R v. Beals, 2023 ONSC 555

COURT FILE NO.: CR-18-1309-00

DATE: 2023 01 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Brian McGuire, for the Crown

• and -

DEVIN BEALS

R. Roots Gadhia, for Devin Beals

-and-

CLIVE WALTERS

-and-

ALEXANDER BUCKLAND

Alonzo Abbey, for Clive Walters

Terry Kirichenko, for Alexander Buckland

HEARD: October 6 and November 28, 2022

REASONS FOR SENTENCE

D.E HARRIS J.

1Devin Beals, Clive Walters and Alexander Buckland were charged with the first degree murder of Heidra Shraim committed November 22, 2017. The jury convicted each of manslaughter. These reasons explain what the appropriate punishment is for the three men.

2The defence for Beals and Buckland argue for time served. Mr. Beals was in pre-trial custody for almost three years before being released on bail. Mr. Buckland was in pre-trial custody for 926 days. Counsel for Mr. Walters argues for a conditional sentence. He was in pre-trial custody for 148 days before getting bail.

3For the Crown, Mr. McGuire argues for a sentence of 10-12 years for Mr. Beals and 6-8 years for each of Mr. Buckland and Mr. Walters.

4The task on this sentencing is to first find the facts necessary for sentencing and then, based on those facts, impose a sentence proportionate and appropriate to the offender and his offence.

FACTUAL FINDINGS

5Mr. Shraim, merely 22 years old, was stabbed in the sternum once by Mr. Beals in a conflict between two groups of men outside Meadowvale Town Centre in Mississauga. The wound was fatal. It penetrated his heart and he bled to death. After being stabbed, Mr. Shraim fell to the ground, going quickly into unconsciousness while his friends, Daniel Fiseha and Simar Bitar, watched helplessly in horror. He soon became unresponsive. He was pronounced dead shortly afterwards.

6This was a tragic, meaningless loss of a young life. One of the witnesses, Umang Suri, put it best when he said in his testimony that the sequence of events leading to the death was “so much stupidness.” The fight between the Shraim group and the Beals group and the events which led to it were the product of purposeless, foolish anger. That a death was caused as a result is heart-wrenching. It was a terrible waste of a young life. The deep anguish of the loss will be felt by his family forever.

THE FINDINGS OF FACT FOR SENTENCING

7In finding facts for this sentencing, the Supreme Court of Canada in the leading case of R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 17-18 (also see R. v. Moreira, 2021 ONCA 507 at paras. 45-51) and the Criminal Code in s. 724(2) impose several obligations on a sentencing judge following a jury verdict:

a) All facts essential to a jury verdict, express or implied, must be accepted by a sentencing judge. Conversely, facts ought not to be found that were expressly or implicitly rejected by the jury;

b) Where a jury verdict leaves some facts ambiguous, it is not possible to reconstruct the jury’s fact finding process. The trial judge must come to his or her independent conclusions;

c) Only those facts necessary to enable the proper sentencing of the offender ought to be decided by the sentencing judge; and

d) Aggravating factors must be proved beyond a reasonable doubt. Mitigating factors and other facts are to be proven on the lower balance of probabilities standard.

FACTS ESSENTIAL TO THE JURY VERDICT

8Determining the facts essential to the jury verdict is the necessary first step. Four facts can be derived from the manslaughter verdicts.

9First, self-defence as relied upon by Mr. Beals in his testimony was rejected. The jury was directed that self-defence is a complete defence to any of the forms of culpable homicide and that if self-defence was not disproved by the Crown, verdicts of not guilty should be delivered. The manslaughter verdicts conclusively demonstrate that the jury rejected self-defence.

10It is not possible to say beyond this what factual findings led to the rejection of self-defence. Self-defence for a jury is a multi-faceted question of mixed law and fact. The specific facts found by the jury underlying its rejection of self-defence are unknowable. There can be no certainty. The ambiguity requires that I resolve the issue.

11The second fact we know from the jury verdicts is that Mr. Beals stabbed Mr. Shraim and caused his death. The stabbing, not justified or excused in self-defence, was an unlawful, dangerous act. This was essentially conceded at trial if self-defence was unsuccessful, as it was.

12The third fact we know derives from the acquittal on murder. The acquittals show that the jury found that Mr. Beals did not intend to kill Mr. Shraim, nor did he have the recklessness for murder as defined by section 229(1)(a)(ii) of the Criminal Code.

13Lastly, for the accomplices Mr. Walters and Mr. Buckland, the jury was instructed in accord with R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573 that if they intentionally assisted in acts which led to the death of Mr. Shraim and a reasonable person would have foreseen the likelihood of bodily harm, these elements would prove them guilty of manslaughter. In convicting of manslaughter, the jury found these legal elements. But it cannot be known the facts the jury relied upon to ground either the act or the fault element of this legal test.

THE CENTRAL FACT: WHICH OF THE TWO GROUPS WAS THE AGGRESSOR?

14Two groups came into conflict in the grassy area of the Meadowvale Town Centre. On one side there was the deceased Heidrah Shraim and his friends Simar Bitar and Daniel Fiseha. Umang Suri was there too. On the other side was Devin Beals, Clive Walters, Alex Buckland and Shayne Beals. Shayne Beals pled guilty to manslaughter before this trial commenced.

15The central theme running through this trial was the question of who the aggressors were in this ill-fated confrontation which led to the tragic death of Heidrah Shraim. Mr. Beals said it was Mr. Shraim and his friends; contrary evidence points to Mr. Beals and his accomplices as the aggressors. It is important to understand that although this was one of the main issues over which this trial was fought, it did not constitute the legal focal point of the self-defence issue. The jury could have found that the Beals group were the aggressors but that, just before the lethal wound was inflicted, consistent with Mr. Beals' evidence, Mr. Shraim had been coming at Mr. Beals with a knife and Mr. Beals was protecting himself from potentially deadly force, as he testified. The jury's rejection of self-defence does not mean that they found that Mr. Beals' group were the aggressors.

16I must resolve the ambiguity. The issue is of fundamental importance. If Mr. Beals and his co-accused, together with Shayne Beals, were the aggressors, this would be a central aggravating factor on sentence. It would mean the Beals group tracked down the Shraim group in order for Mr. Beals to exact his revenge on Mr. Shraim. If, on the other hand, it was the deceased’s group which confronted the offenders, the offenders' moral blameworthiness would be substantially diminished.

MR. BEALS' EVIDENCE

17Mr. Beals testified in his own defence that there was a confrontation in the Glen Erin underpass at about 3:30 p.m. on November 22, 2017. This was a frequent hang-out spot for people to drink, smoke and socialize. Crown witnesses Simar Bitar and Umang Suri testified that they were there at the time. Clive Walters was there as well. So too was the deceased, Heidrah Shraim. What is clear is that when Devin Beals rode by on his bike, a disagreement of some kind broke out between him and Heidrah Shraim. While Mr. Bitar said that Mr. Beals stopped his bike and proclaimed, “Who wants to fight!”, I find it unlikely that Mr. Beals would have issued such a bellicose proclamation with no prompting whatsoever. Mr. Beals denied it in his testimony. Mr. Beals said there was to be a marijuana transaction with Danny Fiseha but it was clear in the evidence from all witnesses that Danny was not there when Mr. Beals arrived.

18Mr. Beals’ evidence was that Heidrah Shraim came over and was verbally abusive, using the n-word repeatedly. When he turned away to speak to Mr. Walters, Mr. Shraim sucker punched him in the nose. Mr. Beals punched him back. Mr. Suri intervened and broke it up. Mr. Beals was shocked and dazed and he rode off up the hill. Mr. Beals testified that Mr. Shraim followed him up the hill to Glen Erin and for a significant distance, yelling that he was going to kill him. Bitar also testified that he ran after Mr. Beals. Both of these actions are confirmed by a video surveillance clip.

19Mr. Beals said he was shaken up from being punched but shrugged it off. He denied repeatedly that Mr. Shraim cut him with a knife in the underpass. It is true that none of his blood was found there. Instead, Mr. Beals testified that his knife wounds including an incised wound to his face, all documented in photographs that were taken when he turned himself in to the police several days after the incident, were inflicted on the grassy area near the bus terminal. His blood was found on the grass there.

20Simar Bitar and Umang Suri confirmed that there was a confrontation in the underpass but neither of them saw a knife in Mr. Shraim’s hands even though Mr. Suri’s hand was cut through his glove. All counsel agreed that it was Mr. Shraim’s knife that must have caused this wound, even though Mr. Suri did not testify that this was the case nor did he tell personnel at the medical clinic near the bus terminal that this was what happened.

