COURT FILE NO.: CR-22-00000049 DATE: 20230530 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – CALEB BURGLER Defendant

Ms. M. Alexander and Mr. M. Cousineau, for the Crown Mr. M. Moon, for the Defendant HEARD: March 16 and April 26, 2023

reasons for SENTENCE

M.K. FUERST J. :

Introduction

[1] Marion Fenwick left her Collingwood apartment on a sunny fall afternoon, to walk to a local store to pick up a few items. She never returned home. It was her misfortune to be approached by Caleb Burgler, who was looking for money to buy drugs.

[2] In the course of robbing Ms. Fenwick, Mr. Burgler caused her to fall to the ground. She suffered a broken thigh bone at the hip, which required surgery. While in the hospital, she developed pneumonia, and died within days of the robbery.

[3] Mr. Burgler pleaded guilty to criminal negligence causing death.

The Circumstances of the Offence

[4] Marion Fenwick was an 86 year old, self-sufficient woman who lived on her own in a Collingwood apartment. She was in good health, and had all her cognitive abilities. At 4 feet 6 inches in height and 107 pounds in weight, she was a petite woman.

[5] Shortly before 4:00 p.m. on September 14, 2019, she left her apartment building. Using a cane, she walked to a nearby store, where she purchased grocery items and lottery tickets. She received cash back on her debit card.

[6] Caleb Burgler was 30 years old, standing 5 feet 7 inches tall and weighing 140 pounds. He was an unemployed opioid addict. He did not know Ms. Fenwick.

[7] As Ms. Fenwick walked back to her apartment building, Mr. Burgler came from behind her on a bicycle. Eyewitnesses saw him approaching her on the bicycle. They did not see exactly what happened, but one of them observed Ms. Fenwick spin and hit the ground. Mr. Burgler sped away on the bicycle.

[8] Ms. Fenwick cried out for help. Eyewitnesses tended to her until first responders arrived. Ms. Fenwick told them that her purse was missing.

[9] Ms. Fenwick was taken to hospital, where it was discovered that she had suffered a break to her femur at the hip, and would need surgery. She also was bleeding from her right pinky finger and elbow.

[10] She told police that all of a sudden, the bicyclist jammed right into her, and knocked her down. A few days later, she provided a sworn statement in which she said that a man on a bicycle hit her from behind and knocked her down before taking her purse.

[11] Ms. Fenwick had hip replacement surgery on the afternoon of September 15, 2019.

[12] The police issued a media release in an effort to identify the bicyclist. In addition, a member of the community posted on social media an image of the bicyclist taken from her surveillance camera video. Police received information that the bicyclist was Mr. Burgler.

[13] As a result of the social media coverage and at the suggestion of family and friends, Mr. Burgler telephoned the OPP and arranged to turn himself in. Before he did so, police spoke to his mother, who identified him as the person in the social media/police media release. His mother confirmed that she had given him a haircut after the photographs were released.

[14] Mr. Burgler turned himself in to the police on the afternoon of September 19, 2019. He told the police that he was the person in the image released to the public, but that he had not committed the robbery. He was arrested for robbery and aggravated assault.

[15] Ms. Fenwick died early on the morning of February 20, 2019. The cause of her death was later determined to be acute bronchopneumonia following surgical repair of a hip fracture due to blunt hip trauma. According to the pathologist, pneumonia is a common complication of hip fracture in the elderly, and carries a poor prognosis.

[16] Mr. Burgler was cautioned for second degree murder of Ms. Fenwick. As he showed signs of drug withdrawal, he was taken by police to hospital for assessment.

[17] On September 21, 2019, Ms. Fenwick’s purse was found in the yard of a residence not far from where she was robbed. It still contained some of her personal items, but the $60 cash she had in it was gone. Later, it was found that one of her lottery tickets had been checked at a store, and discarded there. Police retrieved it and found on it thumb and palm prints that matched those of Mr. Burgler.

[18] The police executed a search warrant at Mr. Burgler’s apartment. They found a baseball cap and a t-shirt that were similar to clothing shown in the surveillance image.

[19] Mr. Burgler was re-arrested and charged with second degree murder. The charge was later reduced to manslaughter at the conclusion of the preliminary inquiry.

[20] On his plea to criminal negligence causing Ms. Fenwick’s death, Mr. Burgler specifically admitted that in committing an inherently dangerous crime, namely robbing an obviously vulnerable victim, he showed a wanton disregard for Marion Fenwick’s life.

