Court File and Parties

COURT FILE NO.: CR-15679/21 DATE: 20230413 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – O’NEAL SPALDING Defendant

Counsel: George Hendry, for the Crown Jennifer Penman, for the Defendant

HEARD: March 3, 27, 28, 2023

REASONS FOR SENTENCE

LEIBOVICH J.

[1] Mr. Spalding was charged with second degree murder in relation to the September 10, 2018, shooting of Cody James. He was arrested in August 2020. On August 19, 2022, Mr. Spalding pleaded guilty to manslaughter. Two sentencing dates were set, one was adjourned at the request of the defence, and the other was adjourned at the request of the Crown. On March 3, 27th and 28th, a sentencing hearing was held. The Crown is seeking a 14–15 year sentence, less time spent in pre-sentence custody. The Crown agrees that there should be some, but limited, mitigation given for the conditions of the jail during Mr. Spalding’s time spent in custody. The defence seeks a sentence of seven years. The defence further submits that once time spent in pre-sentence custody is deducted, and the mitigation resulting from the conditions in custody are considered, Mr. Spalding should be given a sentence of time served.

[2] The Crown also seeks a DNA order, a lifetime weapons prohibition order and a non-communication order under s.743.21(1) of the Criminal Code. There is no dispute with respect to these requests and they will be granted.

Circumstances of the offence

[3] The circumstances of the offence are contained in an agreed statement of facts. The shooting was also captured, in part, on video, and that video was made an exhibit at the guilty plea.

[4] Shortly before 2:22 p.m. on September 10, 2018, Cody James was at home in his apartment at 6010 Old Scugog Road in Clarington, Ontario with two other individuals. At 2:22 p.m., two armed males wearing masks knocked on the door and entered the apartment. The first intruder was 17-year-old Raphael Anthony-Williams, the second intruder was Mr. Spalding. Neither one of them personally knew Cody James or his guests. Raphael Anthony-Williams carried a loaded 9mm handgun in his pocket.

[5] Upon their entry, Cody James stood up from the couch and moved toward the opposite side of the room where his shotgun was leaning up against the wall. At the same time, Mr. Anthony-Williams moved toward the exit. His hand was in his pocket, but he did not have his firearm drawn at that time. As Cody James approached with the shotgun, Mr. Spalding said to Mr. Anthony-Williams: “Grab that, grab that, grab that! Are you kidding me? Man, what are you doing? Take that out and slap that”. As he spoke, Mr. Spalding physically assisted Mr. Anthony-Williams to remove the handgun from his right coat pocket. Cody James approached them with the loaded shotgun pointed in their direction. Mr. Anthony-Williams and Mr. Spalding exited onto the landing area just outside the door to the apartment.

[6] Cody James told them to “get the fuck out of here” as he walked toward the front door. As soon as Cody James approached the doorway, he ducked and there was an exchange of gunfire. Mr. Anthony-Williams shot his gun first. Mr. Anthony-Williams shot Cody James meaning to cause him bodily harm that he knew would likely cause his death and was reckless whether death occurred or not. During the exchange of gunfire, Cody James was fatally shot in the chest, and Raphael Anthony-Williams suffered a gun shot wound to his rear left flank that left him a paraplegic and confined to a wheelchair. Mr. Anthony-Williams ultimately pled guilty to second degree murder.

[7] The day before the shooting, a black Dodge Caravan Crew model, licence #BSWP 879, drove on the 407 to the area of the shooting, as captured on the 407 records. The van and the 407 transponder were registered to Krysta Thereault, the common-law partner of Mr. Spalding. Mr. Anthony-Williams did not drive as he did not know how to operate a motor vehicle and did not possess a driver’s licence.

[8] On September 10, 2018, O’Neal Spalding and Raphael Anthony-Williams drove east on the 407 and exited at Harmony Road. They were travelling in the same black Dodge Caravan Crew model, licence #BSWP 879 that was captured on the 407 records the day before. They intended to proceed to 6010 Old Scugog Road but got lost. They found their way again and parked in the driveway of a Bell building next door to Cody James’ apartment. At 2:13 p.m., one of Mr. James’ guests observed the Black Dodge Caravan in the Bell building driveway when he pulled into the driveway of Cody James’ apartment. At 2:17 p.m., when Steven Barchard, a Bell employee, attempted to pull into the driveway of the Bell building, he observed the black Dodge Caravan in the driveway of the Bell building. Mr. Spalding and Mr. Anthony-Williams then drove south on Old Scugog Road and pulled into a driveway behind Cody James’ apartment.

[9] Following the shooting, Mr. Anthony-Williams dropped his handgun, which was later located by the police. Mr. Spalding assisted Raphael Anthony-Williams back to the Dodge Caravan due to his injury. In the process, Mr. Anthony-Williams lost both of his shoes and dropped the mask he was wearing. The police later located those items, all of which contained Raphael Anthony-Williams’ DNA. Mr. Spalding drove Mr. Anthony-Williams along the 407 to the Markham Road exit. Along the highway, Mr. Anthony-Williams took off articles of his clothing and threw them out the window. The van proceeded to Markham-Stouffville Hospital, where it was caught on hospital surveillance video entering the Markham-Stouffville Hospital parking lot at 3:07 p.m.

[10] Mr. Spalding parked the van and entered the front lobby of the hospital, where he was captured on surveillance video. He picked up a wheelchair, went back to the van and assisted Mr. Anthony-Williams into the wheelchair. He then wheeled Mr. Anthony-Williams to the front of the hospital, where he passed the wheelchair to a passerby. Mr. Spalding then left the area in the black Dodge Caravan.

