COURT FILE NO.: CR 17-069

DATE: 2023-06-06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

S. Doherty, for the Crown Attorney

• and -

PETER KHILL

J. Manishen, for the offender

HEARD: April 12, 2023

REASONS FOR SENTENCE

A.J. GOODMAN J.:

[1] This case is a sorrowing tragedy for all concerned. While I expect that my ultimate sentencing decision will seem neither adequate nor appropriate, or perhaps unduly harsh in the minds of some of those affected, no sentence that I impose today can ever compensate for, or begin to reflect the value of a life lost. Indeed, no sentence from the court ever intends to.

[2] In criminal cases, there are things that courts can do and things that courts cannot do. Judges can absorb facts, listen to arguments, measure and weigh competing considerations, and apply the law. We can try, in our own imperfect way, to reach decisions that balance all sides of a situation and all the consequences involved in human conflict, including the most tragic and serious conflicts that involve the loss of life.

[3] What a court cannot do is change what happened. We cannot undo those crucial moments that occurred over seven years ago and erase the anguish that continues today. The criminal justice system can only strive to hold offenders responsible for their conduct—it cannot right the harm by undoing this heart-breaking event.

[4] The offender, Peter Khill (“Peter”), was charged with second degree murder in the death of Jonathan Styres (“Jonathan”).[^1]

[5] At the first trial, Peter was acquitted of the charge by a jury. The Crown appealed to the Court of Appeal for Ontario, which overturned the acquittal: 2020 ONCA 151, 149 O.R. (3d) 639. Peter appealed to the Supreme Court of Canada, and on October 14, 2021, the Court dismissed the appeal and remitted the matter back to the trial court: 2021 SCC 37, 462 DLR (4th) 389.

[6] At the conclusion of this second trial, on December 16, 2022, the jury found Peter not guilty of second degree murder, but guilty of the lesser offence of manslaughter, contrary to s. 236 of the Criminal Code, R.S.C. 1985, c. C-46.

[7] Pursuant to s. 236(a) of the Criminal Code, where a firearm is used in the commission of the offence, as in this case, the maximum sentence is life imprisonment, and the minimum sentence is four years’ imprisonment.

[8] The Crown seeks a jail sentence of ten years plus various ancillary orders.

[9] The defence submits that this court ought to impose a sentence of four years, which is the statutory minimum under the Criminal Code. The defence takes no issue with the ancillary orders requested by the Crown.

Circumstances of the Offence:

[10] The shooting occurred on February 4, 2016 at approximately 3:00 a.m. in the driveway of Peter’s rural-area home. Upon hearing a noise in the driveway, Peter retrieved his pump-action shotgun from his bedroom closet and loaded it with two shells, which he kept in his nightstand drawer.

[11] Armed with this shotgun, Peter went out his backdoor and proceeded through the breezeway toward the front of his house where the noise came from. As he went out onto the driveway, he viewed someone leaning into the open passenger door of his truck. It was pitch-black outside and the person was not identifiable. It was later discovered that Jonathan was attempting to steal Peter’s truck or its contents.

[12] Peter testified that he shouted at the person, and at that point, he believed that the person had a weapon and turned and pointed it at him. Peter fired two shots in rapid succession in what he alleged was self-defence, which fatally wounded Jonathan. Jonathan did not have a weapon in his hands, and he ended up on his back, six feet away from the passenger door side of the truck.

[13] There is disagreement between the parties as to where Jonathan was located and how he was positioned at the time of the second shot. Both parties raised this specific issue as an important factor on sentencing, which I will analyze in greater detail later in these reasons.

[14] After shooting Jonathan, Peter returned inside the house where his partner, Melinda, had called 911 and was speaking to an operator about what had happened. He later performed CPR while waiting for the police and ambulance personnel to arrive.

Victim Impact Statements:

[15] There were six Victim Impact Statements (“VIS”) and one Community Impact Statement (“CIS”) presented at this sentencing hearing.

[16] Jonathan’s death has impacted countless lives, including those in his family and the community at large. Jonathan’s relatives and friends provided eloquent and very moving VIS where they described how each of them was affected by this tragic event. Most expressed that they continue to suffer deeply because of Jonathan’s death.

[17] I have heard and re-read all the VIS. However, as one can appreciate, I am unable to reproduce their contents in full and can only refer to them briefly in these reasons. I also agree with defence’s submission that redactions are required to remove offending passages from the statements to have them conform to the requirements of s. 722 of the Criminal Code. Accordingly, I have redacted statements about unproven allegations against Peter, and statements implicitly or explicitly denigrating Peter’s character.

[18] Jonathan’s mother, Deborah Hill, and his maternal aunt, Rhonda John, wrote that “we were devastated when we heard the news that my son Jonathan was dead. My son was taken away from me; my world was turned upside down with disbelief. This had taken a toll on me as a mother losing my youngest child; I hurt with so much pain, missing him every day. My family was worried about my health and emotions within myself. Depression had set in, not eating properly, personal hygiene. I will never, never see, my son or give him hugs ever again.”

[19] Jonathan’s partner, Lindsay Hill, provided a very emotional VIS infused with stories of the family dynamic. She expressed the sorrow of other persons affected by Jonathan’s untimely death at the hands of Peter. Her son will be missed by her and all their family members. She writes: “Having my heart break day after day is something that I have come to expect. My lifestyle has been affected in every way imaginable. Every morning when I wake up and every night when I go to bed. Every birthday, every holiday is like a punch in the gut and brings back the extreme loss that I have endured. The heart break of having to tell our daughters when they were 3 and 4 years old and not even really understanding what death is – but to tell them that their daddy is dead is excruciating and still breaks my heart thinking of it to this very day. Having to be both parents, a mother and a father, is difficult when you don’t know how to fill the void of Jon, but trying your best every day, struggling, but trying your best to push through because you know that you have to do more than most parents because you are the only parent.”

[20] I was particularly moved by Tanya Thomas’s descriptive VIS. She composes: “How does describing the physical, emotional harm, economic loss that I have suffered along with my family suffering with this tragedy that I have endured losing such a good friend, how do I even begin to describe the pain and loss that I have endured over the years. I was emotionally stricken with such pain and was numb to it all. The pain in my heart, the sadness around me and how I felt was overwhelming that I numbed out and shut down and did not want to deal with the grief and loss, the hurt and sadness that I was in for. A life lost, a husband, father, son in law, a friend to many – many hearts were broken and became lost after losing Jon, relationships with old friends/family weren’t the same. There is no real explanation of how the pain in your heart feels after losing a loved one, nothing will ever describe it. Two beautiful daughters will have to grow up without their Daddy, they will never have their Dad walk them down the aisle when they get married, Jon will never have the opportunity to be a Grandpa, a life so young taken for no reason.”

[21] Vicki Martin pens: “I have sadness, anxiety, worry, and anger in my heart because of what my family has experienced, because of what you did. I don’t want to carry this with me, but it’s there and I fear that it will never leave me. I worry every day, wondering if they will be okay, wondering if they will be emotionally and mentally scarred or if time will be kind to them and help them to move on. Our traditional ways as native people teach us to be thankful and to live our lives with a good mind, and I struggle with this daily.”

[22] Alana Hill writes: “My sister, a single mom, coming from an abusive marriage asked me to help her. She was trying to create a life for herself and her children. She asked if I could help to care for her youngest son, my nephew, Jonathan Styres. My nephew as a young boy came to stay with us. For 7 years we loved and supported him. During those years with us, everyone knew he was not an antagonistic young man. He was not one to lash out, nor physically attack nor hurt anyone. He was passive, shy, curious, and innocent. At some point, he feels he must take on the role of caregiver. Imagine taking on this significant role at a very young age. Jonathan had a quieter voice and I had not ever known him to really be angry enough or be pushed to be [sic] a point of anger where he would even raise his voice. Jonathan is now gone but he will live forever in our hearts as a beautiful nephew that was so loved by me and my family.”

Community Impact Statement:

[23] Chief Mark Hill of the Six Nations of the Grand River provided the CIS. The purpose of hearing community impact statements from the Indigenous community is to understand the context in which the offence occurred and the far-reaching effect that Jonathan’s death has had on the Indigenous community which is a consequence of this offence: see e.g. R. v. Bushby, 2021 ONSC 4082, at para. 27.