The Victim Impact Information

[21] Ms. Fenwick’s niece, Jennifer Lougheed, provided a Victim Impact Statement in which she expressed the extended family’s sense of loss. Ms. Fenwick was an aunt, great-aunt, great-great aunt, cousin, and sister-in-law. She was a much-loved member of the family. Her end was not the end she deserved.

[22] Additionally, members of the community told the family that the offence affected their own sense of security.

[23] Nonetheless, the family expressed through Ms. Lougheed their hope that Mr. Burgler uses whatever sentence is imposed on him to turn his life around. As Ms. Lougheed put it, “The greatest tragedy would be to have two lives wasted.”

The Circumstances of Mr. Burgler

[24] Mr. Burgler is now 34 years old. He is single and has no children. He grew up in Simcoe County, in a loving and positive environment. His parents separated when he was in elementary school, and he remained with his mother, but he saw his father regularly. He has a good relationship with both his parents, although contact with his younger brother is limited. He is in regular communication with all his grandparents.

[25] Mr. Burgler finished high school. He then completed a Welding Techniques College Program, and received his welding ticket.

[26] When he was 15 or 16 years old, Mr. Burgler started using ecstasy and cocaine. At the age of 16, he first used oxycontin recreationally. By grade 12 he was addicted. As an adult he also has used other opiates, including fentanyl and morphine.

[27] Although he attended various treatment programs over time, as well as having community counselling and methadone therapy, he struggled to remain clean.

[28] His periods of success were short. Notwithstanding his qualifications as a welder, he had trouble holding long term employment because his drug use led him to miss time from work. He was last employed at a custom exteriors company around 2018, but after less than a year took time off to deal with his addiction issues, and never returned to the job. His family members uniformly reported that drug abuse has been Mr. Burgler’s biggest challenge, affecting all areas of his life. They believe he needs to attend a lengthy rehabilitation treatment centre.

[29] Mr. Burgler acknowledged to the pre-sentence reporter that his biggest weakness is his drug addiction. The reporter also noted that he suffers from anxiety and depression, and is potentially bi-polar, although no details were provided about this. Mr. Burgler is aware that he needs to eliminate the bad influence of his negative peer group. He hopes to attend residential rehabilitation treatment on his release from jail, beat his addiction, and re-enter the workforce. On his release from jail he will live with his mother, and both parents say they will help him in any way possible. His grandparents are also supportive of him.

[30] Mr. Burgler told the pre-sentence reporter that when he committed the offence, he and his girlfriend were both sick from withdrawal and he needed money to buy drugs. He feels terrible about Ms. Fenwick’s death, and for her family. The pre-sentence reporter said that Mr. Burgler is aware he made a terrible mistake.

[31] At the conclusion of the sentencing hearing, Mr. Burgler apologized to Ms. Fenwick’s family.

The Pre-Sentence Custody

[32] Following his arrest on September 19, 2019, Mr. Burgler remained in custody until May 4, 2020, when he was granted bail. His mother was his surety. She revoked as a surety in December 2020 because of his drug use, although he testified that he was trying to get into a residential treatment program while on release. He returned to jail on December 31, 2020, and remained in custody.

[33] In total, he has spent 1,108 days in custody. Calculated at one and a half to one, this is 1,662 days, or 55 months and 12 days.

[34] Records provided by the Central North Correctional Centre show that Mr. Burgler was locked down because of “staffing issues” for all or part of about 275 days, and for a further roughly four dozen days for “medical isolation”, which I infer was attributable to COVID protocols.

[35] Mr. Burgler testified about difficult conditions in the detention centre, including an assault by other inmates that tore his earlobe so badly he was taken to hospital for stitches, and problems he had in receiving an opioid replacement he needed to avoid going into withdrawal. He has received methadone regularly since August 2021.

[36] While in custody he completed workbooks on a variety of topics, including substance use, and anger management.

The Positions of the Parties

[37] On behalf of the Crown, Ms. Alexander and Mr. Cousineau seek a sentence of seven years in jail, less pre-sentence custody calculated at one and a half to one. They say that a seven year sentence takes into account the difficult conditions at the jail, particularly lockdowns, without giving it undue weight. They submit that Mr. Burgler’s moral blameworthiness is high. Ms. Fenwick was a vulnerable victim, and that would have been obvious to him. He chose to rob her so that he could feed his drug habit, and used some measure of force to do so. He did nothing to help her when she fell, and instead took off and left her on the ground. Her loss is felt by her family. The Crown concedes that Mr. Burgler’s relatively young age and his status as a first offender are mitigating, as is his guilty plea which spared a trial. His addiction, however, is not. He has failed to get it under control despite opportunities to do so. He presents an unmanaged risk of re-offence to feed that addiction. Denunciation and deterrence are the most important objectives of sentencing in this case, and require a significant penitentiary sentence.

