelry were missing from the apartment after the homicide, and Wight was admittedly in possession of one of the watches after the homicide. There was also evidence relating to motive from Hoo-Hing, and from a voicemail message left for her by McGowan, to the effect that McGowan owed her $1000 for sexual services, that McGowan had not paid this debt, that Thompson had a 50% interest in the debt, and that Thompson’s role as “security” for Hoo-Hing’s work in the sex trade included helping her collect the debt. Telephone records showed extensive communication between Thompson and Hoo-Hing, before and after the murder, as well as during the time period when the robbery, confinement, and murder apparently took place.
[9] The direct evidence from Wight about the relevant events was that he was addicted to crack cocaine, he abused alcohol, he was homeless, and he lived in an abandoned house in Pickering. Thompson was one of Wight’s regular drug dealers who sold him crack cocaine in small amounts that Wight would pay for with proceeds from his monthly ODSP cheque, supplemented by panhandling. On the night of September 22, 2019, Thompson called Wight, picked him up at a bar in Pickering, and drove him to McGowan’s apartment building in Scarborough. There was substantial corroboration for these initial aspects of Wight’s account, from police surveillance, from a police search of the abandoned house in Pickering, from telephone records relating to Thompson’s and Wight’s cell phones, from cell tower evidence locating their phones on the night in question, and from video surveillance at McGowan’s apartment building showing Hoo-Hing letting Wight and a second man into the apartment building at the rear ground floor door, shortly before the homicide. Both Wight and Hoo-Hing identified the second man as Thompson. By the end of the trial, there was no real dispute that Thompson was the man who picked up Wight in Pickering, drove with him to Scarborough, met up with Hoo-Hing at a parking area near McGowan’s building, was let into the building by Hoo-Hing at the rear ground floor door, and then walked with Wight past various ground floor surveillance cameras, and entered the west stairwell together with Wight at 8:46 p.m. shortly before the lengthy beating of McGowan began in his 15th floor apartment.
[10] The real issues in dispute in the case were as follows: first, whether Thompson proceeded up the west stairwell and entered the 15th floor apartment with Wight and participated in the beating of McGowan, or whether Wight acted alone while Thompson was engaged in drug trade work elsewhere in the building; second, whether Hoo-Hing not only assisted by meeting with the two men in advance and then letting them into the building on the ground floor, but also assisted by helping them gain entry into McGowan’s apartment on the 15th floor, and whether she had knowledge of the apparently unlawful purpose for attending at McGowan’s building, entering his apartment, and severely beating him; and third, whether Wight lacked the requisite mental element for murder due to his intoxication and due to the more active role that he ascribed to Thompson.
[11] In relation to these issues, Wight testified that he simply followed Thompson unwittingly up the west stairwell to the floor where McGowan resided, followed Thompson into the apartment, and then participated in a limited way with Thompson in the beating of McGowan. In this regard, he testified that Thompson was armed with a gun, that Thompson initiated the beating by using an object of some kind to strike McGowan about the face and head, that Wight joined in the beating when McGowan rushed at him, that Thompson shot McGowan from behind, at which point Wight was able to knock McGowan unconscious with a single punch to the jaw. There was some circumstantial support for some aspects of this account. For example, Thompson can be seen in the video surveillance on the ground floor of McGowan’s building wearing a satchel across his chest, in which a handgun could have been secreted. In addition, McGowan was undoubtedly shot once in the buttocks from behind, although this wound did not contribute to death (which was caused by blood loss from numerous blunt force injuries to the head). Perhaps more importantly, the ground floor video surveillance showed that Thompson was in the lead, and Wight was following behind, as the two men walked through various hallways and then entered the west stairwell leading up to the 15th floor. Most importantly, the motive evidence and the substantial evidence of association and communication at all relevant times, directly connected Thompson to Hoo-Hing (and to McGowan through Hoo-Hing), and connected Thompson to the apparent motive or motives for the beating that caused McGowan’s death. Wight had no connection to or communication with, either Hoo-Hing or McGowan.
[12] Hoo-Hing’s account was that she arranged to meet up with Thompson at the parking area near McGowan’s apartment building and that she let Thompson and Wight into the building at the ground floor rear entrance. She was not anticipating Wight’s presence when she met up with Thompson and she assumed that he was one of Thompson’s drug customers. She had arranged with Thompson to assist her in collecting a $1000 debt owed by McGowan in return for her sexual services. She was expecting that Thompson and Wight would come up with her in the elevator to the 15th floor apartment, where she would lawfully request payment of the debt from McGowan while Thompson was nearby. She was surprised when they did not join her in the elevator. She attended at McGowan’s 15th floor apartment and knocked on his door. He had let her into the building that evening, when she arrived and called him at the front lobby intercom, and he had told her to “come up”. She stood at the door to his apartment and knocked for about 10 or 15 minutes. McGowan never responded. Hoo-Hing testified that Thompson did not come and join her on the 15th floor, in order to assist in collecting the $1000 debt. This surprised her as their prior arrangement was that Thompson would be nearby. She believed that he must have had some other business elsewhere in the building. She exchanged several text messages with Thompson at this point. Hoo-Hing left the 15th floor, after McGowan failed to answer her knocking at his door. Hoo-Hing testified that she used the west stairwell and not the elevators at this point, when descending from the 15th floor. She also testified that she did not see either Thompson or Wight in the west stairwell as she descended from the 15th floor and exited the building shortly after 9:00 p.m. She and Thompson had two telephone conversations, at 9:08 p.m. and 9:17 p.m., shortly before Thompson and Wight exited the building at the west stairwell at 9:20 p.m. Hoo-Hing then met up with the two men at 9:28 p.m. in the same nearby parking area where they had previously met.
[13] The jury’s verdicts necessarily resolve some of the disputed factual issues about the roles of the three accused in the murder of Edwin McGowan. There are other factual issues relevant to sentencing that depend on findings made by the trial judge, pursuant to s. 724(3). In this regard, aggravating facts must be proved beyond a reasonable doubt and mitigating facts must be proved on a balance of probabilities. See: R v. Aragon, 2022 ONCA 244 at paras. 105-7.
