R. v Cox, 2023 ONSC 2972

COURT FILE NO.: 21-19815 DATE: 2023/05/23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Nicholas Cox – and – Erick Silva-Stone Accused

Counsel: Michael Purcell and Khorshid Rad, for the Crown Neil Weinstein for Nicholas Cox Michael Johnston for Erick Silva-Stone

HEARD: May 16, 2023 READ IN COURT: May 16, 2023

REASONS FOR SENTENCE - UNLAWFUL ACT MANSLAUGHTER

Overview

1On July 22, 2021, Christopher Avery Houghton, was senselessly killed over two bags of marijuana. He was 25 years old. He was described by his family and friends as an intelligent, inquisitive, kind, generous, and empathetic young man who brought much joy to those around him. He was as one person stated, the “light in the room.” Christopher Avery Houghton had suffered his own medical challenges growing up, but he found ways to cope and persevere. As his mother explained, despite the debilitating pain and challenges of his medical condition, he continued to educate himself on subjects that fascinated him. His father stated that at the time of his death, Mr. Houghton was doing well and “coming into his own?” He had a home, a partner, a loving family, and close friends all of whom were devastated by his tragic passing.

2The accused Mr. Nicholas Cox and Mr. Erick Silva-Stone are young men who were 19 and 20 years of age at the time of the offence. They have both taken responsibility for their conduct in the killing of Mr. Houghton. They have entered guilty pleas to the offence of unlawful act manslaughter and at minimum, spared the family of the deceased from a lengthy and difficult criminal trial. Both men have also stood up in front of this court today and made, what I find, to be sincere and heartfelt expressions of remorse for their senseless conduct.

3Counsel for the accused and the prosecution team have presented a joint submission on sentence for each of the accused as follows:

a. Mr. Cox – 12 years jail taking into account pre-trial custody b. Mr. Silva-Stone – 10 years jail taking into account pre-trial custody

4I am well aware that no sentence I impose today will ever compensate the deceased’s family and friends for their loss. However, I hope that my reasons for sentence will provide some explanation to the deceased’s family, members of the public, and the accused, why I find, upon consideration of the principles of sentencing set out in the Criminal Code and the governing law, the recommended sentences to be fit and appropriate in this case.

Agreed Facts

5Crown and defence have agreed to the facts that support a finding of guilty for the offence of unlawful act manslaughter. These facts are as follows.

6On July 21, 2021, a mutual acquaintance introduced Christopher Avery Houghton to Nicholas Cox for the purpose of purchasing drugs. They were previously unknown to each other. Mr. Houghton sold cannabis and other drugs from his basement apartment at 38 Sherry Lane in Ottawa. His client base mostly consisted of his friends and their associates.

7Mr. Houghton and Mr. Cox exchanged several text messages before agreeing to meet in Mr. Houghton’s basement apartment on July 22, 2021. Mr. Houghton was supposed to sell Mr. Cox two pounds of marijuana for roughly $1500.

8In the early morning hours of July 22, 2021, Mr. Cox and Mr. Erick Silva-Stone drove to 38 Sherry Lane in Mr. Silva-Stone’s vehicle. Also in the vehicle were Mr. Cox’s girlfriend Seun Oluwasola, Mr. Silva-Stone’s girlfriend Victoria Pole, and a mutual friend, Elias Abulsoltan.

9Mr. Cox and Mr. Silva-Stone intended to rob Mr. Houghton by way of intimidating him with an empty firearm that belonged to Mr. Cox.

10When they arrived at 38 Sherry Lane, only Mr. Cox and Mr. Silva-Stone exited the vehicle. They then walked to the back entrance of 38 Sherry Lane, where they were met by Mr. Houghton, who brought them into his basement apartment.

11Shortly after they entered the apartment, Mr. Cox pulled out his unloaded handgun to rob Mr. Houghton, who loudly yelled “what the fuck”.

12Mr. Houghton resisted the robbery and brandished a folding knife that he armed himself with before the intended drug transaction. In and around the same time, Mr. Cox disarmed Mr. Houghton of a folding knife that he had on his person and Mr. Houghton put Mr. Silva-Stone in a headlock. Mr. Cox then repeatedly struck Mr. Houghton in the head with his firearm, also striking Mr. Silva-Stone in the process. Mr. Cox caused several blunt impact injuries to Mr. Houghton’s head, including a skull fracture.

13During the struggle, Mr. Silva-Stone acquired a knife and used it to stab Mr. Houghton at least once in the leg, although he may have stabbed him more than once. Mr. Silva-Stone believes that the knife he used to stab Mr. Houghton in the leg broke, so he discarded it in the kitchen.