[24] In very potent language, Chief Mark Hill describes: “Even though Six Nations has the largest Indigenous population in Canada, a community this size is impacted when a member is involved. Many members are related to one another or a friend, and the community feels the sadness when something serious happens to one of our own. This is true whether it is a direct relative or friend, and if not, we share our Haudenosaunee cultural bond. It is important to note this trauma does impact our people’s health by increased stress, often leading to depression and anxiety. Incidents such as this case exacerbate these types of conditions for many in our community who may be suffering. Although this manslaughter occurred some time ago, it remains current in the minds of our community members and impacts all within the lifecycle. Jonathan Styres’ senseless death will remain with us for many generations to come; he will never be forgotten in our community, nor will community distain cease for the individual who committed this tragic and horrific crime.”

[25] Before I move on, and without taking anything away from the profoundly emotional and sincere comments referenced in the VIS, I am unable to consider any of the statements therein with respect to what the various writers opine is the appropriate sentence.

[26] However, I want Jonathan’s family and friends to know that I am aware of the utter devastation caused by his death. Everyone in the courtroom could feel the moving and heartfelt sense of bereavement and loss felt by Jonathan’s wife, mother, the immediate and extended family, uncles, aunts, many cousins, friends, and other affected persons, all of which had been vividly described throughout the sentencing hearing. Frankly, I cannot begin to capture the emotive impact of the VIS and the very powerful words expressed by those who provided their sentiments to this court.

[27] While Jonathan can never be forgotten, after today’s proceedings, I do hope that there will be some sense of closure or an ability to move forward for Jonathan’s family, relatives, friends, and the Six Nations Indigenous community.

Circumstances of the Offender:

Pre-Sentence Report:

[28] Briefly, according to the author of the Pre-Sentence Report (“PSR”), Peter is one of two children born to his biological father and mother, Joan Khill. At the age of six, Peter remembered that his father’s health began to decline to such an extent that he found himself needing to take on more responsibilities than a “typical” kid his age would have had to. He felt that this forced him to “grow up faster”.

[29] He recalled his parents’ marriage as loving and supportive and how his mother not only physically cared for his father, but for other adults with disabilities on a part-time basis to support the family financially.

[30] Peter recalled meeting his now-wife, Melinda, in 2012. He described their relationship as loving and supportive and how she has remained a constant support since the offence in 2016. In 2018, they married, and now have two young children together. Peter shared his concern for the safety of his wife and children since the offence, reporting that they have been harassed at court, at their child’s school, online, at their residence, and elsewhere. Peter mentioned how his family and friends have come together to support himself, his wife, and their children, and is grateful for their kindness. He revealed that he is upset with how his actions have impacted his young children.

[31] Melinda spoke about her relationship with Peter over the years. She referred to their connection as “ying to yang” and how she felt immediately drawn to him when they met. Melinda recalled how they were both very focused on their careers, which changed following the shooting. With the possibility of incarceration, Melinda noted her fear of the kids not being able to see their father daily, and how his absence will be felt universally amongst their family and friends. She imparted concerns for the safety of their family in the form of retaliation and how they have reported more than one incident to police.

[32] Melinda shared that it is not noticeable when Peter is feeling overwhelmed and that he has been that way since before the offence. In her recollection of the night of Jonathan’s death, she said Peter was already in a state of hypervigilance, given that there had supposedly been other break-ins.

[33] Melinda described Peter as a selfless person who lives to care for others. She said that he has a high standard for things to the point of perfection and that he will overanalyze at times. Following the offence, Melinda is of the view that Peter has questioned who he is, his path in life, and how he has changed. She was emotional in talking about how people have been judgmental toward her and their children, and how they continue to worry for their safety in the form of retaliation from the outcome of the sentencing and the overall situation. Melinda was empathetic to the loss felt by Jonathan’s family and their unimaginable grief. She spoke of how she has reportedly been called derogatory names by many outside the courthouse and elsewhere.

[34] Joan Khill referred to Peter as a loyal, honest, patient, and overall good person, who is a wonderful caregiver.

[35] Ben Sostar has been a close friend of Peter’s since grade four. He referred to Peter as being “stoic”, which he said was not uncommon for Peter over the years he has known him. He says that Peter is an intelligent, hard-working, loyal (sometimes to a fault) over-analyzer, who can be a bit stubborn.

[36] Peter has excelled in his prior employment and current career. He has worked at “Fieldcore” for several years and the company has been very supportive. Melinda mentioned that the leaves Peter has had to take from work to concentrate on his court case has impacted their finances significantly. Allison Miller, Regional Quality Director for “Fieldcore” has been Peter’s manager since the beginning of 2021. She confirmed that Peter was able to keep his job when he was arrested for this offence, though he needed to adjust his responsibilities given his travel restrictions while on bail. She noted that Peter would be unable to retain his employment with a lengthy term of incarceration, but that she would hire him again based on his skill and work ethic.

[37] Peter said he was first connected to the CAF through a high school co-op and was stationed at the 56 Regiment located in Brantford. Outside of this one operation, he said the rest of his time with the CAF was spent in training. He said he was educated on how to use a service rifle and was skilled on how to “clear rooms and live in trenches”.

[38] Peter reported no issues with either drugs or alcohol. He described himself as a caring, thoughtful, and calm person, who is willing to help others and can be both sympathetic and empathetic.

[39] Regarding the offence, Peter said that there were multiple factors leading up to and including that day, which he said contributed to what happened. He said that he did not initially understand why he was arrested and detained after the offence. As he navigated the criminal justice system, he had thought to himself that he too would want justice for a person who had been killed. He considered the “victim’s family and how they felt” and wished it did not happen.

[40] The PSR author notes that Deborah, Rhonda, Alana, and Jessica shared how Jonathan’s death has devastated all their lives in various ways, including a negative impact on their mental health. They also spoke about how the criminal justice system has failed them, which was exacerbated by the length of the proceedings. Each of them noted how these proceedings have revictimized all those who cared for Jonathan and for their community.

[41] A report was received from psychiatrist Dr. Ron Book in Brantford. Dr. Brook reviewed Peter’s overall mood state, which had been described by Peter as being “possibly anxious at times”. Dr. Book noted that Peter has had continued support from his loved ones, is described as a loving person, maintained a career for over a decade, has no reported addiction issues and presents as a healthy contributor to society. Dr. Book is of the opinion that Peter would benefit from reconnecting with counselling to address any previous, lingering, and future mental health struggles. He opined that Peter is suitable for future community supervision, given that he has no prior criminal history, is employable, and has pro-social supports.

[42] Peter also spoke to factors that he felt contributed to what happened and how he “did not feel [he] broke the law” and “does not feel [he] deserves the punishment”.

Character Reference Letters:

[43] There were 57 character reference letters presented at this sentencing hearing. This is the most substantial volume of character and support letters that I have ever encountered in my tenure as a jurist.

[44] I pause to note that throughout the trial and the sentencing hearing, the courtroom was filled with the decedent’s family members, friends and other persons along with the offender, who had a significant number of supporters in attendance.

[45] Due to the sheer volume of character references, I can only briefly refer to some of them. The letters come from a variety of sources, family, friends, co-workers, and others in the community at large.

[46] Melinda wrote: “I am the wife of Peter and mother to our two daughters, G. age 4 and D. age 2. Pete and I met in 2011. From the moment I met him, I was drawn to his kind, considerate and humble personality. He had goals, aspirations and ambition which he never deviated from, all leading him toward a successful path in life. He was unlike any other young man I had ever encountered. He was focused, dedicated, responsible and vastly mature for his age. He was a hand-raiser, the pure definition of a ‘good person’. I came to learn his father was fully disabled and required full time care, meaning Pete and his mother worked around the clock tirelessly tending to his every need to ensure he was able to reside respectfully within the comfort of his own home. Pete’s childhood could be described as one with “no frills”. He was grateful for the necessities and learned from an early age, life is about giving back, not getting. To this day, Pete continues to give, whether it be his hands to help, his ears to listen, his shoulders to carry, his brains to solve, his heart to care, or his smile to uplift anyone he crosses paths with. If there is one word to define Peter Khill, it would be selfless. He has a heart of gold and lives to serve others. Peter is undoubtedly, hands down, the best father to our daughter. The past several years have been a true test of our vows. As it stands today, he may be defeated in the eyes of the law, however, our love for one another is stronger than ever. The past 7 years have been nothing short of a nightmare. It has left us mentally tortured, financially crippled, terrified and defamed. This event unfortunately caused a great danger for our entire family, however, the most disturbing being our eldest child, who has been victimized by this case. Although Pete has been the one on trial, he has shouldered the suffering of our entire family before his own pain and torment. Never in my wildest dreams would I ever think this would be my life, such an atrocious stain on our existence. Peter will continue to do what he does best while he is away – touch, change, and impact many lives for the better.”