21After Mr. Beals returned home, he testified Clive Walters came to check on him. Mr. Beals told Walters that he did not get the weed from Daniel Fiseha that he was anticipating. Mr. Walters agreed to help him. He called Alex Buckland who arrived shortly afterward with his girlfriend, Samantha Fishman. There was a stairwell discussion.

22Mr. Beals said that the purpose was to arrange for the consummation of the drug deal. The three men, together with Mr. Buckland’s girlfriend, Ms. Fishman, then piled into Mr. Buckland’s car and drove to the Meadowvale Town Centre Bus Terminal area.

23Mr. Beals, although originally planning to stay home, testified that he felt some pressure to complete the marijuana transaction and decided to go with the others to Meadowvale. Also, his nephew Shayne Beals was supposed to come over to Mr. Beals’ apartment, so Mr. Beals called him and redirected him to meet him at Meadowvale to smoke a joint with him.

24A call was made by Clive Walters to his friend Daniel Fiseha. The defence position was that this was to ascertain where Fiseha was in order to complete the drug transaction. The Crown position was that this was to determine where Mr. Shraim was in order to get back at him and to take revenge for the wounds he inflicted on Devin Beals.

25The time of the fatal confrontation was around 7:30 p.m. Mr. Beals testified that the four arrived in Alex’s car. There was no intention to confront the Shraim group. They walked along the path towards the grassy area with Mr. Beals out front. Mr. Beals saw Mr. Suri not far from the 13 bus and said hi to him. Immediately after, according to Mr. Beals, he was swarmed by several assailants. He was hit about the left shoulder. Then he was sliced or stabbed on the right wrist. He yelled out, “I think these guys have knives.” In the fight that followed, when Mr. Shraim came at him with a knife, Mr. Beals stepped forward one step and stabbed Mr. Shraim.

26I note that there was some evidence to support that there was a drug transaction in the works between Mr. Beals and Mr. Fiseha, as Mr. Beals testified. Mr. Fiseha denied it but his credibility was weak for a wide assortment of reasons. There were three calls with Mr. Beals the day before the killing, November 21, 2017 that were relatively lengthy based on the cell records. There was one the day of as well. Mr. Fiseha told the police initially that he did not know Mr. Beals. Confronted with the evidence of these calls, he denied making the calls. He picked up on one of the officer's somewhat facetious suggestions that perhaps someone else was using his phone. This was ludicrous and incredible. Mr. Fiseha was blatantly lying. It seemed he had something to hide. That he was hiding the fact of a drug transaction of some kind with Mr. Beals is certainly a reasonable possibility.

THE EVIDENCE CONTRADICTING MR. BEALS

27The major evidence supporting the contrary conclusion that Mr. Beals and his group were the aggressors came from Ms. Fishman. Ms. Fishman was called by the Crown but was a reluctant witness, albeit a very sympathetic one, in my view. The travails she endured in this investigation and the subsequent prosecution were extraordinary. Her resilience under the most extreme pressure was commendable. She stands out as the only witness who told virtually the whole truth in this trial. And it was largely the result of her evidence that the jury was able to do justice in this case.

28Ms. Fishman was first interviewed by the police on December 20, 2017, simultaneous with a separate police arrest and interview of her common-law husband, Alexander Buckland. This was carefully orchestrated. The police had executed a Feeney warrant to arrest Mr. Buckland and search the residence they lived in together. A considerable amount of force was used according to Ms. Fishman. Guns were drawn and the police threatened to shoot their dog. Ms. Fishman was pregnant. Ms. Fishman's pregnancy was a repeated motif in this trial.

29During the execution of the search warrant, Ms. Fishman was very frightened and had a panic attack together with spiked blood pressure. The police took her to the hospital where she remained for some time. It was while in her hospital bed that Ms. Fishman was interviewed by the police. She was resentful at this trial that she was interviewed in these circumstances. It was less than ideal, but, of course, this was a homicide investigation.

30Although her entire statement was not put in evidence, Ms. Fishman appeared to largely co-operate with the police. Her evidence was a main plank in the Crown case against the defendants. At the same time, Ms. Fishman's testimony about what occurred in the car immediately before and after the stabbing likely played a major part in the jury finding that there was no mens rea for murder and acquitting of that offence.

31In this trial, Ms. Fishman was called by the Crown about one week before she was due to have her second baby. It seems that the police had not kept sufficiently in touch with her to better schedule the timing of her evidence. After testifying for the Crown in chief for about 10 minutes, Ms. Fishman collapsed under the strain and could not continue. Her evidence was ultimately heard about 17 days after the birth of her baby girl.

32Ms. Fishman testified against her interest. On the issue of liability for manslaughter, her evidence incriminated her common-law husband Mr. Buckland and the other two accused. When Mr. McGuire took her through the events, her memory was poor. There was about 5 years between the events she was describing and her testimony at this trial. However, at least some of her memory lapses were more convenient than real. Mr. McGuire constantly had to refresh her memory from her police statement but when he did, she invariably adopted what she had earlier said. It is worth observing that Ms. Fishman's police statement was attended by a so-called "KGB" warning, advising her that if she later deviated from what she said, she could be charged with fabricating evidence and jailed for up to 14 years. The jury was instructed that this warning, depending on their views, could compromise the reliability of her evidence.

33Ms. Fishman was a witness stuck between Scylla and Charybdis, two daunting prospects. She wanted to help her husband but she could not deviate from her original statement without opening herself up to cross-examination by the Crown as an adverse or hostile witness and potentially being prosecuted for fabricating evidence.

34It was Ms. Fishman's evidence that Mr. Walters called Mr. Buckland late on the afternoon of November 22, 2017. Mr. Buckland told Ms. Fishman that there had been an altercation. He said he wanted to go check up on Mr. Beals. They drove to his apartment building in Alex’s car. There was the stairwell discussion. Present was Mr. Walters, Mr. Buckland, Devin Beals and Ms. Fishman. Ms. Fishman described Mr. Beals’ injuries, injuries that appeared consistent with being sliced and stabbed with a knife. Mr. Beals said that he had been in a fight under a bridge in Meadowvale with a man with brown skin and who had a knife. He was questioning how he could go to work with a big scratch on his face. The photographs entered into evidence from Mr. Beals' booking a few days later showed a conspicuous, relatively long cut across the bridge of his nose and other stab wounds as well. Mr. Beals, according to Ms. Fishman, wanted to get the kid who did this. Mr. Walters said that Mr. Beals had to do what he had to do. Mr. Beals was angry and upset. Mr. Beals called his nephew Shayne Beals on Mr. Buckland’s cell phone, telling him that he had been stabbed and wanting him to come to help him.

35Mr. Walters called Mr. Suri to see where they were. It turned out to be the walk-in at Shoppers. The purpose of driving there, which they did, was to have another fight. Ms. Fishman stayed in the car but Mr. Buckland, Mr. Beals, and Mr. Walters exited. Shayne Beals arrived in a black Chrysler 300 and parked close to where they parked.

36Ms. Fishman saw Mr. Buckland and Mr. Beals quickly approach the other group. She did not see details of the confrontation. Then the men came running back to the car.

37In the car, Ms. Fishman testified that Mr. Walters said he was kicking someone. Mr. Buckland said he punched Mr. Fiseha and threw him to the ground. He kicked him twice. Mr. Buckland broke Mr. Fiseha’s glasses. Mr. Walters kicked a little bit. Also, it may have been said by Mr. Buckland in the car on the drive that Mr. Beals pulled Alex’s knife from his pants clip during the altercation. Mr. Beals evidence at this trial was that Mr. Buckland gave him the knife during the altercation and that he gave it back to him after stabbing Mr. Shraim.

38In any case, Ms. Fishman testified that Mr. Beals had the knife when he returned to the car. There was blood on it. He put it in a bag and took it with him when he got out of the car with Mr. Walters. Mr. Beals denied this in his evidence.

39In the car, according to Ms. Fishman, Mr. Beals said that Mr. Shraim had a knife. Mr. Beals said that he did not mean to stab Mr. Shraim in the chest. He thought that Mr. Shraim was going to probably die. Mr. Buckland said in the car that “we are fucked”; everyone in the bus could see what happened.

40There is support for Ms. Fishman's testimony that Mr. Beals was cut in the underpass confrontation. It is corroborated by the fact that Mr. Shraim had a knife on his person at that time. Mr. Suri was accidentally cut with it. Mr. Bitar probably saw the knife as he was right there at the time of the confrontation. Although he denied seeing it, this was likely a mistruth for the purpose of protecting Mr. Shraim's reputation after his death.