[14] In my view, the jury’s verdicts necessarily resolve the following three factual issues, pursuant to s. 724(2):
• First, there was a forcible confinement of Edwin McGowan in his own home. This was the only basis on which first degree murder was left to the jury, as set out at pp. 167-171 of the written Charge to the Jury. The forcible confinement had to be “distinct and independent from the act of killing”, in the sense that it was a “separate act of confinement that is not integral to the act of killing and that extends for some period of time.” In my view, there was overwhelming evidence supporting the jury’s finding that this element of first degree murder had been proved, and it is implicit in their verdict relating to Thompson. That evidence is summarized at pp. 168-170 of the written Charge;
• Second, Thompson was an active participant in the beating of Edwin McGowan that ultimately caused his death. Once again, this was a necessary finding in relation to the verdict of first degree murder. The jury was instructed that the “substantial cause” element of first degree murder required proof that an accused “was an active participant in the events that brought about Mr. McGowan’s death” and did not merely play “some minor role in the events surrounding the death”, as explained at pp. 164-167 of the written Charge to the Jury; and
• Third, Wight lacked both of the alternative mental elements for second degree murder. In other words, he did not intend to kill McGowan and he did not know that the bodily harm he was admittedly causing McGowan was likely to cause death, as explained at pp. 139-149 of the written Charge to the Jury. The fact that one or more of the jurors had a reasonable doubt in relation to both of these alternate mental elements, in my view, must have been based on findings about Wight’s level of intoxication and about the active role that Thompson played as a co-principal in the beating of McGowan (as referenced above).
[15] The jury’s verdict, finding Hoo-Hing guilty of second degree murder, does not disclose the basis for that finding. In this regard, there were two alternate bases put to the jury. The jury could have found that she was a s. 21(1) “aider or abettor” to second degree murder, as explained at pp. 149-155 of the written Charge, or that she was a s. 21(2) “common unlawful purpose” party to second degree murder, as explained at pp. 155-159 of the written Charge. The jury’s verdict necessarily means that they were satisfied that she was either a s. 21(1) party or a s. 21(2) party to second degree murder. Indeed, some jurors may have been satisfied that she was a s. 21(1) party while others were satisfied that she was a s. 21(2) party.
[16] I intend to sentence Hoo-Hing on the basis that she was a s. 21(2) “common unlawful purpose” party. This is a somewhat more mitigated form of party liability, compared to s. 21(1) “aiding or abetting”, because the s. 21(2) mental element is not quite as morally culpable as the s. 21(1) mental element. See, e.g. R. v. Young (2009), 2009 ONCA 549, 246 C.C.C. (3d) 417 (Ont. C.A.). In addition, Mr. Stauffer conceded during his submissions on sentencing that s. 21(2) party liability was a rational basis for the jury’s verdict, given the facts of this case. He submitted that the jury could have inferred that Hoo-Hing let Thompson and Wight into Edwin McGowan’s apartment building, knowing that there was a plan to rob McGowan, knowing that Thompson was armed with a gun, and knowing that use of the gun was likely. In any event, I am satisfied beyond reasonable doubt of the following facts which collectively form a proper basis for s. 21(2) party liability to second degree murder:
• There was undoubtedly a plan to rob Edwin McGowan of his jewelry and watches, and of any other valuables or money that could be found in his unit, and that robbery was carried out;
• Hoo-Hing and Thompson jointly shared the motive or motives that led to this plan, they were undoubtedly in close and repeated communication about the plan, and they undoubtedly coordinated its execution;
• Hoo-Hing must have known that violence would be used in executing the plan. She saw that Thompson was wearing his pouch (where he could carry and conceal a gun), she saw that Thompson had brought a large unknown second male with him (undoubtedly to provide additional back-up support), she was told by Thompson that he wanted to be let in at the back door (undoubtedly to gain entry to the building more surreptitiously), she saw that Thompson and Wight waited in a dark ground floor corridor and did not engage with her in the front lobby or join her in the elevators, and she must have seen Thompson and Wight emerge from the 15th floor west stairwell shortly after 8:46 p.m. while she was waiting at McGowan’s door. In all these circumstances, she must have known that a violent home invasion robbery was planned;
• In spite of her above state of knowledge, Hoo-Hing admittedly knocked on McGowan’s door, she must have got him to open the door, and she must have allowed Thompson and Wight to burst into McGowan’s unit. It is simply not rational to suggest that McGowan would have let two large strange men into his unit, without Hoo-Hing having first deceived him into believing that she was alone at his door;
• Finally, Hoo-Hing remained on the 15th floor for about 15 minutes, between approximately 8:46 p.m. and 9:01 p.m. She must have heard the sounds of a severe and prolonged beating of McGowan that was underway during this period. In spite of this knowledge, she continued to assist Thompson in the robbery plan by repeatedly sending and receiving text messages with him until she left the building, while attempting to surreptitiously use the west stairwell at about 9:01 p.m. She then had an eight minute phone call with Thompson beginning at 9:08 p.m., while he was still inside McGowan’s unit, once again undoubtedly providing assistance in the robbery plan at a time when McGowan’s dire circumstances must have become apparent.
[17] In all the above circumstances, the only rational inference is that Hoo-Hing repeatedly assisted in a plan to commit a violent home invasion robbery, over an ongoing period of time, including at times when she must have known that a murder pursuant to s. 229(a) had become a probable or likely consequence of carrying out the plan.