[47] Joan Khill writes: “I am the very proud mother of Peter Khill. As I said in a previous court appearance in February 2016, my son, Peter, is the best son a parent could ask for. Peter’s caring nature didn’t end there. Peter has a large circle of friends, with many from different races and ethnic backgrounds. Peter is not a violent person. He is a very private person. However, since the outcome of the last trial, I have noticed Peter is not his normal self. At times, becoming withdrawn. This is completely understandable given the many unknowns he faces for himself, his wife, and his children. This stress is unimaginable. Peter continues to be a devoted husband to Milly and an amazing father to his 2 young children. The disruption for safety reasons in [his daughter’s] schooling has had profound effects on her everyday life and therapy has already been introduced. He is very aware and saddened a life was lost. It is clear Peter knows the deceased was someone’s son and a father. Peter continues to show that grief and will do so for the rest of his life. Despite the continued stress Peter endures, he continues to be kind, caring, and compassionate towards others. He never has negative comments to say about anyone.”

[48] Deanna Balatan writes: “Peter is the most non-judgmental person I know. He is the real deal and a role model citizen. He is honest, professional, hard-working, help someone in trouble, kind of man. Peter is also a very caring person. I have never witnessed Peter show any violence and have seen him successfully interact with a variety of people from many different backgrounds. If there is conflict, he strives to find a solution. One can only imagine the amount of stress this incident and trial(s) has caused Peter and his family. It has been nothing short of truly heartbreaking.”

[49] Tony Blenko composes: “Pete values his family and friends above all things. He is sociable and gets along with everyone; there is nothing to dislike about his character. He is non-judgmental and accepting of all. Pete would do anything to reverse the outcome of the incident that occurred in Binbrook almost seven years ago. He is remorseful and accepting of consequences. Throughout the trials, he has maintained his composure, has been respectful, honest, and has continued to support his family and friends putting their needs above his own.”

[50] Belinda Blenko writes: “I am Pete’s mother-in-law. Pete is a kind, compassionate, gracious, caring man. A devoted husband, father, son, brother, brother-in-law and trusted friend. He put other’s needs before his own. Pete is extremely attentive and supportive to all family members, friends, and neighbours in need. In all of the years I have known Pete, I have never been witness to any violent tendencies and as I reflect, I have never heard him raise his voice in anger or observed him to be confrontational. The incident in Binbrook, almost seven years ago, has been utterly devastating for Pete. His remorse is evident in his words and his emotions if there is ever a discussion about that night. Almost seven years of court proceedings, bail and constant uncertainty, have taken their toll, with the most recent trial being the most overwhelming as there were repercussions for his four-year old daughter related to her safety in her school setting.”

[51] Steven Sonnenberg writes: “For the past 27 years, I have had the privilege of knowing and befriending Peter. Peter has always been the strong, silent type. When Peter did speak up, it was with the utmost respect for whom he was speaking to. He has always put others before him and never had an issue standing up for the “little guy”. Peter’s interactions never resulted in violence. As a fellow tradesmen and millwright, I can attest to Peter’s success in his career. The incident and following trial has put an undue amount of stress, both emotional and financial, on Peter and his family. Throughout the trial, Peter has suffered irreparable financial losses and yet still maintained a sense of normalcy for his family.”

[52] Eric Goodwin pens: “In my eyes, Pete is someone who you look up to as a man and want to imitate. He is happily married, has two beautiful girls and is successful in his career. The way he teaches his children life lessons is something I truly admire and try to emulate. In all my time of knowing Pete, I have never known him to be angry, confrontational or aggressive. Actually, it’s quite the contrary. Pete is calm, positive, and outgoing. He regularly plans activities to bring people together and is the one encouraging others to do their best or not get discouraged. Pete has a gift to be able to talk to anyone and make them feel comfortable in any situation.”

[53] Kim Sosta writes: “I have been troubled, saddened, and surprised about the situation Peter has been put into as he has always been a calm, quiet, gentle and laid back individual. Peter has always been an upright character in the community. I first met Peter when he was just an elementary school aged child. During my lengthy relationship with Peter, I have experienced an individual of very good moral character. Peter operates with integrity, and never has a bad word to say about anyone. This character trait could only be strengthened and solidified during the years he was involved with the Canadian military which has left a lasting impact on his character. He is also hard working and dedicated, and never leaves a job unfinished. He is always willing to lend a helping hand to those in need.”

[54] Mark Collver and Melissa Collver both pen: “Peter values family and friends and has always embraced the responsibilities that go with being a good friend, son, brother, husband and father. Peter is intelligent, hardworking, loyal and trustworthy. His wide circle of friends is a testament to Pete’s character. We have never seen Peter show any violent tendencies. He has a clam demeanor and a wonderful sense of humour. Over the past seven years, Peter has been severely impacted by both the incident and the subsequent trials and yet he has continued to put others before himself. During the week of the most recent jury deliberations, Peter gathered his many friends to say thank you to everyone for their love and support over the past seven years. It was an extremely difficult and stressful time but it was important to him to make sure everyone knew they were appreciated. Peter delivered his message with sincerity, dignity, and strength.”

[55] Sarah Smith authors: “Peter is the type of guy that no matter who you are or where you’re from, he’s sincere. He speaks to you with respect and listens to what you are saying. He is extremely intelligent, in many aspects of life; more than I am even aware of. If you need something built; Pete can build it. If you need a problem solved; Pete can solve it. You need a hug; Pete gives the best ones. Never in my time of knowing Peter have I ever heard him raise his voice or speak negatively. The thought of how prison could alter and change a person is heartbreaking. A man that is so pure and true, leaving his family to serve time in a place that could damage one’s soul, more than anyone could ever imagine.”

[56] Charles Peacock writes: “My overarching description of Peter is that he is someone of uncommon moral values that most people should strive to achieve. His unwavering commitment to do what is right, not what is easy, is admirable. His work ethic and competency have no end. All of those qualities are ultimately what make Peter such an impressive father, husband, neighbour, friend, employee, and member of society. In seemingly any situation, Peter is the person you want to be there. I have never known Peter to exhibit negative traits, moreover violent or vigilante tendencies.”

[57] Paul Barrette writes: “Peter has a naturally very jovial and friendly demeanor that never really seems to change, regardless of the situation. From what I have come to know of Peter, this is not the person he is, not how he would have chosen that night to end, and now is something he will have to live with for the rest of his life. Second, the resulting incarcerations and trials. The stress this has caused on the family as well as the financial burdens imposed have been crushing. Mr. Barrette concludes his letter with the following apt insight: “In conclusion, having watched things unfold over the last few years regarding this unfortunate and tragic event, one thing that is clear is that immense pain and suffering has occurred on both sides.”

[58] Collateral sources confirmed a solid circle of support with friends and family. The overwhelming preponderance of these numerous and heartfelt letters speak very highly of Peter by persons within and outside the family, and by individuals from all cross-sections of the community.

Sentencing Principles:

[59] This court is guided by the principles of sentencing as set out in s. 718 to s. 718.2 of the Criminal Code.

[60] As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a peaceful and safe society by imposing just sanctions that reflect enumerated objectives. Those objectives, relevant to this case, are clearly denunciation of the unlawful conduct, deterrence of other potential offenders, and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors in the case.

[61] Section 718.2 addresses the principles of totality, parity, and the principle of restraint, among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. While rehabilitation is always relevant, the appellate authorities provide that denunciation of the unlawful conduct is the paramount consideration in a manslaughter case. Vengeance, however, is no part of the sentencing calculus. See: R. v. Jiwa, 2011 ONSC 4071, at para. 34.

Sentencing in Manslaughter:

[62] Sentences for manslaughter are the widest of any offence in the Criminal Code: see R. v. Smith, 2022 ONSC 3800, at para. 26. As explained by McLachlin J. (as she then was) in R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at para. 20:

… Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is the sentence can be and is tailored to suit the degree or moral fault of the offender…

[63] The key to determining an appropriate sentence in a manslaughter case is assessing the level of moral blameworthiness of the offender: see R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 247.

[64] As the caselaw makes clear, there can be a wide spectrum of moral culpability in manslaughter cases, which courts have characterized as ranging from circumstances of “near accident” on one end to “near murder” on the other: see R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10. See also R. v. Toth, 2021 BCSC 1263, at paras. 30-32, citing R. v. Plowman, 2015 BCCA 423, at para. 39.