[38] The Crown requests a DNA order and a s. 109 weapons prohibition order for life.

[39] On behalf of Mr. Burgler, Mr. Moon seeks a sentence in the range of four to five and a half years in jail, less pre-sentence custody credited at one and a half to one. He concedes that the offence is repugnant and should be denounced, but a seven year sentence would be grossly excessive. Mr. Burgler made a spontaneous decision to rob Ms. Fenwick of her purse. He did not use gratuitous violence. He pleaded guilty at the first opportunity once resolution to a charge of criminal negligence became available to him. He is a first offender who has spent a considerable portion of his pre-sentence custody in lockdown conditions because of staffing shortages and COVID issues. Mr. Moon agrees that Mr. Burgler’s addiction is not mitigating, but says that Mr. Burgler recognizes his problem and has wanted to get into a treatment centre. That is relevant to his rehabilitation potential. Mr. Moon suggests that if the jail term left to serve after deduction for pre-sentence custody permits it, a probation order with a drug treatment condition could be imposed.

[40] Mr. Moon has no objection to the ancillary orders sought by the Crown, but disagrees that the s. 109 order should be for life as no weapon was used.

The Principles of Sentencing

[41] The Criminal Code sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case.

[42] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.

[43] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the chief organizing principle in determining a fit sentence. See: R. v. Parranto, 2021 SCC 46, at para. 10.

[44] The Supreme Court of Canada explained proportionality in this way:

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.

See: R. v. Lacasse, 2015 SCC 64, at para. 12.

[45] Section 718.2 of the Code provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that where consecutive sentences are imposed the combined sentence not be unduly long or harsh, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders.

[46] In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.” The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge. See: Lacasse, at paras. 58 and 143.

Analysis

[47] It is important to remember that the fault element for criminal negligence causing death is that the accused’s act or omission “shows wanton or reckless disregard for the lives or safety of other persons”. The Supreme Court of Canada explained in R. v. Javanmardi, 2019 SCC 54, that the fault element for this offence is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances. While for some negligence-based offences, such as dangerous driving, a “marked” departure satisfies the fault element, for criminal negligence causing death the requisite degree of departure is an elevated one: marked and substantial.

[48] The maximum sentence for criminal negligence causing death is life imprisonment. Because the offence can be committed in many different ways, the Court of Appeal for Ontario noted in R. v. Linden (2000), 147 C.C.C. (3d) 299, that the cases do not indicate a range of sentence that sentencing judges can look to as guideposts. Rather, they demonstrate “only a series of examples” driven by the variety of circumstances in which the offence can be committed. See: Linden, at para. 2.

[49] The Court emphasized, however, that the blameworthiness of the offender’s conduct is a particularly important consideration in determining the appropriate sentence. Linden was a case where the offender committed criminal negligence causing death by his driving. In considering the appropriateness of the sentence imposed, the Court articulated that the more an offender’s conduct tends toward demonstrating the deliberate endangerment of the public, the more serious the offence and the more likely that a lengthy jail term will be required. See: Linden, at paras. 2, 3 and 4.

[50] I have read and considered the cases referred to by Crown and defence counsel in their submissions. Not surprisingly, and as counsel acknowledged, none of them addressed the sentence for this offence in circumstances resembling this case. They are of limited utility.

[51] I turn to the aggravating factors here, which include:

1. Mr. Burgler chose to victimize a vulnerable individual. Ms. Fenwick was an obviously elderly person of small stature. The video surveillance from shortly before the offence showed her walking alone, relatively slowly, and using a cane. She was holding the cane, a bag, and her purse. She was an easy target, with no ability to repel an unanticipated attack. This would have been evident to Mr. Burgler.
2. That she would be injured in some way by the robbery of her purse was entirely foreseeable in light of her age and physical state.
3. Mr. Burgler sped off on his bicycle, leaving Ms. Fenwick on the ground. He did nothing to assist her.
4. Ms. Fenwick’s injury was serious, requiring almost immediate surgery.
5. While Mr. Burgler did not set out to rob Ms. Fenwick in particular, there was some element of premeditation to his behaviour. He admitted to the pre-sentence reporter that his objective that afternoon was to get money for drugs. He carried through with that objective by robbing Ms. Fenwick on the street.
6. Ms. Fenwick’s death has had a significant impact on her family. Additionally, the offence affected the sense of security of members of the community more broadly.