[11] On the evening of September 10, 2018, Mr. Spalding, Krysta Thereault, and their children, took a taxi from their residence in Markham to Kitchener, even though they had access to a functioning Dodge Caravan. Cell phone and Uber records show that Mr. Spalding returned from Kitchener on September 15, 2018.

[12] The police investigation into Cody James’ murder included a Part VI wiretap. Mr. Anthony-Williams was recorded on those wiretaps describing details of the murder along with details about the involvement of Mr. Spalding in the murder.

[13] The wiretaps captured numerous conversations between Mr. Spalding and Krysta Thereault discussing the police investigation. Mr. Spalding told Ms. Thereault numerous times not to say anything to the police and to be careful what she says at the house because the police will be taping the house. Krysta Thereault and Mr. Spalding discussed the possibility that the police would discover that they went to Mr. Spalding’s aunt’s house in Kitchener in the evening after the murder. Mr. Spalding told Ms. Thereault that the story has to match with his aunt’s story. “My aunt’s not gonna say nothin. I’ll tell her, this is what I’ll tell her. She will say_ you know what I mean?”

[14] During another conversation regarding the police investigation, Mr. Spalding told Krysta Thereault the police have the wrong person, “but between me and you, I’ll admit to that. It’s my fault ...I’ll take the time five, six years.”

[15] While not part of the agreed statement of facts, during sentencing submissions, it was agreed that Mr. James was involved in the trafficking of drugs, cocaine and marijuana.

Did Mr. Spalding also have a gun?

[16] At the time of the plea, the Crown advised that it was seeking to also prove beyond a reasonable doubt that Mr. Spalding had a gun during the incident. The Crown relies on the video of the incident and the video stills taken from the incident and submits pursuant to R. v. Nikolovski, [1996] 3 S.C.R. 1197 that I can be satisfied beyond a reasonable doubt by the visual evidence that Mr. Spalding had a gun. The defence agrees with the process but submits that the video and stills taken from the video do not prove beyond a reasonable doubt that Mr. Spalding had a gun.

[17] In R. v. Nikolovski, the Supreme Court of Canada stated that the trier of fact can rely solely on videotaped evidence in making their factual determinations. Counsel for Mr. Spalding submits that none of the other occupants describe seeing a gun. This is correct, but as stated in Nikolovski, at paras. 20-21:

It cannot be forgotten that a robbery can be a terrifyingly traumatic event for the victim and witnesses. Not every witness can have the fictional James Bond's cool and unflinching ability to act and observe in the face of flying bullets and flashing knives. Even Bond might have difficulty accurately describing his would-be assassin. He certainly might earnestly desire his attacker's conviction and be biased in that direction.

The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture.

[18] The only evidence that Mr. Spalding had a gun, stems from the video. I, therefore, must exercise great care in deciding whether this aggravating factor has been proven beyond a reasonable doubt; Nikolovski, at para. 30. I have reviewed the video and the still taken from the video numerous times. I am satisfied beyond a reasonable doubt that Mr. Spalding had some type of firearm, although I can not say if it was an imitation firearm or a real one.

[19] Mr. Spalding and Mr. Anthony-Williams entered the residence, both with their hands in their pockets. Mr. Anthony-Williams went to the right of the room (left on the video screen) while Mr. Spalding stayed closer to the door. Mr. Spalding immediately removed his hands from his jacket pockets. In his right hand is an object. Based on the still from the video, it looks like a gun.

[20] Counsel for the defence submits that if it was a gun, then why would Mr. Spalding not have brandished it. It’s a fair submission, but what happened next answers that submission. As counsel have noted, almost as soon as Mr. Spalding and Mr. Anthony-Williams entered the residence, the victim headed towards the corner of the room, where his shot gun was located. Mr. Spalding, after removing the object from his pocket, saw that Mr. Anthony-Williams had not removed his hands from his pocket and had not removed his gun. Mr. Spalding told Mr. Anthony-Williams to, in essence, remove his gun. Critically, as Mr. Anthony-Williams was moving towards the door, Mr. Spalding stopped him and Mr. Spalding can be seen transferring the object that he had removed from his pocket from his right hand to his left hand. Mr. Spalding then tried with his now free right hand to help Mr. Anthony-Williams remove his own gun.

[21] Putting it all together, it is clear that Mr. Spalding, at the moment he entered the residence, removed something from his pocket. That object looked like a gun, based on the still from the video. The possibility that Mr. Spalding removed something from his pocket at the start of the robbery that looked like a gun, but was not a gun, is simply not realistic. I am satisfied beyond a reasonable doubt that it was a gun but as I stated earlier, it is impossible to know if the object was a real or an imitation firearm. It was never recovered or fired during the incident.

Circumstances of the Offender

[22] At the time of the guilty plea, I asked counsel if a pre-sentence report should be ordered. Counsel declined, as she was confident that she could provide sufficient materials regarding Mr. Spalding’s background to the court. She has. I have been provided with detailed written submissions describing Mr. Spalding’s background and numerous letters of support which also describe his background.

[23] Mr. Spalding was 33 years of age at the time of the shooting. He was born on June 12, 1985. He is a racialized man and was raised by a single mother. He has an older and younger brother. His father left for Jamaica when he was young. Mr. Spalding attended elementary school in Mississauga, where he played competitive basketball, soccer and football. He then moved to Penetanguishene and attended high school in Midland, Ontario. After grade 11, Mr. Spalding moved back into the city. He left Midland because he experienced a lot of racism within his community. He also stated that he was unable to participate in any sports in Midland, due to the lack thereof, and often found himself with nothing to do up north.