[65] Determining where on the spectrum of moral culpability each case lies is case-specific to the facts of the offence and the offender: see R. v. Simcoe (2002), 2002 CanLII 5352 (ON CA), 156 O.A.C. 190 (C.A.). In R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 80, the Supreme Court of Canada identified the following factors to take into account when assessing moral blameworthiness: (i) the intentional risk-taking of the offender, (ii) the consequential harm the offender has caused, and (iii) the normative character of the offender’s conduct. See also R. v. Bragg, 2022 BCSC 1249, at paras. 65-66, aff’d 2023 BCCA 73.

[66] In R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 247, the Supreme Court also affirmed an extensive list of factors from the case of R. v. Laberge, 1995 ABCA 196, at para. 23:

[23] . . . Therefore, the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations. These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim's injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death. [Emphasis added.]

[67] Moreover, factors that are unrelated to where the offence falls on the spectrum of “near accident” to “near murder” may sometimes bear on the moral blameworthiness of the offender: see R. v. Badhesa, 2019 BCCA 70, at para. 26.

[68] Although the law is clear that each case turns on its own specific facts, appellate courts have recognized that in cases where the conduct of the offender was accompanied by aggravating features, the applicable range of sentence is usually between eight to twelve years: see R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133, at para. 7-8; R. v. Tahir, 2016 ONCA 136; R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83; R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 215 O.A.C. 253, at para. 33 (C.A.).

[69] While some of the authorities suggest such a range for “aggravated manslaughter”, I refrain from so categorizing this case. As stated by the Court of Appeal and cited by jurists, including my decision in R. v. Scalzo, 2020 ONSC 6063, it is not always useful to attach a label to a subcategory of the offence. It can add an unnecessary level of complexity to the sentencing exercise and lead to errors: Devaney, at para. 33.

[70] As well, sentencing ranges, although quite useful in ensuring the principles reflected in s. 718.2 of the Criminal Code are respected, are not meant to be fixed or inflexible. As stated by Moldaver J.A. (as he then was) in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 33:

Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

Positions of the Crown and Defence:

[71] The Crown submits that this case falls within the “mid-range” of eight to 12 years based on the three broad ranges of sentences set out in R. v. Smith, 2022 ONSC 3800, as summarized by Code J. in R. v. Wight and Hoo-Hing, 2022 ONSC 5137, at para. 43:

• 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.

• 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.

• 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. [Citations omitted.]

[72] I have reviewed the authorities provided by the Crown in support of the position that the appropriate range in this case is between eight and 12 years.

[73] In R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.), the 29-year-old offender brutally stabbed a frail and vulnerable victim in his own home in an act of “pure rage” against the victim who had only slightly provoked him. The offender concealed the weapon afterwards and intentionally diverted suspicion away from himself at the scene. The offender was unemployed and on welfare, had no criminal record, and had acknowledged responsibility for the offence. A sentence of nine years was imposed.

[74] In R. v. Derby, 2015 ONCA 222, the offender had attended the hotel room of a sex worker where he was ambushed by the armed victim who was the sex worker’s pimp. A fight ensued, and the offender obtained the firearm from the victim and fatally shot him. The offender was on probation at the time of the shooting and had a prior criminal record. The offender received a sentence of eight years’ imprisonment, which was upheld on appeal.

[75] In R. v. Dupuis, 2014 ONSC 3573, a domestic manslaughter case, the offender fatally stabbed the victim in the chest following a dispute. A “seriously aggravating factor” was that the offender failed to seek medical help for the victim, and instead, attempted to clean the blood from her apartment: at para. 54. The offender had no prior criminal record, had experienced prior domestic abuse, and expressed genuine remorse. A sentence of eight years’ imprisonment was imposed.

[76] In R. v. Johnson, 2022 ONSC 5689, the offender had gone to a mall carrying a loaded firearm to visit some friends. In a chance encounter, the victim, with whom the offender had an acrimonious history, instigated a physical and verbal altercation, which resulted in the offender shooting the victim. When the offender realized the victim was unarmed, he dropped the firearm, but did not attempt to render or call for assistance. Instead, he departed the scene, disposed of the weapon, and fled the jurisdiction. The offender had a prior criminal record and was subject to two weapons prohibitions and a probation order at the time of the offence. Mitigating factors included his relatively young age of 24, his remorse, and the fact that he was “provoked in the sense that he did not initiate the altercation”: at para. 61. He received a sentence of nine years’ imprisonment.

[77] In R. v. Roberts-Stevens, 2019 ONSC 257, the offender shot a former friend using an illegal home-made shotgun from several feet away in a residential area. The offender was a drug dealer and was subject to two prohibition orders at the time of the shooting. The victim died from blood loss, and the offender attempted to destroy evidence afterwards. In mitigation, the offender was 21 years old and remorseful. Quigley J. imposed a sentence of ten and a half years.

[78] The defence submits that the statutory minimum sentence of four years in this case should be imposed. A number of cases were provided where sentences at the lower end of the range for manslaughter were imposed.

[79] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R 96, the offender was on duty as an RCMP officer when he fatally shot an inmate in a holding cell at a police detachment following a physical altercation initiated by the inmate. The jury rejected self-defence and convicted him of manslaughter. As the offender was in a position of trust and had custody over the victim at the time of the incident, he was subject to a higher standard of care, which was an aggravating factor on sentencing. He was sentenced to four years’ imprisonment.

[80] In R. v. Dingwell, 2012 PESC 13, 321 Nfld. & P.E.I. 263, the offender, then 22 years old, took a loaded unregistered .38 caliber revolver outside and shot the victim twice at close range. The offender had been bullied by the victim throughout his life, and just before the shooting, the victim had continued to act aggressively toward the offender by assaulting him, threatening to bear spray his three-year-old son, and coming out of the house yelling and holding bear spray in his hand: at para. 5. The offender and the victim were both involved in a criminal lifestyle with illegal drugs, and on sentencing, there was a need to deter “especially those in the illegal drug trade and criminal underworld from using firearms”: at para. 46. A five-and-a-half-year sentence was imposed.

[81] In R. v. Sahal, 2016 ONSC 6864, the offender was alone with the victim in the victim’s living room when he discharged a firearm in the victim’s direction to intimidate him over a drug debt, fatally wounding him in the chest. The offender was 22 years old at the time of the offence and 26 years old at the time of sentencing, which the court characterized as relatively young. Further, the offender had no prior criminal record, had strong family support, a history of employment, and had a committed relationship with his girlfriend, with whom he was expecting a child. Finding that the offender did not intend to hit the victim when he shot in his direction, the offender received a sentence of six years’ imprisonment: at para. 15.

[82] In Bragg, the offender was charged with first-degree murder but was convicted by a jury of manslaughter. The offender, his son, and the victim had all fallen on hard times and were living together in a rented house. The victim had been threatening the offender and his son for many months, and during a dispute over rent, the victim threatened serious harm on the offender and his son. This led the offender to load his revolver with .22 magnum ammunition and shoot the victim hours later in what he claimed was self-defence.

[83] In R. v. Thomas, (January 12, 2012), Windsor, CR-11-2305 (Ont. S.C.J.), the offender pleaded guilty to manslaughter. The offender, who was at a nightclub with his friends, perceived hostility from a group of men in the club, which included the deceased. The offender and his group exited the nightclub to avoid a confrontation, only to be pursued and taunted by the other group of men. As the offender and his group attempted to leave, the offender perceived that one of the men in the other group fired a gun at the vehicle they were in. Consequently, the offender grabbed a firearm and fired a retaliatory shot toward the group, which ultimately killed the deceased: see Thomas, at p. 3. Pomerance J. characterized the situation as “near self-defence,” and sentenced the offender to six years’ imprisonment.

[84] Though the jury rejecting self-defence, the sentencing judge accepted that there were elements of self-defence which acted as a mitigating factor. Other mitigating factors included the offender’s advanced age, lack of criminal record, and the history of threats and abuse from the victim. Aggravating circumstances included that the offence involved preparation and planning; that the offender hid the weapon from the victim during the confrontation, leaving the deceased with no opportunity to flee or withdraw from the situation; that more lethal than regular ammunition was used and eight shots were fired while the victim was effectively “backing up”; and that the offender waited approximately 30 to 40 minutes after the shooting before calling 911: at para. 69. The court applied the factors from R. v. M.(C.A.) and Stone, as affirmed in Badhesa.