14Both Mr. Silva-Stone and Mr. Cox had consumed alcohol and a variety of narcotics that evening and do not recall who inflicted the remainder of the stab wounds to Mr. Houghton. An autopsy identified Mr. Houghton’s cause of death as multiple stab wounds to the abdomen with significant internal bleeding.

15Soon after, Mr. Cox and Mr. Silva-Stone fled Mr. Houghton’s apartment and took the two pounds of marijuana they intended to steal. They brought the marijuana back to their car and Mr. Silva-Stone drove away at a high rate of speed.

16Soon after their departure, Mr. Houghton called 911 but could only inform the operator that he had been stabbed before falling silent. Mr. Houghton’s upstairs neighbour came to check on his well-being after hearing a commotion coming from his unit and found him lying motionless on the floor. When police arrived, they pronounced Mr. Houghton deceased.

17Neither Mr. Cox nor Mr. Silva-Stone made any effort to seek assistance or call 911 after leaving Mr. Houghton’s apartment. Both Mr. Cox and Mr. Silva-Stone were a party to everything that morning in Mr. Houghton’s home.

Principles of Sentencing and their Application to this Case

18Section 718 of the Criminal Code sets out the fundamental purpose and objectives of sentencing. The provision states as follows:

718 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: R.S.C., 1985, c. C-46, s. 718

19Denunciation requires that a sentence express society’s condemnation of the offence that was committed: R v Bissonnette, 2022 SCC 23 at para 46. Deterrence has two forms. Specific deterrence is meant to discourage the offender before court – in this case Mr. Cox and Mr. Silva-Stone - from reoffending. On the other hand, general deterrence is intended to discourage conduct of members of the public who might be tempted to engage in the criminal activity for which the offender is convicted: Bissonnette at para 47.

20In imposing sentence, I must also consider the proportionality principle which is that the sentence must reflect the gravity of the offence and the responsibility of the offender: s. 718.1. Proportionality also has a restraining function and serves to guarantee that a sentence is individualized, just and appropriate: Bissonnette at para 51.

21Section 718.2 of the Code sets out additional principles which must be taken into consideration in imposing sentence. In particular, section 718.2(a) states that the court shall consider increasing or reducing the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence. In this case, I find the following to be aggravating factors:

22First, the impact of this crime on the deceased, resulting in the loss of his life, as well as the consequential impact on the victim’s family and friends. During today’s proceedings, we heard personally from 14 members of the deceased’s family as well friends about the devastating impact Mr. Houghton’s death has had on them. It took a lot of courage for these people to stand up and express their views. Their victim impact statements assisted the court in having a better understanding of who Mr. Houghton was as a person, information the court and even the accused, is not always privy to. I am grateful for that insight.

23In addition, the victim impact statements provided the court and hopefully the accused with considerable insight into the impact of this crime. While I cannot review every word that was said, I highlight below some remarks that make clear, as one would expect, that this crime resulted in significant grief and pain to family and friends.

• For Mr. Houghton’s parents and siblings, the profound sadness and pain of losing one’s child or a brother, frustration at the inability to say a proper goodbye, and in some instances, feelings of tremendous guilt that they were not better able to protect him;
• Family members and friends stated they experienced a profound sense of loss that has left them unable to cope with simple tasks, left them feeling at times paralyzed, and in some instances, experiencing, quite simply, a great void in their lives;
• Family and friends spoke about the anger they experienced that Mr. Houghton’s life was cut short, anger which must be acknowledged; some people have felt anxiety, fear, and general loss of trust in people; and
• Many of those who spoke stated they have struggled to find joy and meaning in their life like they once did, but thankfully, others have rallied, and are determined to make positive change in memory of the Christopher Avery Houghton.

24The second aggravating factor is the callous nature in which this crime was committed. Mr. Houghton was in the safety of his home. He was expecting to do a drug sale for two bags of marijuana. He found himself facing a firearm and when he went to defend himself, he was outnumbered and repeatedly stabbed. It did not end there. After committing the acts, the two accused fled and took no steps to get him medical attention. He was left there bleeding, struggling for himself to get help, but died before that help arrived.

25The third aggravating factor was that a weapon was used in the commission of the offence. It was the accused’s’ intention to intimidate Mr. Houghton with an unloaded handgun. When Mr. Houghton tried to defend himself, the accused stabbed him not one, not twice, but multiple times which ultimately resulted in his death.

26The fourth aggravating factor was that the killing was committed while the accused were committing a robbery. It was their own criminal behaviour that resulted in acts leading to Mr. Houghton’s death. For Mr. Cox, this was not the first time he had engaged in violence while committing a robbery. He has a youth record for assault and robbery.

27In considering the sentence to be imposed in this case, I must of course consider the particular circumstances of each offender.