[24] Upon his return to the city, at around fifteen-sixteen years old, Mr. Spalding began working at temp agencies. It is at this time that Mr. Spalding also reconnected with his half-brother, who introduced him to drugs and a criminal lifestyle. Mr. Spalding grew up with a lack of positive role models in his life. While he never had any substance abuse problems, he did begin to sell drugs and had started to get into trouble with the law. The lifestyle of selling drugs that was introduced to him by his half-brother, led to a life of violence. Mr. Spalding was shot when he was around 22 years old outside of a club. He states that the shooters had intended to shoot his half-brother. After this, Mr. Spalding sought vengeance for getting shot, and began looking for the individuals that shot him. As a result of this, he became more prone to violence. Further, he had stopped working at temp agencies due to how lucrative drug dealing had become for him.

[25] Recently, while in custody Mr. Spalding was diagnosed with unspecified trauma disorder and anxiety disorder resulting from the time he was shot. He was placed on medication. He testified that he had been dealing with the trauma of the shooting before he was arrested. He self medicated and became dependent on weed. He had night terrors for many years, before he was arrested. He testified that the night terrors had stopped before he was arrested and that they started again while he was in jail.

[26] Mr. Spalding has a criminal record.

• On April 30, 2008, he was convicted of uttering threats and given a sentence of seven days time served.
• On April 2, 2009, he was convicted of fail to comply (x3), obstruct peace officer, possession of drugs for the purposes of trafficking and careless storage of a firearm. He received a total sentence of 135 days in addition to 77 days pre-sentence custody.
• On March 14, 2011, he was convicted of assault (x2), theft under, fail to comply with a recognizance and failing to attend court. He received a sentence of 43 days in addition to 137 days of pre-sentence custody.
• On September 6, 2011, he was convicted of trafficking (x3) and given a 10-month conditional sentence in addition to the equivalent of 9 months pre-sentence custody.

[27] Mr. Spalding has seven children, three with one woman and four with another woman. He is close to all his children.

[28] Prior to his arrest, Mr. Spalding had been working at a company called IBX for approximately two years as a general contractor.

Letters of support

[29] Numerous letters of support were filed on behalf of Mr. Spalding. Mr. Spalding’s cousin described Mr. Spalding as benevolent and a good man who has made mistakes.

[30] Mr. Spalding’s mother described Mr. Spalding’s upbringing and the difficulties that he had as a child. She noted, and consistent with the gap in his criminal record, that “In his later twenties he started to be more responsible. He started looking for jobs trying to live differently.” She stated that:

I love my son very much. He will have my support when he returns to society. He was struggling to better himself and had realized too late the life he wanted to have for himself and his children. I am hoping/praying that O’Neil will have that opportunity and future at a later date.

[31] One writer noted that he believed that, at the time of the incident, Mr. Spalding was working and was slowly overcoming the challenges of not having a good male role model when he was growing up. The writer noted that Mr. Spalding’s early life choices were affected by negative influences in his late teen years.

[32] Mr. Spalding’s current common-law spouse and the mother of four of his children wrote:

He was doing great in the community and was working a job that he loved and worked hard in getting. He also received training to prepare for him for this job.

[33] She also stated that one of their children has special needs and had brain surgery while Mr. Spalding was in jail.

[34] Mr. Spalding’s uncle described him as follows:

O’Neal is an uneducated man with learning disabilities, but he has tried his best to overcome adversity with the tools he has been equipped with. When entering the job force as a black male with substandard education, all forces are against you, frustration rises, and one may not have the courage, support, and stamina to move on. Society has been constructed lacking equity and equality, but people of color have been made to be resilient in all that the world has to throw our way.

I love my nephew dearly, and I appreciate him. Even though he has made drastically wrong decisions in this life, he has chosen to try to do his best in most aspects. He has tried to be a good father and role model to the young males in our family and has chosen to lead them down the correct path, a path away from the one he has led. He is a caring and loving individual…

Time spent in pre-sentence custody

[35] Mr. Spalding filed an affidavit and was cross-examined on his time spent in custody while awaiting sentence. In addition, a nurse and two correction staff members testified. As of today’s date, Mr. Spalding has spent 966 days in pre-sentence custody.

[36] Mr. Spalding was first at the Central East Correctional Center (CECC) from August 20, 2020, to March 11, 2022, and for three days in August 2022. The rest of the time he has been at the Central North Correctional Center (CNCC). Except for the first few months, Mr. Spalding has spent almost all his time at the behavioural stabilization units at CECC and CNCC, and not part of the general population. Mr. Spalding was admitted at CECC’s behavioural stabilization unit at his own request. He believed that there was a hit placed on his life as a result of the current case from the victim’s family or friends. He also believed that his life was in danger because individuals were upset at his half-brother.

[37] While in custody Mr. Spalding was in his own cell while at the behavioural units but he had less time out of his cell than if he would have been in general population. According to the information that has been filed and heard, inmates in general population are out of their cells approximately 10 hours a day while inmates at the behavioral unit are generally out of their cell two hours a day. Inmates in general population usually have a cell mate.

[38] Mr. Spalding was made a cleaner at CECC on November 2, 2020. According to Mr. Sanya, a correctional officer, a cleaner is considered to be a position of privilege given to an inmate that behaves well and gets along with the staff. As a cleaner, the person is outside of their cell more often and they receive extra shower time, extra food time, additional access to the phone and access to cleaning supplies. Cleaners usually are allowed outside their cell to clean during lockdowns as well. He stated that generally the cleaners, after they have cleaned, are able to go down the range and talk to the other inmates who are in their cell. The cleaners would clean the hallway and the empty cells. Mr. Sanya testified that with respect to staff shortages, the policy and directives require that Mr. Spalding’s unit be fully staffed.

[39] Mr. Spalding testified that he had access to the phone at CECC from 6-9 p.m. He agreed that he could still use the phone during the day after he finished cleaning, but he had to ask permission.

