Court File and Parties

Court File No.: CR-21-0085-00 Date: 2023-07-06

Ontario Superior Court of Justice

Between: His Majesty the King

Counsel for the Crown: Gordon Fillmore Katrina Van Kessel

- and -

David Gregorovich and Jason Raven, Accused

Counsel for the Accused: Jeremy Naresh, for Mr. Gregorovich Kevin Matthews, for Mr. Raven

Heard: June 2, 2023, at Thunder Bay, Ontario

Before: Mr. Justice F.B. Fitzpatrick

Reasons On Sentence

[1] I am rendering my decision on sentence in writing. By the end of business tomorrow I will provide counsel with a copy of these written reasons for the sentencing decision as I have read them. This final version, which reflects what I am about to read out loud to all of you, will be entered as the next Exhibit at this trial.

[2] April 25, 2019 was a busy day at the corner of Brodie Street South and Victoria Avenue in Thunder Bay. On that day, on that corner, a popular bar, Newfies Pub had quite a few patrons going in and out, as well as milling around one of the entrances to the bar that faced on to the corner of Brodie and Victoria Avenue.

[3] Andrew Ayre, Andy, a 52 year old man had locked his new bicycle to a post on Brodie Street besides Newfies that day. The bicycle was important to Mr. Ayre. It was his means of transportation. An altercation occurred between Andy and two other men concerning the bike that day. The bike was stolen and ridden off. Punches and kicks were thrown at various times. Mr. Ayre certainly got the very worst of it. He appears to have been knocked out and lay prone on the street corner for about 5 minutes following the fight. The injuries he received, particularly to his head, were of such a degree that he died of the injuries a few days later. This truly tragic series of events was shown to the Court by surveillance videos that caught the occasion from multiple angles.

[4] David Gregorovich has pleaded guilty to manslaughter in respect of the events of April 25, 2019, involving Andy. Jason Raven has pleaded guilty to robbery with violence to Andy in regard to the events of April 25, 2019.

[5] There was an extensive agreed statement of facts placed before the Court on the date the pleas were accepted. On the facts admitted and accepted by the defence I have found Mr. Gregorovich guilty of manslaughter. I have found Mr. Raven guilty of robbery contrary to section 343 (b) and 344 of the Criminal Code of Canada. On this hearing I also found Mr. Raven guilty of a breach of a probation order following his plea of guilt to that specific charge.

[6] On this sentencing hearing the Court reviewed and formally placed in evidence additional video evidence of the events of April 25, 2019. These videos showed the particular occasions where Andy was boot stomped by Mr. Raven and punched in the face numerous times by Mr. Gregorovich. Mr. Gregorovich has particularly fast hands and Andy was down on the pavement when he was struck repeatedly in the face by Mr. Gregorovich. The Court had reviewed much longer videos showing the incident in the course of conducting a pretrial application prior to the pleas being entered. These videos were formally in evidence before the court on this sentencing. The Court also considered and formally placed into evidence a video statement of Mr. Gregorovich to police made upon his arrest that had been viewed during a pretrial application. The Court also had a Gladue Report and a Pre-Sentence Report in respect of Mr. Raven. The Court had several letters of support with regard to Mr. Gregorovich.

[7] Mr. Gregorovich is a member of Fort Williams First Nation. I am taking account of the Gladue principles with respect to his sentence. I am well cognizant of these principles as required by section 718 of the Criminal Code of Canada, and discussed in the decision of the Supreme Court of Canada in R v. Gladue, [1999] 1 S.C.R. 688 and revisited by the Supreme Court of Canada’s decision in R v. Ipeelee, [2012] 1 S.C.R. 433.

[8] The Gladue report filed with respect to Mr. Raven contained extremely useful information concerning his background as well as helpful information concerning the various First Nations territories where Mr. Raven was raised.

[9] The Gladue Report and the PSR for Mr. Raven were quite thorough in discussing his life and the very difficult background he has endured. Unfortunate circumstances of hunger, poverty, violence, family dislocation and disfunction have all characterized Mr. Raven’s life.

[10] The submissions concerning Mr. Gregorovich’s connection to his Indigenous heritage were not so fulsome.

[11] Ultimately Andy ended up dead over a fight or fights about a bike. I cannot adequately express the senselessness of how events of that day unfolded.

[12] This crime has had a significant impact on Andy’s immediate and extended family. His partner gave a victim impact statement. While it described her feelings, it also disclosed that Andy’s children have been particularly effected. The family has experienced a profound sense of shock, grief and disbelief concerning his death. There was also a significant amount of anger expressed in the victim impact statements I heard. This is perfectly understandable. There were also voices of forgiveness.

[13] It seemed clear to me the family is having a very difficult time understanding why this happened. They must live with the results of this senseless death for the rest of their lives. Perhaps aggravating all of this was how they had to watch, as I did, the events of April 25 on video. Andy’s children have lost a man who was intimately and importantly involved in their lives. I agree with the sentiments expressed that no sentence can replace Andy.