[85] In considering these cases and the jurisprudence generally, I can only conclude that the sentencing range is very broad in these types of cases. While I have guidance from the Court of Appeal for Ontario and relevant cases, the sentence to be imposed must reflect the circumstances of the offence and offender, bearing in mind the specific aggravating and mitigating circumstances present in this case.

Aggravating Factors:

[86] The Crown submits that the aggravating factors in this case include: (i) the impact on the victim and community, (ii) the type of weapon used, and (iii) the circumstances of the offence being akin to “near murder”.

[87] In particular, the Crown urges this court to find that Peter snuck up on Jonathan to ambush him and that he fired a second shot while Jonathan was positioned defenceless on the ground. The Crown submits that these circumstances raise this offence to “near murder”, which warrants significant consideration as an aggravating factor on sentencing.

Circumstances of the Offence- Use of the Particular Firearm:

[88] No doubt, a potential aggravating factor is Peter’s use of a loaded firearm. However, as mentioned to the parties, and as Pomerance J. stated in R. v. Thomas, unreported, (January 12, 2012), Windsor, CR-11-2305 (Ont. S.C.J.), a firearm cannot be an aggravating consideration given that the Criminal Code has already attributed this fact to the mandatory minimum sentencing regime for manslaughter. I will not “double-count” Peter’s use of a weapon, per se, as an additional aggravating factor.

[89] The Crown suggests that apart from its use, there is still an aggravating feature related to the use of the after-market turkey choke attached to the barrel of the firearm which increases the lethality of the weapon. The use of this particular weapon, the Crown says, is further aggravated by the fact that it is contrary to the Canadian Armed Forces’ (“CAF”) “soldier card” training material, which specified, inter alia, “[d]o not alter your weapons or ammunition to increase suffering or use unauthorized weapons or ammunition”.

[90] In Bragg, at para. 69, the court considered the use of “more lethal than regular ammunition” to be an aggravating factor in that case. Peter explained in direct examination that “…the idea [of the turkey choke] is so you can take farther shots, so it keeps the grouping of the pellets together for longer”, and he agreed with the suggestion on cross-examination that "the whole idea in putting it on is to make the turkey hunt more successful”. Peter also testified that he used this particular firearm for the purpose of self-defence, explaining that the “only reason” he kept this shotgun in his closet was “in the event that [he] would ever need to defend [him]self.” I find that the use of this particular weapon, with an after-market turkey choke which increases its lethality, may be an aggravating factor to be considered in this case.

Circumstances of the Offence – The Second Shot:

[91] As emphasized during oral submissions, the Crown seeks a finding that Jonathan was on his hands and knees, or some variation thereof, when he was shot in the rear right arm. The Crown submits that these circumstances are analogous to a defenceless and helpless victim, a “near murder” situation. The defence argues against such a finding. Given the importance of this issue, counsel were directed to provide written submissions.

[92] In direct examination, Peter testified that as the person turned toward him, with what seemed to be his hands coming together – although he “couldn’t see his hands per se” – he took the gun off safe, raised it, fired one shot, racked it, and fired again “in quick succession, as fast as [he] could”, ejecting the spent cartridge to his right. Between the first and second shots, Peter did not know whether the person moved at all or whether the angle of the barrel may have changed. After firing the second shot, Peter recalled that the person “took, I don’t know how many steps, and then ended up falling to where you see him in this picture”, on his back about six feet away from the passenger door. Peter then approached and racked the shotgun again, ejecting the second round at Jonathan’s feet.

[93] Peter agreed on cross-examination that the first shot was to Jonathan’s chest and that it was fired when Jonathan came out of the truck and turned toward him. He agreed that he fired both shots in “split seconds” in the same general direction, at the “same centre of mass” of the person at the passenger door. Peter was categorical on cross-examination that he never saw Jonathan on his hands and knees throughout the entire incident.

[94] Officer Hahn was the first responder on scene. He found Jonathan laying on his back as depicted in the scene photographs, with his right foot about six feet from the open passenger door area, a “spent or discharged shot gun” next to Jonathan’s left foot, and a second shell located north of the first. He never turned or moved Jonathan’s body nor did he touch the shells.

[95] Judy Chin, firearms expert at the Centre of Forensic Sciences, testified that the shot to Jonathan’s chest was taken at an angle less than 45 degrees and that the shot to his rear right arm was taken at near 90 degrees. There was no dispute that the first shot was taken from less than 12 feet away and that the shot to his rear right arm was between one and 12 feet away. Ms. Chin testified that it would take her three to five seconds to cycle through two shots with the shotgun. Ms. Chin opined that she would have to “get over” the recoil, but could not say how each person would respond. On cross-examination, she agreed that she could fire and pump the firearm again in a couple of seconds. Further, Chin testified that if one is experienced with firing a shotgun and one’s stance is good and strong, then it would be possible for that individual to fire two rounds in a matter of a few seconds or less.

[96] The pathologist, Dr. Edgecombe, testified that the shot to the chest traveled from left to right, front to back, and slightly downward. The shot to the rear right arm, which caused an exit and re-entry wound through the armpit area, traveled from right to left, back to front, and downward. Regarding the position of the shotgun relative to Jonathan’s body, for the first shot, Dr. Edgecombe stated that it would have been on the left side of his chest with a “slight downward trajectory,” explaining that “[t]he downward would mean that the shotgun would’ve been higher than the decedent,” for example, “perhaps the shooter was higher, his height was higher. Perhaps the shooter was standing on a step or something else or perhaps the decedent was just lower down towards the ground”.

[97] For the rear right arm shot, Dr. Edgecombe stated that “again, we have … a more pronounced downward trajectory” where the decedent would have been “lower onto the ground” or the shooter would have been “higher off the ground … for example on a step or something else”. Dr. Edgecombe added, “[b]ut the more likely scenario would be the decedent would be closer to the ground, perhaps sitting or kneeling or some other scenario”.

[98] On cross-examination, when asked about the rear right arm shot, Dr. Edgecombe agreed that Jonathan’s body could have been bending to get into a position where it was lower than the barrel. She testified that there were many possibilities respecting the position of the barrel of the shotgun and/or Jonathan’s body at the time that the wound to the upper right arm was inflicted. She was not comfortable opining as to which of the shots was fired first or second, or where Jonathan’s body was positioned relative to the vehicle at each shot due to the variety of possible scenarios that could support either sequence. Ultimately, Dr. Edgecombe agreed that there were endless possibilities to account for how Jonathan’s body could have moved, whether from the force of the shot or purposefully.

[99] Detective Colin Hoare, blood pattern analyst, opined that Jonathan “was fully facing or partially turned towards the interior of the vehicle when at least one of the blood bearing injuries created a back spatter bloodstain”, which was consistent with Peter’s testimony about the first shot to the chest. Cross-examination focused on the height of the bloodstains on the passenger seat and door. The highest bloodstain on the seat was approximately thirty-seven inches. The highest on the door was just over four feet. Mr. Hoare testified that the blood source for the circular stains on the passenger seat, whether caused by one or two events, was at most four to five feet away and below the seat cushion. This opinion was put to him as inconsistent with his evidence at the previous trial, in which he could not specify the actual height of the blood source itself.[^2]

[100] Dr. Turner, a forensic pathologist, opined during examination in-chief that the shot to the rear right arm likely occurred second due to a lack of acute hemorrhaging associated with the liver and kidney injuries.

[101] On cross-examination, Dr. Turner agreed that Jonathan’s body at the time of the second shot could have been “stooped” forward to be in the same plane as the barrel of the shotgun, rather than being on his hands and knees. She agreed that Jonathan could have been “going from a stooped position to a kneeling position and stooped over, not on his hands and knees”, or that Jonathan could have turned left after the first shot, bent forward, and been shot in the right shoulder. Dr. Turner maintained that Jonathan still could have collapsed onto his hands and knees after the first shot but allowed for the possibility that he did not collapse. She agreed that it was possible for someone to have some 30 seconds of oxygen enabling him to continue to move after receiving an injury such as the chest wound here.

[102] Dr. Turner testified that she could not determine when, throughout the series of events the mud came onto the hands and knees of Jonathan. She agreed that a potential explanation was that Jonathan could have acquired the mud on his hands and knees when punching the lock of the vehicle’s door and that he could have muddied his hands and knees “prior to being shot”.