[18] In terms of the mitigating circumstances, relating to Wight and Hoo-Hing’s involvement in the offence, I am satisfied of the following, at least on a balance of probabilities:
• Thompson was undoubtedly the leader and primary decision-maker in the plan to carry out a violent home invasion robbery of McGowan;
• Both Hoo-Hing and Wight were dependent on Thompson to some degree. Wight was a homeless drug addict and Thompson was his crack cocaine dealer. Thompson was also in possession of a gun and he used it to shoot McGowan in the buttocks during the ongoing attack. Hoo-Hing was a part-time sex trade worker, Thompson provided “security” for her in return for 50% of her earnings, and she was in fear of him to some extent. However, there is no suggestion that Wight or Thompson’s involvement was due to any lack of autonomy or individual responsibility. Wight was an active co-principal, who directly and repeatedly engaged in the beating of McGowan, while acting with purpose and awareness in relation to various actions that he carried out while inside McGowan’s unit. Hoo-Hing had been a friend of Thompson’s for some time, he had never beaten her, she was motivated by money, and she actively assisted in various ways in both planning and executing the violent home invasion robbery;
• Wight was not involved in planning the home invasion robbery. All of the planning took place between Thompson and Hoo-Hing. The first phone contact with Wight on the evening of the homicide was at 8:05 p.m., which was at a time when the plan had already been conceived. At this point, Thompson called Wight in order to pick him up at a bar in Pickering. Although Wight had no prior knowledge of the plan, and had no involvement in the planning, I am not satisfied on a balance of probabilities that he remained as ignorant as he claimed in his testimony. Thompson must have told him in general terms, at some point prior to the actual home invasion robbery, what was expected of him and that he would be rewarded in some fashion. In this regard, I am satisfied that Thompson gave Wight one of the watches stolen from McGowan, and that Wight proceeded to make some attempts to learn its value and sell it;
• I cannot make findings, one way or the other, as to whether Wight or Hoo-Hing had prior knowledge that Thompson was bringing a loaded gun to the home invasion robbery. It is certainly a rational inference that Thompson would have told them, so they would know what to expect about an important tool or means for carrying out the plan. However, this would be an aggravating fact and I am not satisfied beyond reasonable doubt that prior knowledge of the gun has been proved. Conversely, I am not satisfied on a balance of probabilities that Wight or Hoo-Hing were ignorant of Thompson’s decision to bring a loaded gun and his willingness to use it. I simply do not know, one way or the other. See: R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 at para. 18 (Ont. C.A.). Both Wight and Hoo-Hing would certainly have acquired knowledge, once Thompson used the gun, and both continued to actively assist in the violent home invasion robbery.
[19] The Crown filed a number of poignant Victim Impact Statements from Edwin McGowan’s parents, siblings, children, and other family members. I cannot begin to do justice to these statements in these Reasons. However, I will quote a few illustrative passages, as follows:
On the day of September 22, 2019 we had no idea that our lives would take a turn for the worse. Our beloved father, best friend, our everything would be taken away from us, in such a senseless and horrific way.
Myself Shemar, my brother Jaheim, and my mother Carita lost a wonderful human being. He was such a kind person that would give his last to anyone in need. He was hard working, funny, strict on us at the same time, he would always give us encouragement abut life, and always want us to achieve the best.
My father was a hard working man who never missed a day from work, he loved all of us, he made sure we were never hungry never short of anything, and always told us “to never quit never give up always do your best with every situation you may come across” … People always say time heals all wounds but this pain can never go away, every holiday, Father’s day, Christmas, Easter, etc, we don’t hear his voice nor see his appearance. We are so heart broken, why did they do this to my father, he spoke so highly of the girl, he liked he so much yet she took his life.
My brother Edwin McGowan is born in Jamaica. Edwin McGowan is my parents’ second child and the second of their six children. Edwin has always been a thrifty person, always finding ways of saving money. He adored fashion; he is always wearing the latest fashion; cost is never a deterrent. He is always keen about his appearance and no one more educated on the latest trend. … He was the deputy head boy of his school. This was one of the proudest moments of my parents’ life and he continued throughout his life to bring us laughter and joy. He knows how to lighten the environment.
My brother was also enrolled in the Army, he spent years owning [honing] his skills, on becoming an independent, disciplined, young man who is replete with integrity! My brother also has a deeper appreciation for the substantive things that he feels mattered to him, family, honesty, his friends, and what he terms to be a nice girl, his wifey!
My brother set out to Canada where he felt he could attain these things, in a quick way. Over the years since he resided in Canada, he would speak about the potential ease at which his children could access education in his adoptive country, he would talk about their welfare and felt the decision he made to settle in Canada even for his children sake would be great. He holds Jamaica in his heart, the fierce competition for university spaces, which could delay academic progress, aided my brother’s decision to migrate to Canada, to avoid as he saw it then his children facing that same dilemma and rather that they may have the gift of choice in abundance.
His job in 2019 was with a company affiliated to construction, he loved his job so much. I had the joy to speak to his supervisors on a few occasions, and oh they sang his praises. He paid his taxes in Canada and is a citizen. When his eldest son attained time to be taught how to drive, my brother got involved, and he boasted my boy dropped me to work today! As regards their career, he was involved driving them across Canada to meet those requirements. He took the pictures and forwarded them to me, and when his daughter won a comprehension competition under 6 years old, which landed her a place in the local papers, he proudly cut out the article, photographed it, and forwarded it to me. My brother beamed from all ears at the achievement. It was as though he was the one who appeared in the article.
C. FACTS RELATING TO THE OFFENDERS
(i) Fantasia Hoo-Hing
[20] Hoo-Hing submitted a letter to the Court which described her antecedents. She also testified at trial and was vigourously cross-examined at some length by Ms. Battersby. As a result, I was able to assess her credibility. She is 35 years old and she was 32 at the time of the murder of Edwin McGowan. She has no criminal record. Her father submitted a letter to the Court describing his daughter as a “kind generous person” who has “always been a caring and gentle person”. In this regard, she helped her father care for her disabled half sister.