[40] Mr. Spalding moved to the CNCC. He testified that as far as he knew, none of the inmates that he had safety concerns with from CECC had moved to CNCC. However, he testified that inmates moved around, and it was better for him to be safe than sorry, so he requested at CNCC to not be placed in general population. He testified that he did not even want to attempt general population. Mr. Spalding told the physician at CNCC in November 2022 that the main reason he wanted to stay out of general population was because of his past trauma from his own shooting and his fear of going through a similar trauma.

[41] The set up of the behavioural unit at CNCC is similar to CECC, in that the cells are single cells. Mr. Spalding was made a painter from April to the end of July 2022. According to the testimony of Mr. Atkinson, a correctional officer at CNCC, because he was a painter, Mr. Spalding received extra chips, pop and extra food. In addition, he has more access to the day room and the yard. Mr. Spalding was able to also get more access to the phone. He could use it during the day if no one was using it and he could use it after 6 p.m.

[42] Mr. Spalding testified that he had more opportunity to use the phone because he was a cleaner and a painter. He agreed that he had more freedom than the other inmates and that he had the opportunity for more activity from 4-6 p.m. He agreed that at CECC he was able to get more yard time. He agreed that it was better for him than the other inmates on that unit because he was a cleaner and a painter.

[43] Mr. Atkinson testified that the behavioural unit was supposed to be the last place to be locked down given that there was pressure to ensure that the inmates do have time outside of their cells. If an inmate does not leave their cell for five straight days, then an automatic review is commenced. The concern is that the inmates are isolated too much.

[44] Mr. Spalding, while at the CNCC, received 13 certificates for participating in various independent educational sessions. In essence, Mr. Spalding availed himself of the opportunity to engage in independent self-learning in the following areas: “Supportive relationships”, “goal settings”, ‘anger management”, “thoughts to action”, “managing stress”, “use of leisure time”, “understanding feelings”, “looking for work”, “substance use”, “problem solving”, “planning for discharge”, “changing habits” and “recognizing healthy relationships”.

Lockdowns

[45] Mr. Spalding, while at CECC, was subject to lockdowns on 14 different days.

[46] Mr. Spalding, while at CNCC, was subject to lockdowns on 90 different days.

[47] Mr. Spalding, in his affidavit stated that:

In addition to the lockdown days, during my time in custody, I have spent almost the entirety of the time in segregation. When we are in segregation, we are on 24 hours lockdown. It was very hard to get access to a phone to make a phone call to my family or my lawyer. Further, we are only allowed to shower every 3 days. This has been of course very hard on my mental health, and I became depressed, lonely and upset. I felt like I was worthless and I did not feel like a human being.

[48] Mr. Spalding agreed in cross-examination that the above paragraph was inaccurate in that he was not always on 24-hour lock down. He testified that sometimes you were and sometimes you were not.

[49] Mr. Spalding stated in his affidavit that:

When there are lockdowns, I am locked in my cell with nothing to do. I cannot take showers nor can I go outside for fresh air or even make a phone call. These lockdowns often lasted for months at a time.

[50] He agreed though in cross-examination that sometimes during the lockdowns he was provided with a shower and access to the yard.

[51] The observation reports from the CNCC lock down days were filed. These reports indicate when the inmate was taken out of the cell. They are contained at tab 10 of the Crown’s sentencing materials. Some notations are marked in handwriting on the body of the report. A number of reports also have typed in that Mr. Spalding was out from 8 a.m. to 5 p.m., cleaning. Mr. Atkinson testified that the reference to cleaning was probably an error, rather it should have indicated that he was a painter. Mr. Atkinson testified that he could not say if this typed information was prepopulated or if it was the result of an actual observation that Mr. Spalding was out during the day painting. It is evident from the observation reports that Mr. Spalding’s affidavit that during the lockdown days he was in lockdown for 24 hours and unable to take showers or have access to the yard is simply inaccurate. While clearly the record keeping is not perfect, the majority of the time when there was a lock down Mr. Spalding was still allowed out of his cell for periods at a time. Sometimes he would be allowed out for only 20 minutes but sometimes it would be for three hours.

Victim impact

[52] Numerous victim impact statements were filed at the sentencing hearing. Cody James belonged to a large, caring family and his death has clearly had a grave and harsh impact on them. Counsel for Mr. Spalding was content that I receive all the victim impact statements, but that I ignore the parts that contain inappropriate comments. For example, to the extent that the victim impact statements have called for the imposition of a certain sentence or has demonized Mr. Spalding, I have ignored those comments as they have no place in a victim impact statement; R. v. Jackson, 163 C.C.C. (3d) 451 (Ont. C.A.), at paras. 49-51; R. v. Tkachuk, 2001 ABCA 243, at para. 25; R. v. Bremner, 2000 BCCA 345 at paras. 22-28; R. v. Gabriel, 137 C.C.C. (3d) 1, 26 C.R. (5th) 364 (Ont. S.C.J.). Also see more recent cases such as R. v. Dillon, 2022 SKCA 17, at paras. 15-20; R. v. Sheppard, 2022 ABCA 307 at para. 29; R. v. Berner, 2013 BCCA 188, at paras. 13-22; R. v. Steeves, 2010 NBCA 57, at paras. 33-39. R. v. Beals, 2023 ONSC 555, [2023] O.J. No. 233, para. 81. Also, Section 722(8) of the Criminal Code directs a judge to disregard any portion that is outside of the scope and purpose of the Criminal Code.

[53] Some of the victim impact statements reference that Mr. James was murdered. He was murdered. Mr. Anthony-Williams pleaded guilty to the murder. Mr. Spalding has pleaded guilty to the offence of manslaughter, not murder, and it is for the offence of manslaughter that he is being sentenced.

