COURT FILE NO.: CR-23-40000095-0000
DATE: 20231219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
YANIQUE ELLISON
Frank Schembri and Leanna Guzzo, for the Crown
Christian Pearce and Amanda Warth, for Mr. Ellison
HEARD: November 6 and 24, 2023
M. Forestell J.
REASONS FOR SENTENCE
Background and Positions
[1] On November 6, 2023, Yanique Ellison pleaded guilty before me to the offence of manslaughter in relation to the killing of Jason Cockburn on July 5, 2021.
[2] After hearing the evidence and submissions on sentencing on November 24, 2023, I reserved my decision on sentencing until today.
[3] The Crown seeks a sentence of eight years’ imprisonment before statutory credit for presentence custody at 1.5 to 1. The position of the Crown is that an eight-year sentence takes into account the harsh conditions of presentence custody and that any lower sentence would be inappropriate. Counsel for Mr. Ellison submits that a sentence of eight years would have been appropriate before credit for harsh conditions but that the harsh conditions of pre-sentence custody should mitigate the sentence and the appropriate sentence after consideration for conditions of presentence custody is seven years and three months.
The Circumstances of the Offence
[4] The circumstances of the offence are set out in Exhibit 1 on sentencing.
[5] On July 5, 2021, the victim, Mr. Cockburn and his girlfriend, Priscilla Campbell, attended the bar where Mr. Ellison worked. A dispute arose over payment for drinks. Mr. Cockburn threw money at Mr. Ellison and Mr. Ellison ordered Mr. Cockburn to leave the bar. During the dispute, another man intervened. Mr. Ellison pointed at Mr. Cockburn and said “I’mma catch you”. Mr. Ellison escorted Mr. Cockburn out of the bar followed by Ms. Campbell and the man who had intervened. That man who intervened is the man who ultimately shot Mr. Cockburn. He remains unidentified.
[6] While outside the bar the verbal dispute between Mr. Cockburn, Mr. Ellison and the shooter continued. At some point Mr. Cockburn took out a knife. Mr. Cockburn and Ms. Campbell left and walked towards a nearby apartment building. After Mr. Cockburn and Ms. Campbell left the area, Mr. Ellison handed the shooter a COVID mask and the shooter and Mr. Ellison went back into the bar. A short time later, the shooter emerged wearing the mask and ran in the direction of Mr. Cockburn. The shooter followed Mr. Cockburn and Ms. Campbell to the back of the apartment building and shot Mr. Cockburn in the back of the head from a distance of about 5 to 10 feet. Mr. Cockburn later died of his injuries.
[7] Mr. Ellison’s guilty plea to manslaughter is based on the fact that he handed the shooter a mask after having threatened the victim in the presence of the shooter. It was objectively foreseeable that the shooter would cause bodily harm to Mr. Cockburn.
Victim Impact
[8] Jason Cockburn was a father, a brother, a son and a partner. He was loved by his family and by his girlfriend. Ms. Campbell described Mr. Cockburn as the love of her life. Mr. Cockburn’s loved ones have suffered, mentally, emotionally and physically. Ms. Campbell, who witnessed the shooting, has been traumatized by the experience and is dealing with that trauma in addition to grieving the loss of Mr. Cockburn. The impact of this offence has been profound.
Circumstances of the Offender
[9] Mr. Ellison is 36 years old. He was born in Jamaica and emigrated to Canada. He is a Canadian citizen. He has no criminal record. He has two children, aged 13 years and two years. Mr. Ellison was employed prior to his arrest on this offence.
[10] A support letter from Menroy McLean, a longtime friend of Mr. Ellison describes Mr. Ellison’s commitment to his family.
[11] Mr. Ellison has been in custody since his arrest on October 6, 2021. Although programming has been very limited during Mr. Ellison’s incarceration, he has participated in the Black Employment Program, ‘Inside Out.’ The program provides culturally relevant support leading to gainful employment, entrepreneurship, education and skilled training for justice impacted Black individuals. Through the program, Mr. Ellison has made a plan to start an apprenticeship upon release.
Conditions of Detention
[12] Since his arrest, Mr. Ellison has been held in custody in the Toronto South Detention Center (“TSDC”) and the Toronto East Detention Center (“TEDC”). He has been in custody for 805 days. Lockdown records have been filed as part of the record on sentencing. Those records disclose that Mr. Ellison was subject to lockdowns for a total of 297 days from his arrest until October 20, 2023.
[13] Mr. Ellison has been subject to lockdowns for about 40% of his time in custody. Most of the lockdowns have been due to staff shortages. Staff shortages have plagued the Toronto Region Detention Centers since before the pandemic. The conditions of detention worsened during the pandemic. Even now, as most of the community has resumed normal routines, detention centers continue to have frequent lockdowns and other restrictions to contain the spread of COVID-19. Mr. Ellison was unable to attend his sentencing hearing in person because of restrictions at the TEDC resulting from COVID.
[14] As set out in the affidavit of Mr. Ellison, lockdowns mean that inmates are locked in their cells for 24 hours a day, sometimes for multiple days. They have no privacy and are forced to urinate and defecate in front of their cellmates. They are unable to shower. The lockdowns cause increased tension and violence.