[21] Hoo-Hing’s mother and father separated when she was eight years old. At this point, she lived with her mother and there were “very few rules” in the home. They also moved frequently. At age 15 she met a 21 year old man named Richard Bollars. From age 17 until age 21 she lived with Bollars and he abused her physically, emotionally, and sexually. In 2006, when Hoo-Hing would have been 19, Bollars was charged with aggravated sexual assault, possession of dangerous weapons, forcible confinement, and breach of probation after an eight hour ordeal in which Hoo-Hing was stripped naked, beaten, stabbed, and sexually assaulted. She did not testify against Bollars, the charges were withdrawn, and she continued to live with him in an abusive relationship. He subsequently received a penitentiary sentence in relation to another matter and she left him at age 21. Another abusive relationship followed with a second man.
[22] In 2012, at age 25, Hoo-Hing completed high school. She testified at trial that she began working in the sex trade in her twenties. She obtained a “Body Rub License” that allowed her to work legally. She was working at the “Pickering Angels” body rub parlour at the time of her arrest in September 2019. She also had jobs outside of the sex trade at various times, working as an assistant manager at McDonalds for a year and working as a cosmetics manager at Shoppers Drug Mart at the time of her arrest. Finally, she worked independently as an escort. It was in this latter capacity that she met Edwin McGowan in July 2019 and he became her client for the next three months, until his murder on September 22, 2019. It was also this latter work as an escort that led to her “business partnership” with Thompson. She testified at trial that she had taken a break from the sex trade in 2017. When she returned to this line of work in early 2018, Thompson became her “security” in return for half her earnings. She charged $500 per hour as an escort. She would report each meeting with a client to Thompson and she would pay the percentage that she owed him every week. She and Thompson were also friends and they would meet socially.
[23] Hoo-Hing’s letter to the Court concluded as follows:
I stand before you at a loss when I think about how my world has fallen apart. When I think about what has happened I believe the abuse I suffered made me susceptible to the will of cruel men like Mr. Thompson and Mr. Bollars. I am now very different than I was in 2014 or in 2019 or even 2020. I am wiser and more tired and cautious. I will never again be near men like Thompson or Bollars and I will never be in the courts again.
[24] In cross-examination at trial, Hoo-Hing acknowledged lying in many different contexts, including in court proceedings. She also acknowledged destroying evidence after the fact, on instructions from Thompson. The jury’s parole eligibility recommendations were as follows: six jurors made no recommendations; four jurors recommended between12 and 15 years; and two jurors recommended 17 and 20 years.
(ii) Peter Wight
[25] Wight’s antecedents emerged partly from a detailed hearsay account of an interview conducted by Dr. Vitopoulos, the psychologist who assessed Wight prior to sentencing. In addition, Wight testified at trial and a significant amount of information about his antecedents was provided in that testimony. He was vigorously cross-examined by both Mr. McGregor, counsel for Thompson, and by Ms. Battersby, Crown counsel. As a result, I was able to assess his credibility and reliability. Finally, Wight’s mother submitted a detailed letter to the Court on sentencing, summarizing Wight’s antecedents.
[26] Wight is 45 years old. He was 42 at the time of Edwin McGowan’s death in September 2019. Wight’s parents both worked. They divorced when Wight was three years old. His mother initially had custody of Wight. However, his father obtained custody when Wight was five and a half years old. His mother had access and would pick Wight up on alternate weekends. Wight had a positive relationship with his mother and she remains supportive. For example, she attended court at his sentencing hearing. Wight had a very poor relationship with his father, who worked at General Motors in Oshawa. Wight told Dr. Vitopoulos that his father “beat him…every other week”, both with a belt and with his hands until age 11 or 12. It was never clarified whether these incidents were disciplinary in nature, except that one such incident related to “stealing cigarettes.” Wight’s mother advised Dr. Vitopoulos that Wight’s father was not “physically aggressive”. However, she corroborated Wight’s account that his father regarded his son as “property” and verbally mistreated him, in the sense that “everything was negative” and his father was “never pleased with” Wight or supportive of his accomplishments at school. Wight’s mother stated that her son enjoyed sports, mathematics, and reading books during the period when he attended school.
[27] Wight left his father’s home at age 15 and moved back into his mother’s home. He had bonded with his mother’s new family (two half brothers who he “cared for, played with, and truly loved”). He had done well in school, both in his classes and in sports, and he passed each grade up until he completed grade 10. However, by this point he had “found drugs”. He was “looking for acceptance” and was vulnerable to groups that “exploited and used him”, according to his mother. In his testimony at trial and in his interview with Dr. Vitopoulos, Wight stated that he began drinking alcohol at some point between ages 11 and 13. He was also smoking marijuana in these early years. At age 14 or 15, he began using cocaine and this led to crack cocaine. He also used LSD in high school and at age 18 he used heroin.
[28] At age 18, Wight was diagnosed with testicular cancer. After surgery, there was a period of chemotherapy. Wight was living with his mother and she corroborated his account of this period as being “extremely difficult” for Wight, both “physically and psychologically”. He told Dr. Vitopoulos that he reacted despondently to his cancer diagnosis by injecting cocaine with needles. This continued until age 21 or 22 when he began smoking crack cocaine on a daily basis. He acknowledged that he lived with his mother for about “three or four years”, since age 15, and that he then lived intermittently away from her home. At age 21, in 1998, his mother “found his needles and spoon” in her house and she “kicked him out.” In her interview with Dr. Vitopoulos, she described how Wight changed during this period when he was living with her:
There were no signs of anything until he hit 15 or 16. At 15 or 16, my belief is that he started using substances then, because his personality started changing. He started to get sneaky and lie about things. He was lost and couldn’t figure out how to belong any longer. He really became a follower. He started pulling away from his brothers and me and his stepfather Tim. It was sad and I couldn’t do anything about it.
[29] After his mother discovered his needles and kicked him out of her home, Wight lived with his grandmother for about a year and a half. He then lived with his uncle for a further period of time until his uncle “also found needles” and “kicked him out”. He also lived in a tent and panhandled during this period between 1998 and 2004, after his mother had kicked him out of her home.