[54] The Crown asked if Mr. James’ mother could file approximately 70 pictures of her son. She wanted the pictures to be played as she read her victim impact statement. I denied her request, but I allowed her to file seven photos with reasons to follow. These are the reasons.

[55] Section 722(1) of the Criminal Code states:

When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

[56] With respect to photographs, the Criminal Code allows for the admission into evidence by the victim or victim’s family of a photograph. The section states:

(6) During the presentation (a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings; or (b) if the statement is presented by someone acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings.

[57] The request to file 70 pictures posed a real risk that the sentencing hearing would be distorted and misused. The request may be viewed as an attempt to have the court place a value on the life of Cody James or to compensate the family’s grief through the imposition of a harsh sentence. This sentencing hearing is not about placing a value on Mr. James’ life. It is about crafting a fit sentence for Mr. Spalding by “taking into consideration all relevant legal principles, and the circumstances of the offence and the offender.” R. v. Berner, at paras. 17, 24, 25.

[58] Mr. James’ personal qualities do not dictate a longer sentence for Mr. Spalding. As observed by Watt J. in R. v. Costa, [1996] O.J. No. 299 (Gen. Div.), (Also see R. v. Tsega, 2021 ONSC 4651, at para. 58) the sanction imposed for manslaughter does not depend on the good qualities of the victim or how much his family and friends miss him. No matter how long a sentence is imposed on Mr. Spalding, it will not bring Mr. James back. The sentence I impose in this case is not meant to, and does not reflect the value of, Mr. James’ life or the extent of his family’s suffering. “Neither of those things can be measured, least of all by the length of a prison sentence.”; R. v. Smith, 2022 ONSC 3800.

[59] The Criminal Code allows for the filing of a photograph with the victim impact statement. At the time of my ruling [1], eight victim impacts were filed but only one of them was accompanied with a photograph. Therefore, I thought it was reasonable for the victim’s mother to file seven photographs, which she did, which ensured that the total number of photographs would not exceed the total allowed by the Criminal Code and would not disrupt the proceedings. I note that the victim’s mother placed all the photographs on one page.

[60] I have received victim impact statements from Mr. James’ family and friends. They described the pain they have experienced from the loss. I have extracted a few quotes in an attempt to reflect the contents of their statements:

• “Holidays arent the same anymore. Cody’s not here. He was always there with a big tight hug when we saw him.”
• “Yes we get up everyday and live our life’s but the pain is always there because Cody is not.”
• “5 years later and time heals nothing. I still miss you as much as the day you died.”
• “What I do know is that this loss, to happen at such a pivotal age will have long term ripples in the lives he held dearest.”
• “My cousin Cody was one of the most happy, upbeat guys I had known my entire life, with the biggest smile, and showed everyone around him nothing but love and positive energy.”
• “I watched all three of my cousins mental health crumble with loss of their big brother.”
• “He was a hunter, a fisherman, a leader and a listener. He enjoyed working with horses and was honing his craft as a painter.”
• “The thing that brought Cody the most joy was spending time with his friends and family.”
• “My son’s life has ended. It was just starting.”
• “Cody would have given you the shirt off his back if you needed it. We have all seen his compassion. He was a good friend, great son and brother.”
• “His mom has never been the same…She used to be a very outgoing person, who volunteered as a fire fighter, as well as with the Durham Crisis Center. She no longer volunteers with any organization. She has and continues to struggle with her mental health.”

Aggravating and mitigating factors

[61] The following are the aggravating features in this case: (i) This was a planned home invasion robbery; (ii) Mr. Spalding, who was 33 at the time, committed the offence with a 17-year-old youth; (iii) Mr. Spalding knew that his co-accused was armed with a firearm and told him to get his gun out; (iv) The shooting took place in a multi-unit residential building; (v) Mr. Spalding stopped his co-accused’s initial retreat and assisted him in removing his gun prior to leaving the residence; (vi) Mr. Spalding was also armed with a firearm; (vii) Mr. Spalding has a criminal record with entries related to assault, trafficking drugs and careless use of a weapon; (viii) Mr. Spalding cautioned his common law spouse not to say anything to the police; and (ix) Mr. James’ death has had a devastating impact on his family.

[62] The Crown submits that Mr. Spalding was the principal or leader of the planned home invasion robbery. The defence submits that there is no evidence that he was the leader, and that Mr. Anthony-Williams was anything less than an equal partner in the planned home invasion. In addition, the defence submits, the injuries suffered by Mr. Anthony-Williams cannot be laid at the feet of Mr. Spalding, since Mr. Spalding was never charged in relation to Mr. Anthony-Williams.

[63] I agree that there is no evidence that Mr. Anthony-Williams was anything but a willing participant in this criminal enterprise and, of course, it is Mr. Anthony-Williams who fired the shot that killed Mr. James, and Mr. Anthony-Williams was found guilty of second-degree murder with respect to Mr. James’s death. Mr. Spalding is not charged in relation to Mr. Anthony-Williams.

[64] However, it is also obvious that Mr. Spalding played an instrumental role in the planning of the home invasion robbery, and it is clear from the video that Mr. Spalding played a leadership role during the home invasion robbery. It was Mr. Spalding who owned a car and who drove Mr. Anthony-Williams to Mr. James’ residence. It was Mr. Spalding’s car that checked out the scene the day before. Mr. Anthony-Williams did not have a license. Critically, it was the older Mr. Spalding who took on a leadership and directing role once the robbery started. Mr. Anthony-Williams struggled to remove his firearm. Mr. Spalding told him to get his gun out. Mr. Anthony-Williams started to retreat. Mr. Spalding stopped him and physically assisted him in removing his gun.

