R. v. Small, 2023 ONSC 6841

COURT FILE NO.: CR-22-3000001-0000

DATE: 20231204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

SHAQUILLE SMALL

S. Hickey and J. Humphrey, for the Crown

A. Bryant and D. Newton, for Mr. Small

HEARD: November 28, 2023

REASONS FOR SENTENCE¹

SCHRECK J.:

1Jordan Marcelle went to the Scarborough Town Centre shopping mall on the afternoon of July 10, 2020 to buy some shoes. While he was walking towards the entrance of the mall, he was struck in the abdomen by a bullet. He died two days later.

2The bullet that struck Mr. Marcelle came from a gun that had been fired by Shaquille Small. Mr. Small did not intend to hit Mr. Marcelle. The two men did not know each other. However, Mr. Small did intend to kill another individual, Ad-Ham Khamis, whom Mr. Marcelle was with. Although Mr. Small fired at Mr. Khamis several times, he did not hit him.

3Mr. Small was charged with the first degree murder of Mr. Marcelle (Count 1), the attempted murder of Mr. Khamis (Count 2), and unauthorized possession of a loaded prohibited firearm (Count 3). Following a trial before a jury, he was found not guilty of first degree murder but guilty of second degree murder and the other charges. This court must now sentence Mr. Small to imprisonment for life and determine what period of time he should serve before being eligible for parole and must also sentence him for the other charges as well as two counts of possession of a firearm in violation of a prohibition order (Counts 4 and 5) to which Mr. Small pleaded guilty after the jury’s verdict.

4The following reasons explain the sentences that will be imposed in this case.

I. FACTS

A. The Offence

5On the afternoon of July 10, 2020, Mr. Small and his girlfriend, Tristawna Christian, went to the Scarborough Town Centre intending to buy food at Walmart for a barbecue.² After parking their vehicle, they approached the Walmart entrance. As they did so, Mr. Small saw Mr. Khamis and Mr. Marcelle entering the Walmart.

6Mr. Small and Mr. Khamis had a history. In 2011, Mr. Khamis had been charged with three counts of attempted murder arising out of a shooting that took place at a pizza restaurant. The victims of the shooting were Mr. Small’s friends. Mr. Small testified at Mr. Khamis’s preliminary inquiry. Mr. Khamis was discharged at the conclusion of the preliminary inquiry. Mr. Small believed Mr. Khamis to be a member of the Galloway Boys street gang and believed him to always be armed with a gun. Mr. Khamis testified at trial and confirmed that he was a member of the Galloway Boys and always armed with a firearm.³

7After seeing Mr. Khamis enter the Walmart, Mr. Small and Ms. Christian immediately returned to their vehicle, where Mr. Small had left a handgun he regularly carried with him. At the same time, Mr. Khamis and Mr. Marcelle left the Walmart after being told by a security guard that they could not enter because they were not wearing masks, which were required at the time because of the ongoing COVID-19 pandemic.

8After leaving the Walmart, Mr. Khamis and Mr. Marcelle began to walk along the outside of the building towards the entrance to the mall. At the same time, Ms. Christian drove out of the parking lot with Mr. Small in the back seat. The car approached a stop sign within the mall parking area, at which point it was about 35.5 metres away from where Mr. Khamis and Mr. Marcelle were walking. Mr. Small lowered the window of the vehicle and fired at least five shots in the direction of the two men. Mr. Khamis was not hit, but one of the shots struck Mr. Marcelle in the abdomen. Mr. Marcelle and Mr. Khamis both ran into the mall while Mr. Small’s vehicle left the area at a high rate of speed.

9After entering the mall, Mr. Marcelle was taken by ambulance to a hospital, where he underwent surgery. Mr. Khamis did not wait for the ambulance and fled the scene because he was armed. Tragically, Mr. Marcelle succumbed to his injuries two days later.

B. The Trial

10Upon being arraigned at the outset of his trial, Mr. Small pleaded not guilty to first degree murder but guilty to the included offence of manslaughter. The Crown did not accept the plea. Mr. Small pleaded not guilty to attempted murder and guilty to unauthorized possession of a loaded firearm.

11Mr. Small admitted that he was the person who discharged the shot that caused Mr. Marcelle’s death. He maintained, however, that he did not intend to hit or kill anyone. Rather, he had discharged the firearm while in a panic because he believed that Mr. Khamis, whom he feared, had seen him and was going to do him harm.