[30] In his evidence at trial, Wight testified that he had not had a home since age 15, that he began living on the street at age 18, and that he never had a steady relationship with a girl. However, in his interview with Dr. Vitopoulos he described living with his mother, grandmother, and uncle (as set out above), starting at age 15. He also gave a detailed account about a lengthy relationship with a woman named Jen. They lived together in community housing, or with his mother, for various periods during which they had three children. Wight’s mother corroborated a good deal of this account which was as follows:
Peter reported that he had a girlfriend of approximately nine years who was one year younger than him, until approximately 2015. He reported that they had last been living together in Toronto Community Housing for one year. He explained that one day he went out to panhandle, bought drugs, smoked the drugs, went back to his home, and she had packed up all her belongings and was gone. He reported that he has not seen her since.
He explained that they had three biological children together, and that she was pregnant when they first began their relationship (not Peter’s biological child). Peter reported that they lived in a family residence in Scarborough with Toronto Community Housing for her entire first pregnancy. Peter explained that every time his girlfriend would become pregnant, they would move into family residence and immediately stop using all drugs, adding “we could quit and not crave for it. We wouldn’t get sick for anything. We should have gone to some sort of treatment thing. We figured since we weren’t craving it, it was OK. Now that I look back at it, we should have done some sort of treatment. I see it now, that you need something to back you up; got to have something there.” After she gave birth, Peter explained that staying at the shelter gave the shelter reasons enough to call the Children’s Aid Society (CAS). Peter explained that him and his girlfriend were doing well, saving money, completing their programs, and completing supervised urine screens every other day. However, Peter reported that the CAS did not believe their urine screens and apprehended the newborn child at birth. The family residence then reportedly kicked out Peter and his girlfriend, and they “got high” and experienced homelessness again.
Peter reported that his girlfriend became pregnant again one year later and they moved back into family residence for six months before moving to an apartment in Oshawa. She birthed twin boys. CAS reportedly had contact with them throughout the twins’ early development. Peter described that he and his partner were doing “everything right” and doing urine screens under CAS supervision. Peter indicated that CAS allowed them to take their children home, adding “everything was great.” Their sons were reportedly “excelling” and meeting their developmental milestones. Peter, his girlfriend, their twin boys, and Peter’s mother all decided to move from Oshawa to Hamilton together, and CAS reportedly approved of this. Peter explained that a couple weeks before they left for Hamilton, Peter and his girlfriend took a hair strand test with CAS. Then, after moving to Hamilton, Peter explained that there was a fire at the CAS Hamilton lab and so the test results were compromised and they had to take another hair strand test. He reported that while their urine screen results indicated that they were not using drugs, their hair strand test came back positive. Peter reported that, as a result, CAS took their children, adding “it knocked the wind out of us and my mom. We had so much going for us. Support everywhere, doing all the things that they told us to do and they still took our children away.” Peter insisted that while they were living with his mother and doing urine screens every second day, he and his children’s mother were not doing drugs. Peter explained that they stayed in Hamilton for three months trying to fight to get their children back. However, Peter relayed that they were notified via legal notes that their children had become Crown Wards and then within days were adopted, adding “this was the worst thing in the world.” He explained that saving money while on ODSP was difficult but emphasized that they had done that and were “doing everything right”, and CAS “still took” their twins, adding “it was really, really hard and we went back to the streets.”
Peter relayed that his girlfriend became pregnant once more. Once again, they went into family residence during her pregnancy, and their daughter was taken from them by CAS at birth. Peter explained that for approximately one year, they were visiting with their daughter and still living in family residence before they got an apartment. However, he indicated that they then, unfortunately, received legal papers that their daughter had suddenly been adopted, adding “you are doing exactly what they say and they can still take your baby away from you.”
Peter reported that his relationship with his girlfriend ended in either 2015 or 2016.
[31] After the above approximately nine year relationship with his girlfriend Jen ended in 2015 or 2016, it appears that Wight was homeless. He testified at trial that he had been living in the abandoned house in Pickering for about three years, until his arrest in September 2019. He received a monthly ODSP cheque of $1100, which he would supplement with panhandling and occasional day jobs. He consumed beer and crack cocaine on a daily basis, and he occasionally used heroin The abandoned house had no heat, electricity, or running water. He would shower at the local community centre.
[32] Wight’s adult criminal record extended from 1996, when he was 19 years old, until 2017 when he was 40 years old. There are 19 separate sets of convictions, as follows: two drug possession convictions in 1996 and 1998; two stolen property possession convictions in 1996 and 2001; two drunk driving convictions in 2001 and 2015; two mischief convictions in 2007 and 2012; two theft convictions in 2008 and 2010; and one minor assault conviction in 2017 for which he received a $10 fine and probation (the incident apparently involved slapping a friend). In addition, he was repeatedly convicted of failing to appear, failing to comply with probation, and failing to comply with terms of bail. The longest sentence he ever received was 90 days in jail (after six days of pre-trial custody on one occasion and after 10 days of pre-trial custody on a second occasion).
[33] The psychological assessment carried out by Dr. Vitopoulos reached the following conclusions:
• Wight meets the diagnostic criteria for Post-Traumatic Stress Disorder, as a result of “multiple significant stressors over the course of his life”;
• He also meets the criteria for a current Major Depressive Episode, as a result of his arrest and incarceration;
• Finally, he meets the criteria for Alcohol Use Disorder, Cannabis Use Disorder, Cocaine Use Disorder, and Opioid Use Disorder. In this regard, he has been receiving methadone and has not taken illicit drugs while in custody awaiting trial. He described it as “the best thing to happen to him”, although it has led to significant weight gain of over 100 pounds.
[34] There was no finding of any psychotic disorder and no finding of any personality disorder. In terms of his prognosis for treatment, the report recommended a number of psychotherapeutic interventions with a qualified therapist. These specific therapies would have to proceed in stages or phases, given Wight’s concurrent disorders. In terms of Wight’s motivation to engage in treatment, and the likelihood of success, the report concluded as follows:
Peter appears to have substantial interest in making changes in his life and he appears motivated for treatment. His responses indicate an acknowledgement of important problems, a perception of a need for help in dealing with these problems, and a positive attitude towards his responsibility in pursuing treatment. Despite this favourable sign, the combination of problems that he is reporting suggests that treatment is likely to be quite challenging and that the treatment process is likely to be arduous, with many reversals.