41There is also direct support for Mr. Beals' group being the aggressors in the fatal confrontation. Mr. Bitar was cut by a knife in the grassy area in the second confrontation. Mr. Bitar testified that it was Mr. Beals who caused the wound. It was an admission of fact at trial that the wound was a slice from elbow to wrist on the inner part of Mr. Bitar's right forearm. The video of the Meadowvale bus terminal was a major piece of evidence on this prosecution. The camera panned through a number of areas but showed the area of the fight at two different times: 7:25:23 p.m. and about a minute later. The fatal altercation was not shown. The quality of the video was quite poor and faces and details such as whether someone was holding a knife could not be discerned with certainty.

42However, in the first time period, Mr. Bitar is shown tripping over what was probably a tree stump and falling backwards. A man, admitted by Mr. Beals to be him, runs over to Mr. Bitar and bends down towards him. Mr. Shraim then approaches and Mr. Beals stands up and backs away.

43Mr. Beals denied that when he bent down, he sliced Mr. Bitar with a knife. He was bending down to disarm him, although he himself did not have a knife at the time. This is implausible. The video puts Mr. Beals in a perfect position to have caused this knife injury. When Mr. Shraim approaches, likely wielding the knife we know he had, Mr. Beals backs off quickly. It only makes sense that, there being no other reasonable explanation, this is the time Mr. Bitar suffered his injury. The video images support Mr. Bitar's evidence. The infliction of this wound is one further piece of evidence suggesting the Mr. Beals' group were the aggressors.

44Another important piece of circumstantial evidence is that it was unlikely to be coincidence that the Beals group ended up where the Shraim group was at the Shoppers Drug Mart at Meadowvale Community Centre for the purpose of getting Mr. Suri medical attention for his cut hand. Phone calls were made from Mr. Walters to Mr. Suri and Daniel Fiseha to ascertain where Mr. Shraim was at the time. Once this information was received from Mr. Fiseha, the Beals group, four in all, materialized in force. It is true that there may have been a marijuana transaction in the works between Beals and Fiseha. In his police statement, Mr. Fiseha blatantly lied about not knowing Mr. Beals and not talking to him a day before the crime. But that does not displace the strong evidence that the Beals group tracked down the Shraim group in order to take revenge, as Ms. Fishman testified.

45Lastly, Mr. Shraim had only a weak motive to attack Mr. Beals. On the other hand, Mr. Beals, having been cut with a knife in the underpass, possessed a strong motive to attack Mr. Shraim: revenge.

CONCLUSION ON THIS ISSUE

The prophylactic rule from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 applies to the process of finding aggravating factors sought by the Crown to be proved on sentencing. The rule operates any time the standard of proof is beyond a reasonable doubt and there is a reasonable possibility a judge could fall into the trap of resolving a fundamental conflict in the evidence by mere preference of the Crown version over the defence version. That is the chronic error the W.(D.) instruction was formulated to prevent: R. v. Y. (C.L.), 2008 SCC 2 at para. 8; R. v. S. (J.H.), 2008 SCC 30 at paras. 10-13. This prospect reaches its apex in cases of credibility. That is when the temptation to abridge the burden and standard of proof is the strongest.

46Marshalling all the evidence supporting Mr. Beals' evidence that he was not the aggressor, based on the discussion above, I have no hesitancy in concluding that I do not believe Mr. Beals' account nor am I left in a reasonable doubt by it. I reject his version and find beyond a reasonable doubt that Mr. Beals, Mr. Walters and Mr. Buckland sought out the Shraim group to take revenge for the injuries inflicted on Mr. Beals in the underpass. Similarly, based on all the evidence, I reject Mr. Beals' denial that he caused the wound to Mr. Bitar. I am not left in reasonable doubt by it. I find beyond a reasonable doubt, in the context of the evidence demonstrating the Beals group were the aggressors, that Mr. Beals caused the incised injury to Mr. Bitar with a knife. These conclusions are the only reasonable inferences available from the evidence.

47Ms. Fishman gave her statement to the police and was testifying against interest. In her statement to the police from the hospital, she had no reason to lie when she implicated her husband and her husband's friends. Other evidence strongly buttresses her credibility. The cumulative force of Ms. Fishman's evidence, the cut to Mr. Bitar's forearm in circumstances where the video shows Mr. Beals leaning over him during the fatal confrontation, the coalescing of the Beals group where the Shraim group were at Meadowvale, together with the strength of the revenge motive, leave no reasonable doubt.

48One important ramification of the finding that Mr. Beals was stabbed and cut by Mr. Shraim in the underpass is that he knew that Mr. Shraim was in possession of a knife before the Meadowvale confrontation. The inescapable inference flowing from this is that when he exited the Buckland car to attack Mr. Shraim or immediately after he left the car, he too must have had a knife. He could not have intended to attack Mr. Shraim who had a knife without a weapon of his own. One does not go to a knife fight without a knife.

THE FINDING OF FACTS FOR MR. WALTERS AND MR. BUCKLAND

49With reference to Mr. Walters, the jury had evidence that he was in the underpass in the first confrontation. He told Detective Heyes that he saw Mr. Shraim with a knife and jumped in to quell the confrontation. I have no reason to doubt this. I find that Mr. Walters, as Ms. Fishman testified, was present for the stairwell discussion and made calls to Mr. Suri and Mr. Fiseha. I am convinced beyond a reasonable doubt that these calls were for the purpose of ascertaining where Mr. Shraim was in order that Mr. Beals would have his revenge on him.

50I make several other findings. Ms. Fishman said that in the car before the men exited, Mr. Walters said, "Do it, do it." He was egging Mr. Beals on although this was not likely necessary. I am convinced beyond a reasonable doubt that this was said and for the purposes of encouraging a dangerous unlawful act that a reasonable person would have foreseen to cause bodily harm. For reasons similar to those with respect to Mr. Beals, I am convinced that Mr. Walters knew that Mr. Beals had a knife. I do not find that Mr. Walters did anything in the fatal confrontation. The poor quality video tends to show that the person with the baseball cap on, likely Mr. Walters, did not do anything to participate in the assault on the other group. Also, Mr. Walters was affected by alcohol during the events, although I cannot comment any further than that.

51Mr. Buckland drove the car to the confrontation knowing that Mr. Beals intended to attack Mr. Shraim with a knife and then drove away knowing that Mr. Shraim had been stabbed by Mr. Beals. He acknowledged in his statement to Det. Heyes that he had held Mr. Fiseha down on the ground during the Meadowvale confrontation to ensure that he would not get involved. I reject Mr. Fiseha's evidence that Mr. Buckland had a knife. Mr. Fiseha was a thoroughly unreliable and incredible witness, even on his own account. No other evidence supports the evidence that Mr. Buckland was armed.

IS THIS A CASE OF "AGGRAVATED MANSLAUGHTER"?

52Having made these findings, Mr. McGuire's argument that this was a case of aggravated manslaughter can now be addressed. I do not agree with this argument for two separate reasons.

53First, the Court of Appeal has held that labelling an offence as "aggravated manslaughter" ought not to be done. The "aggravated manslaughter" moniker was first mentioned in passing by the Court of Appeal in a brief oral endorsement released the same day the appeal was heard in R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.). Defence counsel at trial had used the term aggravated manslaughter, but upon appeal, the defence reversed field and argued that the case was not an instance of aggravated manslaughter. The Court's response in their endorsement was, "We disagree. There are numerous aggravating factors in this case": see paragraph 7. The Court then listed the aggravating circumstances. The Court lowered the post-credit sentence from 12 years to 9 years. At no time did the Court state that there ought to be an aggravated manslaughter graduated level of culpability for the purposes of sentencing.

54In R. v. Devaney, (2006) 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), the Court of Appeal expressly disagreed with carving out a special niche for "aggravated manslaughter" and held that Clarke had not done so. Justice Rosenberg, referring specifically to Clarke, stated:

33 The first question is whether it is appropriate to label a subcategory of manslaughter as "aggravated manslaughter" for the purpose of sentencing. In my view, it is not useful to attach a label to a subcategory of the offence, then to try to pigeonhole the facts of any case into the label. Adding a descriptive label to a set of facts within the defined offence adds a level of complexity to the sentencing exercise that is both unnecessary and potentially diverting for the court and could lead to errors. Nor do I read this court's decision in Clarke as adopting that approach…

34 The exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender. Part of that exercise is to impose similar sentences for similar offences and offenders. However, I would reject the concept of naming subcategories of manslaughter for the purpose of comparing cases and imposing similar sentences, and instead compare the circumstances of each situation on a case-by-case basis.