[65] The following are the mitigating factors in this case: (i) Mr. Spalding has pleaded guilty and is remorseful; (ii) He is a black man who experienced racism in his formative years; (iii) He grew up without a father or male role model; (iv) He has strong family and community support; (v) His criminal record is dated; (vi) He has prospects for rehabilitation; and (vii) He continues to suffer from the mental effects of being shot when he was 22 years old.

[66] The defence submits that there are elements of self-defence or provocation from the victim’s immediate decision to get his shot gun from the corner of the room and that this should be considered a mitigating factor. I do not see this as a mitigating factor, but rather as the absence of an aggravating factor. This was not a prolonged home invasion robbery, which are seen in some of the cases presented by the Crown. Rather, almost as soon as Mr. Spalding and Mr. Anthony-Williams entered the residence, the situation escalated. In addition, Mr. Spalding and Mr. Anthony-Williams did leave the residence before the shooting started.

[67] To clarify, I find that Mr. Spalding’s decision to initially stop Mr. Anthony-Williams from leaving, and to assist him in removing his gun to be an aggravating factor and I find that their subsequent retreat moments later to not be a mitigating factor, but the lack of an aggravating factor.

[68] Mr. Spalding has made a number of complaints about his time spent in custody. There is no legal dispute that exceptionally punitive conditions served in jail while awaiting trial should be considered in sentencing an accused. Mr. Spalding was subjected to over 100 days of lockdowns. Even though I agree with the Crown that Mr. Spalding’s affidavit exaggerates some of the effects of the lockdown, I agree that these lockdowns are exceptionally harsh conditions that should be considered as a mitigating factor. As stated by the Court of Appeal for Ontario in R v. Marshall, 2021 ONCA 344, at para. 50, 52:

A "Duncan" credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 "Summers" credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 279.

The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[69] However, any mitigation given to such conditions cannot skew the sentence or take an unwarranted significance that would result in an unfit sentence; R. v. Cunningham, 2023 ONCA 36, at paras. 59-62.

[70] Mr. Spalding has also complained: (1) That his medical needs were not attended to while in custody; (2) That he was not given masks or the proper cleaning equipment or tested for COVID; and (3) That he has spent the majority of his time in the behavioural stabilization unit and not in general population.

[71] With respect to these additional complaints, I make the following findings: (1) I do not accept Mr. Spalding’s assertions that his medical needs were not attended to. The medical records as displayed through the evidence of Ms. Brunk, the nurse supervisor, do not support Mr. Spalding’s assertions. His complaints were addressed. I appreciate that perhaps Mr. Spalding wished that he was treated sooner however, sadly, that is no different then outside the institution. For example, he had a problem with his urine. It was tested. Mr. Spalding said no one called and told him it was clear. This is common outside the institution as well as one is often only called if there is a problem with a test result. He was treated for his teeth and given Tylenol for his back pain and prescribed medication recently for his mental health issues. (2) There is no question that due to the pandemic there have been more staff shortages and as a result Mr. Spalding has been subjected to more lockdowns. As mentioned, this is a mitigating factor to be considered in sentence. However, counsel for Mr. Spalding also submits that apart from this Mr. Spalding’s sentence should also reflect extra mitigation because his time in custody has been during the pandemic. In this regard, Mr. Spalding, at paragraph 21 of his affidavit has set out additional COVID related complaints. I do not accept the complaints set out at paragraph 21 of Mr. Spalding’s affidavit with respect to masks, cleanliness and COVID. His evidence at the sentencing hearing was different than his affidavit. Mr. Spalding agreed that paragraph 21 was only accurate until he was made a cleaner a few months after he was arrested. Mr. Spalding had access to masks and cleaning materials. He also agreed that he was tested all the time at CECC. The records confirm that he was given 10 pcl-r tests and one rapid test. Also, contrary to what is often seen at these hearings, Mr. Spalding had his own cell almost the entire time of his pre-sentence custody and thus did not have to be concerned about getting COVID from his cell mate. Mr. Spalding complains that he was not tested while at CNCC especially when he complained that he had a fever. However, the records show that on that occasion his temperature was taken, and he did not have a fever. I also note that even if Mr. Spalding did have COVID at one point, there is no evidence that he suffered any ill effects. (3) There is no dispute that Mr. Spalding, at his own request, has served his pre-sentence custody while at the behavioural stabilization unit. As a result, while he had his own cell, he spent less time out of his cell than he would have if he were in general population. Mr. Spalding testified that he received a threat connected to this case and he received a threat to his life connected to his half-brother. The medical notes indicated that Mr. Spalding was concerned about being subject to trauma as he was when he was shot at the age of 22 and thus, he wanted to stay out of general population even at CNCC where Mr. Spalding acknowledged he did not know anyone that wanted to cause him harm. There is also no dispute, although he omitted stating so in his affidavit, that his role as a cleaner and as a painter allowed him more privileges and freedoms than other inmates at that unit. In my view, the main reason that Mr. Spalding chose not to be in general population is his mental health issues stemming from his own shooting. As I stated, his mental health issues are a mitigating factor to be considered by me in imposing sentence.

Law and Analysis

[72] Section 718 of the Criminal Code describes the purpose of sentencing:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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 and the harm done to victims or to the community that is caused by 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; e. To provide reparations for harm done to victims or to the community; and, f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[73] Further, s. 718.1 of the Criminal Code provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[74] In this case, Mr. Spalding has pleaded guilty to manslaughter. There is no dispute that the sentencing range for a conviction for manslaughter is very broad. As stated by Copeland J., as she then was, in R. v. MacKinnon, 2022 ONSC 1349, [2022] O.J. No. 1821, at para. 70:

This reflects the fact that manslaughter offences can range from unintentional and almost accidental killing at one end of the spectrum to cases approaching murder at the opposite end: R. v. Carriere (2002), 164 C.C.C. (3d) 569, 2002 ONCA 41803 at para. 10. The varying circumstances that may give rise to a conviction for manslaughter lead to this wide variation in appropriate sentences because there is a broad range of moral culpability which will depend on the particular circumstances of any case. Sentencing for any offence is case specific and must reflect the circumstances of both the offence and the offender. Given the wide range of levels of culpability and sentence for manslaughter convictions, it is an offence where the case specific nature of sentencing is particularly important.