[52] There are mitigating factors, including the following:

1. Mr. Burgler pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for his actions. His guilty plea saved court time, and spared witnesses from having to testify.
2. I accept from his remarks in court and to the pre-sentence reporter that he is remorseful.
3. He is a first offender and although not youthful, was just out of his 20s when he committed the offence.
4. He was subjected to harsher than usual conditions of pre-sentence custody, including frequent lockdowns at the detention centre because of staffing shortages. See: R. v. Marshall, 2021 ONCA 344, at paras. 50 to 52.
5. Mr. Burgler has substantial family support, including a place to live with his mother on his release from jail, and encouragement from immediate and extended family members to enter a lengthy drug rehabilitation program. It is true that he had such support in the past, and it did not prevent him from committing the offence. Nonetheless, it is a factor that favours rehabilitation on his release from jail, should he commit himself to that goal.

[53] Mr. Burgler’s drug addiction explains why he robbed Ms. Fenwick, but I do not treat it as a mitigating factor. His addiction is a long-standing and serious problem. He has known for years of its significantly adverse impact on all areas of his life. I recognize that overcoming an opioid addiction can be very difficult. But, the reality is that to date, Mr. Burgler has had only short term success in addressing his substance abuse. He has yet to complete an intensive, long-term, residential drug rehabilitation program. He was well aware when he committed the offence that less intensive approaches to his addiction had not worked.

[54] The objectives of denunciation, general and specific deterrence, and protection of the public are the paramount objectives of sentencing in this case. As Mr. Burgler is a first offender, rehabilitation also must be considered.

[55] This is a case in which the offender preyed upon a vulnerable, elderly woman. Mr. Burgler made the choice to rob Ms. Fenwick as she walked alone on the street, with the support of her cane. She was minding her own business, quietly going about a daily task, asking nothing of others. Her determined independence was admirable. It deserved to be respected, buoyed, and sustained. Instead, it marked her for victimization by Mr. Burgler.

[56] It was foreseeable that approaching her from behind and robbing her as he did would cause Ms. Fenwick physical harm. Mr. Burgler demonstrated a selfish disregard for a vulnerable person’s well-being, all for the sake of garnering a few dollars. While he did not intend Ms. Fenwick’s death, Mr. Burgler’s conduct caused the most extreme of consequences, the senseless loss of Ms. Fenwick’s life, and the loss of her companionship to those who loved her. His offence is serious, and his moral blameworthiness is high.

[57] Mr. Burgler has yet to address in a lasting and meaningful way the driver of his criminal behaviour, his opioid addiction. Only he can make the commitment to overcome his addiction, and only he can do the hard work that will be necessary to achieve that success. His expressed desire to enter a long term residential treatment program on his release from jail is a positive sign. But expressing the desire is one thing. Carrying through with it once he is back in the community is quite another. Unless and until Mr. Burgler is able to maintain sobriety, finding a way to feed his drug habit will again be his priority, and he will pose some measure of risk to the community.

[58] A sentence in the range suggested by the defence does not give sufficient weight to the seriousness of this offence and Mr. Burgler’s moral blameworthiness. The sentence suggested by Crown counsel fails to give sufficient weight to the mitigating factors, most particularly Mr. Burgler’s status as a first offender.

[59] Having regard to the principles and objectives of sentencing, and balancing the aggravating and mitigating factors, I conclude that the appropriate sentence is one of six years in jail, less pre-sentence custody credited at one and a half to one.

[60] The custodial term will be followed by a period of probation.

Conclusion

[61] Mr. Burgler, please stand.

[62] I sentence you to six years in jail, less pre-sentence custody credited at one and a half to one to total 55 months and 12 days, leaving 16 months and 18 days to serve.

[63] This will be followed by three years of probation. The conditions are the statutory conditions plus the following:

1. Report to a probation officer in the manner directed within 24 hours of your release, and thereafter as required.
2. Live at an address approved by the probation officer.
3. Obey a curfew to be in your residence from 12 midnight to 6:00 a.m. daily, unless permission to be out of your residence is obtained in writing in advance from your probation officer.
4. Attend for such assessment, counselling and/or rehabilitation programming for substance abuse as the probation officer recommends and not stop it without the prior permission of the probation officer.
5. Sign releases of information so that your progress in counselling and/or rehabilitation programming can be monitored by the probation officer.
6. Do not possess any weapons as defined by the Criminal Code.
7. Have no contact direct or indirect with anyone known to you to be a member of Marion Fenwick’s family.

[64] I make a DNA order, a s. 109(2)(a) order for 10 years, and a s. 109(2)(b) order for life.

Justice M.K. Fuerst

Released: May 30, 2023

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – CALEB BURGLER Defendant REASONS FOR SENTENCE Justice M.K. Fuerst

Released: May 30, 2023