His Majesty the King v. Mark Champagne, 2023 ONSC 908

COURT FILE NO.: CR-17-146

DATE: 2023-02-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

A. Scott, for the Applicant

Applicant

• and -

MARK CHAMPAGNE

C. Rudnicki, for the Respondent

Respondent

HEARD: January 12, 2023

REASONS FOR SENTENCING

OVERVIEW

[1] Natasha Thompson was shot and killed outside of her home on November 6, 2017. Mr. Champagne was arrested and charged with the 2nd degree murder of Ms. Thompson on November 7, 2017. On October 20, 2021, a Hamilton jury found the accused guilty of second-degree murder.

[2] The Criminal Code requires that the accused must be sentenced to a mandatory term of life imprisonment. This court has a discretion to increase the term preventing eligibility for parole from anywhere between 10 to 25 years. The defence seeks a 13–14-year term before parole can be granted; the Crown seeks a term of 20-25 years before parole can be granted.

ISSUE

[3] What is the appropriate term of parole ineligibility in the circumstances of this offence and offender?

EVIDENCE AT TRIAL

[4] The key witness for the Crown was the deceased, Natasha Thompson’s daughter, Hana Thompson (“Hana”). Hana testified that, on November 6, 2017, the accused and her mother, Natasha Thompson (“Natasha”), were arguing. Natasha told Hana that she was leaving the accused and she, Natasha, was getting an abortion. The accused and the deceased continued the argument outside and it was loud.

[5] The accused wanted Natasha to go inside so people would not hear. Hana heard her mother state, outside, to the accused, “I want people to hear, I need you to get out. I’m having an abortion.” The last thing Hana heard before the shots was her mother, Natasha, state, “[a]re you threatening me?”. Hana was upstairs in her bedroom half asleep but was awakened by a big bang which she testified was the gun. No one else was in the house during the argument leading up to the shooting.

[6] Hana testified that she saw, from her upstairs bedroom window, Mr. Champagne, and no one else, for 10 seconds. Hana saw Mr. Champagne then run away. Hana discovered her mother in front of her next-door neighbour’s door.

[7] Numerous witnesses, including Hana, testified that the accused and Natasha had a volatile relationship with lots of arguing. During one of the prior arguments, the accused smashed furniture in the home.

[8] Forensic evidence established that Natasha had ten gunshot wounds. Three of the gunshot wounds to the face/head were from an intermediate range – that is 10 mm. up to one metre. The cause of death was (1) injuries to Natasha’s head and (2) a torso wound that damaged the majority of her internal organs, including the aorta.

[9] Detective Johnson testified that the police canvassed over 200 houses looking for witnesses. The cumulative effect of the police investigation, including witness interviews and forensic evidence, was that there was only one shooter. The evidence at trial, with minor inconsistencies, confirmed that there was only one shooter.

[10] There was ample evidence of motive at the trial. Hana Thompson’s evidence, along with other witnesses, provided a picture of the accused as a controlling, possessive and jealous common law spouse. Other witnesses testified that they heard frequent arguments with Mr. Champagne (“Mark”) screaming and yelling and/or Mark and Natasha yelling and arguing.

[11] The accused testified. He denied being jealous. He admitted that there was arguing but in cross-examination denied there was a lot of arguing. The accused described his relationship with Natasha was good except when they had arguments over drug dealing.

[12] The accused was cross-examined regarding his criminal record. The accused admitted his criminal record which includes convictions for Attempted Murder, Aggravated Assault, Assault with a Weapon, and other convictions, for which he was sentenced to 13 years, 3 months, on April 7, 2000.

[13] The accused, in his testimony, admitted to shooting Natasha.

[14] Mark testified that on November 6, an individual named Tyrone was texting and threatening to “shoot the place up” if Tyrone didn’t get paid for the cocaine he supplied Natasha.

[15] The accused testified that he was watching T.V. later that day and was relaxed and nodding off. Mark heard voices and a loud commotion at the door. It was Tyrone. Tyrone pulled out a gun and threatened to shoot. Natasha, according to Mark, pulled her gun out and threatened to shoot Tyrone if he didn’t get out. Mark pulled out his gun. Tyrone fired at Mark and then Tyrone fired another shot. Mark went outside. Mark saw Tyrone run away. Mark saw a female he believed was Natasha backing away from Tyrone. Mark heard a gun being cocked behind him. Mark saw a person in front of a neighbour’s house point a gun at him. Mark fired repeatedly at this person in self-defence. He pulled the trigger and the gun went off repeatedly. After Tyrone fled, Mark saw the female he thought was Natasha walk away and Mark realized it was not Natasha. Mark looked back at the person at his neighbour’s door and realized he had shot Natasha. Mark felt the situation was beyond repair and he walked away. Mark ditched his gun in bushes near the shooting scene. Mark went to Toronto and later turned himself in.

[16] Mark’s evidence was contradicted by other trial testimony. The CFS expert testified that Mark’s gun was a semi-automatic and required you to pull the trigger every time in order to shoot. There was no credible evidence indicating that there was a mystery female and/or “Tyrone”, a second shooter, present at the time of the shooting. Most importantly, Mark said Natasha had a gun when he shot her, but no such gun was located by the police who arrived very shortly, within minutes, after Natasha was shot. Further, Natasha was shot repeatedly at close range which makes a claim of mistaken identity devoid of any realistic credibility.

[17] Basically, Mark’s defence was that he had no intention to kill and acted in self-defence, mistaking Natasha as an unknown assailant. My opinion is that the defence entered was incredible, not believable, and did not raise a reasonable doubt regarding the Crown’s evidence establishing that the accused was guilty of second degree murder.

[18] The jury obviously rejected the defence’s evidence, accepted the Crown’s evidence, and found the accused guilty of second degree murder beyond a reasonable doubt.

[19] The defence requested me to make several findings of fact regarding several issues: i.e. intention to kill, effect of accused’s consumption of intoxicating substances and whether the accused’s gun jammed.

INTENTION TO KILL NATASHA THOMPSON

[20] The jury was instructed that the accused could be found guilty of second-degree murder by Route (1) killing Natasha by accident or mistake when he had the state of mind required for murder of an unknown individual or Route (2) killing Natasha Thompson by deliberately firing at Natasha Thompson with the state of mind required for murder.

[21] Dr. Elena Bulakhtina, a forensic pathologist, testified as follows:

Natasha has ten gunshot wounds. The gun shot wounds to her head and torso were independently the cause of her death. The gun shot wounds were distributed as follows as outlined in Ex. 55 at page 16:

1. 4 gunshots to the head (lethal);

2. 2 gunshots to the torso (lethal);

3. 1 gunshot to the neck and right shoulder;

4. 2 gunshots to the right upper arm;

5. 1 gunshot to the left upper arm.

The deceased was shot from all directions. She was moving while being shot. Death occurred shortly after the lethal gunshot wounds were inflicted. Three gunshot wounds to the face/head showed stippling which means the deceased was shot at from an intermediate range of 10 mm to 1 metre. This means the shooter shot the victim in the face/head three times at a range of 1 metre or less.

[22] The evidence at trial was that Mark had lived with Natasha since the summer of 2017 until the shooting in November 2017. Hana Thompson was a credible, honest witness who testified that she did not hear or see anyone else prior to the shooting. Hana overheard loud arguing, as previously summarized, just before the shooting. This arguing was heard by the other witnesses who testified at trial. As previously indicated, Mark’s testimony regarding a second shooter, Tyrone, and Natasha having a gun, is not credible or believable.

[23] Accordingly, I find as a fact, beyond a reasonable doubt, that the accused was enraged that Natasha was leaving him and he deliberately and repeatedly shot Natasha at close range with the intent to kill her. After he fired ten shots into Natasha, Mark then left the scene, leaving Natasha to die an inevitable death.

EFFECT OF INTOXICATING SUBSTANCES

[24] Mark Champagne testified he drank many beers and smoked a joint on November 6, 2017. Lisa Corbett testified she saw Mark with a beer that day.

[25] However, Lisa Corbett, along with other witnesses – Steve Corbett, Hanso Mohmaud, Kevin Cina, and Elaine Bradley, saw the accused walk away normally from the shooting scene. Others testified he ran away. There was no evidence of effects of any intoxication. Hana Thompson and others testified to the accused and deceased arguing before the shooting. The accused had the wherewithal to deposit his firearm in bushes on the path of his escape. Shortly after the shooting, Mark removed his clothes on Lewis Street near the shooting scene. Mark testified that he took off his clothes – jacket, sweater, and t-shirt. Mark went to 220 Parkdale and cleaned his hands as they were bloodied. Mark then went to Toronto. Later, he turned himself in.

[26] I find that Mark’s actions contradict his claim of intoxication. The jury obviously rejected his defence of intoxication. I find beyond a reasonable doubt that Mark was angry with Natasha, shot her with intent to kill and quickly thereafter fled the scene and knowingly relieved himself of items and evidence that would tie him to shooting Natasha.

JAMMING OF GUN

[27] Mark testified that he altered his handgun to fire automatic rounds. He pulled the trigger once and all the rounds were fired. CFS expert, Jennifer Plath, testified that the Browning handgun was a semi-automatic that requires you to pull the trigger every time in order to shoot.

[28] Mark testified his gun did not jam. Mark testified that there was a pause between shots which occurred due to Tyrone’s shots. The live cartridge found near Natasha came from Natasha’s gun, according to Mark. As indicated earlier, no gun was ever found at the scene other than the accused’s gun which was deposited in bushes along his escape route. I am satisfied beyond a reasonable doubt that Natasha was not armed; there was no Tyrone at the shooting scene; and that all cartridges – live or spent – came from Mark’s gun as it was the only firearm present during the shooting. Jennifer Plath concluded that there was an agreement of class and individual characteristics between the live cartridge and the cartridges found at the scene, and concluded they were all fired from the same gun.