[35] Wight has been in custody since his arrest on September 27, 2019. By the time of sentencing on September 12, 2022, he will have served almost 36 months (or three years) in pre-trial detention. He is entitled to Summers credit of almost four and a half years against his sentence. The report from Correctional Services indicates that there were six days of “full day” lockdowns (five days due to staffing levels and one day due to security issues) during this three year period. There were about 200 shorter lockdown periods but the vast majority of these shorter lockdowns were for no more than three hours in the evenings. There were also 30 days of “droplet precaution”, due to the pandemic, during which Wight would have been allowed out of his cell for only 30 minutes each day, in order to use the shower and telephone. Most significantly, in my view, in-person visits to the jail were cancelled for long periods during the pandemic. It should also be noted, to Wight’s credit, that he completed a number of courses while in pre-trial custody.
D. THE POSITIONS OF THE PARTIES
[36] The Crown submits that 17 years is the appropriate period of parole ineligibility that should accompany Hoo-Hing’s mandatory life sentence. Mr. Stauffer, on the other hand, submits that 10 to 12 years is the appropriate period of parole ineligibility.
[37] The Crown submits that life imprisonment is the appropriate sentence for Wight. In the alternative, the Crown submits that 15 to 18 years is the appropriate range for any determinate sentence imposed after Wight’s conviction for manslaughter. Ms. Shafran, on the other hand, submits that eight years is the appropriate sentence. The parties agree that Wight’s almost four and a half years of Summers credit must be deducted from any determinate sentence.
[38] The parties arrive at these significantly divergent positions by stressing different aggravating and mitigating factors that apply in this case and by their somewhat differing analyses of the sentencing case law.
E. ANALYSIS
[39] The principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code and I am bound by those principles. The most fundamental principle is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s. 718.1.
[40] In my view, the aggravating circumstances in this case include the following:
• the homicide occurred in the context of a home invasion robbery where McGowan was forcibly confined in his own apartment;
• the home invasion robbery was accompanied by very significant violence that caused death and that extended over a period of time. The pathology evidence, the blood pattern analysis evidence at the crime scene, and the account of Nada Sabra who overheard the altercation in the apartment, all make it clear that Edwin McGowan was subjected to a severe and prolonged beating that was mainly directed at his head;
• Wight was a co-principal who actively participated with Thompson in the ongoing beating of McGowan that eventually caused his death;
• although Hoo-Hing was a s. 21(2) secondary party to the murder, and was not a principal, she was directly involved in the motive for and in the planning of the violent home invasion robbery. In addition, her acts of assistance were vitally important parts of the plan and its execution; and
• the evidence at trial from Leon Howlett, and the victim impact statements from McGowan’s family, poignantly recount the very significant loss that resulted from this homicide.
[41] On the other hand, the mitigating circumstances in the case include the following:
• Hoo-Hing is a first offender;
• Wight pleaded guilty to manslaughter on arraignment, admitted in his testimony that he was a co-principal in the beating of Edwin McGowan, and focused his defence narrowly on the requisite intent for murder;
• neither Wight nor Hoo-Hing was the leader and primary decision-maker in the planned home invasion robbery, both Wight and Hoo-Hing were dependent on Thompson to some degree, and neither Wight nor Hoo-Hing was in possession of the gun used when carrying out the home invasion robbery. In other words, their roles in the offence were secondary, to some degree, to Thompson’s role;
• both Wight and Hoo-Hing have experienced disadvantages in their lives. Wight had an abusive father, he had difficulties as a result of being treated for cancer at a young age, he became a homeless drug addict, and this eventually led to his relationship with a man like Thompson. Hoo-Hing had an extremely abusive boyfriend who she lived with at a young age, she became involved in the sex trade, and this eventually led to her “business partnership” with a man like Thompson. These disadvantaged circumstances in their lives reduce Wight’s and Hoo-Hing’s moral blameworthiness to some degree; and
• neither Wight nor Hoo-Hing has any history of violence, unlike Thompson. The psychological assessment of Wight identified various disorders that require complex and challenging therapies, but Wight appears motivated to engage in these therapies. In addition, he has successfully stopped using illicit drugs while in jail. Hoo-Hing states in her letter to the Court that her “world has fallen apart”, that she is “now very different … wiser and more tired and cautious”, and that she “will never be in the courts again”. In my view, there are some signs that both Wight and Hoo-Hing may have rehabilitative potential.
[42] The main challenge in this sentencing proceeding relating to Wight and Hoo-Hing is determining where to situate the above complex mix of aggravating and mitigating circumstances within the range of sentence that emerges from the case law. None of the sentencing cases can ever provide a perfect analogy to the particular circumstances of this case but the relevant cases do provide guidance, especially in relation to the principle of “parity”.
[43] I intend to begin with Wight and the manslaughter sentencing case law. My colleague Schreck J. recently completed a helpful analysis of the relevant manslaughter sentencing cases in this province in R. v. Smith, 2022 ONSC 3800. He identified three broad ranges of sentence as follows:
• a lower range of six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential, citing cases like R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864, and R. v. Kwakye, 2015 ONCA 108;
• a mid-range of eight to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim, citing cases like R. v. Tahir, 2016 ONCA 136, R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.); and R. v. Clarke (2013), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.); and
• a higher range of 12 to 15 years in cases where the most serious aggravating factors are present such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or in a planned home invasion involving beating of the victims, citing cases like R. v. Jones-Solomon (2015), 2015 ONCA 654, 329 C.C.C. (3d) 191 (Ont. C.A.), R. v. Atherley, 2009 ONCA 195, R. v. Thompson, 2008 ONCA 693, and R. v. Warner, 2019 ONCA 1014. Also see: R. v. Hanan (2022), 2022 ONCA 229, 161 O.R. (3d) 161 (C.A.).