[75] The court must ensure, as stated in s. 718.1 of the Criminal Code, that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. In order to ensure this, courts look to sentences given in other cases. The parity principle, which is required now by s. 718.2(b) of the Criminal Code, requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57:

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…

Also see: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108, R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230, at para. 71.

[76] Bearing in mind that sentencing is an individualized process, Code J. in R. v. Wight, 2022 ONSC 1432 found helpful the analysis of manslaughter cases conducted by Schreck J. in R. v. Smith, 2022 ONSC 3800. Code J. stated at para. 43:

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), 213 C.C.C. (3d) 264 (Ont. C.A.); and R. v. Clarke (2013), 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), 329 C.C.C. (3d) 191 (Ont. C.A.), 2015 ONCA 654, 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), 161 O.R. (3d) 161 (C.A.), 2022 ONCA 229.

[77] The Crown and the defence have both supplied me with numerous cases in support of their respective position. But they candidly acknowledge that there is not one particular case where the facts are directly on point. This is not unusual, given the wide variety of circumstances that are considered in the sentencing process. That being said I will briefly summarize some of the cases that I found the most helpful.

[78] In R. v. Araya, 2015 ONCA 254, the accused was given a sentence of 6 years imprisonment, less 15 months credit for pre-sentence custody. After a four-week jury trial, the accused was found guilty of manslaughter. The accused and two youths participated in a robbery which resulted in the shooting of a 17-year-old boy. The accused was not the shooter and did not carry a gun. But he knew that his co-accused had an armed gun. The robbery was planned. The accused was 18 years old at the time. He had no prior record and had strong family and community support.

[79] In R. v. Hamas Khan, 2022 ONSC 410, the accused was given a sentence of 8.5 years less pre-sentence custody. Following a jury trial, Mr. Hamas Khan was found guilty of manslaughter. Mr. Khan was one of four individuals who participated in a home invasion that ended with the fatal shooting of the victim. Mr. Khan did not hold the gun but participated in the home invasion. The toxic mix of a gun with drugs compounded the dangerous nature of the offence. The accused was 18 years old at the time of the offence. He had a youth record. He was remorseful, had family support and employment prospects. There were prolonged full-time lockdowns over an extended period of time, combined with extensive COVID-19 restrictions.

[80] In R. v. Tsega, 2021 ONSC 4651, the accused was given a sentence of five years less pre-sentence custody. He was initially charged with second-degree murder but was ultimately convicted of manslaughter as a party. A group of individuals broke into the victim’s home, shot the victim, terrorized and confined other members of the household, and robbed the victim of drugs, money, and electronics. Mr. Tsega was not present for the home invasion; but he played an instrumental role in the execution of the home invasion, by showing the individuals where the young victim lived. Mr. Tsega had strong family support, was 18, remorseful and did not know that a firearm would be used.

[81] In R. v. Carrift Jones-Solomon, 2015 ONCA 6654, the accused was given a sentence of 13 years. The accused was part of a preplanned home invasion where the plan was to beat and severely assault the two occupants. The victim was beaten and then shot. The accused was convicted of manslaughter. The appellant did not possess the gun nor was he the shooter, but he knew that a gun was in play.

[82] In R. v. Wight, the accused was given a sentence of 13 years less pre-sentence custody. Mr. Wight was convicted after trial of manslaughter. There was a plan to carry out a home invasion robbery of the victim, but the accused was not part of that planning. But he was an active part of the beating of the victim which eventually caused his death. The home invasion involved significant violence that caused death over an extended period of time. Mr. Wight had a lengthy criminal record with 19 separate sets of convictions, but most of his convictions were drug and alcohol related. He was diagnosed with post traumatic stress disorder, alcohol use disorder, major depressive disorder. 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 his co-accused. The disadvantaged circumstances in Wight's life reduced his moral blameworthiness to some degree.

[83] In R. v. Smith, 2022 ONSC 3800, the accused was given a sentence of 9.5 years. Mr. Smith was convicted after trial of manslaughter. He and two others went to a housing complex to commit an offence. Two men entered the residence, one stayed in the car. A minute and a half later, the victim was shot once in the chest. The accused knew that his co-accused had a gun. The judge made no finding whether Mr. Smith stayed in the car or entered the residence. Mr. Smith was 31 years old. He had one son and a large and supportive family. He had a relatively minor criminal record which includes a conviction for assault and several convictions for failing to comply with various court orders. He had a significant work history and employment prospects after his sentence. Mr. Smith was remorseful.

[84] The defence submits that having regard to all the factors, that a sentence of seven years is appropriate. The defence emphasizes Mr. Spalding’s guilty plea, remorse, his difficult background, the racism he endured as a youth, his strong family and community support and his prospects of conviction. The Crown submits that Mr. Spalding should be given a sentence of 14-15 years. The Crown emphasizes that this was a planned armed home invasion robbery, that Mr. Spalding was a leader, that he committed the offence with a youth and that he actively assisted that youth to withdraw his gun. Furthermore, the Crown submits that Mr. Spalding is not a youthful first offender. He was 33 years old at the time and he has a criminal record for violence and careless storage of a gun.