[29] I am satisfied beyond a reasonable doubt that the live cartridge found near Natasha’s body came from the accused’s gun. The bullet did not fire, but the accused was able to eject the unfired bullet and was able to fire, in total, 10 bullets which caused the 10 bullet wounds testified to by Dr. Bulakhtina.

CONCLUSION AS TO FACTS

[30] I find beyond a reasonable doubt that the accused knowingly and deliberately shot Natasha Thompson ten times with intent to kill Natasha Thompson, notwithstanding any consumption of alcohol and/or drugs.

[31] After successfully killing Ms. Thompson, the accused fled the scene and did his best to rid himself of items/evidence which could tie him to the shooting of Natasha Thompson.

JURY RECOMMENDATION REGARDING PAROLE ELIGIBILITY

[32] After the jury found the accused guilty of second-degree murder, the jury, pursuant to s. 745.2 of the Criminal Code, was told that they did not have to make a recommendation regarding parole ineligibility but could do so if they wished.

[33] The jury returned the following decision:

1. No recommendation – 4 jurors;

2. Recommend 20 years before eligibility – 1 juror;

3. Recommend 25 years before eligibility – 7 jurors.

LAW REGARDING PAROLE ELIBIGILITY FOR SECOND DEGREE MURDER

a) Statutory Regime

[34] Pursuant to s. 745 (c) of the Criminal Code, R.S.C., 1985, C. C-46, on conviction for second degree murder, the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 years to a maximum of 25 years.

[35] S .745.2 of the Criminal Code authorizes a jury to make recommendations regarding parole ineligibility anywhere from 10 years to 25 years, but they also are free to make no recommendation at all.

[36] The trial judge pursuant to s. 745.4 is authorized to increase the parole ineligibility period from the minimum of 10 years up to a maximum of 25 years. The trial judge in exercising their discretion, is to have regard to the following four factors:

1. Character of the offender;

2. Nature of the offence;

3. Circumstances surrounding its commission;

4. Recommendation of the jury.

[37] The sentencing objectives in s. 718 of the Criminal Code are relevant in determining the period of parole ineligibility – see R. v. Justin Dumpfrey, 2022 ONSC 2187 at paras. 4-6.

b) Judicial Decisions

[38] Sentencing decisions are a constantly evolving process, dependent on changing values in society and/or increases or decreases in crimes that impact the community.

[39] The sentences regarding ineligibility for parole for domestic second degree murder convictions have been gradually increasing.

[40] In February 1999, the Ontario Court of Appeal, in an appeal from Justice Cavarzan from Hamilton, suggested a range of 12-15 years parole ineligibility for a brutal second degree murder of an unarmed wife or girlfriend – see R. v. McKnight, (1999) 1999 CanLII 3717 (ON CA), 44 OR (3d 263 CA) at para. 48. It was held that a 17 year parole ineligibility period falls outside a reasonable range: McKnight at para. 48.

[41] Later that year, in December 1999, the Ontario Court of Appeal held, at paras. 77-78, in R. v. Wristen, 1999 CanLII 3824 (ON CA), [1999] O.J. No. 4589 (C.A.) that the parole ineligibility of 17 years imposed by another Hamilton judge was appropriate due to aggravating factors present in Wristen that were not present in McKnight.

[42] Justice Laskin in R. v. Czibulka, 2011 ONCA 82 reconciled the McKnight and Wristen cases as follows at paras. 66-69:

[66] The appellant appeals his period of parole ineligibility on the ground that he trial judge erred in principle by fixing the range of parole ineligibility for a brutal spousal murder at 12 to 17 years. The appellant contends that the appropriate range is 12 to 15 years. As the trial judge did not impose a period of parole ineligibility at the high end of the range he considered appropriate, the appellant says that if the range is 12 to 15 years, then he should be eligible for parole after 12 to 13 years.

[67] I do not accept the appellant’s contention. Admittedly, in R. v. McKnight (1999), 44 O.R. )3d_ 263 (C.A.), the case relied on by the appellant, a majority of the panel held at p. 276 that “… no two cases are the same but similar cases from this province of brutal second degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.” However, that range is not cast in stone for all brutal spousal murders. Sentencing ranges “are guidelines rather than hard and fast rules”: see R. v. Nasogaluak, 2010 SCC 6, 2010 S.C.C. 6 at para. 44. Sentencing remains an individualized process. The range stipulated in McKnight was driven by previous case law in this province and by several mitigating considerations in the case itself. These considerations included McKnight’s remorse, his many contributions to the community, and his mental illness, considerations absent in the present case.

[68] Moreover, a few months after McKnight was decided, in R. v. Wristen, (1999), 44 O.R. (3d) 66 (C.A.), another case where an accused was convicted of the brutal second degree murder of his spouse, this court imposed a period of parole ineligibility of 17 years. The panel referred to McKnight, yet said at para. 76 “But in McKnight, there were several significant mitigating circumstances that justified reducing the period of parole ineligibility and that have no counterpart in the present case.”

[69] In the case before us, the trial judge took Wristen to reflect the upper end of the range, and I do not see how he can be faulted for doing so. At trial, both Crown and defence accepted a range of 12 to 17 years.

[43] In R. v. French, 2017 ONCA 460, Feldman J.A. noted at para. 31:

[31] With respect to the range, cases from this court, including R. v. Wristen, (1999), 1999 CanLII 3824 (ON CA), 141 C.C.C. (3d) 1, and R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, allow a range up to 17 years in circumstances where there are no mitigating factors or remorse. The trial judge’s determination is entitled to deference. The sentence was not unfit.

[44] See also similar comments in R. v. Tayongtong 2021 ONCA 281 at para. 47.

[45] My colleague, Justice Goodman, on December 22, 2021, in R v. Duarte, 2022 ONSC 122 conducted a comprehensive review of second degree murder cases, discussing the range of parole ineligibility at paras. 43-50 and concluded at paras. 51-52:

[51] In R. v. Suarez-Noa, 2018 ONSC 7587, [2018] O.J. No. 6717, I set the period of parole ineligibility at 15 years in the context of a brutal domestic violence murder. As I mentioned in Suarez-Noa, based on the Court of Appeal decisions in Czibulka and French, I found that for serious domestic violence murder cases, the range of parole ineligibility has been expanded from 12 to 17 years in circumstances where there are negligible or limited mitigating factors. This range has been reflected in recent jurisprudence from both the Superior and appellate courts in Ontario.

[52] In my view, the guidance provided by the Ontario Court of Appeal does not appear to exceed 17 years of parole ineligibility for these types of cases.

[46] Several months later, Justice Sweeny in R. v. Justin Dumpfrey, 2022 ONSC 2187 concluded at paras. 41, “I am satisfied based on decisions of the Ontario Court of Appeal that the range of parole eligibility for a brutal spousal or domestic murder is between 12-17 years”.

[47] However, despite that conclusion regarding sentence ranges, Justice Sweeny departed from the usual range and ordered parole ineligibility of 18 years indicating the following at paras. 51, 52, and 75:

[51] In R. v. Teske, 2005 CanLII 31847 (ON CA), [2005] O.J. No. 3759, the trial judge set the parole ineligibility at 16 years which was reduced to 13 years on appeal at para. 105, Doherty J.A. noted:

I agree with the trial judge’s observation that in setting an appropriate range for a certain type of offence, an appellate court is not imposing “ceiling” on the sentences that can be imposed in those kinds of cases. Sentencing remains a vitally individualistic process requiring careful exercise of judicial discretion. That said, however, I think that where the appellate court has described a range for certain category of offence and the trial judge chooses to go above, or below that range, it is incumbent on the trial judge to clearly explain why he or she has departed from the appropriate range. The trial judge did not do so and, in my view, erred in principle. That error requires this court to determine a fit period of parole ineligibility.

[52] I can go outside of the range if I explain why.

[75] Mr. Dumpfrey is sentenced to life imprisonment which is mandatory. I have considered the nature and circumstances of the offence, the character of the offender, the recommendations of the jury. The aggravating factors in this case include an attempt to clean up and the removal and hiding of the body. These are particularly egregious acts which warrant strong denunciation and deterrence. The aggravating factors combined with no mitigating factors justifies a departure from the range of 12 to 17 years set by the Court of Appeal. Accordingly, I exercise my discretion to increase the period of parole ineligibility from the minimum of 10 years to 18 years.

[48] Justice Speyer in R. v. Baig, 2019 ONSC 2713 (affirmed by Ontario C.A. at R. v. Baig, 2022 ONCA 692) summarized the law regarding adherence to set ranges of sentences at paras. 41, 42, 45, 46:

[41] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57-58, Wagner J. (as he then was) described the significance of sentencing ranges.

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentence imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must will [sic] exercise their discretion in each case.

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

(R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24).

[42] Sentencing is a fact-sensitive and inherently individualized process. The unique facts of each offence and each offender demand a tailored approach. Everything depends on the gravity o the offence, the offender’s degree of responsibility, and the specific circumstances of the case: Lacasse, at para. 58. As a result, a fit sentence may fall outside a particular range: Lacasse at para. 58; R. v. Hawley, 2016 ONCA 148, at para. 8, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C), at para. 92; Czibulka, at para. 67. While sentencing ranges provide helpful guidance, they are neither permanently fixed nor straitjackets on the exercise of judicial discretion: Lacasse, at paras. 57 and 60; R. v. Foster, 2018 ONCA 53. As Doherty, J.A. held in R. v Teske, (2005) 2005 CanLII 31847 (ON CA), 202 O.A.C. 239, at para. 105, by setting an appropriate range for a certain type of offence, an appellate court is not imposing a ceiling on the sentences available.