[44] Schreck J. situated the accused in Smith in the mid-range, imposing a nine and a half year sentence in a case where the accused was aware that a firearm was possessed by a co-accused in a shooting during a brief one minute entry into a home, but where the accused Smith was a s. 21(2) secondary party who may have remained outside in the getaway car parked at the home.
[45] I am satisfied that Wight’s role in the present case situates him within the most aggravated 12 to 15 year range referred to by Schreck J. in R. v. Smith, supra. Wight was a co-principal who actively participated in the severe beating that caused Edwin McGowan’s death, inside McGowan’s own home in the course of a home invasion robbery where he was forcibly confined for a period of time. R. v. Jones-Solomon, supra and R. v. Atherley, supra, where 13 year and 15 year sentences for manslaughter were upheld by the Court of Appeal, both support this range of sentence in this kind of case. In addition, R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 216 C.C.C. (3d) 54 at paras. 16-24 (Ont. C.A.) supports this range of sentence. In that case, the Court of Appeal held that appropriate ranges of sentence in “home invasion” robberies will vary from “as low as four or five years to as high as 11 to 13 years”, depending on the particular circumstances. However, in “home invasion” robbery cases that result in “serious injuries, sexual assault, or death”, the Court held that “even higher sentences” may be appropriate. In this regard, the Ontario Court of Appeal referred with approval to R. v. A.J.C. (2004), 2004 BCCA 268, 186 C.C.C. (3d) 227 at paras. 41-46 (B.C.C.A.), where the British Columbia Court of Appeal held that 14 and 15 year sentences were appropriate “in the most aggravated circumstances where a ‘home invasion’ involves not only a break and enter to commit robbery, the terrorizing and confinement of victims, and the use of weapons to achieve these objectives, but also the infliction of serious injuries, sexual assault or death”. In this regard, the Court in A.J.C. referred to its earlier decision in R. v. Barton, 2003 BCCA 206 where an effective sentence of 14 years was upheld for manslaughter in the course of a “home invasion” robbery.
[46] The authorities relied on by Ms. Shafran, in support of her submission that an eight year sentence would be appropriate in this case, involve much less serious cases. They are easily distinguishable as they involve young first offenders, secondary parties, circumstances of provocation, collateral deportation consequences, or near accidents akin to “one punch manslaughters”. None of them resemble the aggravating circumstances that occurred in the present case (summarized above at para. 40). See: R. v. Fan, 2019 ONSC 6403; R. v. Khan, 2022 ONSC 410; R. v. Sahal, 2016 ONSC 6864; R. v. Pimentel, 2022 ONSC 3023.
[47] On the other hand, the authorities relied on by the Crown in support of the maximum sentence of life imprisonment involve far more serious circumstances. They too are easily distinguishable as they include an offence of “stark horror”, an accused with a dangerous personality disorder, and multiple victims of a shooting that took place in a crowded public place. In addition, none of the cases relied on by the Crown exhibit the mitigating circumstances that exist in the present case (summarized above at para. 41). See: R. v. Cheddesingh (2002), 2002 CanLII 49362 (ON CA), 168 C.C.C. (3d) 310 (Ont. C.A.), aff’d (2004), 2004 SCC 16, 182 C.C.C. (3d) 37 (S.C.C.); R. v. Husbands, 2019 ONSC 6824.
[48] In situating Wight within the 12 to 15 year range of sentence that emerges from the case law, I am satisfied that the mitigating circumstances previously summarized at para. 41 above, move Wight out of the top end of the range. He is a better situated offender than the two accused in R. v. Atherley, supra at para. 6, who received 15 year sentences. On the other hand, the bottom end of the range is also not appropriate. Like the trial judge in R. v. Jones-Solomon, supra at para. 85, who “placed this offence at the higher end of manslaughter, closer to murder” as the Court of Appeal put it, I am satisfied that Wight’s involvement in the present offence was “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”. See R. v. Creighton (1993), 1993 CanLII 61 (SCC), 83 C.C.C. (3d) 346 at 375 (S.C.C.) per McLaughlin J., as she then was, speaking for the majority. This was a severe ongoing beating of the deceased, targeted at his head and involving the use of weapons that caused numerous lacerations, significant loss of blood, and eventual unconsciousness. Wight’s state of mind must have been “just short” of the requisite intent for murder, as McLaughlin J. put it in Creighton.
[49] In all these circumstances, I am of the view that the appropriate sentence is 13 years imprisonment. I will round up Wight’s Summers credit to a full four and a half years in order to reflect some additional mitigation for the lockdowns and lack of in-person visits (as summarized above at para. 35). In the result, Wight’s remaining sentence to be served is eight and a half years.
[50] Turning to Hoo-Hing and the appropriate period of parole ineligibility to accompany her mandatory life sentence, I will not repeat the mitigating and aggravating circumstances set out above at paras. 40 and 41. The most serious aggravating factor relating to Hoo-Hing is her involvement in both planning and executing a violent home invasion robbery that led to McGowan’s murder. In spite of this significant involvement, the law is clear that she is to be sentenced as a secondary party and not as a principal. See, e.g. R. v. Almarales (2008), 2008 ONCA 692, 237 C.C.C. (3d) 148 at paras. 139-141 (Ont. C.A.). In this regard, neither counsel nor the Court were able to find a helpful line of sentencing cases addressing parole ineligibility for a secondary party who helps plan and execute an underlying s. 21(2) “common unlawful purpose” that leads to a subjectively foreseeable murder.