55Nonetheless, after Devaney, the aggravated manslaughter category was still referred to on occasion: see e.g. R. v. Cleyndert, 2006 CanLII 33851 (Ont. C.A.), at paras. 12-13; R. v. Tahir, 2016 ONCA 136 at para. 2; R. v. Punia, 2018 ONCA 1022 at para. 2. But Devaney was relied on as well on at least one occasion: R. v. Jamieson, 2014 ONCA 593. Finally, the aggravated manslaughter categorization was definitively put to bed by the Court of Appeal in R. v. Warner, 2019 ONCA 1014 at para. 10. It was held in Warner that a trial judge's reference to aggravated manslaughter constituted an error in principle on sentence.

56The term "aggravated manslaughter" as referred to in Clarke was never intended to be used the way the Crown is using it in this sentencing. For manslaughter, an offence acknowledged to encompass a wide variety of offender culpability with fine differentiations and distinctions (see R. v. Creighton, 1993 CanLII 61 (SCC), [1993] S.C.J. No. 91 (S.C.C.) at para. 86; R. v. Thompson, 2010 ONCA 463 at para. 36), the term tends to homogenize sentencing factors rather than to encourage careful scrutiny of each of them.

57Second, even if aggravated manslaughter were an established category of culpability, the offence under examination here fails to rise to that standard. These are the differences between the most salient list of aggravating factors in Clarke at paragraph 7 and the case at hand:

(a) In Clarke, the Court said that the victim was "extremely frail and vulnerable … [and] was defenceless against this armed attack";

In the instance at hand, the victim was neither extremely frail nor was he defenseless. He was armed with a knife which he had used previously to stab and cut Mr. Beals in the underpass. He did walk with a pronounced limp as seen on the Meadowvale video. Expert evidence and evidence from Crown witnesses was elicited to establish that the victim had spastic dystonia and had a significant limp.

Nonetheless, Mr. Shraim had sufficient dexterity to attack and injure Mr. Beals in the underpass. It is not clear whether Mr. Beals would have known about Mr. Shraim's disability arising from that incident. However, based on Mr. Shraim's movements on the Meadowvale video, I conclude beyond a reasonable doubt that Mr. Beals would have noticed the limp from that interaction but it may have only been a momentary observation. Mr. Beals' knowledge of the disability and the fact of it are aggravating factors but on a much lower scale than the serious health problems suffered by the victim in Clarke.

(b) "the victim was attacked in his own home";

Unlike in Clarke, the attack here was out of doors in a public area.

(c)"although not in a position of trust, the appellant [Clarke] was looked upon by the deceased and others as a friend…";

The offender and the deceased were strangers to each other.

(d) "the use of a knife during the commission of the offence";

(e) "the brutality of the attack, resulting in seven stab wounds in the chest area, two of which could have caused the death…"

There was one stab wound only going through the sternum and into the heart in the case at hand. The pathologist was not asked, nor was it argued by counsel, that more force would be required to go through the bone of the sternum as opposed to between the ribs, for example. I think, nonetheless, that it is the only reasonable inference. But in light of the absence of expert evidence or any argument on this issue, quantifying the force required is not possible.

58There are other important distinguishing factors between Clarke and this case. On the aggravation side, this case involved a group attack, an aggravating factor not present in Clarke. But there are mitigating factors not present in Clarke as well, namely provocation. In the final analysis, all that can be said about Clarke is that overall, it was a more serious case than is the case at hand. Beyond this, it is not helpful to compare the very different facts and aggravating factors in Clarke. Sentencing being a very subjective task, reference to other cases may often shed only minimal light on sentencing. If there are too many differences, arguing by analogy to other cases may do more to confuse than to clarify.

59For these reasons, this case should not be treated as one of aggravated manslaughter nor is a comparison to the facts and the sentence imposed in Clarke helpful. For this reason, and others I will set out, I reject the Crown's call for a sentence in the 10-12 year range for Mr. Beals and 6-8 years for the other two men.

THE MITIGATING IMPACT OF PROVOCATION

60Mr. Beals and his accomplices sought out Mr. Shraim. Revenge is the central aggravating factor in this sentencing. However, the fact that the revenge motivation arose as a result of Mr. Shraim's earlier offence committed against Mr. Beals must also be recognized in crafting a fit sentence.

61Clearly, Mr. Beals was not acting under provocation within Section 232 of the Criminal Code. The essential element missing was that Mr. Beals was not acting on the sudden and before there was time for his passion to cool. There was about four hours between the two events. This should have been abundant time for him to cool down. Instead, he took the time with his confreres to scheme and to deliberate the vengeance to be inflicted on Mr. Shraim.

62Of course, the acts of Mr. Shraim in stabbing and cutting Mr. Beals did not in law or in morality justify to any degree Mr. Beals' attack on Mr. Shraim. But Mr. Beals' conduct cannot be understood or fully appreciated without Mr. Shraim's earlier assaultive conduct. Any reasonable person having been injured in the way Mr. Beals was with a knife, would have been angered. But Mr. Beals is highly culpable because his anger gained momentum and exploded into extreme violence. This was the maximum response. Mr. Beals' fault was that he was unable to control his anger, even given several hours to dial it down.

63Provocation as a mitigating fact acknowledges human frailty when anger gets the better of a person and leads them to commit acts of violence. It is well established as a pertinent factor on sentencing. The law is that,

Where the victim provokes the commission of an offence, ordinarily this will affect the Court's general consideration of the gravity of the offence.

Canadian Sentencing Digest [2022] R. Paul Nadin-Davis, Clarey B. Sproule (online), Section 3:55 Provocation. Also see R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No. 27 at paras. 232-237; R. v. Mullin, (1990), 1990 CanLII 2598 (PE SCAD), 56 C.C.C. (3d) 476 (P.E.I.C.A.) at para. 18.

64The acts of provocation in this case, despite falling far short of Section 232 provocation, itself only a partial defence to murder, stand as important mitigation in assessing the moral blameworthiness of Mr. Beals and his friends, Mr. Walters and Mr. Buckland. The mitigation, I hasten to add, must be measured and proportionate because of the strong societal interest in discouraging acts of revenge and revenge motivation: R. v. Suter, 2018 SCC 34 at paras. 57-58.

THE CROWN'S RELIANCE ON AFTER THE FACT CONDUCT AS AN AGGRAVATING FACTOR

65Mr. McGuire argued that the offenders' after-the-fact conduct or, more specifically, consciousness of guilt, was an important aggravating factor on this sentencing. This evidence includes clearly established facts such as fleeing the scene of the crime, disposing of the weapon used against Mr. Shraim and Mr. Beals disposing of his clothing as well. The knife and clothing were never recovered.

66In making this argument, Mr. McGuire sought to distinguish the use of this evidence on sentencing from its use in the trial in front of the jury. In that situation, I ruled that the evidence could not be used towards the Crown's proof of guilt but Mr. McGuire used it for this purpose in his jury address nonetheless. A corrective instruction was provided to the jury.

67Using the same evidence on sentencing is different and does not lead to the same prejudice. It is not about inferring the offenders' acts or mental state; it is about properly gauging the seriousness of their conduct. This is a legitimate purpose. However, care must be taken in adding aggravating factors on sentence. With reference to the evidence here, the reality is that almost all offenders flee the scene of the crime and take steps to conceal their identity, such as disposing of weapons or other items which might implicate them. These offenders did not intend the consequence of death. This does not deprive the evidence of any aggravating value, but it does suggest that it ought to be kept in reasonable perspective. If almost all offences of this nature are accompanied by this factor, the aggravating nature of concealment and advertence of apprehension does not carry substantial weight.

LOOKING AT OTHER CASES

68As I have said, other manslaughter sentences are of limited assistance because of the wide spectrum of factual variations in the commission of the offence. I will, however, refer to a handful of them in order to help ascertain the proper range of sentence.

69In R v. Lee, 2021 ONSC 7672, Justice Kelly referred to several manslaughter cases. In cases with a single stab wound, there were sentences lying between 6-8 years: para. 32. Most of these offenders were youthful. Justice Kelly imposed 9 years on the offender in that case.