[103] The defence argues that the Crown’s submissions offer contradictory positions of the deceased at the time of the second shot, not only as between one another but as contrasted with the evidence which the Crown led at trial. All the evidence is entirely consistent with Peter’s testimony. The first shot into the left side of the chest could have caused Jonathan to turn and stoop forward. The second shot to the right arm occurred immediately after the first when he was in a lower position within five feet of the vehicle. The force of that shot resulted in him staggering over to the area where he was found.

[104] Accordingly, the defence submits that the Crown has not proven beyond a reasonable doubt the aggravating fact regarding the decedent’s position at the time of the second shot in support of a near murder scenario.

[105] Section 724(2) of the Criminal Code states that where the court is comprised of a judge and jury, the court shall accept as proven all facts, express or implied, that are essential to the jury’s verdict and may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[106] Section 724(3) states that where there is dispute with respect to any fact that is relevant to the determination of a sentence, the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; that the party wishing to rely on a relevant fact, including a fact contained in a pre-sentence report, has the burden of proving it; that either party may cross-examine any witness called by the other party; that subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and that the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[107] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R 96, at paras. 17-18, McLachlin C.J.C. (as she then was) articulated the two principles governing the task of a sentencing judge following a jury trial as contemplated in ss. 724(2) and 724(3):

Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 CanLII 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)… It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand…

[108] Reasonable doubt is not a far fetched or frivolous doubt. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or lack of evidence. It is not enough to find that the Crown’s theory is probably or likely right.

[109] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, Cromwell J. stated at para. 37:

When assessing circumstantial evidence, the trier of fact should consider other plausible theories’ and ‘other reasonable possibilities’ which are consistent with guilt… I agree… that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’… ‘Other plausible theories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[110] The Crown bears the burden to prove this aggravating factor. The defence has offered an ostensibly reasonable hypothetical to contradict the facts sought by the Crown. The defence asserts that both shots happened in the open passenger door area. That the shots happened in a matter of seconds, and that Jonathan was bent at the waist at the time of second shot, such that his rear right arm was inline with the barrel of the shotgun, accounting for the downward bullet path and associated injuries.

[111] The necessary implication of that theory, coupled with Peter’s own evidence on how Jonathan moved between the shots, is that after being shot in the chest, Jonathan’s body contorted, but he remained in the same space. After being shot a second time, while bent at the waist, he stumbled or stepped approximately six feet north to the location where he is found in the photographs. There, he fell flat on his back in the supine position.

[112] Yet, the Crown says that on that theory, one must ask, how did Jonathan move, while bent at the waist with two catastrophic shotgun injuries, approximately six feet north and fall perfectly flat on his back? Did he stand up straight before falling? The controversy about whether Mr. Hoare was correct that the bloodstains were caused by back spatter, or Dr. Turner’s conclusion that the second shot was to the rear right arm, or her concession that Jonathan could have muddied his hands and knees before being shot, or that he could have been moving between stooped and kneeling, offer no relief from the inescapable conclusion that he was not shot both times in the open passenger door area – that Peter’s evidence on this point must fail.

[113] This dilemma is only exacerbated when considering the mud on Jonathan’s hand, glove, and knees. Peter’s version of events leaves no room to explain how the mud got there. Peter was steadfast that he never saw Jonathan on his hands and knees “throughout [the] entire event” and insisted that when he fired the gun a second time, Jonathan “was not on the ground”. Where, when, and how was the mud deposited?

[114] The Crown opines that it is illogical that Jonathan would get on his knees, in the mud, to punch the lock. However, is it at least reasonably possible? But why muddy his hands? And when? Did Jonathan get on his knees, punch the lock, open the door, and then stick his hands in the mud? There is no mud on the passenger door handle. No mud on the centre console. Dr. Turner described the mud as being “caked” on his right hand and glove.

[115] Therefore the Crown attorney argues that there is no other plausible theory or reasonable possibility on the evidence at trial to account for the mud. Those suggested by the defence strain credulity. The physical evidence establishes that Peter was shot in the chest while partially facing the truck, he moved north of the vehicle, he collapsed, while on his hands and knees, or some variation thereof, he was shot a second time in the rear right arm, and the kinetic energy of the second blast sent him onto his back as depicted in the photographs.

[116] The defence submits that I undertake a similar analysis as in Bragg, wherein the sentencing judge declined to make a finding of fact regarding the positioning of the deceased’s body during the shooting because the inferences advanced by the Crown were disputed by the defence, and the fact that the pathologist testified “that he could only say how [the victim’s] body was in relation to the gun and could not say anything about the actual position of the body”: see Bragg, at para. 21 (emphasis in original).

[117] Without descending into the abyss of speculation, it seems reasonable to me that if the jury had concluded that Jonathan was on his hands and knees at the time of the second shot, utterly defenceless, and at the mercy of the offender, they would have found the necessary intent for murder. They did not so conclude. In this case, a verdict of manslaughter can be taken to mean that the offender caused the death of the victim but lacked the specific intent to commit murder. In the context of a self-defence case, it means that the jury rejected that the offender acted in lawful self-defence.

[118] I have strong suspicions that, based on the evidence, it is more likely than not that the Crown’s submissions on this point are true. Indeed, I am troubled by the positioning and ultimate resting place of the decedent with the mud being caked on his hands and knees in this scenario. However, given the conflict in the evidence, I am not satisfied beyond a reasonable doubt regarding Jonathan’s positioning at the time of the second shot during these rapidly evolving events. The existence of the aggravating factor is not the only reasonable inference that can be drawn from the evidence. I also acknowledge Peter’s explanation for having snuck up on Jonathan that it was based on his perception that he “needed to gain control of [the] situation,” rather than out of a deliberate plan to ambush and kill him.

[119] As I cannot make a conclusive finding one way or another on the evidence, the benefit of reasonable doubt related to this specific issue must accrue to the offender.

Mitigating Factors:

[120] The offender does not benefit from the mitigation of a guilty plea as he chose to have a trial. However, this is a very unique case. As mentioned, Peter was initially acquitted by a jury in 2018, but was ordered to stand trial again by the Court of Appeal and Supreme Court of Canada. At this trial, Peter was subsequently found not guilty of the charged offence of second degree murder, but rather, guilty of the lesser and included offence of manslaughter.

[121] In mitigation of sentence, the defence submits the following points: (i) the offender’s background in terms of his good character, demonstrated remorse, and post-offence rehabilitation, (ii) the delay in sentencing, (iii) the circumstances of the offence being “near self-defence”, given the elements of provocation and self-defence present in this case.

Character of the Offender:

[122] Overall, the PSR can be described as very positive. Peter has no prior criminal record and apart from this incident, he has led a pro-social and exemplary life. Peter has the tremendous support of his family, friends, and others in the community.

[123] While it may be suggested that Peter has limited insight into his behaviour vis-à-vis his feeling that he was justified, nevertheless, I find that he has demonstrated true remorse. This includes his statements in the PSR report, as well as his statement to the court at the conclusion of this trial:

There is not a day that goes by that I don’t think about Jon Styres and his family. Jon and I share one very important similarity: we’re the fathers of two little girls. I know firsthand, to a little girl, daddy is their world. They don’t care where you work or how much money you have or the vehicle you drive. All they care about is your presence and your unconditional love and support you will show them throughout their lifetime.… For the girls, this means an empty seat at the table that will always feel empty; no longer having that extra person to run to when mum doesn’t give you your way. There is now a hole within the family which will never be filled; and it is painful to have been the one to have caused it. After years and years, we sit in this courtroom divided once again; all harbouring pain, resentment and contemplating the whys and the what ifs.…We (Milly and I) have always wanted to allow you the opportunity to heal and air your grievances; however, legal advice and legal rules would not allow this. I never viewed my acquittal in 2018 as a win. This situation has and will forever be a lose-lose, because the tragic event that affected so many lives can never be undone. To all of Jon’s family and friends, I want to give you the best closure I can. The events of that night in February are always with me. Nobody wanted this tragic event to happen. And it goes without saying: if I could change the outcome, I would. I hope that one day your pain becomes bearable and you can live a life full of happiness once again.

[124] Peter has shown contrition by virtue of the comments in the PSR and his statement to the court and to those impacted by Jonathan’s death.

Delay in Sentencing:

[125] Delays in trial proceedings and delays during the appeal period can be a mitigating factor on sentence, if the delay is lengthy and beyond the control of the offender, or if there is delay attributable to Crown conduct: see R. v. T.M.B., 2013 ONSC 4019, at para. 74; R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 72 O.R. (3d) 47, at para. 41. See also R. v. Hartling, 2020 ONCA 243.