12It was the Crown’s theory that after seeing Mr. Khamis enter the Walmart, Mr. Small formed a plan to kill him in order to extract some “street justice” for having shot his friends and that the shooting was the implementation of that plan.

13The jury found Mr. Small not guilty of first degree murder but guilty of second degree murder and attempted murder.

C. Victim Impact

14The court received victim impact statements from Mr. Marcelle’s sisters, brother and cousin. They describe Mr. Marcelle as “a wonderful human being,” “a kind tender-hearted person,” “a beautiful soul with great potential” and someone whose “heart was as big as he was.” He had an extended family and his untimely death has been emotionally devastating to his mother, sisters, brother, uncle, nephew, grandparents, great-grandparents and friends.

15Mr. Marcelle’s family and friends have suffered greatly as a result of Mr. Small’s actions and will continue to do so. No sentence I impose can return Mr. Marcelle to them or heal the wounds left by his loss. That is something I cannot do, and the sentences that I impose are not intended to reflect Mr. Marcelle’s worth as a human being. That is not something that can be measured, least of all by the length of a prison sentence.

D. Mr. Small’s Background

16Mr. Small is 29 years old. He grew up in Toronto and was raised by his mother after his father went to live in Jamaica when Mr. Small was very young. He has two younger sisters. Mr. Small is the father of a nine-year-old son, who currently lives with his mother, from whom Mr. Small is separated but with whom he maintains a cordial relationship.

17Mr. Small has a high school education and has also studied music at a Scarborough conservatory. He has an employment history as a general labourer and home renovator.

18The court received letters from Mr. Small’s family and friends making it clear that they continue to support him. They describe him as a good father and state that before the commission of this offence, he was a respected member of his community.

19In 2014, Mr. Small was convicted of possession of the proceeds of crime and assault. In 2016, he was convicted of unauthorized possession of a loaded prohibited or restricted firearm and possession of a firearm contrary to a prohibition order.

E. Jury Recommendations

20Pursuant to s. 745.2 of the Criminal Code, the jury members were asked whether they wished to make recommendations as to Mr. Small’s parole ineligibility. One juror recommended 15 years, another recommended 10 years and the remaining 10 jurors made no recommendation.

II. ANALYSIS

A. Findings of Fact

(i) The Correct Approach

21Section 724(2) of the Criminal Code requires me to accept as proven all facts, express or implied, that are essential to the jury’s verdict and also permits me to find other facts disclosed by the evidence. I must engage in my own, independent fact-finding exercise with respect to any facts that are not expressed or necessarily implicit in the jury’s verdict: R. v. Aragon, 2022 ONCA 244, at para. 105-107. I may not consider any aggravating fact unless it has been proven beyond a reasonable doubt: Criminal Code, s. 724(3)(e); R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at pp. 4414-417.

(ii) Was There an “Element of Planning”?

22In this case, the jury clearly rejected the Crown theory that this was a planned and deliberate murder. The Crown nonetheless urges me to find that there was an “element of planning,” as evidenced by Mr. Small’s decision to get into the back seat of the car when he and his girlfriend returned to it after seeing Mr. Khamis.

23To obtain a conviction for first degree murder, the Crown must prove that the murder was both planned and deliberate. It follows that a murder that is planned but not deliberate would be second degree murder, although it could be described as “a near first degree murder”: R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 88. For example, in R. v. Monney, 2017 ONSC 1007, at paras 100-101, the accused had gone to a specific location with a plan to shoot someone, but it was unclear when they formed the intention to kill. In R. v. Osei-Agyemang, 2011 ABCA 2, 493 A.R. 363, at para. 21, and R. v. Van Osselaer, 2004 BCCA 3, 181 C.C.C. (3d) 322, at para. 9, there was evidence of a plan to perpetrate some type of violence on the deceased, but at some point the accused formed the intention to kill. In R. v. Hayles-Wilson, 2018 ONSC 4337, at para. 7, aff’d 2022 ONCA 790, 165 O.R. (3d) 97, at paras. 42-53, a plan was made to kill the deceased, but because of the speed at which events unfolded, there was insufficient time for deliberation.

24In this case, the Crown relies on the fact that Mr. Small got into the back seat of the car which, the Crown submits, was the optimal location from which to discharge a firearm at Mr. Khamis. The Crown relied on the same evidence in its unsuccessful attempt to persuade the jury that this was a planned and deliberate murder. Mr. Small’s explanation at trial for getting into the back seat was that he wished to lie flat so as to avoid being seen by Mr. Khamis, whom he feared.