70Another useful authority I have read is the decision of Justice Copeland (as she then was) in R v. MacKinnon, 2022 ONSC 1349. Justice Copeland found, after a thorough canvass of the pertinent case law, in a case with some similarities to the one at hand, that the range was between 8 and 9 years, although some went as low as 7. There were higher sentences in other cases with additional aggravating factors and even lower ones with youthful offenders or with other mitigating circumstances. Justice Copeland imposed a sentence of 8-9 years for manslaughter and 3 years concurrent for the additional charge of aggravated assault, which, taken together with the mitigating factors with respect to pre-trial custody, yielded a sentence of 10 years on the manslaughter with 3 years concurrent on the aggravated assault.

71The aspect which, in my view, sets the sentencing here apart is the provocation as a result of Mr. Shraim's earlier knife attack on Mr. Beals. That is a significant factor reducing the moral culpability of Mr. Beals and the other two men. Other cases in which there was at least some provocation are R. v. Thompson, 2010 ONCA 463 (4 years) and R. v. Taylor, 2013 ONSC 3370 (6 years) and R. v. Hermiz, [2007] O.J. No. 1589 (8 years). In R. v. Croft, 2018 ONSC 4405, I imposed a sentence of 6 years for an accused who, in a fight in which he was being badly beaten, inflicted a single stab wound which led to death.

72The facts of these cases are not readily comparable to those here but the sentences imposed are an example of the degree to which provocation can reduce moral blameworthiness and the resulting sentence.

THE VICTIM IMPACT STATEMENT

73The victim impact statement from Maysoun Shraim, Heidrah Shraim's mother, is deeply moving. It was read in open court by a family friend. In it, she refers to,

… the heartache of a mother, who had her beloved son taken away from her at the prime of his life. I can’t tell you how I battle my soul, which screams at me in every waking moment asking Why? My son is no longer here …

Heidrhas was the pupil of my eye, and he was always by my side, since he was born. He had a gentle, and tender heart; and he always dreamed to become [a] physiotherapist, so he can help other kids who suffers [from] some sort of disability.

Yes, he wanted to lift the burden imposed on other children, even when he was moaning under his own. Heidrhas was the embodiment of grace; which only c[a]me from God almighty. Indeed, Heidrhas was [an] inspiration to his brothers, whom slipped onto a down[ward] spiral right after the murder.

74The impact statement continues by detailing the very grave repercussions on his brothers of the terrific loss of Mr. Shraim as a result of being stabbed to death by Mr. Beals. Ms. Shraim’s mother’s statement makes concrete the senseless and profound loss of a young man, son and brother to his family and to the community. There is no more profound tragedy and sorrow for a parent than to lose a child, particularly by a criminal act.

75Unfortunately, there were also inappropriate comments in the victim impact statement vilifying the offenders and recommending what should happen to them by way of penalty. In retrospect, I should not have allowed it to be read in open court without editing. After it was read, Mr. McGuire was quick to interject that the inappropriate parts of the victim impact statement were not Ms. Shraim’s fault. I fully agree. She could not possibly have known the law in this regard. Clearly, she had no guidance in writing the statement. It is hard to know what happened and whether it was the victim co-ordinator system or the Crown’s office who failed to manage the victim impact aspect of this sentencing.

76As they are tendering the evidence in court, it is Crown counsel’s ultimate responsibility to ensure that the victim impact statement conforms with the legislation and the case law. I agree with my brother Justice Durno’s comments in this Region over 15 years ago in a case called R. v. McDonough, (2006) 2006 CanLII 18369 (ON SC), 209 C.C.C. (3d) 547 (ONSC),

31 It is the responsibility of the Crown to ensure that the statements comply with the section if they seek to have Victim Impact Statements introduced, regardless if they have been prepared through the Victim Witness Program (Jackson, para 50). It is also the responsibility of Crown Counsel to determine in advance who is being asked to prepare the statements, and to give advice where required regarding the content of the report and who is entitled to prepare one.

77The mandatory requirements of Criminal Code Section 722(4) requiring the statement to be in Form 34.2 and to accord with the procedures established by regulation were not observed in this instance. No form was used of any kind, nor was there any indication of what questions – if any – were asked of Ms. Shraim or what she was told which led her to write what she did. Form 34.2 contains instructions which direct and guide the victim’s comments. The first section states what should not be commented upon, including “any statement about the offence or the offender that is not relevant to the harm or loss you suffered” and “an opinion or recommendation about the sentence.” The remaining instructions ask the victim questions derived from the enabling words of ss. 1 about the different forms of impact upon them.

78Justice Durno said in McDonough,

33 Pursuant to s. 722 the report must be prepared in the form and in accordance with the procedures established by a program designed for that purpose by the lieutenant governor in counsel of the province…

34 At least in the Central West Region, it appears the majority of Victim Impact Statements are not prepared on the prescribed form. The risk is that the writer may sit down to write, on occasion, almost as if they were given no directions. If the person preparing the statement does not have the form, or chooses not to use it, the statement should be directed to the issues raised in the form.

79Because of Ms. Shraim’s lack of guidance, the statement transgressed the limitation emphasized in the case law to neither opine on the appropriate punishment for the offender nor to condemn the offender. That did a disservice not only to the system of criminal justice but to Ms. Shraim herself.

80During the sentencing hearing, out of respect for Ms. Shraim who was present, it was decided that discussion of the problems in the victim impact statement would be kept to a minimum. Defence counsel were sensitive to this concern and did not forcefully press their argument in court. Still, it was inescapable that there be some mention of these matters. As a result, in the hearing into the proper punishment for the three men responsible for the killing of her son, Ms. Shraim’s grief was burdened with discussion of the appropriateness of her expressions and feelings about the tragic loss of her son. That is most regrettable but as a practical matter cannot be avoided when a victim impact statement strays beyond the proper bounds. It becomes difficult to maintain the full dignity and respect for victims that is so important at this stage of the proceedings.

81In the impact statement, Ms. Shraim said that she did not think it mattered whether the crime was labelled manslaughter or first degree murder. She wrote that her son Heidrah was not the only victim of this “heinous crime,” referring to her other sons. The “monstrosity.. murdered my entire family...” She then wrote that she was pleading with the judge to impose a deserved life sentence to ensure that the hand that stabbed her son will not be free to stab again and the “evil minds behind the crime aren’t going to plot further evil.” Finally, she wrote,

Unfortunately, there is no death sentence in Canada, yet I am certain that a lengthy jail term would provide some protection for innocent people.

82This had no place in a victim impact statement. The law prohibiting comments by victims on the appropriate penalty for the offender is neither new nor obscure. The most prominent authorities are more than 20 years old and include R. v. Jackson, (2002) 2002 CanLII 41524 (ON CA), 163 C.C.C. (3d) 451 (Ont. C.A.) at paras. 49-51; R. v. Tkachuk, 2001 ABCA 243 at para. 25; R. v. Bremner, 2000 BCCA 345 at paras. 22-28; R. v. Gabriel, (1999) 1999 CanLII 15050 (ON SC), 137 C.C.C. (3d) 1, 26 C.R. (5th) 364 (Ont. S.C.J.). Also see more recent cases such as R v. Dillon, 2022 SKCA 17 at paras. 15-20; R v. Sheppard, 2022 ABCA 307 at para. 29; R. v. Berner, 2013 BCCA 188 at paras. 13-22; R. v. Steeves, 2010 NBCA 57 at paras. 33-39.

83Three principles derived from these authorities demonstrate that this victim impact statement went beyond the permissible bounds:

i. Section 722(1) of the Criminal Code empowers a court to consider a victim impact statement describing the “physical or emotional harm,” “property loss or economic loss” and the “impact of the offence on the victim.” A victim impact statement is inadmissible to advocate for the victim’s opinion of the appropriate punishment for the offender, to criticize the offender or to replay the facts of the offence;

ii. A criminal sentencing proceeding is between the public and the individual offender. As a third party, the victim is not an advocate in the sentencing hearing. Except perhaps with respect to restitution orders, sentencing is not a compensatory process. If it were otherwise, pitting the individual victim against the individual offender would transform sentencing into a personal matter between the offender who caused the harm and a victim who suffered the harm; and

iii. “Criticism of the offender tilts the adversary system and risks the appearance of revenge motivation”: Gabriel, para. 30. The same is true of permitting the victim to suggest the punishment that should be imposed. The rule of law and our sentencing principles light the way to a fit and appropriate sentence, not the personal preferences of the victim.

84It is arguable that the amendments to Section 722 of the Criminal Code, brought in at the same time as the Victims Bill of Rights Act, S.C. 2015, c. 13, s. 25, have altered the law in this area. Section 722(8) of the Criminal Code reads,

In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.