[45] Denunciation and general deterrence are particularly important in setting the parole ineligibility period for an offender who murders a spouse or partner. Notwithstanding many judicial pronouncements that domestic abuse cannot be tolerated and must stop, homicides of one spouse or partner by the other unfortunately persist. Courts must continue to send the message that those who murder their domestic partners will face life sentences with elevated periods of parole ineligibility.

[46] This is a most serious case of second-degree murder. Mr. Baig’s moral blameworthiness is exceedingly high. The gravity of Mr. Baig’s crime is impossible to overstate. I have considered and applied the criteria in section 745.4, the other applicable sentencing principles, and taken into account the significant aggravating factors and the mitigating circumstances that I have described. This is an exceptional case and a parole ineligibility period at the high end of the range identified in McKnight, Wristen, Czibulka, and French is warranted. But for the fact that Mr. Baig pleaded guilty, a more substantial period of ineligibility would have been warranted.

[49] In R. v. Hindessa, 2011 ONCA 477, the Ontario Court of Appeal indicated at para. 4:

[4] As for the range of sentence in these types of crimes, the trial judge was alive to the relevant authorities from this court and provided cogent reasons for concluding that 18 years was an appropriate period of parole ineligibility in this case. We see no error in her analysis or conclusion.

CONCLUSION REGARDING CASE LAW

[50] The case law is clear that I can go outside the range of 12-17 years of parole ineligibility provided I am alive to the relevant authorities reviewed above and am able to provide cogent reasons for whatever period of parole ineligibility I deem appropriate.

[51] I note that the high-water sentence for parole ineligibility in the Ontario cases provided to me is the case of R. v. Owusu-Ansah, [2015] O.J. No. 7260 (S.C.J.) where the accused had a history of domestic abuse convictions and he received a parole ineligibility sentence of 22 years: Owusu-Ansah at paras. 1-7, 35.

[52] In R. v. Lane (2008), 2008 ONCA 841, 94 O.R. (3d) 177 (C.A.), the Court of Appeal indicated at paras. 90-94:

[90] The appellant was sentenced to life imprisonment without eligibility for parole for 20 years. Sentences of ineligibility for parole for 20 years are reserved for offenders who have an [page196] established pattern of violence in their lives from which it can be reasonably inferred that they present a high risk to re-offend in a violent manner. The appellant is such a man.

[91] In 1994, he shot another man with a 9 mm handgun, striking his victim in the chest and the leg. The victim survived the shooting. The appellant was sentenced to seven years in the penitentiary for aggravated assault. In sentencing the appellant at that time, Locke J. observed the appellant was a danger to society and his chances for rehabilitation were slim. Those comments were prophetic.

[92] In May 1999, the appellant was released from the penitentiary on mandatory supervision. In May 2000, he was arrested for a breach of the terms of his parole. In December 2000, the parole board reviewed his detention and declined to release him until the warrant expired in September 2001. The parole board was satisfied the appellant would likely commit an offence causing bodily harm to another person. He was released from the penitentiary approximately three months before killing Mr. Bryan.

[93] In addition to the aggravated assault offence, the appellant had been previously convicted of two robberies, assault and discharging a firearm with intent to wound.

[94] The killing of David Bryan was a cold-blooded execution. I agree with the trial judge that the appellant is a dangerous man and an individual with a high risk of committing future acts of violence. The trial judge committed no error in fixing a period of 20 years' eligibility for parole.

[53] In R. v. Brunet, 2010 ONCA 781, Justice Karakatsanis, as she then was, indicated at para. 20:

[20] Where a particularly egregious offence is coupled with the most aggravating of offender characteristics such as a history of violence and a high risk of recidivism, the uppermost range of 20 to 25 years will be appropriate.

JURY RECOMMENDATION - LAW

[54] I agree with Justice Sweeny’s comments in Dumpfrey at para. 54:

[54] I agree with Arrell J. that no recommendation does not mean the jurors are recommending the minimum, but means, the jurors prefer to leave it up to the judge: R. v. Kostuk, 2022 ONSC 560 at para. 47.

[55] Justice Goodman in Duarte indicated at paras. 28-31:

[28] As Watt J. (as he then was) wrote in R. v. Barry [1991] O.J. No. 2666:

It is difficult to gauge with any accuracy the weight which should be attributed to a jury recommendation regarding parole ineligibility. In one sense it might be said to represent the community view upon the issues. To so hold, however, as it appears to me, is somewhat to overstate the case. They are given no guidance on the precedents concerning the appropriate range. They are simply told the numbers. They are not required to at least endeavor to achieve unanimity. It is, as it was in this case, but a brief, somewhat informal exercise, after they have been earlier told that sentence forms no part of their responsibility in determining liability, and thereafter told it is but a recommendation. They receive no further evidence concerning, for example, the likelihood of recidivism, future danger to society or other matters which might logically bear upon the issue other than what they can recall was given at trial.

[29] After having reached a verdict in this case, the jury was then asked to make their recommendations. The jury spent less than 20 minutes and came back with their recommendations. I acknowledge and appreciate the jury’s combined wisdom and experience as representatives of the community.

[30] While the jury’s recommendation is not binding on me, it is a factor that I consider and weigh when setting the period of parole ineligibility.

[31] It must be noted, that members of the jury did not have the benefit of considering the applicable case law, the principles of sentencing pursuant to s. 745.4 of the Code, the aggravating or mitigating factors or have the benefit of hearing submissions from both counsel before making their recommendations.

[56] In a similar vein, in R. v. Bouchard, 2016 ONSC 4484 the court indicated at para. 57:

[57] The jury recommendation is a factor to be considered in determining parole ineligibility. It is to be considered for what it is and weighed accordingly. It is not entitled to deference. Jurors are not instructed in respect to the law of sentencing. They are not instructed about parity, proportionality, sentencing ranges and appellate precedent. The jury only hears about the events of the case before them. They hear little about the offender’s character. It is not a unanimous decision. It is their opportunity to communicate to the Court their view of the seriousness of the offence. It does not bring the jury any further into the sentencing process. Consideration is required; deference is not.

[57] In R. v. Madison, 2022 ONSC 2537, Justice Dambrot indicated at para. 52:

[52] The jury recommendation concerning parole ineligibility was far from unanimous. Seven jurors made no recommendation, three recommended 14 years, one recommended 20 years and one recommended 25 years. While the jury’s recommendation is a factor that I must consider in the determination of the period of parole ineligibility, it remains that it is: a recommendation. It is usually reached in short order, after an exhausting determination of a verdict, and with very little guidance. It is not particularly well-informed, is generally made without any appreciation of the wider sentencing context and need not be slavishly followed: R. v. Chalmers, 2009 ONCA 268, 243.C.C.C. (3d) 338, at para. 115. More importantly, in this case, the recommendations of the individual jurors are too scattered to be helpful.

[58] The gist of these authorities is that the jury recommendation has to be considered but is not to be given deference. It is not binding. In the judge’s discretion, it can be given whatever weight “for what it is”. In terms of weight, the jury recommendation is but one of the considerations to be taken into the account of parole ineligibility: Bouchard at para. 59.

[59] The reason given for the lack of deference regarding jury recommendations is the jury is not instructed in sentencing principles or provided with evidence about the offender’s character and are not able to consider counsel’s sentencing submissions: Duarte at para. 13.

[60] This leads to the question: what happens if the jury is provided with details normally presented at a sentence hearing?

[61] In R. v. Poirier (2005), 2005 CanLII 3583 (ON CA), 193 CCC (3d) 303 (Ont. CA), the trial judge, on a conviction of second-degree murder, imposed an order of parole ineligibility of 18 years. The trial judge informed the jury, when giving parole ineligibility instructions, that the accused had a conviction for attempted murder. The jury returned with a unanimous recommendation that the appellant serve twenty-five years before the accused would be eligible for parole: Poirier at para. 18.

[62] The Court of Appeal indicated that the trial judge was in error in providing the jurors with the details of the attempted murder conviction. The Court of Appeal held that s. 745.2 of the Criminal Code is a complete code and the trial judge should not permit the parties to present further argument on evidence: Poirier at paras. 19-23.

[63] The Court of Appeal, in light of this and other errors, reduced the period of parole ineligibility to 16 years: Poirier at paras. 23-28.

[64] So, the law regarding the jury’s parole eligibility recommendation can be reduced to this reality: The jury recommendation for parole ineligibility is not given deference due to the lack of information provided to the jury. If any information is provided, the jury recommendation is also not given deference as the law prohibits the jury being given any further information. A somewhat unappealing result!

[65] Some courts have reconciled the cases by indicating that the jury’s recommendation is a reflection of the community’s opinion regarding the severity of the crime committed by the accused.

[66] Justice Sweeny in Dumpfrey, stated at paras 53, 57:

[53] The jury’s recommendation is to be considered by me in setting the period of parole ineligibility. In this case the jury recommended as follows: seven jurors recommended 25 years, three recommended 20 years, and two made no recommendation.

[57] I take from the recommendation that they view this as a case worthy of a significant period of parole ineligibility. They are the voice of the community.

[67] In R. v. Hindessa, [2009] O.J. No. 6412 (affirmed 2011 ONCA 477) Justice Molloy indicated at paras. 32-39:

[32] Having found Mr. Hindessa guilty of second degree murder, the 11 jurors were asked to then consider the issue of parole ineligibility. All 11 jurors made a recommendation. One recommended 15 years, four recommended 20 years and six recommended 25 years.