25While Mr. Small’s entry into the back seat is suspicious and I do not accept his explanation that he was trying to hide, I am not persuaded beyond a reasonable doubt that there was a plan to shoot Mr. Khamis. After seeing Mr. Khamis, Mr. Small returned to his car and had entered the parking garage by the time Mr. Khamis and Mr. Marcelle exited the Walmart. While it was the Crown’s theory that Mr. Small could see the two men from wherever he was within the parking garage, there is no evidence as to where Mr. Small’s vehicle was parked and I am not prepared to speculate as to what he would or would not have been able to see once he entered the garage. In these circumstances, it is not clear that Mr. Small would have known that he would see Mr. Khamis again. Of course, as the jury’s verdict makes clear, once Mr. Small did see Mr. Khamis again, he formed an intention to kill him.

(iii) Mr. Small’s Motive

26The Crown also asks me to find as a fact that Mr. Small’s motivation in attempting to kill Mr. Khamis was to exact revenge for the shooting of his friends and that this was a form of “street justice.” The defence position is that Mr. Small was motivated by fear, not a wish for revenge.

27On this record, I am unable to make any finding about Mr. Small’s motivation. However, I am not sure that much turns on it. Whether Mr. Small was seeking to dispense “street justice,” whether he wanted to “neutralize” a person he believed to be a threat, or whether he had both motivations, the fact remains that this was a brazen shooting in a public place for which there can be no justification.

B. The Prevalence of Gun Crime

28Handguns have but one purpose, which is to kill or seriously injure human beings. They allow those who possess them to terminate the existence of another person on a whim and in a matter of seconds, permanently erasing that person’s hopes and dreams and leaving his or her family and friends to suffer a lifetime of sorrow and heartbreak. That some people view these tools of death as beneficial devices which one should have a right to possess is difficult to comprehend.

29The prevalence of gun crime in Toronto is depressingly familiar to those who work in the criminal justice system. This case is a microcosm of the problem. Mr. Marcelle died as a result of a gunshot wound. In his victim impact statement, Mr. Marcelle’s brother mentions that his father had also died as a result of being shot. At the time Mr. Marcelle was shot, he was in the company of Mr. Khamis, who was armed with a gun. Mr. Small, the person who shot Mr. Marcelle, was also armed with a gun. Mr. Small had himself been shot at the Toronto Raptors victory celebration a few years earlier. Some time prior to that, three of his friends had been shot, allegedly by Mr. Khamis. Guns were the means by which this crime was committed and were allegedly related to the motive for committing it.

30For many years, the courts have reiterated the need to impose “exemplary sentences” to deter those would possess and use firearms. Given the continued prevalence of the problem, it is clear that the criminal justice system cannot eradicate the problem by itself. Additional steps need to be taken to identify and remedy the social conditions that result in young men like Mr. Small and Mr. Khamis arming themselves with deadly weapons. Until they are, sentencing judges can do no more than take reactive steps. But any such step is taken too late for Mr. Marcelle. At best, I can hope that the sentence imposed today will denounce the conduct that led to his death and in some way perhaps deter another person from committing a similar crime.

C. The Appropriate Sentences

(i) Count 1 – Second Degree Murder

31Section 745 (c) of the Criminal Code states that the sentence that I must impose for a conviction for second degree murder is imprisonment for life. While I have a discretion as to the number of years that Mr. Small must serve before being eligible for parole, the sentence must and will be one of life imprisonment. In determining what the period of parole ineligibility should be, s. 745.4 requires me to consider “the character of the offender, the nature of the offence and the circumstances surrounding its commission” and the jury’s recommendations. I have done so.

32In Hayes-Wilson (S.C.J.), at paras. 18-29, Code J. reviewed a number of cases and identified three ranges of parole ineligibility for second degree murder cases involving “brazen public shootings” and subsequent cases support his conclusions:

• at the lower end, approximately 12 years in cases involving unusual mitigating circumstances, such as the accused being a party rather than a principal, or where the accused had a particularly promising potential for rehabilitation: R. v. Maciel, 2007 ONCA 496, at paras. 12-18; R. v. Zekarias (appeal by Paredes), 2014 ONCA 910, 317 C.C.C. (3d) 415, at paras. 43-44; R. v. Lewis, 2012 ONSC 2488, at paras. 21-24; R. v. Chizanga, 2020 ONSC 4647, at paras. 89-91;