[126] As explained by Code J. in R. v. Duncan et al., 2016 ONSC 1319, at para. 44, citing R. v. T.M.B., delay can mitigate sentence either because the offender has suffered or has changed during the period of delay and is now reformed, or because re-incarceration after a period of bail pending appeal would cause some additional or exceptional hardship.

[127] The extent to which delay is considered a mitigating factor is “very much dependent on the particular facts”: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488, at paras. 33-36, per Rosenberg J.A. While the defence argues that this court ought to consider - to some extent- the previous acquittal from the first trial, I find no merit to that suggestion as it applies to this proceeding.

[128] Where an offender is on bail not under onerous conditions, delay may be given relatively little weight as a mitigating factor: see R. v. Atwal, 2016 ONSC 3668, at para. 46, per Hill J. In R. v. Spencer, at para. 43, leave denied, [2004] S.C.C.A. No. 4, Doherty J.A. held:

In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender’s bail terms. The more stringent those terms, the more likely it will be that any delay in completion of the process will have some mitigating effect on sentence. Indeed, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence.

[129] Peter has been subject to these proceedings for over seven years. The offence took place in February 2016. Peter is now being sentenced in June 2023. In that time, there have been two trials, one mistrial, and appeals to the Court of Appeal for Ontario and Supreme Court of Canada.

[130] I accept that this is a relevant mitigating factor to be taken into consideration. The delay in this case was not caused by Peter, and in that time, he has been required to comply with bail conditions. There have been no breaches of the conditions and his conduct since his arrest has been exemplary. However, as the terms of Peter’s bail imposed relatively little restraints on his liberty, neither his bail terms standing alone, nor when considered in combination with the delay in sentencing, warrants significant mitigation of his sentence. In sum, delay is a moderate mitigating factor in this case.

[131] The defence also points to the collateral consequences Peter has suffered, including threats, a civil suit, and having to relocate with his family. The charges against him have garnered a high profile and attracted much media and public interest, and he has been publicly condemned for his offence.

[132] While collateral consequences are not necessarily aggravating or mitigating factors under s. 718.2 (a) of the Criminal Code, they are relevant to the personal circumstances of the offender. As the Supreme Court held in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48, “[t]he question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.” However, where the consequence is an obvious one that inevitably flows directly from the commission of the offence, conviction, or sentence, as in this case, then its mitigating effect is reduced: see Suter, at para. 49.

[133] While I am inclined to consider the collateral consequences as a mitigating factor, I observe that, as other courts have noted, the collateral consequences suffered by an offender may not always eclipse the need for a sentence that emphasizes general deterrence and denunciation: see R. v. Cook, 2010 ONSC 5016; R. v. Greenhalgh, 2011 BCSC 511, at para. 52.

Circumstances of the Offence - Elements of Provocation and Self-Defence:

[134] The defence submits that the circumstances of this case are “near self-defence”, placing Peter’s moral blameworthiness at the lowest end of the spectrum. Jonathan was breaking into Peter’s truck in his driveway in the middle of the night, and Peter had been aware about reports of break and enters and vehicle thefts in the vicinity, and had received some information from his partner about recent safety concerns at their home. Peter testified that he believed Jonathan had a gun and that he was under grave and imminent harm. As such, the defence submits that there are significant components in the evidence going to provocation as a mitigating factor.

[135] Provocation is considered as a mitigating factor in sentencing where the partial defence has reduced second degree murder to a manslaughter conviction: see s. 232(1) of the Criminal Code; R. v. Clarke, (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.).

[136] Where, as in this case, provocation was not raised as a defence, the sentencing judge can still consider elements of provocation or self-defence in the circumstances of the offence that have the effect of mitigating the offender’s moral blameworthiness.

[137] In Bragg, as discussed above, though the jury rejected self-defence, the sentencing judge accepted that the offender “perceived that he had no options other than to use lethal force”, including calling 911, and that this lessened his moral blameworthiness: Bragg (B.C.S.C.), at paras. 24-25 (emphasis in original); Bragg (B.C.C.A.), at para. 13. While the offender’s “misguided belief that he had no viable options short of lethal force” was a mitigating factor, the sentencing judge stopped short of characterizing the circumstances as “near self-defence” and sentenced the offender to seven years’ imprisonment less time served: at para. 101.

[138] In R. v. Dhanda, 2005 BCCA 533, the jury rejected self-defence but accepted the defence of provocation, thereby reducing a conviction of second degree murder to manslaughter. The offender and the victim had an acrimonious history, which included various incidents involving threats and vandalism by the victim toward the offender and his friends, including on the night of the killing. The offender killed the victim by firing a pump-action shotgun twice at his face from close range. The court found that the circumstances leading to the killing, which were “freighted with acts of violence in which the [offender] had clearly participated,” were an aggravating factor on sentencing: at para. 9. As well, the offender had a prior conviction for the international sale of semi-automatic firearms for the purpose of drug trafficking. He was sentenced to eight years’ imprisonment.

[139] In R. v. Yaali, 2018 ONSC 3045, aff’d 2020 ONCA 150, a case put forward by the Crown, the offender pleaded guilty to manslaughter using a firearm and was sentenced to 13 years’ imprisonment. The offender had been a dispute with another male over his former girlfriend. He attended at the male’s home with a gun, saw the male was armed and fired numerous shots at him but ended up hitting the former girlfriend. The sentencing judge declined to find that there were elements of self-defence and provocation behind the offender’s actions that mitigated his moral culpability. The Court of Appeal agreed that “the actions of the other male led, to some degree, to the ultimate event, but … [the offender] could have taken other steps than deciding to confront the other male in the manner that he did”: Dhanda (C.A.), at para. 6.

[140] The jury did not find that Peter had the state of mind required for murder, which may be suggestive of less moral blameworthiness on his part. Provocation was not raised as a defence and was not a factor in the jury's determination of the appropriate verdict.

[141] In the present case, the suggestions with respect to elements of self-defence or provocation behind Peter’s actions are not particularly useful for my analysis on sentence as a mitigating factor. Arguably, in the period of time leading up to the confrontation, Peter had alternatives available to him which he did not pursue, such as calling 911 or firing a warning shot. Although Jonathan should not have been present at Peter’s residence in the early morning of February 4, 2016, while committing a criminal offence by stealing a truck or its contents, this does neither warrant nor justify what befell him.

[142] At the same time, the circumstances in this case are unlike those in Ferguson, Dingwell, Bragg, or Thomas, which involved serious threats from the victim and more imminent risk of bodily harm to the offender. While Jonathan may have been committing a criminal act and initiated the series of events that ultimately lead to his death, it was Peter who initiated the final fatal confrontation when he decided to investigate the noise coming from his driveway. In this context, any elements of self-defence or provocation do little in mitigation of Peter’s moral blameworthiness.

Analysis: The Appropriate Sentence in this Case:

[143] A sentencing decision is one of the most daunting tasks that trial judges face. This case is no exception. Both the Crown and defence have provided powerful and persuasive arguments.

[144] As I alluded to at the outset, no sentence that I impose will restore Jonathan to life nor expiate his family’s and community’s grief. The imposition of sentence requires a measuring of many factors. We do not sentence offences, rather we sentence offenders for having committed them.

[145] In their respective VIS, several individuals expressed their dissatisfaction about the justice system and the potential sentence to be imposed. Several victims urged a sentence of life imprisonment, offered their suggestions about maximum sentencing considerations, or made robust remarks related to retribution. Those statements tend to go beyond the scope of VIS in criminal sentencing proceedings.[^3]

[146] I feel compelled to address these comments in two respects.

[147] First, while it may be of little comfort, manslaughter, unlike murder, does not automatically invoke a life sentence. While I alluded earlier that the offence of manslaughter has perhaps the widest range of carceral terms available in the Criminal Code and the related jurisprudence, it is exceedingly rare to ever impose any sentence close to life imprisonment for this type of offence, even when a firearm is involved.

[148] Second, the offender was found guilty of manslaughter. The intent or state of mind required to commit murder was not established. Self-defence was rejected by the jury but the jurisprudence provides that it may still play a very limited role in the sentencing regime.

[149] Given the overall sentencing ranges proposed by both the Crown attorney and by defence counsel in this case; namely, a carceral term between four and 10 years, along with the relevant jurisprudence, Peter’s ultimate disposition will not be anywhere close to a life sentence.