[33] The Criminal Code requires the trial judge to take the jury recommendations into account, while making it clear that the ultimate decision as to the period of parole ineligibility is an exercise of discretion for the judge. The jury recommendation cannot be "slavishly followed". Indeed, it would be a legal error to do so: McKnight, paragraph 55.

[34] In R. v. Barry, [1991] O.J. No. 2666 (Ont. Gen. Div.); affirmed [1993] O.J. No. 3955 (Ont. C.A.), Watt, J., as he then was, had this to say about the value of the jury recommendation:

It is difficult to gauge with any accuracy the weight which should be attributed to a jury recommendation regarding parole ineligibility. In one sense, it might be said to represent the community view upon the issue. To so hold, however, as it appears to me, is somewhat to overstate the case. They are given no guidance on the precedents concerning the appropriate range. They are simply told the numbers. They are not required at least to endeavour to achieve unanimity. It is, as it was in this case, but a brief, somewhat informal exercise, after they have been earlier told that sentence forms no part of their responsibility in determining liability, and then thereafter told it is but a recommendation. They receive no further evidence concerning, for example, the likelihood of recidivism, future danger to society or other matters which might logically bear upon the issue other than what they can recall was given at trial.

The recommendation, to be certain, is a factor to be considered in determining parole ineligibility. It ought, however, to be considered for what it is and weighed accordingly. It ought not to be viewed, unless the circumstances warrant, as a considered, fully informed assessment based on a consideration of the relevant authorities, for it is manifestly not so.

[35] These observations by Watt, J. were specifically referred to with approval by the Court of Appeal in McKnight at paragraph 55. There are clear reasons for exercising some caution in the weight to be given to the jury recommendations.

[36] In this case, however, there are also good reasons for paying some heed to the jury recommendations. First, as was noted by Watt, J. at least to some extent, the jury recommendations reflect our community's view on this issue. Second, all members of the jury recommended a significant increase in parole ineligibility over the 10 year minimum, with six of them recommending 25 years and four recommending 20 years. These are numbers that are exceedingly high. Third, this was a long trial in which the central issues were Mr. Hindessa's degree of moral culpability, it being abundantly clear that he committed the killing.

[37] The jury heard extensive psychiatric evidence and Mr. Hindessa also testified in his own defence. The length of the jury deliberations was also significant, extending over six days. In these circumstances, there was considerable evidence before the jury relevant to the parole ineligibility issue. Indeed, there was little information favourable to the accused that was evidence only on the sentencing hearing. The jury had almost all of the evidence I have.

[38] Finally, in this situation I believe it is reasonable to conclude that the jurors' recommendation is a reflection of their opinions on where this particular murder and this particular offender fell within a spectrum. The jury would appear to have concluded that this was a particularly serious second degree murder, closer on the spectrum to first degree murder.

[39] For these reasons, I find that it is appropriate to afford some deference to the views of the jury.

[68] I propose to treat the jury recommendation about the period of parole ineligibility as a factor in setting the period of parole ineligibility. No more. No less. This approach is consistent with the four basic principles of sentencing, regarding parole ineligibility, pronounced by the Ontario Court of Appeal in R. v. Salah, 2015 ONCA 23, at paras. 265-270:

[265] The alleged parole ineligibility errors warrant brief reference to four basic principles.

[266] First, a decision establishing a period of parole ineligibility on a conviction of second degree murder is a “sentence” within s. 673 for the purpose of Part XXI of the Criminal Code. As a sentence, the general sentencing principles contained in Part XXIII apply to a parole ineligibility decision under s. 745.4. Those principles include the objectives of denunciation and deterrence: R. v. Pelletier, 2004 BCCA 264, 186 C.C.C. (3d) 1, at para. 14, aff’d 2003 SCC 2, [2003] S.C.J. No. 2; R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 9.

[267] In addition, as with all sentences, the period of parole ineligibility is entitled to deference from appellate courts. Absent an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 44; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 90-91; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 69-71.

[268] Second, the fundamental principle of sentencing – that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – applies to parole ineligibility decisions. Likewise, the proportionality principle of s. 718.2(b) requires parole ineligibility orders to be such orders imposed on similar offenders, for similar offences, committed in similar circumstances. The operative term is “similar”, not “identical”.

[269] Third, an increase in the period of parole ineligibility from the statutory minimum does not require proof of “unusual” circumstances: Shropshire, at paras. 26-27, 31-33.

[270] Finally, under s. 745.4, a jury recommendation about the period of parole ineligibility is a factor the sentencing judge is to consider in setting the period of parole ineligibility. No more. No less.

APPLICATION OF LAW TO FACTS

Crown Position

[69] The Crown seeks a term of 20-25 years of parole ineligibility.

Defence Position

[70] The defence seeks a term of 13-14 years of parole ineligibility.

S. 745.4 Factors

[71] As earlier indicated, S. 745.4 Criminal Code requires a judge, in exercising his or her discretion, to have regard to the character of the offender, nature of the offence, and the circumstances surrounding its commission and recommendation of the jury.

RECOMMENDATION OF THE JURY

[72] 4 members of the jury made no recommendation and thereby have left the matter of sentence totally to my discretion: Dumpfrey at para. 54. One juror recommended 20 years parole ineligibility; the majority of jurors – 7 jurors – recommended the maximum 25 years parole ineligibility. Accordingly, the consensus of the jury is that a range of 20-25 years of parole ineligibility is appropriate. No juror has recommended a sentence under the 20-25 range of parole ineligibility.

CHARACTER OF OFFENDER

Criminal Record

[73] The accused has a serious and significant criminal record involving both weapons and serious violence. In 1996, when the accused was 20 years old, he was convicted of possession of an unregistered restricted weapon and was given a lifetime weapons prohibition order. In 2000, the accused was convicted of Assault with a weapon x 2, Assault with a weapon, Attempted Murder, Aggravated Assault, and Fail to Comply with a Recognizance x 2. The total sentence was 13 years, 3 months with a credit for time served.

[74] With respect to the facts involving these convictions, the Crown filed a police report outlining the allegations against the accused. The defence argued the police report, given unproven allegations at that time, should be afforded little weight – see R. v. Williams, 2018 ONCA 437 where at paras. 1, 42-45, 54-55, the Court of Appeal held that synopses are generally admissible at a sentence hearing but the content, prepared at an early stage of the prosecution, must be viewed with caution.

[75] The accused had a trial on the Attempted Murder charge and related charges. The accused, after conviction and sentence, appealed both. Both conviction and sentence appeals were dismissed – see R. v. Champagne 2002 CanLII 22947 (ON CA), [2002] O.J. No. 4656. I indicated to counsel that I would rely on the facts and opinions as outlined in the Court of Appeal decision and neither objected.

[76] I intend to rely on the facts and opinions outlined by the Ontario Court of Appeal in Champagne at paras. 1, 6-9:

[1] The appellant was convicted of various offences arising out of his relationship with a woman named Wilson. These included the attempted murder for Ms. Wilson and the aggravated assaulted of her five year old son. The trial judge concluded that a sentence of twelve years for attempted murder and a total sentence of thirteen years and three months was appropriate. She credited the appellant with three and one-half years for the twenty month pre-trial custody and imposed a total sentence of nine years and nine months. He appeals conviction and sentence.

[6] Counsel next submitted that the trial judge should have told the jury that the appellant’s rage, considered along with the other circumstances, could result in a reasonable doubt as to whether the appellant had the intention to commit murder when he stabbed Ms. Wilson numerous times. The trial judge referred specifically to “the state of rage” in summarizing the position of the Crown. It was part of the Crown’s position that rage was one of the factors which led the appellant to form the necessary intent. The trial judge made no reference to rage when outlining the position of the defence or the evidence relied on by the defence. She did, however, refer to the circumstances which, in the defence theory, gave rise to that rage. Even without a specific reference to rage, we are satisfied that the jury would have understood the position of the defence as it related to the appellant’s agitated state of mind and appreciated the evidence relied on by the defence to support that position. A more direct and detailed reference to rage in the context of the evidence led in this case would not have assisted the appellant.

[7] The conviction appeal is dismissed.

[8] The appellant also seeks leave to appeal the sentence. He suggests that the trial judge made three errors in the course of her reasons for sentence. Without deciding whether the trial judge made any of those errors, we prefer to proceed directly to the appropriateness of the total sentence imposed. This was a terrible case of domestic abuse. There were three separate victims and two discrete attacks. During the second attack, the appellant attempted to kill Ms. Wilson. His failure was not through any lack of effort on his part. Even if the trial judge fell into error in the course of her reasons thereby permitting this court to consider the fitness of the sentence anew, we would not interfere with the sentence.

[9] We would grant leave to appeal sentence, but would dismiss the appeal from sentence.

[77] The 2000 attempted murder conviction involved domestic abuse where the accused stabbed his partner numerous times with the intent to kill Ms. Wilson. So, the murder of Natasha Thompson was not the first time Mark Champagne viciously attacked a domestic partner with intent to kill. Further, there was also a serious assault on Ms. Wilson’s 5 year old son – an aggravated assault. There were, all told, 3 victims and two discrete attacks. The Court of Appeal concluded, “this was a terrible case of domestic abuse.”

[78] It is obvious that the killing of Natasha Thompson by Mark Champagne was not out of character for Mark Champagne.

Pre-Sentence Report #1 – March 14, 2022

Author – Monika Anders – Probation and Parole Officer

[79] At page 3 of the Pre-Sentence Report (PSR#1), the accused claimed he was involved in drugs and gangs since the age of 12. He was a member of a gang – the “Versace Boys” who, according to the accused, are all dead or in jail. He grew up in the Jane and Finch area of Toronto. Mr. Champagne lived between the streets and institutions and got “lost in the system.” The accused has had no contact with his parents since his twenties. However, Mr. Champagne indicated he has had “a lot of girlfriends” with the longest relationship lasting 5-6 years.