• at the higher end, a range of 18 to 22 years in cases involving particularly aggravating factors, such as multiple victims, a very lengthy criminal record, or where the offence was gang-related: R. v. Weese, 2016 ONCA 449, 350 O.A.C. 170, at paras. 27-32; R. v. Chambers, 2023 ONCA 444, at paras. 55-56, 2023 ONCA 444, aff’g 2018 ONSC 2070; R. v. Belic, [2008] O.J. No. 629 (S.C.J.); R. v. Ahmed, 2023 ONSC 1364; R. v. Gager, 2020 ONCA 274, at paras. 160-168; R. v. MacKinnon, 2019 ONSC 3436, at paras. 77-78;

• in the middle, a range of 14 to 16 years in cases not involving particularly mitigating or aggravating factors: Hayles-Wilson (C.A.), at para. 45; R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at paras. 62-79; R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at paras. 168-176; R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at paras. 59-68; R. v. Stewart, 2008 CanLII 70846 (ON SC), [2008] O.J. No. 5449 (S.C.J.), at paras. 39-42; R. v. Persaud (1999), 1999 CanLII 1115 (ON CA), 123 O.A.C. 392, at paras. 15-16; R. v. D.S., 2010 ONSC 7256, at paras. 56-59; Monney, at paras. 117-121; Chizanga, at paras. 87-88.

33In my view, this case falls squarely within the middle range. Indeed, this case shares some characteristics with Hayles-Wilson, which also involved an accused discharging a firearm in a public place where several people were present because of some grievance arising out of a belief that the victim had been responsible for violence against the accused’s associates. Like Mr. Small, the accused enjoyed the continued support of his family. The accused in Hayles-Wilson apologized to the victim’s family. While Mr. Small did not do so, he offered to plead guilty to manslaughter, which demonstrates some acceptance of responsibility.

34There are, however, some differences as well. The accused in Hayles-Wilson had no criminal record, while Mr. Small has a prior record, including a prior conviction for a firearms offence. More significantly, Mr. Small was subject to not one, but two firearm prohibition orders at the time he committed this offence. On the other hand, Hayles-Wilson involved a “near first-degree murder,” unlike in this case. There was also evidence that the accused was affiliated with a gang and I heard no evidence of any such affiliation in relation to Mr. Small.

35Having considered all of the circumstances, I have concluded that while Mr. Small’s antecedents are less mitigating than in Hayles-Wilson, the circumstances surrounding the commission of the offence, and in particular the fact that it was not a “near first degree murder,” are not as aggravating. In the result, a period of parole ineligibility of 14 years, which is in the same range but slightly lower than that in Hayles-Wilson, is appropriate.

(ii) Count 2 – Attempted Murder

(a) The Rule Against Multiple Convictions

36After the jury delivered its verdict, I inquired of counsel whether they wished to raise the issue of whether the rule against multiple convictions as identified in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 applied, given that the actus reus and mens rea for both the murder conviction and the attempted murder conviction were the same in that they both involved Mr. Small’s discharge of the firearm together with an intent to kill Mr. Khamis. Counsel for Mr. Small submits that the rule does apply and that the attempted murder conviction should be stayed.

37In my view, the rule against multiple convictions does not apply here. It is true that to prove the murder charge, the Crown had to prove the elements of the attempted murder charge as well as the additional element of having caused the death of Mr. Marcelle. Thus, the statement in R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at p. 499, that “[w]here the offences are of unequal gravity, Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provided that there are no distinct additional elements in the lesser offence” would, at first glance, seem to apply. However, later in the decision in Prince, the court stated, at p. 506:

It would appear … that, at least in so far as crimes of personal violence are concerned, the rule against multiple convictions is inapplicable when the convictions relate to different victims. Indeed, I believe it was never within the contemplation of the majority in Kienapple that the rule enunciated therein would preclude two convictions for offences respectively containing as elements the injury or death of two different persons.

See also R. v. Van Rassel, [1990] 2 S.C.R. 225, at paras. 28-29.

38While Mr. Small did not cause death or injury to Mr. Khamis, the fact remains that he was nonetheless the victim of the offence of attempted murder. Because there were different victims, the rule against multiple convictions does not apply.

(b) The Appropriate Range

39As was noted in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 129, “[t]he moral blameworthiness of attempted murder is always very high.” Indeed, there is no distinction between the moral culpability of a person who commits attempted murder from that of a person who commits murder: Forcillo, at para. 130; R. v. McArthur (2004), 2004 CanLII 8759 (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.), at para. 47.