85There has been some judicial consideration of this subsection: see R. v. C.C., 2018 ONCJ 596 at para. 24; and R v. White Quills, 2020 ABPC 177 at paras. 8-11.

86I do not believe that its enactment was an attempt by Parliament to change the prevailing law and permit the inclusion of a victim’s suggestions with respect to the appropriate sentence. The case law has been unanimous to date that this ought not to be permitted, To reverse such a strong theme in the case law, Parliament would have been much clearer and more direct.

87The literal, plain meaning interpretation of ss. 8 is that the provision simply confirms a trial judge’s obligation to disregard irrelevant information. It codifies the current law but does not change what should or should not be included in a victim impact statement. Subsection 1 of 722 remains the statutory control for what should or should not be included in a impact statement. Only the victim’s description of emotional, financial and other impacts is proper. What is not included in ss. 1 is excluded including opinion on the appropriate penalty.

88Examining the rationale for the prohibition buttresses this conclusion. The quote above from Gabriel warns against the “appearance of a revenge motivation.” In addition, there are other comments along the same lines in the case law. In Jackson, Justice Sharpe said at para. 55:

In my view, the Criminal Code does not allow a victim…to make his own plea for a stiff sentence … Crown counsel and [the victim] brought about a situation that created an appearance of unfairness at one of the most critical moments in the process.

(Emphasis added)

89Bremner at para. 27 quotes with approval from Justice Hill’s judgment in Gabriel,

Recommendations as to penalty must be avoided, absent exceptional circumstances … The freedom to call for extraordinary sentences, beyond the limits of appellate tolerance, unjustifiably raises victim expectations, promotes an appearance of court-acceptance of vengeful submissions, and propels the system away from necessary restraint in punishing by loss of liberty (s. 718.2(d) of the Code; R. v. Gladue, supra at para 40, 41, 57, 93).

(Emphasis added)

90These passages demonstrate that the ultimate concern with victims being permitted to recommend punishment for an offender is maintaining the appearance of fairness. The appearance of justice is fundamental under our system: see Brouillard v. The Queen, 1985 CanLII 56 (SCC), [1985] 1 SCR 39, p. 43 referring to R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259. Trial judges are trained and experienced at putting out of their minds irrelevant and prejudicial information. However, from the public’s point of view, it may well be thought that a victim’s opinion will likely exert some influence on a sentencing judge. The victim is a person of central importance in a sentencing proceeding. The harm to the victim and victim’s family is powerfully emotive. Suggestions from the victim of a harsh penalty for the purpose of revenge could be strong enough in some people’s minds to influence a judge’s sentence.

91Together with this negative impression, there is no positive purpose in permitting a victim to suggest what they think is an appropriate punishment. Some victims may well desire a cruel fate befall the offender; others may have less vindictive intentions. But a particularly harsh penalty advocated by some does not indicate any higher level of anguish or loss. The emotional impact may well be the same; the difference is more likely based on attitudes towards criminal punishment.

92The danger that revenge motivation will be seen to have a legitimate part to play in our sentencing process continues to require the Crown and victim services to carefully vet impact statements before they are reduced to paper and read in court. If the responsibility to edit a statement were shifted from the Crown to the sentencing judge, because the questionable parts of a victim statement would be aired in open court and would be contained in a public document, there would be an ever-present risk that the appearance of fairness and objectivity due the offender would be lost.

93In this instance, by commenting that “unfortunately” the death penalty does not exist in Canada, Ms. Shraim made it clear that she thought the death penalty for these three men was the fitting penalty. In recognizing that this was not available under the law, she then stated that life in prison without parole was the appropriate sentence. Nor is this sentence available, of course, to a sentencing judge on a manslaughter conviction or on murder, for that matter. All offenders in Canada, no matter what crimes they have been convicted of, are in law parolable.

94The sentiment that the death penalty should be imposed if available goes much further than most inappropriate victim impact statements. Although it is important that a victim be permitted every latitude to describe the impact of the crime and the loss of her beloved son, recommending a particularly harsh penalty fails to advance to any real extent an appreciation of the impact on the victim.

95In United States v. Burns, 2001 SCC 7, in a unanimous judgment, the Supreme Court held that in all but exceptional cases, an accused cannot be extradited to the United States where they could face the death penalty unless the extraditing state makes assurances that the death penalty will not be imposed. This holding was based on the conclusion that extradition without such assurances violates Section 7 of the Charter and cannot be justified under Section 1. While not definitive, the decision in Burns holds, for all intents and purposes, that the death penalty would be unconstitutional in Canada.

96The recent decision of the Supreme Court in R. v. Bissonnette, 2022 SCC 23 both reinforces the conclusion of the Court in Burns and demonstrates that the view that offenders for some crimes should be incarcerated for their natural lives is itself advocating for an unconstitutional outcome. The Chief Justice wrote:

8. A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity. Such a sentence is degrading insofar as it negates, in advance and irreversibly, the penological objective of rehabilitation. This objective is intimately linked to human dignity in that it conveys the conviction that every individual is capable of repenting and re-entering society. This conclusion that a sentence of imprisonment for life without a realistic possibility of parole is incompatible with human dignity is not only reinforced by the effects that such a sentence may have on all offenders on whom it is imposed, but also finds support in international and comparative law.

97The victim impact statement stepped over the line when it advocated a penalty, particularly one incompatible with the dignity and humanity due offenders under our law. For these reasons, I will disregard the impugned parts of the victim impact statement. While they should not have been presented in the first place, they have played no part whatsoever in the sentences to be imposed on the three offenders.

THE ADMISSIBILITY OF MR. BEALS’ PLEA NEGOTIATIONS

98Ms. Gadhia, on behalf of Mr. Beals, put forward on sentencing a series of emails between her and Mr. McGuire. When I began to read them and ascertained early on that they pertained to pre-trial sentencing negotiations, I stopped reading them subject to argument at the hearing. After hearing that argument, I was not convinced to continue to read the emails.

99Only minimal argument was advanced by Ms. Gadhia with respect to their admissibility and ultimate purpose. It became clear in the hearing that Mr. Beals had offered to plead guilty to manslaughter before trial. The Crown did not agree to the plea. Mr. McGuire rightly pointed out at this sentencing hearing that the parties likely never would have agreed on the crucial facts underlying such a plea in any case.

100Plea negotiations are almost universally held to be inadmissible for the purpose for which these emails were put forward in this hearing: R. v. Lafleur, 2018 BCSC 1454 at paras. 46-53. To allow them into evidence could paralyze counsels’ freedom to discuss resolution in criminal matters, an indispensable facet of the system: R. v. Delorme, 2005 NWTSC 34 at paras. 13-19; R. v. Anthony-Cook, 2016 SCC 43.

101The only case holding otherwise is R. v. Shyback, 2018 ABCA 331 (Alta. C.A.) at paras. 32-35. Like in this instance, the accused was charged with murder but convicted of the included offence of manslaughter. The Court of Appeal for Alberta took into account that the accused had offered to plead guilty to manslaughter before the trial. It was held that this showed a willingness to take responsibility and indicated remorse. I am skeptical of this holding, but it is unnecessary to decide the issue. Remorse and the taking of responsibility are apparent on the record and there is no need to pierce settlement privilege to find them. If it is ever appropriate, it ought to be a last resort.

102I reject Mr. Beals’ argument that if he had been allowed to plead guilty to manslaughter earlier when he supposedly should have, he would have already served the appropriate jail sentence and, therefore, he should be credited with an extra half year. This argument is without merit.

103The law is that conduct of the accused at trial can demonstrate a lack of remorse but can be taken no further: R. v. Kozy, (1990) 1990 CanLII 2625 (ON CA), 74 O.R. (2d) 545 (Ont. C.A.) at para. 15. In this case, it is not possible to even go this far. The accused were charged with first degree murder but convicted of the included offence of manslaughter. The pleas of not guilty to first degree murder were vindicated by the jury verdict and cannot be taken to indicate a lack of remorse.

104In fact, my review of the evidence convinces me that all three men are remorseful and have taken responsibility to a significant extent. Mr. Beals expressed remorse in his testimony and in his personal letter written to the court on sentencing, as did Mr. Walters. This can be easily feigned and there is a strong incentive to express remorse whether sincere or not while sentence is pending. But my impression here was that it was genuine. Mr. Buckland and Mr. Walters, in their interviews with Det. Mark Heyes, appeared to be remorseful to some extent, although not taking full responsibility.