[80] Mr. Champagne indicated he had known Natasha for 6 months. He admitted living with Natasha for 3 months before “her death”. He described he was “in a form of a relationship with her”. Mr. Champagne claimed to have a fiancée who resides in Toronto. [It is to be noted that at the trial, the accused testified he had a fiancée, Karla. Karla had a restraining order involving Mark lifted in September 2017. Mark testified he planned to move to Toronto with Karla].

[81] Mark indicated he had abused alcohol and drugs since 15.

[82] At page 4 of the PSR, it was noted that “Mr. Champagne was selective and guarded as he answered questions, but he was respectful, relaxed and at times spoke with an air of wit and humour”.

[83] The accused refused to provide any collateral sources to corroborate self reported information and he refused to sign a release for information.

[84] With reference to the Attempted Murder conviction from 2000, the accused confirmed the victim was his girlfriend. They had been dating for a couple of years. He relayed they had an argument and he got upset. The accused indicated, “I’m not typically violent. I don’t start fights, but I can finish them.”

[85] Ms. Anders concluded that violence, gangs and drugs are threads in Mr. Champagne’s life. Mr. Champagne was reluctant to label his relationship with Natasha – he was “in a form of relationship with her”.

[86] Ms. Anders concluded that the accused minimized being a violent domestic offender claiming “I don’t slap my girlfriends”. Ms. Anders at pages 6-7, summed up the accused’s future: “without intervention, the concerns and risks to the offender’s future intimate partners are very high and extremely concerning”.

[87] My assessment of this PSR is that it is almost 100% negative. It paints a picture of a man who, at age 46, has no work history and whose life consists of a toxic mix of substance abuse, violence, and criminal behaviour.

[88] The PSR #1 confirms what I saw at trial: Mark Champagne is a man, despite his obvious intelligence, who admits no more than he has to and has absolutely no remorse for his vicious murder of Natasha Thompson.

Pre-Sentence Report #2

Enhanced Pre-Sentence Report (EPSR) – December 23, 2022

[89] This report was prepared by Jacquie Pemberton who has a number of social work degrees. She works for the sentencing and parole project (SPP), a non-profit organization, which prepares EPSR’s for black and biracial people marginalized by poverty and social inequality. To prepare for the report, Ms. Pemberton reviewed the accused’s criminal record, my charge to the jury, the PSR #1, plus she conducted 8 interviews of the accused from September to December, 2022.

[90] Collateral sources were information garnered from the accused’s step-father, Keith Armstrong, and the accused’s sister, Janet Champagne. The accused’s parents did not contribute as the accused has lost contact with them.

[91] The accused’s family history can be described as chaotic and non supportive. According to Mr. Armstrong (the accused’s stepfather), the accused’s mother was afraid of the accused’s biological father who was described as “a terrible man who used to beat her”.

[92] The accused’s early beginnings were living with his single white mother and sister. Mark Champagne (Mark) indicated he was sent to live with his father – a black man originally from Jamaica – at about age 5 until he was 7. Mark’s stepmother – a white woman – had four children with Mark’s father. Mark reports his stepmother tortured him by physical abuse and isolating Mark in the basement. At about age 7, Mark’s stepmother broke Mark’s arm and Mark returned to live with his mother and step-father – Mr. Armstrong – shortly after. Mark reports that, as a result of the abuse, Mark developed a mentality of “self protection” and noticed that he began to react violently in confrontational situations.

[93] Mr. Armstrong reports slightly different information regarding times Mark moved back and forth between parents. Mr. Armstrong indicates that Mark returned to live with his mother and Mr. Armstrong when he was 5 years old. Mr. Armstrong observed cuts and scars on Mark and noticed that Mark was “withdrawn” and “resentful”.

[94] The report indicates that Mark did not have a close relationship with his biological father. Mr. Armstrong indicated he raised Mark from ages 8-15. Janet Champagne reported that Mr. Armstrong wanted to show Mark love and guidance but Mark was not open to receive it. Mark reported that Mr. Armstrong’s guidance held no weight as Mark became deeply entrenched in a criminal lifestyle. Mark did develop a relationship with Mr. Armstrong’s brother, Earl. However, when Mark was 16 or 17, Earl and his wife were murdered or were victims of a murder-suicide. When Mark was 14, Mark witnessed his friend’s brother die in a gruesome death as a result of a close-range shooting in front of Mark and his friends.

[95] Mark grew up in a low income family and resided in a subsidized apartment filled with single parents mostly from Caribbean backgrounds. The apartment was located in the Jane and Falstaff area labelled “crack central” due to the prevalence of crime including prostitution and drug and gang activity. Shootings and stabbings were common.

[96] Despite rampant violence in Jane and Falstaff, Mark was not fearful as he normalized the violence in his environment and it became a part of everyday life. However, Mr. Armstrong reports he has lived in Jane and Fallstaff for 41 years and feels safe there as Mr. Armstrong works and avoids conflict.

[97] Mark joined a gang at age 17 and was involved with the gang until Mark went to jail for Attempted Murder in 2000. Mark felt his involvement in gang culture taught him how to be a man and to live by certain principles like loyalty and respect. Mark learned that violence was a tool to escalate so as not to look soft. Mark believed respect came from being feared. Mark developed methods to settle disputes with violence. Mark’s friends encouraged Mark to believe that Mr. Armstrong could not control him and at age 16, Mark moved out of the home. Most of Mark’s friends did not have fathers either.

[98] Mark played hockey until 11 or 12 but was unable to continue for financial reasons. Mark remarked, “if you are not from a good middle class family and you don’t have support, this is where your ship ends”.

[99] Mark and his sister Janet confirm that the experience of poverty and deprivation of money and material things was the catalyst that led Mark to a life of crime. At age 14, Mark started to sell crack and contribute to the family income. Mark felt this ability to earn money was a rite of passage and distinguished Mark from his step-father who made a lot less money than Mark.

[100] Mark dropped out of school at Grade 9 and focused on making money from drug dealing.

[101] Mark became fearful of the police and experienced racial profiling and carding which he considered harassment by the police. Mark felt the police terrorized the community.

[102] The EPSR mentions Mark’s criminal record at page 10 and specifically refers to the Attempted Murder conviction and sentence but makes no analysis of any kind as to who the victims were, the circumstances, or Mark’s interpretation as to his explanation or reaction to the Attempted Murder and the related charges in 2000.

[103] The report also does not provide any details, under Current Conditions, about the predicate Second Degree Murder conviction.

[104] Under the Mental Health section, Mark acknowledges he has issues with anger. Mark is easy going and pleasant but reacts violently if he is in a tough or extreme situation. Violent reactions are the way Mark has learned to communicate.

[105] Mark’s sister, Janet, reports that Mark’s upholding himself as a gangster prevents him from looking at deeper issues like emotional and mental health. Janet feels that Mark minimizes his concerns and is in denial.

[106] The report indicates Mark has consumed alcohol and drugs since he was 14. Both Mr. Armstrong and Janet have concerns about the accused’s alcohol dependency.

[107] Mr. Armstrong believes that Mark’s environment and poor choices have produced unfortunate outcomes for Mark.

[108] Under Family, these important remarks are made at pages 14-15:

McMurtry and Curling (2008) note youth in strong families are able to learn about healthy relationships and the difference between inappropriate and appropriate behaviour (The Review of the Roots of Youth Violence, p. 62). The nurturing aspects of a strong family and foundation also provides youth with a sense of security and emotional support (McMurtry and Curling, 2008, p. 62). This notion was not Mark’s experience and this is one of the factors that started his negative path. He lacked a strong foundation provided by a stable family life. […]

Despite living with his father for a period of his childhood, Mark did not consider them to be close, and when Mark returned to his mother’s primary care, his contact with his father became occasional. Mark’s disconnection from his father was another factor that contributed to his trajectory.

McMurtry and Curling (2008) report: “Where a father is present, what is important to the outcome is the degree of responsibility the father assumes for child-rearing and his participation in imparting positive values” (p. 63). Mark did not believe that he received guidance from his father and recognized the same absence in his peers’ lives. Despite Mr. Armstrong’s positive involvement, Mark resisted his support and guidance in his early adolescent years.

Mark was also deeply connected to Mr. Armstrong’s brothers, including Earl, whom Mark saw as a positive role model. Following Earl’s tragic passing, Mark admitted that he gravitated more towards “the streets” and to older men in his neighbourhood whom he believed epitomized manhood. It is unfortunate that the male figures in Mark’s life were either absent, passed away, or taken for granted by him. Mark descended further into a criminal lifestyle and connected to negative peers and influences that led him to be involved in the criminal justice system.

Although Mark had his family around him, he grew up and learned how to navigate life on his own. He also took the directions of older men and peers in the neighbourhood who encouraged a criminal lifestyle that he gravitated to at a young age.

[109] Regarding Mark’s poverty, these remarks are made at page 15 and 16:

The socio-economic factors that affected Mark are central to understanding his move into a life of crime and are directly related to his neighbourhood and his interactions with police. Mark was raised in a low-income family supported solely by his mother, who worked in low-paying jobs. For those living in poverty, it could be a humiliating experience when their level of deprivation is apparent to others (McMurtry and Curling, 2008, p. 31). Mark became sensitive and more conscious about his family’s financial status in his early adolescence, when he started to understand his mother’s financial limitations that prevented her from purchasing him fashionable clothing and shoes.

As a result, Mark sought his own financial independence by entering the drug trade at the age of 14. By doing so, Mark was able to fit in with his peers by acquiring material goods like they did. Mark expressed a sense of pride when he spoke about having money. Money and material well-being signified a degree of manhood related to his ability to care for his family by contributing financially.