[15] Lockdowns also prevent inmates from communicating with their families or their lawyers. Programming and recreation are restricted during lockdowns.
[16] In addition to the lockdowns, Mr. Ellison has been triple-bunked in a cell designed for two inmates.
[17] Mr. Ellison was the victim of gun violence in 2016 and his pelvis was shattered. He has had multiple surgeries to repair the damage. He was supposed to have more surgeries and he was supposed to have physiotherapy, but the jail has not been able to schedule the surgeries or to provide as much physiotherapy as Mr. Ellison requires. His condition has deteriorated while in custody. His mental health has also suffered, and he was noted to have lost weight due to depression.
Law and Analysis
[18] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code,[^1] is to “contribute …to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.
[19] Denunciation and deterrence are generally the predominant sentencing objectives in sentencing for manslaughter. However, rehabilitation remains a relevant consideration.
[20] In arriving at an appropriate sentence, I must consider aggravating and mitigating circumstances with respect to the offender and with respect to the offence.
[21] Aggravating circumstances are:
• The fact that a firearm was used;
• The significant impact on the family of the victim; and
• The fact that Mr. Ellison’s actions made it possible for the shooter to conceal his identity and avoid responsibility.
[22] Mitigating factors are:
• That Mr. Ellison entered a guilty plea at an early opportunity. He has accepted responsibility and is genuinely remorseful for his role in this offence;
• He has support in the community, including from the Black Employment Support Program;
• He has no criminal record; and
• Mr. Ellison has experienced unusually harsh conditions in pre-sentence custody.
[23] The Court of Appeal in R. v. Marshall held that particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account in arriving at an appropriate sentence.[^2]
[24] Mitigation of a sentence for harsh conditions cannot take a sentence below what is fit.
[25] The narrow issue in this case is the amount of mitigation for harsh conditions and whether a reduction of the sentence below eight years would render the sentence unfit in the circumstance.
[26] Section 718.1 of the Criminal Code sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[27] There is a wide range for manslaughter. The Crown relies on the Court of Appeal decision in R. v. Warner, in which the court held that “the jurisprudence suggests that 12 or 13 years is generally appropriate for aiders and abettors to manslaughter where those offenders have a high degree of moral culpability.”[^3] The Crown does not suggest that Mr. Ellison’s actions bring him into that range of sentence but submits that the recommended eight-year sentence is at the bottom of the acceptable range for this type of offence and this type of offender.
[28] Mr. Ellison submits that the range of sentence for this type of offence extends below the eight-year range.
[29] The factors to be considered in weighing the moral culpability of the offender include the degree of involvement in the act that caused the death.
[30] Where, as in this case, the offender is an aider with a limited role, I find that sentences can fall below eight years.
[31] In R. v. Kwaykye,[^4] a youthful first offender who participated in a home invasion robbery knowing that his accomplice had a gun was sentenced by the trial judge to 10 years. The Court of Appeal reduced the sentence to seven years because of the lower level of culpability and because of the rehabilitative potential of the offender.
[32] In R. v. Ingram-Piruzevski,[^5] Fuerst J. imposed a sentence of seven years’ imprisonment on a youthful first offender who participated in a drug deal while armed. His accomplice stabbed the victim to death. The offender in that case was remorseful and entered a guilty plea at an early opportunity. The case pre-dated the decision of the Court of Appeal for Ontario in R. v. Marshall[^6] and harsh conditions of pre-sentence custody were not considered in mitigation, but resulted in a three-month credit in recognition of 68 lockdown days. The effective sentence was therefore six years and nine months.
[33] I appreciate that Mr. Ellison is not a youthful offender. He is, however, a first offender and he has rehabilitative potential.
[34] It is not disputed that Mr. Ellison has been in custody under punitively harsh conditions. He has spent almost 10 months in harsh lockdown conditions that have impacted his physical and mental health. His pre-existing medical condition has made this period of detention even more onerous.
[35] Having weighed the relevant factors and principles of sentencing and taking into account the exceptionally harsh conditions and their impact on this offender, I am satisfied that the otherwise appropriate sentence of eight years should be reduced by six months to a sentence of 7.5 years to reflect the mitigation for harsh conditions.
Conclusion
[36] For these reasons, I sentence Mr. Ellison to seven and a half years’ imprisonment before statutory credit or 2,739 days. He has spent 805 actual days in custody which are credited at 1.5:1 as 1,208 days. The remaining sentence to be served is 1,531 days or four years, two months and eight days.
[37] There will be a s. 109 order prohibiting Mr. Ellison from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[38] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Ellison provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.
[39] There will also be an order under s. 743.21 of the Criminal Code prohibiting Mr. Ellison from communicating directly or indirectly with Priscilla Campbell or any member of Jason Cockburn’s family while serving this sentence.
M. Forestell J.
Released: December 19, 2023
COURT FILE NO.: CR-23-40000095-0000
DATE: 20231219
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
YANIQUE ELLISON
REASONS FOR SENTENCE
M. Forestell J.
Released: December 19, 2023
[^1]: R.S.C., 1985, c. C-46 [^2]: Marshall, at para. 52 [^3]: 2019 ONCA 1014 at para 14 [^4]: R. v. Kwakye, 2015 ONCA 108 [^5]: 2019 ONSC 4470 [^6]: 2021 ONCA 344