[14] In this case the two offenders before the Court were convicted of different offences. In my view there is a different degree of culpability for both.

[15] Mr. Gregorovich has been found guilty of the offence of manslaughter further to section 236 of the Code. As no firearm was involved there is no minimum sentence for this offence. The maximum punishment for this offence is life imprisonment.

[16] Mr. Raven has been found guilty of aggravated robbery. The maximum punishment for the offence of robbery is life imprisonment further to section 344(1)(b). No weapon was used by Mr. Raven. Correspondingly no minimum sentence is mandated for this offence.

[17] The parties agree on a range of sentence in respect of both offenders. The parties vary significantly as to where I should go in terms of the range. For Mr. Gregorovich the parties agree the sentencing range is 4 to 7 years. For Mr. Raven the range is 3 to 5 years for the robbery offence. Not surprisingly the Crown advocates for the top of the range and the defence advocates for a sentence at the bottom of the range.

[18] Mr. Raven submits Gladue factors suggest a fit and just sentence should be imposed on him in the form of a conditional sentence order in respect of the breach charge.

[19] The parties agree both men will be entitled to credit for time they served in pre-sentence custody. There is no dispute that they should at a minimum, receive credit of time served at the rate of 1 to 1.5. However, both men ask for additional so called Downes and Duncan credits as the result of the conditions they endured while in pre-sentence custody. The Crown opposes any Downes or Duncan credits for both men.

[20] I begin by addressing the request for Downes or Duncan credits. I am not prepared to exercise my discretion to grant such credits to either offender. With respect to Mr. Gregorovich, his time was served mostly in times when either the COVID reality was not present (ie. pre March 2020) and when the society was beginning to better deal with the pandemic (ie. The period March 24, 2021 to June 10 2021). I was not persuaded by the submissions of counsel that the strict bail conditions Mr. Gregorovich experienced at any time following his arrest and particularly upon being fitted with an ankle monitor upon his release in June 2021 warrant enhanced credit for pre-sentence custody. There was not sufficient evidence placed before the Court on this hearing to convince me that this time should be treated as mitigating factor for Mr. Gregorovich.

[21] I appreciate Mr. Raven got COVID while in custody. I was not given sufficient evidentiary detail of the degree to which he was adversely affected by this circumstance to decide that some additional credit is called for as a result. I agree with the Crown submission that Mr. Raven cannot receive credit for time spent on a release order with which he did not comply.

[22] These offenders have been found guilty of different types of offences in respect of their interactions with Andy on that fateful day in April 2019. It is easy to understand that the offence of aggravated robbery is different than that of the offence of manslaughter. Andy ended up dead as the result of being subjected to actions arising from the actions of both offenders. However, I see their degree of culpability as being different. This is reflected in the range of sentences proposed for both offenders.

[23] I will begin with a fit, just and appropriate sentence for Mr. Gregorovich. Despite the able submissions of his counsel, I am not persuaded that this is a circumstance that calls for a sentence toward the bottom of the agreed range. I was not persuaded by what I saw in the course of considering the pretrial application evidence and the evidence on this sentencing hearing that Mr. Gregorovich was sufficiently threatened by Andy that day to an extent that warranted the beating he laid on him. And he kept it up when Andy was down. It was a vicious attack. Mr. Gregorovich in addressing the court said he should have walked away that day. I agree. But he did not. I agree with the submissions of the Crown that Andy was presenting to Mr. Gregorovich as a vulnerable person at the time when Mr. Gregorovich engaged in the interactions with him that lead to the fight between the two. In my view Mr. Gregorovich had a good deal of time to assess the situation as can be seen from the obvious verbal interaction occurring between Mr. Gregorovich and Andy before the fight starts. Watching Mr. Gregorovich’s actions, I agree with the Crown’s submissions that in wrapping his hands he was “blading”… I think he was preparing to fight Andy and when he did, Mr. Gregorovich acted in a particularly vicious way. Mr. Gregorovich was 20 years younger, 4 inches taller and 30 pounds heavier than Andy. I agree with the Crown that the provisions of 718.04 of the Code are applicable in this situation.

[24] Section 718.04 of the Code provides that when the Court imposes sentence for an offence that involves the abuse of a vulnerable person because of personal circumstances that the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. Andy was clearly unsteady on his feet when engaged by Mr. Gregorovich. Andy had been unsteady on his feet for some time. He was leaning up against a nearby wall. This is because he had just been boot stomped and punched by Mr. Raven in the course of the theft of the bike. Mr. Gregorovich witnessed this, and I am of the view he had ample opportunity to observe Andy while the two were arguing before Mr. Gregorovich engaged in the fight.

[25] In my view a fit, just and appropriate sentence in these circumstances for Mr. Gregorovich is a sentence of six years with credit for time served at the rate of 1 to 1.5. Mr. Gregorovich is entitled to pre-sentence custody of 455 days. I rounded up for the 303 real days he served.

[26] I impose this sentence for the following reasons.