Further, McMurtry and Curling (2008) note that deprivation in neighbourhoods relates to the lack of access to services and resources like parks and recreation, community centres, or services for youth (p. 35). Mark believed his outcomes might have looked different if there were positive outlets geared to distracting disadvantaged youth like himself from crime. However, his chances for success were limited under the weight of poverty and under privilege.

Mark had a higher level of exposure to neighbourhood trauma and violence in comparison to his sister, who was sheltered. Mark also became involved in gang culture and developed a core group of friends he considered to be family. He acknowledged that his peer associations were negative but did not see that at the time. Additionally, Mark spoke about adopting negative patterns of communication and ways of settling disputes that have been violent learned behaviours.

[110] Mark sums up his life as follows at page 18 of the report:

Mark described his life as “tragic” and felt that he was a direct product of his environment, lack of opportunity and the failings of the criminal justice system. However, through maturation and life experience, Mark is at a point in his life where he envisions his rehabilitation in the form of helping others by offering his own life lessons. Through these efforts in addition to intensive trauma counselling, Mark might be able to begin addressing his past challenges in order to forge a better path for his future.

Conclusions to be Drawn from the EPSR – Pre-Sentence Report #2

[111] In my opinion, the report suggests that Mark’s criminal behaviour results from 3 sources:

1. The lack of a strong and loving bond with a nurturing father figure and an unstable family life.

2. Poverty.

3. Poor choices made by Mark, i.e. Mark’s resistance to developing a relationship with Mr. Armstrong and choosing to engage in gang activity and earning quick, easy money through crime rather than through legitimate means.

[112] I find it disappointing that the report chose to neglect any explanation of the details of the Attempted Murder and Second Degree Murder convictions. Further, both the PSR #1 and my jury charge mention Mark’s fiancée, Karla, in Toronto at the time of the Second Degree Murder. My jury charge refers to Mark’s testimony that there was a restraining order with respect to Karla ending in September. Mark testified that his fiancée had smashed windows at his bar and he got a restraining order. Karla was not listed as a source in the EPSR and an interview with Karla may have given some further insight into Mark’s relations with women at the time he murdered Natasha Thompson.

[113] Our Court of Appeal has held that persons authoring presentence reports are required to present an objective and balanced picture of the offender for the court: R. v. Morris, 2021 ONCA 280 at para. 144. By failing to discuss obvious details in relation to the 2000 Attempted Murder and related convictions, and the current Second Degree Murder conviction, I question whether Ms. Pemberton complied with that duty. I note that the author of PSR #1, Ms. Anders, made attempts to broach the accused’s interpretation of his convictions in 2000 and the current offence: see pages 4-7 of PSR #1.

[114] Significant concerns regarding Mark’s future recidivism are raised in the EPSR. For example, at page 12 under the Mental Health section, Ms. Pemberton notes that Mark reacts violently if he is in an extreme or tough situation. Mark admits that violent reactions were the way he learned to communicate and deal with “hard situations”. His sister, Janet, at page 12 indicates that Mark’s perceptions of being a “gangster” prevent him from looking at deeper issues like emotional and mental health. Janet feels that Mark minimizes his concerns and is in denial.

[115] These comments and observations tend to confirm Monika Anders’ PSR #1 report where she concluded at page 6-7, “without intervention, the concerns and risks to the offender’s future intimate partners are very high and extremely concerning.”

Expression of Remorse

[116] In his affidavit in Exhibit #3, tendered on January 12, 2023, the accused, at paragraph 2, indicates he is “deeply sorry for the great loss and hurt I left Natasha’s children and other family members with”. Mark indicates he made a “terrible mistake” and “it breaks my heart”. Mark concludes, “I am full of regrets and terribly sorry that my actions have resulted in loss of life.” The affidavit is sworn, it states, on “January 11, 2022” but the material electronically filed by the defence a few days before January 12, 2023 includes in the index a reference to the accused’s affidavit “to be sworn” and includes an unsworn affidavit. Accordingly, I conclude that the accused swore this affidavit on January 11, 2023, and the date “2022” is a typographical error.

[117] How credible is this expression of remorse forwarded on the eve of sentencing, some 5 years after Mark deliberately killed Natasha Thompson?

[118] On November 6, 2017, after shooting Natasha ten times, the accused walked away from the scene, as he testified at the trial, because “the situation was beyond repair”. He saw people and then ran away. Mark in cross-examination testified he walked away because he saw Natasha’s head and was traumatized. Mark explained he threw his gun into the bushes as the police might shoot a black guy with a gun. In his police statement, Mark told the police he didn’t know where the gun was and didn’t know what happened to Natasha – obvious untruths. Mark testified that, as he fled from the scene, Mark took off his jacket, sweater, and t-shirt. These items were recovered by the police and the sweater and jacket had gun residue on it. Mark testified when he got to 220 Parkdale, he washed his hands “as they were bloodied”. This washing also could possibly remove gun residue on his hands as well. Mark testified he went to Toronto and later turned himself in.

[119] Mark is a life long criminal, familiar with guns and gun violence and also very intelligent. I infer from the trial evidence that Mark intended to kill Natasha, knew he killed her, fled the scene, and on the path of flight, knowingly and deliberately disposed of items that would provide evidence implicating him in the murder of Natasha Thompson.

[120] Essential to Mark’s testimony and defence, was an armed Tyrone attending Mark’s and Natasha’s home to collect a drug debt from Natasha. According to Mark, when he told Natasha about Tyrone threatening to shoot the place up if Tyrone didn’t get paid, there was an argument with Natasha stating, according to Mark’s testimony, that Natasha had guns and Tyrone was not a threat. Later, Natasha loaded his gun and her Glock gun. Tyrone did show up and there was a gun fight with Tyrone, Natasha and Mark all armed with guns. Outside, Mark shot Natasha, thinking it was someone else. Her gun ended up on the front step of 17 Long Street where Mark was two steps away. The police arrived within minutes. Natasha’s gun, supposedly at the front step, was not there and not found anywhere else either. I find this scenario described by Mark of Natasha being a tough gun totting drug trafficker to be a complete fabrication and a lie concocted by Mark to assist in his defence. There was no Tyrone, no unknown female, and according to all the trial evidence, it is easy to conclude that Natasha never had a gun and was unarmed and defenceless when Mark shot her repeatedly.

[121] It was not enough to shoot and kill Natasha when she could not physically defend herself. In order to benefit himself, Mark concocted a story which besmirched Natasha’s reputation when she was dead and could, again, not defend herself.

[122] And what was the impact of these fabricated lies on Natasha’s family? Hana Thompson, age 16 at the time of her mother’s murder, in her victim impact statement sums the situation up as follows:

Not only do you take my mother away from me but then you also waste so much time with all these lies and putting bad on my mother. You made my mom seem as if this was her fault, you tried making my mom look so bad, lying on her name, when she’s literally the complete opposite of what you have said through all of this. It’s also what really hurted [sic] me the most is I had to listen to you tell all these lies and I couldn’t even defend her. I know who my mom is and the person she was so it killed me having to just accept with what you were saying to everyone in court. You literally ruined people’s lives doing what you did and you have no heart or any remorse. Why couldn’t you just be honest and take accountability for what you have done? Why don’t you feel bad? You took a mother away from a 8 year old and 16 year old who literally had nobody but her. How does that not make you feel anything, how does that not hurt you or make you regret everything you have done. If you really felt bad you wouldn’t have made me go through 5 years of this. All the lies, the excuses of needing more time and the trial itself. I never did anything to deserve any of this.

[123] Natasha’s murder took place on November 6, 2017. PSR#1 was completed March 14, 2022, over 4 years later. I see no expression of remorse in PSR#1 at all. At page 4, the author, Ms. Anders, indicates “Mr. Champagne was selective and guarded as he answered questions but he was also respectful, relaxed and at times, spoke with an air of wit and humour”.

[124] Regarding the murder of Natasha, Ms. Anders writes, “Mr. Champagne declined to discuss this matter before this court, with the exception to say that, “his appeal will speak for itself”. Ms. Anders notes that this is a domestic violence case but notes, “Mr. Champagne was reluctant to label his relationship with the victim, quipping that he was in a ‘form of relationship with her’.”

[125] I conclude that Mark was not even able to dignify Natasha as his common law wife despite living in her house and impregnating her with his baby. There was absolutely no remorse shown by Mark in the extremely negative PSR#1.

[126] Accordingly, the defence desired another report and the EPSR was prepared. This report proports to be very extensive and canvasses Mark’s life in very great detail. This report is dated December 23, 2022, less than a month ago.

[127] Where is there an expression of remorse in this lengthy document? There is none that I can see. Natasha Thompson, who is referred to as someone “in the form of a relationship in PSR#1” is not referred to in the EPSR and there is no discussion of Mark’s relationship with Natasha at all.

[128] However, in the EPSR, at page 12, Janet, the accused’s sister, notes that Mark minimizes his concerns and is in denial.

[129] In Mark’s affidavit, in his attempted expression of remorse, Mark, as noted by Ms. Anders in PSR#1, is very selective and guarded in his language stating, “I’ve made a terrible mistake”. These remarks are consistent with his trial evidence, which I and the jury rejected. I find that the trial proves beyond a reasonable doubt that there was no mistake made. Mark deliberately and wilfully killed Natasha Thompson, resorting to extreme violence consistent with his long standing violence and anger issues.

[130] In the context of all the background evidence, adduced both at trial and this sentence hearing, I do not believe Mark’s belated expression of remorse towards Natasha and her family, made on the eve of sentencing, over 5 years after deliberately killing Natasha and ruining the lives’ of Natasha’s family. On the evidence, it is not believable as genuine.