THE APPROPRIATE SENTENCES FOR THE THREE MEN

105The fundamental principle of sentencing is that a sentence must be proportionate to the offender and the offence: Section 718.1 of the Criminal Code. For a crime of violence like manslaughter, the paramount sentencing principles are denunciation and general deterrence. Sentencing in response to the offence must predominate an individualized sentence tailored to the offender.

106In reference to the offenders, none of these men have criminal records, with the exception of Mr. Beals who has a series of assaults in 1995, 27 years ago. I would classify these entries as virtually irrelevant. He is now 53 years of age. The offenders are not hardened criminals or hardened people. Specific deterrence is not a valid sentencing objective. The men have all been on bail for some time now and there have been no problems. Rehabilitation is largely unnecessary. I have considered the Court of Appeal’s decision in R. v. Morris, 2021 ONCA 680 in reference to Mr. Beals and Mr. Walters.

107I must take into account the five years plus that have elapsed since the time of the offence. Much of the delay was due to COVID. There was an earlier trial in the spring of 2020 that had to be aborted due to the onset of the COVID pandemic. Justice Benotto said in R. v. Hartling, 2020 ONCA 243 at paras. 115-122:

115 … delay in sentencing causes prejudice to the offender and to society. The offender is unable to begin rebuilding a life, rehabilitation is impacted, and the offender lives with the anxiety of an uncertain future: Rahey at pp. 605-606 S.C.R. Likewise, society "has a keen interest in ensuring that those guilty of committing crimes receive an appropriate sentence promptly": R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, at para. 36. …

118 Delay in sentencing that does not rise to the level of a Charter breach has long been considered a factor in mitigation of sentence: R. v. Cooper (No.2), 1977 CanLII 2103 (ON CA), [1977] O.J. No. 721, 35 C.C.C. (2d) 35 (C.A.), R. v. Bosley, 1992 CanLII 2838 (ON CA), [1992] O.J. No. 2656, 59 O.A.C. 161 (C.A.).

DEVIN BEALS

108Mr. Beals filed a personal letter explaining his background, expressing remorse, chronicling the difficulty of his time spent in custody, including the difference between how white and black inmates are treated (he is black), and asking that he not be sent back to prison. He has always held good jobs in warehouses and is certified on a handful of different machines. He started in the work force while he was still in high school. He has worked for Loblaws, Cargo Foods, Stanley Doors, Purolator, Best Buy, and with Cole International.

109Mr. Beal has an older sister, a niece and nephew, and several cousins. Mr. Beals is very close with his family. He has two children, Maryam Beals and Jaden Beals, who are attending university at the University of Windsor and the University of Toronto respectively. Many letters were filed in support of Mr. Beals on this sentencing hearing.

110In terms of the sentence to now be imposed, Mr. Beals entered pre-trial custody upon his surrender for the killing of Mr. Shraim on November 28, 2017 and was not released on bail until November 13, 2020, two weeks short of three years or a total of 1082 days to be precise. Applying the Summers factor of 1.5 credit, this amounts to 1623 days or 54 months, that is, 4 and a half years towards sentence.

111The defence asks for a total sentence of six years but with credit for time served, mitigation of one year for harsh jail conditions (R. v. Duncan, 2016 ONCA 754) and mitigation of six months for being on a house arrest bail (R. v. Downes, (2006) 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.)). I do not agree with the total sentence nor with the mitigation.

112In my view, a fit and appropriate sentence taking into account the aggravating factors, including the attack on Mr. Bitar, and taking into consideration the other mitigating factors aside from Duncan and Downes mitigation, is six and a half years. This includes some degree of mitigation for the five years that this matter has been pending following the guidance in Hartling.

113I find the general methodology of my brother Justice Durno in R. v. Andrew, [2021] O.J. No. 2911 (Ont.S.C.) persuasive in approaching Duncan and Downes mitigation. Mr. Beals spent his almost three years in custody in Maplehurst Correctional and in the South Detention Centre. I accept that he was subjected to 83 partial lockdowns and 175 full lockdowns. The appropriate mitigation should be 4 months as a result of the effect of these lockdowns on Mr. Beals.

114Also, Mr. Beals was in custody during the advent of COVID around March 16, 2020 until his bail release on November 16, 2020, a period of 8 months. It was the most strenuous part of COVID in the jails. This led to substantially harsher living conditions in the jail than would normally be the case, as has been widely recognized. I see the proper mitigation arising from COVID as 3 months.

115For Downes credit, Mr. Beals was on a strict house arrest bail for over two years. Some care must be taken with mitigation for liberty restrictions based on Duncan and Downes not to give double mitigation adding to the Hartling delay factor. But there is a difference between the sheer length of time to complete a matter and the harsh incarceration and bail conditions. Keeping in mind the importance of not letting mitigation with respect to the offender lead to an unfit sentence (R. v. Marshall, 2021 ONCA 344 at para. 52), I would mitigate the otherwise appropriate sentence by a further 3 months.

116The calculation I arrive at then is 6 and a half years jail less mitigation for Duncan and Downes of 10 months for a total sentence of 68 months or 5 years and 8 months. Applying the Summers 4 and a half year credit and subtracting this (54 months), the actual sentence to now be served is 14 months.

117I recognize that going back into custody after all this time works substantial hardship on Mr. Beals and further delays the rebuilding of his life after the 5 years that have already passed: see R. v. Hamilton, 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, 186 C.C.C. (3d) 129 (C.A.) at paras. 165-166. I do not doubt that re-incarceration serves no useful purpose for him from any penological point of view. There is no need for specific deterrence and jail does not assist in rehabilitation, far from it: R. v. Proulx, 2000 SCC 5 at paras. 16-17; R. v. Wismayer, 1997 CanLII 3294 (ON CA), [1997] O.J. No. 1380, 115 C.C.C. (3d) 18 (Ont. C.A.) at paras. 48-50.

118But the demands of denunciation loom large in this case. A young man was killed. His mother and his brothers and the community at large will always grieve his loss. Mr. Beals, after several hours to plan, acted with malevolence in stabbing the young man through the sternum, a horrendous act of violence. The sentence imposed must acknowledge the sad reality of the loss of Mr. Shraim and Mr. Beals’ responsibility for it. And so 14 months will be the part of the sentence remaining to be served.

119I will endorse the indictment as required by Section 725(2)(b) of the Code to indicate that I have taken into account the aggravated assault on Mr. Bitar in imposing this sentence on Mr. Beals. This provision provides, as a statutory variation on the autrefois convict theme, that the offender cannot be prosecuted for a crime they have in essence already been found guilty of and sentenced for.

MR. WALTERS

120Mr. Walters helped track down the Shraim group in order to assist in taking revenge on Mr. Shraim and he encouraged Mr. Beals to follow through once they arrived in Mr. Buckland’s car.

121Mr. Walters has an admitted alcohol problem but has not had a drink since 2018. He has attended AA. He wrote a letter to the court expressing remorse for his role and for the death of Mr. Shraim. Mr. Walters has spent a lot of time reflecting on what happened. He has now set a goal for himself of becoming an electrician. Numerous letters of support on his behalf have been filed.

122There has been substantial fickleness in recent months on the question as to whether a conditional sentence is available for Mr. Walters. At the time of the original sentencing hearing on October 6, 2022, by reason of the Court of Appeal’s judgment in R. v. Sharma, 2020 ONCA 478 striking down the prohibition in Section 742.1(c) on conditional sentences for offences with a maximum of 14 years or more, a conditional sentence was available. A month after the sentencing hearing, on November 4, 2022, the Supreme Court of Canada reversed Sharma: 2022 SCC 39. A conditional sentence was no longer available. Two weeks later, on November 17, 2022, Bill C-5 was proclaimed in force. It amended subsection 742.1(c) to no longer exclude offences from the conditional sentence regime based on a maximum sentence of 14 years or more. As a result, a conditional sentence is legally available for Mr. Walters.

123Despite being available, I cannot agree that a conditional sentence is appropriate for Mr. Walters’ complicity in the revenge plot. Denunciation in this case is simply too important a sentencing objective. A conditional sentence is insufficient to properly express society’s denunciation of participation in the killing of a young man: Proulx at paras. 100, 101. In assisting and encouraging Mr. Beals in his confrontation of Mr. Shraim who they knew was armed with a knife, both Mr. Walters and Mr. Buckland were knowingly engaging and assisting in risk taking behaviour putting life and safety in jeopardy. Sadly, that risk was realized and the result was a young man’s death.