28Mr. Silva-Stone comes before the court without any prior criminal record. He is a first-time offender. He is very young. He was 19 at the time he committed the offences, just barely an adult. His counsel informs me that he was adopted from an orphanage in Brazil where he apparently lived in horrendous circumstances. Despite his parents’ best efforts, he found himself descending on a criminal path. At the time of the offence, he was not living what one might call a “pro social” life, but rather working odd jobs and smoking, by his own admission, far too much marijuana. Since his incarceration, Mr. Silva-Stone has taken steps to sober up and has completed his high school education while in detention. This is no easy feat. Mr. Silva-Stone is open to getting assessment, treatment and counselling to address any personal disorders or substance abuse issues he may have.

29Mr. Silva-Stone made a heartfelt statement of remorse to the deceased’s family. He stated that he was humble, remorseful, and brokenhearted. He is deeply sorry and regrets every day what occurred. I find that his apology is sincere and have considered his early guilty plea and remorse as mitigating factors.

30Mr. Cox is also a young person, just 20 years of age at the time of the offence. He has a criminal record with two youth convictions and one adult conviction. Mr. Cox has been struggling with addiction issues since his early teens. His parents made genuine efforts to obtain treatment for him resulting in periodic sobriety and then relapse. Since his time in incarceration, he has been effectively weaned from drugs, and his counsel indicates, this has allowed him to come to realize the enormity of his actions. This was apparent in Mr. Cox’s statement to the court and to the deceased’s family where he acknowledged that his conduct on the day in question was fueled by greed and drug addiction. However, Mr. Cox takes full responsibility for his actions and expressed to the deceased’s family how sorry he was for what he did. I found Mr. Cox’s statement to be a genuine expression of remorse, and I find both his guilty plea and expression of remorse are to be considered mitigating factors in sentence.

31Finally, both accused have spent considerable amounts of time in pre-trial custody, some of which would have been in lockdown periods during the COVID-19 pandemic that made jail conditions even more challenging. They are entitled to be credited for that time accordingly.

32While the principles of denunciation and deterrence must be emphasized in crafting a fit and appropriate sentence, the objective of rehabilitation which is designed to reform offenders with a view to their reintegration into society, must also be considered in fashioning an appropriate sentence: s. 718(1)(d); Bissonnette at para 48. In this regard, I have considered the young age of both the accused. The proposed custodial sentences will result in them spending a decade of their young adult lives in a federal penitentiary. When they exit, they will still be young adults. It is clear that these crimes were influenced by significant substance abuse issues. For both these reasons – the age of the accused and their history of substance abuse - it is essential, and I strongly recommend to the correctional authorities, that these two young men receive to the greatest extent possible, whatever treatment, counselling, programming for substance abuse, and educational or vocational training that is available to them in the institution during their period of incarceration.

33Section 718.2(b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In this case, there is no doubt that a lengthy period of custody is warranted. The proposal for 10 years for Mr. Silva-Stone and 12 years for Mr. Cox are considered to be in the higher range of sentence for offenders in similar circumstances. Taking into consideration the aggravating factors and mitigating factors discussed above including the young ages of the accused, their guilty pleas, and their expressions of remorse, I find the proposed custodial periods constitute a fit and appropriate sentence in the circumstances of this offence and these offenders and that the proposed sentence accords with the principles of sentencing including proportionality.

34Mr. Cox please stand up. You are ordered to serve a sentence of 12 years custody taking into account pre-sentence custody. I understand the pre-sentence custody in this case is 985.5 days. When I take that pre-sentence custody into account and round down the numbers accordingly, you are ordered to serve an additional to 3,397 days in jail which means that you are to serve another 9.3 years in jail. You are also subject to a lifetime firearms’ prohibition pursuant to s. 109 of the Code and a mandatory DNA Order pursuant to s. 487.04 Code.

35Mr. Silva-Stone please stand up. You are ordered to serve a sentence of 10 years custody taking into account pre-sentence custody. I understand the pre-sentence custody in this case is 697.5 days. When I take that into account and round down the numbers accordingly, you are ordered to serve an additional 2,954 days which means you will serve another 8.09 years in jail. You are also ordered to a 10-year firearms’ prohibition pursuant to s. 109 of the Code and a mandatory DNA Order pursuant to s. 487.04 Code.

36The breakdown of the sentence in days is set out in the Exhibits 4 and 5 filed and will be endorsed on the warrant of committal. Corrections to the warrant of committal were addressed on May 23, 2023. The correctional authorities will receive a copy of my written decision and the exhibits filed in these proceedings, including the Victim Impact Statements and the personal statements of the accused read in court. This is to allow the Correctional authorities to have an understanding of the circumstances of the offence as well as the offenders along with my reasons for sentence and recommendations.

37Should there be any discrepancy between my oral and written decision, the written decision will prevail.

Somji J