[51] The Crown referred the Court to cases that deal with domestic homicide, while frankly conceding that this was not a domestic homicide in the full sense, given that Hoo-Hing and McGowan were either in a dating relationship or a sex trade relationship and were not spouses in an ongoing domestic relationship. In addition, there was no history of prior physical abuse between Hoo-Hing and McGowan, other than the normal tensions and arguments that arise between two adults who are emotionally and intimately involved. At best, in this regard, Ms. Battersby was able to establish, on behalf of the Crown, that Hoo-Hing was willing to take advantage of McGowan’s emotional attachment to her, in return for money. In this limited sense, there was some degree of domestic breach of trust, which is what allowed Hoo-Hing to gain access to McGowan’s apartment and to then let Thompson and Wight carry out an obviously dangerous and violent home invasion robbery. In relation to increased parole ineligibility in domestic homicides, see R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 47 O.R. (3d) 66 (C.A.) and R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.) where 17 year and 14 year periods of parole ineligibility were imposed.
[52] The one somewhat helpful case that counsel were able to find is R. v. McIntyre, 2014 ONSC 467. In that case, Sosna J. of this Court imposed an 11 year period of parole ineligibility in circumstances that bear some resemblance to the present case. The accused Aimee McIntyre had been in a volatile dating relationship with the deceased. After the relationship ended, McIntyre and the deceased continued to exchange insults and threats by text message. In these circumstances, McIntyre drove her new boyfriend (one Kelly) and another male (one Ebanks) to the deceased’s home, told these two males how to enter the home, and remained in the car parked outside. The two males entered the home, stabbed the deceased “multiple times” causing his death, and then made their escape with McIntyre driving the getaway car. She also assisted the two males in destroying evidence, after the fact, and she repeatedly lied to the police. Kelly and Ebanks pleaded guilty to second degree murder and received parole ineligibility periods of 16 years. After two trials and six and a half years spent in custody, McIntyre was convicted of second degree murder at her second trial. As in the present case, McIntyre’s alleged involvement in the murder was left to the jury on the basis of both s. 21(1) “aiding or abetting” and on the basis of s. 21(2) “common unlawful purpose” (on the facts of that case, a plan to assault the deceased while allegedly knowing that a knife would be used). Unlike Hoo-Hing in the present case, McIntyre had pleaded guilty on arraignment to manslaughter and Stong J. held that this was a mitigating circumstance. Like Hoo-Hing, McIntyre was a first offender. She had a “chaotic and dysfunctional” upbringing, after her parents separated when she was three years old, and she was “emotionally and physically abused” in the many foster homes where she was raised. McIntyre’s father was aboriginal and she had participated in psychotherapy and “native healing programs” while in federal custody (she had been convicted of first degree murder at her first trial, before the Court of Appeal allowed her appeal and ordered the re-trial). She had made significant “strides in rehabilitating herself” as a result of her participation in these federal correctional programs.
[53] Stong J. concluded that McIntyre’s “role as a party cannot be accurately determined”, in light of certain weaknesses in the evidence at trial. He held that a 13 year period of parole ineligibility would have been appropriate but for the fact that McIntyre’s “character has significantly changed” during her six and a half years in custody, including while serving her sentence after the first trial. In this regard, Stong J. relied heavily on R. v. Maciel, 2007 ONCA 496 where the accused had similarly been convicted of first degree murder, he had been in custody for eight years, and there had been a “fundamental change” by the time his first degree murder conviction was reduced to second degree murder in the Court of Appeal.
[54] In my view, there were additional mitigating factors present in McIntyre and Maciel that are not present in Hoo-Hing’s case. There is also persuasive evidence in the present case that establishes Hoo-Hing’s significant role as a s. 21(2) party to a violent home invasion robbery where murder was a known probable consequence. In all these circumstances, I am satisfied that 13 years is an appropriate period of parole ineligibility in this case.
[55] The Crown seeks various ancillary orders in relation to both accused. In Wight’s case, the Crown seeks a DNA order, a s. 109 weapons order for life, and a s. 743.21 order prohibiting communication with “any member of Edwin McGowan’s family”. These three orders were not opposed by the defence and they are all appropriate. In Hoo-Hing’s case, the Crown seeks a DNA order, a s. 109 weapons order for life, and a s. 743.21 order that extends to “Leon Howlett and any member of Edwin McGowan’s family”. These three orders were not opposed by the defence and they are all appropriate.
[56] The one further ancillary order that was the subject of some argument relates to the $18,800 in Canadian cash that was seized from Hoo-Hing’s purse on arrest. The Crown seeks its forfeiture as “proceeds”, pursuant to s. 462.37, where the standard of proof is “balance of probabilities”. Ms. Hoo-Hing gave an explanation in her trial testimony for how she came to possess this money. That explanation made no rational sense and was simply not credible. I am satisfied on a balance of probabilities, on the basis of all the circumstantial evidence heard at trial, that this seized money was “proceeds” of the robbery of Edwin McGowan. In particular, I am satisfied that there was undoubtedly a robbery of McGowan to which Hoo-Hing was a party. In addition, in her text messages to Okpei and Thompson in the days surrounding the robbery, Hoo-Hing repeatedly stated that she was impecunious and that she needed money. The reasonably probable inference from all the evidence is that Thompson gave her the seized money shortly before her arrest, after he had liquidated the “proceeds” that he obtained during the robbery. In this regard, see pp. 52-3, 215-216, 278-9, 298 and 303-4 of the written Charge to the Jury where the evidence is summarized in greater detail relating to the seized money, to Hoo-Hing’s need for money, and to her direct request to Thompson for money on September 24, 2019 (two days after the robbery and murder of McGowan). For these reasons, the seized $18,800 is forfeited to the Crown pursuant to s. 462.37.
F. CONCLUSION
[57] For all the reasons set out above, Wight is sentenced to 13 years imprisonment, which is reduced by four and a half years credit for his pre-sentence custody. The remaining sentence to be served is eight and a half years. The three ancillary orders requested by the Crown, as set out above, are all granted.
[58] Hoo-Hing is sentenced to the mandatory minimum of life imprisonment pursuant to s. 745(c), with her period of parole ineligibility set at 13 years pursuant to s. 745.4. The four ancillary orders requested by the Crown, as set out above, are all granted.
M.A. Code J.
Released: September 12, 2022