124Mr. Walters has done 148 days of pre-trial custody in Maplehurst or, with Summers credit, 222 days (7 months and a half months, rounding up slightly). He had 8 partial lockdown days and 8 full lockdowns. This does not add much appreciable mitigation. However, his life has been on hold for over five years due to these allegations. I see that as having more weight for a less blameworthy offender than for Mr. Beals for example. I also have taken into account the hardship of re-incarceration. Lastly, I have taken into account the effect of alcohol on Mr. Walters at the time of the offence, something that to some extent clouded his judgment.

125He has been on a stringent house arrest bail for all the time he has been out of custody, over 4 and a half years. That is due substantial Downes credit but with the ever present limitation that it cannot lead to an otherwise unfit sentence.

126I believe the proper sentence for Mr. Walters is two years incarceration. I would mitigate this sentence by 10 months on the basis of Downes. Subtracting dead time, the total real sentence for him will be 6 and a half months.

MR. BUCKLAND

127Mr. Buckland drove to and from the scene with knowledge of Mr. Beals’ knife and that Mr. Beals was thirsting for revenge. He prevented the intervention of Mr. Fiseha. That was the sum total of his involvement.

128Mr. Buckland has very good support. It includes not only Ms. Fishman but his mother who attended virtually every day of this trial.

129Mr. Buckland was in pre-trial detention from December 21, 2017 to July 3, 2020, at total of 926 days. With Summers credit, that is 1389 days or just over 46 months. Expressed in years it is 3 years and 10 months. He was then on a strict house arrest bail for about two and a half years.

130Mr. Buckland’s life, like that of the other men, has been on hold for over five years. When first arrested and detained, Ms. Fishman was about to give birth to their child. Mr. Buckland missed the birth of the child and the first two and a half years of the child’s life. Their second child was born in the middle of this trial. Mr. Buckland and Ms. Fishman’s marriage had to endure Ms. Fishman testifying against Mr. Buckland at this trial, no small matter.

131I would put Mr. Buckland’s moral culpability on a level equivalent to Mr. Walters’. A two year sentence is appropriate. That puts Mr. Buckland well into a time served position. That will be his sentence.

132The circumstances of Mr. Buckland’s incarceration should be recorded for posterity. He had 107 full lockdown days at Maplehurst and 48 partial lockdown days. By far the most concerning statistic is that he was subjected to 278 days of triple-bunking.

133Justice Durno considered triple bunking in Andrew. The accused there was triple bunked for 458 days. Justice Durno wrote:

76 Justice Hill concluded regarding lockdowns and triple bunking as follows in Tulloch, "systemic causation and acceptance of such phenomenon, routinely subjecting the presumptively innocent to such conditions, particularly triple bunking in tiny cells, becomes unnecessary oppressive and challenges adherence to humane and civilized treatment of the presumptively innocent."

81 … At one time the Solicitor General had precluded triple bunking at Maplehurst. I believe that is the situation for Toronto South now. I have been told the policy was changed in response to the significant increase in protective custody cases across the Province. I do not dispute that. It is not a justification. The records show that inmates in the general population with two to a cell are in cells 15 by 7.5 feet while those in protective custody have nine feet by 7.5 feet, so that inmates have a smaller cell than two in the general population.

82 For triple bunking, one inmate has his mattress on the floor with either his feet or head abutting the toilet used by all three inmates. Even when they are not sleeping and are on lockdown the conditions are meaningfully more crowded than those in general population. The triple bunking in this case significantly surpasses the number of days I have seen in over 20 years of dealing with Maplehurst. It is appalling and in itself, merits significant enhancement.

134Justice Durno mitigated the sentence he imposed by nine months because of the triple-bunking. I agree with Justice Durno that there is no room for judicial complacency when it comes to triple bunking. That is particularly poignant with respect to Mr. Buckland’s circumstances. The triple bunking was not confined to emergency or occasional use at Maplehurst. Triple bunking of 278 days was more than one third of the total length of Mr. Buckland’s incarceration.

135Mr. Buckland is a very large man. He stands 6 feet 6 inches tall and at the time weighed approximately 350 pounds. He is claustrophobic and has ADHD as he said and demonstrated in his interview with Det. Heyes. The cell he was triple bunked in was about 120 square feet. Justice Durno’s comments about triple bunking in Maplehurst all pertain with even more force with respect to Mr. Buckland.

136Although triple bunking has been excused by some as a virtually inevitable cost of being incarcerated, others have found it to be cruel and unusual punishment: see R. v. Walters, 2012 ABQB 83. In R. v. Kravchov, 2002 CanLII 79565 (ON CJ), [2002] O.J. No. 2172, 4 C.R. (6th) 137 (Ont. C.J.). at paras. 42-49, Justice Kenkel found that it was below minimum standards and gave enhanced credit for it under the old regime of credit. A number of other judges have criticized triple bunking as well: R. v. Duhamel, 2013 ONSC 1340; R. v. Moulton, 2013 ONSC 2555; and R. v. Alexander, 2012 ONSC 6117.

137Mr. Buckland was presumed innocent and has now been shown to have been innocent of the murder charge against him. That a man presumed innocent was subjected to triple bunking is deplorable and intolerable. We as a society risk losing the moral authority necessary to incarcerate people if we are unable to do so without a modicum of humanity. The days of triple bunking endured by Mr. Buckland, in my view, show that this minimum standard was not met here.

CONCLUSION

138There will be ancillary orders for each of the three men: 1. a DNA databank order; and 2. a Section 109 weapons prohibition for life.

139Those are my sentencing reasons.

140Unfortunately, I feel it necessary to add a few words about the conduct of counsel in this matter. Although it is somewhat unusual to do so, I believe it is incumbent on me in the circumstances.

141The conduct of this trial and the first trial which was ultimately aborted by COVID was extremely acrimonious. To my mind, the majority of it arose because of open, vitriolic antagonism between Ms. Gadhia for Mr. Beals and Mr. McGuire for the Crown. Some of it spilled over into other quarters, however.

142After the first trial, Ms. Gadhia brought an application on the ground of apprehension of bias to recuse the first trial judge from hearing the retrial. Such an application against a trial judge should only be brought if it has real merit. This one had none whatsoever. It was dismissed: R. v. Beals, 2021 ONSC 1662.

143In this second trial, after a judicial ruling permitting the Crown to cross-examine a Crown witness in re-examination on a previous inconsistent statement but limiting the extent of the cross-examination, Mr. McGuire commented after the ruling that "I understand Your Honour's point and I accept it and, and, and you're likely right. In fact, you know, you're deemed to be right": R. v. Beals, 2022 ONSC 3756 at para. 19. Soon after, in the absence of the jury, Mr. Kirechenko was critical of how a very pregnant Ms. Fishman had been treated by the police and the Crowns. Mr. McGuire became irate and began screaming uncontrollably at Mr. Kirchenko in open court.

144Ms. Gadhia would sometimes editorialize during questions, at least partially for the purpose, I believe to bait Mr. McGuire, leading him to object and openly disparage her in front of the jury. Eventually, Ms. Gadhia complained and Mr. McGuire was told to stop, which he did.

145Lastly, in the first pre-charge conference at the close of the evidence, an oral ruling was made that based on R. v. Rodgerson, 2015 SCC 38 and R. v. Calnen, 2019 SCC 6, the jury would not be told that they could use a consciousness of guilt inference to help find these accused men guilty. It went without saying that Crown counsel was not permitted to argue this point to the jury in the closing address. Nonetheless, in his closing to the jury, Mr. McGuire asked the jury to use the after-the-fact evidence to assist in inferring guilt. The jury was instructed in a sharp remedial instruction that this argument was wrong in law and had to be disregarded.

146Uncorrected, the Crown’s argument jeopardized the fairness of this trial. Consciousness of guilt evidence and inferences are often the “graveyard” of trials (Justice Paccioco, "Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence" 2016 63 C.L.Q. 276, quoting from "McWilliams Canadian Criminal Evidence" at para. 28:160.20, at p. 28-117, rel. Nov. 2012; and see R. v. White (No.1), 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385 (S.C.C.) at para. 22).

147On the sentencing, as mentioned, Mr. Gadhia put forward a ream of emails between her and Mr. McGuire to establish that she offered a plea by Mr. Beals to manslaughter. There was no need to adduce all these emails to argue the point. It is likely that they were put forward simply to annoy Mr. McGuire. This attempt was largely successful.

148These are simply some of the highlights in a thoroughly ill-spirited proceeding. In closing, while criminal trials are not tea parties, civility and respect are necessary not only to preserve a sense of decorum but to ensure procedural and substantive fairness for both sides. Justice Moldaver said in Groia v. Law Society of Upper Canada, 2018 SCC 27 at para. 2,

Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.