[85] I disagree with the suggested sentence of both the Crown and the defence. Again, while each case must turn on its own facts, the suggested sentence by the defence is generally seen where the accused did not know that a gun was to be used and/or the accused is a youthful offender with little or no criminal record. The suggested sentenced by the Crown is seen for cases where there are significant additional aggravating circumstances such as the infliction of extensive violence over a period of time and/or a lengthy violent criminal record. In this case, the home invasion was less than two minutes and Mr. Spalding and Mr. Anthony-Williams ended up retreating and exiting the residence when Mr. James approached them with the shot gun. The Crown submits that the decision to commit the offence with a youth sets this case apart. While I agree that this an aggravating factor, especially given Mr. Spalding’s role when they entered the residence, I do not see this as supporting the Crown’s requested sentence, especially given the plea of guilt and the other mitigating factors.

[86] There are significant aggravating factors in this case. I have set them out above but a few merit repeating. This was an armed robbery with guns. Mr. Anthony-Williams had a gun. Mr. Spalding knew that he had a gun and he helped Mr. Anthony-Williams withdraw that gun. I found that Mr. Spalding himself had a gun, although I do not know if it was real or not. The use of guns are a scourge on society and in this jurisdiction. The use of guns can be deterred only by the imposition of exemplary sentences. My comments are not new. The same has been said by other trial judges and by our Court of Appeal for almost twenty years; R. v. Bullock, 2017 ONCA 398, at para. 17; R. v. Doucette, 328 C.C.C. (3d) 211, 2015 ONCA 583, at paras. 59-60; R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77. But still these cases keep coming. They must stop.

[87] This was not a spur of the moment encounter. Rather, this was a planned home invasion robbery. It occurred in the daytime at a multi-unit complex. Mr. James was not the only one present during the robbery. The possibility of mayhem was real and easily predictable.

[88] Mr. Spalding was 33 years old at the time of the offence. He chose, as his partner in crime, a 17-year-old, for reasons that are unknown and difficult to understand. It is clear that Mr. Spalding was the only one who could drive. It was Mr. Spalding’s driver’s license and car that was required to scope out the scene the day before and to attend and to commit the offence. The home invasion is captured by video. There is no question that it was Mr. Spalding who was directing and commanding Mr. Anthony-Williams. I am not saying that Mr. Anthony-Williams was a dupe or patsy. He clearly was not and he clearly had the intent for murder as evidenced by his plea in another court. But in Mr. James’s residence, it was Mr. Spalding who was acting like the one in charge.

[89] There are significant mitigating factors. Mr. Spalding grew up without a father, without a male role model and he experienced racism as a youth. Both of these factors clearly affected the trajectory of his life and reduced somewhat his moral blameworthiness. He was shot as a 22-year-old. He is still suffering the mental health affects of this shooting. He was recently diagnosed with unspecified trauma disorder and anxiety disorder stemming from this incident. I find that it is because of this trauma, and not some veiled threats that he may have heard in jail, that Mr. Spalding, as he told the doctor at CNCC, decided not to enter general population because he is nervous of being hurt again like he was when he was shot.

[90] Mr. Spalding has pleaded guilty, and I accept his assertion that he is remorseful. He also now has strong support in the community. Mr. Spalding has a criminal record, but it is dated. It appeared before this incident that he was doing well in the community was employed and that he had overcome the obstacles from his youth. What triggered his decision to commit this offence and revert to his past criminal ways is unknown. But I find that he can be rehabilitated. I also note that while awaiting sentence he was made a cleaner and a painter, positions of privilege within the institution that demonstrated that the staff trusted him supporting the proposition that he can be rehabilitated.

[91] The lockdowns experienced by Mr. Spalding are a mitigating factor to be considered. I note that counsel for Mr. Spalding while agreeing with the principles set out in R. v. Marshall and R. v. Cunningham has, in essence, asked that Mr. Spalding’s time in pre-sentence custody be seen as a mitigating factor which would reduce Mr. Spalding’s sentence by an additional three years. This would, in my view, inappropriately skew the sentence and place undue emphasis on one factor.

[92] Therefore, having regard to all the aggravating and mitigating factors, including the lockdowns that he was subjected to, Mr. Spalding should receive a sentence of 9.5 years in custody.

Pre-sentence credit

[93] Mr. Spalding is entitled to receive credit for the time he has spent in pre-sentence custody. The standard credit is 1.5 days for every one day served in pre-sentence custody. The rationale for providing such credit was set out by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 22:

Courts generally gave enhanced credit in recognition of the fact that "in two respects, pretrial custody is even more onerous than post-sentencing custody" (Rezaie, at p. 721). As Laskin J.A. explained:

First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial.

[94] As explained in R. v. Marshall, at para. 51:

The "Summers" credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The "Summers" credit is statutorily capped at 1.5:1. It is wrong to think of the "Summers" credit as a mitigating factor. It would be equally wrong to deny or limit the "Summers" credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

[95] Mr. Spalding has served 966 days in pre-sentence custody. He is entitled to credit at 1.5 days for every day, which equates to 1449 days or approximately 4 years.

[96] Therefore, on count 1 Mr. Spalding shall be sentenced to: a. 9.5 years in jail less 1,449 days; b. a DNA order; c. a lifetime weapons prohibition; and d. a non-communication order under s.743.21(1) of the Criminal Code with respect to: Todd James, Lee James, Mercedes Wilson, Shelly Billings, Mercedes Wilson, Colton James, Kevin Wilsonker, Tyler James, Molly James, Cyla Daniels and John Brunner.

The Honourable Justice H. Leibovich

[1] My ruling was on March 3, 2023. On March 27th, when the sentencing hearing recommenced, additional victim impact statements were filed.