[131] I find that Mark may well be full of regrets as, an intelligent person, he realizes he will spend most, if not all, of the rest of his life in jail.

NATURE OF OFFENCE

[132] Mark shot Natasha Thompson at close range ten times. Mark is a large man. Natasha is slight. She was unarmed, trapped between Mark and her neighbour’s door, defenceless as Mark repeatedly, time and again, shot her. He was angry; Natasha had told him to leave; she was having an abortion.

[133] Mark has stated, he had learned over the past 40 years to communicate with violence in extreme and tough situations. Mark, by shooting and killing Natasha, was acting completely in character.

[134] Dr. Elena Bulakhtina, forensic pathologist, testified Natasha was shot from all directions. Natasha was moving while being shot. She was shot in the right upper arm, left upper arm, neck and right shoulder, twice in the torso, and 4 times to the head.

[135] Lisa Corbett, who lived behind the door where Natasha was shot, testified she heard a knock and then bullets tore through her door into her residence. Lisa’s brother shoved Lisa into the living room upon realizing multiple bullets were tearing through their front door. A number of projectiles ended up in the front foyer. Other projectiles were located in the basement and one projectile was located lodged in the door. Accordingly, the Corbetts were fortunate none of them were shot as well.

[136] Dr. Bulakhtina testified that 3 gun shot wounds to the face/head showed stippling which means Mark shot Natasha in the face/head from an intermediate range of 10mm to 1 metre from the muzzle of the gun. I conclude that Mark, accordingly, was shooting Natasha in the head while he was very close to her. His evidence of not knowing who he was shooting is absurd and not credible. Plus, he shot her in the head a total of four times.

[137] Imagine Natasha’s terror when Mark pointed the gun at her face and head at point blank range, not once, not twice, but three times, and then fired each and every time. These three shots (along with a fourth shot to the head) were lethal and death occurred shortly thereafter. There were, for good measure, two torso wounds. One of the torso wounds was also lethal – the bullet damaged the majority of internal organs, including the aorta.

[138] Put it all together, and I conclude that this was no mistake – this was an execution. Mark knew exactly what he was doing. He intended to kill Natasha and fired into her face/head/body repeatedly to ensure that she would die as he intended.

CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCE

[139] Justice Sweeny in Dumpfrey outlined the objectives of s. 718 of the Criminal Code as follows at paras. 4-6:

[4] I must be mindful that the sentencing objectives in s. 718 are relevant in determining the period of parole ineligibility. Those sentencing objectives include denunciation of unlawful conduct and the harm caused to the victims and the community; general and specific deterrence; the separation of offenders from society where necessary; rehabilitation of offenders; reparation for harm done to the victims and to the community; promotion of a sense of responsibility in offenders; and acknowledgement of the harm done to the victims or to the community.

[5] I must also reflect the fundamental principle of proportionality as set out in section 718.1 of the Criminal Code which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[6] Mr. Dumpfrey is to be sentenced to life imprisonment. With a conviction for second degree murder, the imprisonment may continue for the rest of his natural life. Ultimately, it will be for the Parole Board of Canada to decide when, if ever, Mr. Dumpfrey has been sufficiently rehabilitated that he is no longer a danger to others in our society and that he may be released on parole. My determination of the minimum period of time at which Mr. Dumpfrey will become eligible for release on parole does not necessarily mean that he will be released upon the expiration of whatever minimum period I impose today.

[140] S. 718.2 of the Criminal Code requires me to consider mitigating or aggravating factors.

Aggravating Factors:

[141] I find the following aggravating factors to be present in this sentencing:

1. The accused murdered his intimate partner who he had been living with and who was pregnant with his child – see s. 718.2(a)(ii).

2. Natasha was shot 10 times at close range. Lethal shots included three shots to her face and head which were within a metre or less from the muzzle of the gun. There was also a fourth shot to the head. There were two shots to the torso, one of which was also lethal.

3. This was a callous execution type of murder. Mark intended to kill Natasha because she was leaving him and he acted out of anger and rage.

4. Natasha was in the early stages of pregnancy.

5. The argument leading to the shooting and the shooting event occurred while Natasha’s 16-year-old daughter – Hana – was next door at home. Hana rushed to assist her mother and Hana was traumatized by what she heard and saw.

6. The shooting occurred in a heavily occupied residential area at about 5:00pm.

7. Numerous bullets tore through the neighbour’s door. The neighbours were home and several bullets entered their home. They were lucky not to be shot, injured or killed.

8. The accused exhibited controlling and jealous behaviour toward Natasha Thompson leading up to her death. Mark called Natasha names such as slut, whore, rat, and retarded. Mark accused Natasha of sleeping with other men and would not allow Natasha out of the home unaccompanied (ironically Mark had a fiancée, Karla, in Toronto at the time). Mark and Natasha argued frequently. In late September, Mark got drunk and smashed furniture in the house. Mark would not allow Natasha to have a cell phone. In short, Mark was a controlling, possessive, and jealous common law spouse.

9. The deceased’s daughter, Miyoko, (then 9 years old) and Hana (then 16 years old) now have no biological parents left.

10. Significant emotional harm has been caused to family members of Natasha Thompson, including Hana Thompson and Cora Thompson, as outlined in their Victim Impact Statements.

11. The weapon chosen by the accused to murder Natasha Thompson was a firearm. Numerous counts have condemned the use of firearms as a scourge to the community that must be deterred by exemplary sentences upon offenders who use them – see for example R. v. Doucette, 2015 ONCA 583, [2015] O.J. No. 4523 (C.A.) at paras. 59-63. In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal indicated at para. 68, “A person who carries a concealed loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed loaded handgun in a public place is antithetical to the Canadian concept of a free and ordered society.” The Court of Appeal also held that “gun crimes involving possession of loaded, concealed firearms in public places poses a real and immediate danger […] the risk increases when the gun holder flees and still again when the gun holder discards the weapon in a public place”: see Morris at para. 68.

12. After the shooting, the accused left the deceased laying in the street, making no effort to assist her or call for help.

13. Instead, the accused fled the scene and did his best to discard/hide/destroy evidence that could implicate him in the murder. Along his path of flight, he hid his gun in bushes; he discarded clothing that had gun residue on it; he washed his hands which would potentially remove gun residue. He later told the police he did not know where the gun was, which I find was not a truthful statement.

14. The accused has a significant criminal record.

15. Within the criminal record is a conviction for Possession of an Unregistered Restricted Weapon in 1996. The accused received a weapons prohibition order for life. When the accused was murdering Natasha Thompson, he was obviously breaching this court order.

16. This offence is not the first time the accused has violated court orders. Along with his Attempted Murder and the other convictions in 2000, the accused was also convicted of Fail to Comply with Recognizance x 2.

17. The Attempted Murder conviction in 2000 was also a domestic related attack. In that attack, the accused stabbed Ms. Wilson numerous times in an attempt to kill her. The Court of Appeal labelled the Attempted Murder as part of a terrible case of domestic abuse. The accused also attacked Ms. Wilson’s five-year-old son and was convicted of aggravated assault.

18. The accused was not only prohibited from possessing a firearm by court order, but he used an illegal firearm:

a. The firearm was restricted and Mr. Champagne had no license for it.

b. The magazine was prohibited and had an illegal capacity for 13 rounds.

Mitigating Factors:

[142] The only possible mitigating factor is the alleged expression of remorse in the accused’s recent affidavit. As previously discussed, in my opinion, this expression was contrived and not genuine. It was only prepared to gain advantage in the sentencing process. There is no remorse.

[143] Accordingly, I find that there are no mitigating factors.

Victim Impact Statements

Hana Thompson – December 7, 2022

[144] Hana is Natasha Thompson’s daughter. She was 16 years old when her mother was murdered. She heard gunshots outside her window. She attended upon her mother who “was bleeding out in front of me and taking her last breath.” Hana has been in therapy. Her sister, 9 at the time of the murder, has also been in therapy.

[145] The two girls have lost both their parents to gun violence. Hana has been traumatized by the court process. The court process has rendered Hana unable to focus on her college studies and she failed many times. She still has not graduated after 4 years.

[146] Hana feels she will never recover from the loss of her mother.

Cora Thompson – Filed January 12, 2023

[147] Cora is Natasha Thompson’s twin sister. Cora suffers from mental illness and Natasha supported her though it. Now, Cora feels lost. Cora’s father and grandfather wanted to see justice but they both passed away before the court process could be completed. The pre-trial and trial affected her greatly and caused Cora to be depressed and anxious and suffer from nightmares.

[148] Natasha and Cora came from an abusive home and Natasha was Cora’s rock. Cora is broken hearted and will never be the same.

Pre-Trial Custody

[149] The accused has been in pre-trial custody from November 7, 2017 until the present, a period of over 5 years, 3 months.

[150] The accused argues that he has suffered from extremely harsh conditions while in pre-trial custody, including solitary confinement, lock downs and COVID-19 restrictions.

[151] The defence filed at the sentence hearing the following chart outlining a breakdown of pre-trial custody conditions:

• Hamilton-Wentworth Detention Centre

o November 7, 2017 to December 12, 2017: 1 month, 6 days

▪ Entire duration spent in solitary confinement.

o July 5, 2018 to March 12, 2019: 8 months, 8 days

▪ Entire Duration spent in solitary confinement.

o Total solitary confinement: 9.5 months

• Stratford Jail

o December 12, 2017 to July 5, 2018: 6 months, 24 days

• Toronto South Detention Centre

o March 12, 2019 to January 12, 2023: 46 months, 1 day

o 412 days locked down

o Primary reason: staff shortages, isolation protocols.