[150] As Watt J. (as he then was) stated in R. v. Gray, [1995] O.J. No. 236, at para. 49:

To many, sentences in cases such as this are manifestly inadequate. They tend to trivialize the value of human life, it is often said. “That guy only got five years for murder”, seems a popular refrain. Sentences are imposed upon offenders for offences proven to have been committed. Manslaughter is not murder. It is not and cannot be punished as murder. Sentences cannot restore a life unlawfully taken. Nor do they reflect any measure of its value in either absolute or comparative terms.

[151] It must be worth mentioning that Jonathan’s Indigenous heritage was not a factor in the actual shooting and his death. At the relevant moment, Peter did not know the identity of the person who he had shot, as it was pitch black outside. There is no evidence whatsoever that the shooting was racially motivated. Had it been so established, I hazard to opine that the Crown’s submissions as to the appropriate sentence in this case, not to mention my ultimate decision, would have been well in excess of the proposed 10 to 12 year range of incarceration.

[152] The sentencing process in our law doesn't even pretend to achieve some sort of comparative balance between Jonathan’s life and the appropriate sentence to be given to Peter, who caused his death. I have heard very powerful and emotional VIS and CIS along with deeply felt grief from the loss of Jonathan. I commiserate with their grief, but I say that for me to attempt to appease that grief and bereavement, which is so real, by some eye for an eye approach to sentencing, is unachievable and undoubtedly could lead to flagrant inequities. Our law directs me otherwise.

[153] In determining the appropriate sentence, I am guided by the principles that I mentioned earlier in this judgment. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court of Canada stated 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:

Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge. [citations omitted.]

[154] As mentioned, I am not persuaded by the defence’s submission that this is a case of “near self-defence.” In conducting the assessment regarding Peter’s moral blameworthiness, I find that the relevant factors from R. v. M.(C.A.) and Stone work against him. Peter’s conduct reflects a degree of intentional risk-taking. He grabbed and loaded his shotgun and confronted a trespasser in the dark with very little knowledge about the intruder or the surrounding circumstances. His multiple actions of perilous behaviour created a situation in which the risk of harm occurring was present. Jonathan’s death was violent, and his loss has caused immense pain to his family and to the Indigenous community.

[155] The normative character of Peter’s conduct militates against him as well. Peter’s actions should be discouraged. Civilians must not take the law into their own hands in these circumstances. As a society, we must not encourage the brazen killing of intruders where there has been no or minimal consideration of alternative courses of action of resolving the situation. Responding with lethal force is not a decision to be taken lightly and should only be done as a last resort in very narrow circumstances.

[156] I am somewhat reticent to accept the defence’s submission that there was virtually no forethought of action or planning in the rapidly evolving events, with two shots fired in quick succession: See Laberge, at para. 23.

[157] It is true that there was minimal time taken to perpetrate the act. Indeed, assuming that the “act” was narrowed to the shooting itself, then the defence arguments may be entirely valid. However, if one examines Peter’s entire course of conduct- his role in the incident - leading up to the shooting, as directed by the Supreme Court in R. v. Khill, (S.C.C.), then it becomes apparent that there was a higher level of planning and forethought. Peter sought to “neutralize” the threat and took steps toward achieving that goal. Peter had time to consider his response upon suspecting that a potential intruder or intruders were outside. Instead of calling 911, he decided to arm himself and sought to “gain control” of the situation. While Jonathan may have been committing a criminal offence and initiated the series of events that ultimately lead to his death, it was indeed Peter who failed to avoid the final fatal confrontation.

[158] Yet, in these circumstances, it bears repeating that there were other reasonable actions Peter could have taken before the perceived threat was presented in order to avoid the foreseeable violent outcome.

[159] At the same, time, I note that the cases imposing eight to 12-year sentences for manslaughter relied on by the Crown attorney involve significant aggravating features that are absent from this case. This includes a prior criminal record or the offender being subject to a prohibition order at the time of the offence (Derby, Johnson, Roberts-Stevens), post-offence inculpatory conduct (Clarke, Dupuis, Johnson), or the public setting of the shooting (Derby, Johnson).

[160] Nevertheless, Peter made a choice to leave his house and confront the decedent, armed with a pump-action shotgun. Then, at the point of confrontation, he shot Jonathan twice believing that his life was under threat. After the shooting, Peter went back inside the home where his wife was calling 911 and placed his gun in the back hallway before returning outside to perform CPR on Jonathan’s body. Though he did attempt to perform life-saving measures on Jonathan, they were not immediate.

[161] Considering the full scope of events and Peter’s role in bringing about the violent incident, I find it hard to accept the defence position that Peter’s moral blameworthiness is on the very lowest end of the spectrum for the offence.

[162] In the cases relied on by the defence imposing sentences in the low-end range, there are distinguishing facts that mitigate the sentences in those cases, including significant and serious provocation from the victim (Ferguson, Dingwell, Bragg, Thomas), a guilty plea (Thomas), or discharging a firearm with no intention to hit the victim (Sahal), which are absent from the present case.

[163] I recognize that there remains a strong need to deter those who might resort to such use of firearms, and to express society’s collective condemnation of the dangerous behaviour, through a denunciatory sentence.

[164] As the Supreme Court stated in this very case, a claim of “[s]elf-defence is not meant to be an insurance policy or self-help mechanism to proactively take the law — and the lives of other citizens — into one’s hands”: R. v. Khill (S.C.C.), at para. 89.

[165] That being said, I am persuaded that there are significant mitigating factors related to the offender in this case.

[166] While I have determined that this is not a “near self-defence” case, I accept that Peter, fearing for his safety, perceived he had no other choice, that his life was in danger and his belief that he had no alternatives short of using lethal force. This suggests a lower level of moral blameworthiness compared to cases where the offender made a conscious decision to harm the victim (Johnson, Roberts-Stevens, Dhanda, Bragg).

[167] Further, Peter was relatively young at the time of the offence, with no prior criminal record. It is clear from his voluminous character references that he remains a productive member of society with very positive rehabilitative prospects. He has very strong family and community support, a steady history of employment, and by his own efforts and as outlined in the PSR, he has continued to lead a pro-social life and re-integration into society.

[168] While Peter does not fault the justifiability of his actions and maintained that he “did not feel [he] broke the law”, I find that the chances of any re-offending behaviour are non-existent.

[169] I am satisfied that a sense of responsibility for his conduct in this offence has been instilled in Peter and that he has sincerely acknowledged the harm done to Jonathan’s family, friends and the community. I accept his statements to the probation officer and in court, wherein he expressed sincere and heartfelt regret, that he wished this did not happen, and that he would change the outcome if he could.

[170] Given Peter’s background, including but not limited to, his demonstrated, genuine remorse, his overall pro-social life and support from family, friends and others, the impact of the protracted and lengthy criminal proceedings and appeal process, along with the impact of the collateral consequences; a sentence addressing specific deterrence - and to a very limited extent – denunciation, is of reduced significance in my overall consideration as to the appropriate disposition in this case.

Conclusion:

[171] It bears repetition and emphasis that the sentence that I impose now is not intended as a measure of the value or worth of Jonathan’s life or the impact of his tragic death on all those who loved him and were close to him.

[172] Indeed, sentencing remains an individualistic process, requiring a careful exercise of judicial discretion. In balancing the aggravating and mitigating factors and considering all of the relevant principles of sentencing for this offence and this particular offender, I impose the following disposition.

[173] Peter Khill is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code.

[174] A s. 109 order is imposed. Peter Khill is prohibited from owning or possessing any firearms, weapons, prohibited devices, prohibited ammunition, restricted weapons, and a whole host of other similar devices for 10 years (ss. (2)(a)), and for life (ss. (2)(b)), as defined in the Criminal Code.

[175] A s. 743.21 order is made with respect to certain members of Jonathan Styres’ family. A list of names is to be provided by the Crown to the Registrar to be included in the order.

[176] I conclude that a fit and appropriate sentence in this case is a term of imprisonment of eight (8) years in a federal penitentiary.

A.J. GOODMAN J.

Date: June 6, 2023

COURT FILE NO.: CR 17-069

DATE: 2023/06/06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

PETER KHILL

REASONS FOR SENTENCE

A. J. GOODMAN, J.

Date: June 6, 2023

[^1]: For ease of reference, I may refer to the decedent, the accused and other individuals by their first or last names, with no disrespect intended. [^2]: Given the material inconsistencies, in my direction to the jury, I suggested that Mr. Hoare’s evidence be carefully scrutinized and suggested that it be given less weight. [^3]: Criminal Code, s. 722(8).