40In Forcillo, at para. 131, the Ontario Court of Appeal affirmed the sentencing range for attempted murder of six years to life imprisonment that had been set in R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at para. 35. That range can be broken down into three subcategories:

• in rare cases, single-digit sentences, such as the six-year sentence imposed in the unusual circumstances in Forcillo, where a police officer attempted to kill an individual after justifiably shooting him in the execution of his duties (the other single-digit sentences discussed in Tan, R. v. Campbell (2003), 2003 CanLII 48403 (ON CA), 170 O.A.C. 282 (C.A.) and R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), were attempted murders in the domestic context and the sentences imposed in those case are likely no longer appropriate in light of the more recent decision in R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at paras. 45-48);

• sentences of 10 to 16 years in cases involving the use of a firearm in a public place, “planned executions” and domestic situations: Cunningham, at para. 57; R. v. Chevers, 2011 ONCA 569, 282 O.A.C. 388; R. v. Guedez-Infante, 2009 ONCA 739; R. v. Thompson, 2009 ONCA 243, 95 O.R. (3d) 469 (C.A.), at para. 26; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 148; R. v. K.G., 2010 ONCA 177, 266 O.A.C. 334; R. v. Martin, 2022 ONSC 2354; R. v. Hernandez-Viera, 2022 ONSC 3776, at paras. 27-32; R. v. Abdullahi, 2022 ONSC 543, at paras. 42-45;

• higher sentence of up to life imprisonment in cases of “stark horror,” very serious and permanent injuries to the victim, or a lengthy criminal record; McArthur, at paras. 48-54; R. v. Pan, 2023 ONCA 362, at paras. 148-156; R. v. Mesgun (1997), 1997 CanLII 623 (ON CA), 36 O.R. (3d) 739 (C.A.); R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264, at paras. 31-32; R. v. Lieug (1995), O.A.C. 317 (C.A.), at paras. 9-15; R. v. Charlebois, [1987] O.J. No. 886 (C.A.); R. v. Kawal, 2018 ONSC 7531.

41In my view, Mr. Small falls into the middle range. Having considered his antecedents, the fact that the offence involved the discharge of a firearm in a public place, as well as the lack of injuries to Mr. Khamis, I conclude that the appropriate sentence is one of 12 years.

(iii) Counts 3 to 5 – Firearm Possession Offences

42The parties agree that the appropriate sentence for the firearms possession offences is eight years: seven years for the unauthorized possession of a loaded prohibited firearm and one year consecutive for the breaches of the prohibition orders. This is within the established range of sentences for a second conviction for this type of firearms offence: R. v. Graham, 2018 ONSC 6817, at para. 39.

43Sentences for breaching a prohibition order are ordinarily to be consecutive to sentences for firearm possession: Graham, at para. 41. Where, as here, there are breaches of two orders, whether the sentence for each order is to be consecutive to the other is discretionary: R. v. Chambers, 2013 ONCA 680, 295 C.R.R. (2d) 314, at paras. 20-24. In this case, however, Mr. Small will be serving a life sentence and all of the other sentences will necessarily be concurrent to it. For the sake of simplicity, rather than impose seven years plus one year consecutive, I will impose a sentence of eight years for the firearm possession count and one year for each breach of a prohibition, all to be served concurrently.

III. DISPOSITION

44The sentences imposed are as follows:

Count 1: Imprisonment for life without parole eligibility for 14 years.

Count 2: 12 years

Count 3: 8 years

Count 4: 1 year

Count 5: 1 year.

All sentences are to be served concurrently.

45Pursuant to s. 109(1) of the Criminal Code, Mr. Small is prohibited from possessing the items described in s. 109(3) for life.

46Pursuant to s. 487.051(2) of the Criminal Code, Mr. Small is ordered to provide a sample of his DNA for inclusion in the national databank.

Footnotes

1. 1An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.
2. 2Ms. Christian was initially also charged with first degree murder but pleaded guilty to manslaughter. She received a sentence of six years imprisonment less credit for presentence custody: R. v. Christian (unreported, August 25, 2023, Ont. S.C.J.).
3. 3At the time he testified, Mr. Khamis was serving a sentence of 11 years imprisonment (less presentence custody) after pleading guilty to two counts of unauthorized possession of a loaded restricted firearm, two counts of possession of a firearm contrary to a prohibition order, and two counts of possession of a controlled substance for the purpose of trafficking.