[27] The case law in regards to manslaughter matters varies widely as to sentence. Sentencing is always fact specific. No doubt this was a crime of violence and involved a brutal application of force by a relatively young healthy man to a middle aged man who was suffering the effects of just having received some significant physical punishment.

[28] In my view the facts of this case call for a penitentiary sentence to both denounce and deter the conduct of Mr. Gregorovich.

[29] Mr. Gregorovich has expressed remorse. He has entered a plea. He claims to be a changed man.

[30] Mr. Gregorovich is an Indigenous person. Section 718.1 dictates the sentence must by proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2(e) of the Code mandates consideration of Mr. Gregorovich’s background in any decision concerning sentencing and any other available sanctions. In my view Gladue principles and the provisions of the Code with regard to Indigenous offenders have already impacted the parties’ position concerning the range of sentence. The range of proposed sentence is appropriate taking into account any possible diminished moral blameworthiness of Mr. Gregorovich resulting from his Indigenous background. He chose not to participate in the process of preparation of a pre-sentence report with a Gladue component. I have proof of his status. That is the extent of the information I have about Mr. Gregorovich’s Indigenous background. However, I do know that Andy is dead. I know Andy suffered significant head trauma at the hands of Mr. Gregorovich. This is an aggravating circumstance on sentence.

[31] Stand up please Mr. Gregorovich.

[32] Taking all of this into account a fit and just sentence is a period of six years’ incarceration, (2,190 days) less time served of 303 days enhanced at the rate of 1 to 1.5 for a total credit of 454 days. By my calculation this leaves Mr. Gregorovich to serve 1,736 days, or four years and nine months in custody in respect to the balance of his six year sentence. There will be a DNA order pursuant to section 487.05(1). Further Mr. Gregorovich shall be prohibited from possessing or owning weapons for life pursuant to the provisions of section 109 of the Criminal Code. During his time in custody, he shall not contact any of the persons who have given victim impact statements in this matter. The victim impact surcharge is waived.

[33] I now turn to Mr. Raven. Despite the able submissions of Crown counsel, in all the circumstances of this matter, I am not persuaded that a sentence in the upper end of the range is called for in this matter. Mr. Raven has served 380 days in actual pre-sentence custody. Just over a year. And it was not easy time. He has paid a price that reflects an expression of denunciation by society of his conduct in this matter. I do not see what Mr. Raven did as in any way trivial. It was cowardly, arrogant and unnecessarily violent. Foolish too.

[34] I also have to consider that he has been found guilty of breaching conditions while awaiting resolution of the main charges. I do not see his failure to contact police as a trivial or inconsequential breach of his release conditions.

[35] However, I have in front of me comprehensive and thorough materials regarding Mr. Raven’s background. He has been subjected to significant adverse circumstances that are tragically all too characteristic for Indigenous persons growing up in this part of the world. Poverty, abandonment, drug addiction, violence. Complete absence of opportunity. It does not excuse Mr. Raven’s behaviour. But it does explain it to a degree.

[36] I am persuaded by the submissions of counsel that a sentence of three years given all that has occurred here is a fit and just sentence for Mr. Raven. Further I find Mr. Raven liable to serve a sixty-day sentence for his breach charge. However, this sentence will be served concurrently with what remains to be served with the three year sentence. I do not see a conditional sentence as appropriate for the breach charge given the flagrant way Mr. Raven disregarded the order of the Court for the extended period he did.

[37] Mr. Raven did what he did. It deserves denunciation. He did things in the course of the robbery that deserve a penitentiary sentence. However, I am directed by section 718.2(e) of the Code to consider all available sanctions other than imprisonment. Mr. Raven’s counsel advocates that the Gladue principles and the circumstances of this particular offender suggest that a conditional sentence is appropriate for the breach charge. I have just explained why I do not think this is appropriate in this case.

[38] The Crown argues that Mr. Raven should not receive credit for some pre-sentence custody that he did as the result of his breach of conditions. Notwithstanding what I said previously, now considering this, I am not persuaded by that submission in light of my decision that he is to serve a sentence for breach concurrently with the sentence I am imposing now. In my view it is just that Mr. Raven receive a credit for pre-sentence custody of 666 days in respect of the global three-year sentence I am imposing now. A three year sentence is 1,095 days. This means Mr. Raven has 429 days left to serve.

[39] Stand up please Mr. Raven.

[40] Taking all of this into account, in my view, a fit and just sentence for the robbery is a period of three years, less time served at an enhanced rate of 1 to 1.5 for a total credit of 666 days. He is to serve sixty days concurrently for the breach charge. Mr. Raven will be incarcerated for a further period of 429 days. There will be a DNA order pursuant to section 487.05(1). Further Mr. Raven shall be prohibited from possessing or owning weapons for life pursuant to the provisions of section 109 of the Criminal Code. However, there shall be an exception in this order for those occasions (once Mr. Raven has finished the period of his custodial sentence) in the event Mr. Raven requires firearms or weapons for the purpose of exercising his constitutional or treaty rights to hunt or fish. The victim impact surcharge is waived.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick Released: July 6, 2023