[152] The accused in his affidavit at para. 10 indicates he was told he was being kept in segregation due to the fact that the victim – Natasha Thompson – was well known to the inmates in the Hamilton Jail. Exhibit B to the affidavit is a jail record indicating he was being kept in segregation for his safety. However, a jail record dated Feb. 18, 2019, indicates “[i]nmate Champagne is currently housed in conditions that constitute confinement at his own request, stating he has peer issues in the regular unit at TSOC and has requested a transfer”: Exhibit D of Mark Champagne’s affidavit at page 2.

[153] On March 12, 2019, the accused was transferred to Toronto South Detention Centre due to legislation making long-term segregation unlawful (see para. 14 of Mark Champagne’s affidavit). Conditions at Toronto were “much better” according to the accused.

[154] The Ontario Court of Appeal in Canadian Civil Liberties Association v. Canada (Attorney General) 2019 ONCA 243 indicated at para. 99 that “the effect of prolonged administrative segregation is thus grossly disproportionate treatment because it exposes inmates to a risk of serious and potentially permanent psychological harm”.

[155] At para. 14 of his affidavit, the accused indicates there were many lockdowns at TSDC. These details are summarized in the pre-trial custody calculation and total 412 days locked down.

[156] The accused says he contracted Covid twice – in April, May 2020 and January 2022. His affidavit includes, at Exhibit F, a positive Covid test dated January 31, 2022.

[157] Most, but not all, of the pre-trial delay involved in the accused getting to trial and sentence resulted due to actions of the accused. The accused made an application to adjourn the sentencing on October 7, 2022. The Crown filed a Notice of Response. A chronology of events can be compiled from the Crown’s Response as follows:

1. November 6, 2017: Natasha Thompson is shot and killed.

2. November 7, 2017: Accused arrested for Second Degree Murder and is incarcerated from then until the present.

3. July 10, 2018: Accused committed to trial after preliminary inquiry.

4. April 2019: Trial on Second Degree was scheduled to proceed. It was adjourned because in March 2019, the accused discharged his lawyer and requested an adjournment.

5. April 2020: New Trial scheduled. Trial adjourned due to Covid-19 pandemic.

6. May 11, 2020: Accused discharged his second counsel. Accused is self-represented. Numerous adjournments for about one year.

7. May 21, 2021: Accused remains unrepresented. Finally, new trial for September 2021 is set.

8. September-October 2021: Murder trial proceeds. Accused is self-represented.

9. October 20, 2021: Accused found guilty of second degree murder.

10. November 19, 2021: Accused wishes to retain Mr. Rudnicki. Rowbotham application is required. Sentence date of April 2022 is reserved.

11. January 21, 2022: Mr. Rudnicki is retained.

12. April 6, 2022: Sentence did not proceed as defence wished an Enhanced Pre-Sentence Report (EPSR) which could not be prepared by the date. New sentence date was set for November 4, 2022.

13. October 7, 2022: Defence brings a further adjournment request as EPSR not completed. New sentence date set for March 23, 2023.

14. December 23, 2022: EPSR is completed – see page 18 of EPSR.

15. January 12, 2023: Sentence date brought forward and proceeds on this date.

16. February 21, 2023: Reasons for sentence delivered.

[158] A review of the chronology reveals that the only significant delay, out of the normal course, not attributable to the accused’s actions is the adjournment of the April 2020 trial date due to the Covid-19 pandemic. Most of the remainder of the delay, out of the normal course of events, is due to Mr. Champagne firing his lawyers and waiting for a completed EPSR to be delivered.

[159] If the accused is entitled to a credit for pre-trial custody, it is difficult to assess exactly what that credit should be. Both the length and circumstances of pre-trial custody can, in some measure, be linked to the actions of the accused. Had the accused not fired his lawyer before the first scheduled trial date, and/or made the decision to represent himself earlier, the accused’s trial could have commenced on the first scheduled trial date in April 2019. He accordingly could have avoided being in pre-trial custody during the entire COVID-19 pandemic era.

[160] Further, had the accused been able to generate better relations with fellow inmates, segregation, both voluntary and involuntary, may not need to have been implemented.

[161] Accordingly, factors linked to the conduct of the accused contributed significantly, both to the length and quality of the accused’s pre-trial custody.

[162] Further still, the caselaw is mixed as to whether pre-trial custody and the conditions of pre-trial custody are relevant to a parole ineligibility hearing.

[163] For example, Justice Woollcombe in R. v. Chang, 2021 ONSC 7954 held that harsh conditions of pre-trial custody can be considered as a mitigating circumstance in determining the period of parole ineligibility: Chang at para. 49.

[164] Justice Sweeny in Dumpfrey disagreed with the analysis of Woollcombe J.: Dumpfrey at para. 69. Justice Sweeny, after reviewing the authorities, held at para. 73: “Based on these authorities, I am satisfied that s. 744.4 [sic – 745.4] does not allow a consideration of pre-trial custody in determining the period of parole ineligibility”.

[165] I intend to follow the Dumpfrey decision. Until the Ontario Court of Appael rules otherwise, I propose to follow Justice Doherty’s comments, as referred to at para. 71 of Dumpfrey, as follows:

[71] In the Ontario Court of Appeal case of R. v. Kitaitchik, [2002] I.J. No. 2476 Doherty J.A. observed at para. 54:

In sentencing the appellant at his first trial, German J. gave considerable weight to the length of time spent in pre-trial custody and the difficult nature of some of that pre-trial custody. Since the period of parole ineligibility runs from the date that the accused is incarcerated on a murder charge, the length of pre-trial custody is irrelevant to the determination of the appropriate period of parole ineligibility. The sentence imposed by German J. was tainted by her failure to recognize that fact.

Anti-Black Racism

[166] The Ontario Court of Appeal in R. v. Morris, 2021 ONCA 680, indicated, at para. 1, that “Anti-Black racism must be acknowledged, confronted, mitigated, and ultimately erased.” The court stated that anti-Black racism may be relevant upon sentencing offenders but there must be some connection between the anti-Black racism and the circumstances that are said to explain the conduct in issue. The court explained at paras. 92-97, 123;

[92] This court has recognized that systemic and background factors, including those attributable to anti-Black racism, may be relevant when sentencing Black offenders. In Borde, at para. 32, Rosenberg J.A. for the court said:

[T]he principles that are generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence… [Emphasis added.]

[93] In Hamilton, this court followed Borde, holding at paara. 135:

Reference to factors that may “have played a role in the commission of the offence” encompasses a broad range of potential considerations. Those factors include any explanation for the offender’s commission of the crime. If racial and gender bias suffered by the offender helps explain why the offender committed the crime, then those factors can be said to have “played a role in the commission of the offence”. [Emphasis added; quoting Borde, at para. 32.]

[94] Hamilton goes on to explain at para. 141 how disadvantaged circumstances including those connected to racism, can mitigate to some degree the personal responsibility of the offender. The court quoted with approval the observation of Durno J. in R. v. G.B., [2003] O.J. No. 3218 (S.C.), at para. 45:

The offenders [sic] background is always a relevant factor on sentencing. A sentence must be appropriate for both the offence and the offender. A person with a disadvantaged background, who had been subjected to systemic prejudices or racism, or was exposed to physical, sexual or emotional abuse, may receive a lower sentence than someone from a stable and peaceful background, where the offence is in some way linked to the background or systemic factors. The relevant factors in one person’s background will be case specific. A singe factor will rarely be determinative.

[95] Borde was recently followed by this court in R. v. Rage, 2018 ONCA 211, at paras. 13-14, and has been applied in other jurisdictions: see e.g., R. v. Gabriel, 2017 NSSC 90, 37 C.R. (7th) 206, at para. 50 (citing R. v. “X”, 2017 NSPC 95, 353 N.S.R. (2d) 130).

[96] Some of the interveners submit that Hamilton at para. 137, wrongly requires a direct causal link between the offence and the negative effects of anti-Black racism on the offender before anti-Black racism can be seen as mitigating personal responsibility. We agree that the concept of causation, as it is used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing. As one counsel put it, a young offender does not have to show a causal connection between age and the offence before the age will be treated as a mitigating factor.

[97] There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L., at paras. 45-49; R. v. Elvira, 2018 ONSC 7008, at paras. 21-25; R. v. Ferguson, 2018 BCSC 1523, 420 C.R.R. (2d) 22, at paras. 126-29; and R. v. Biya, 2018 ONSC 6887, at para. 36, rec’d on other grounds, 2021 ONCA 171.

[123] Although we would not quote Black offenders with Indigenous offenders, for the purposes of s. 718.2€, the Gladue/Ipeelee jurisprudence can inform the sentencing of Black offenders in several respects: see Borde, at para. 30. Just as with the discrimination suffered by Indigenous offenders, courts should take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders. Courts should admit evidence on sentencing directed at the existence of anti-Black racism in the offender’s community, and the impact of that racism on the offender’s background and circumstances. Similarly, in considering the restraint principle, courts should bear in mind well-established over-incarceration of Black offenders, particularly young male offenders. Finally, as with indigenous offenders, the discrimination suffered by Black offenders and its effect on their background, character, and circumstances may, in a given case, play a role in fixing the offender’s moral responsibility for the crime, and/or blending the various objectives of sentencing to arrive at an appropriate sanction in the circumstances.

[167] In R. v. Hills, 2023 SCC 2, [2023] S.C.J. No. 2, the Supreme Court of Canada indicates that (1) social context evidence or contributing relevant background factors, relating to Black offenders who experience systemic discrimination, can serve as a mitigating factor on sentencing and (2) judges can reduce sentences to reflect comparatively harsher experiences of prisoners due to systemic racism, Martin, J indicates at paras. 54, 55, 135:

[54] To assist in evaluating what constitutes a just and appropriate punishment in a given case, Parliament enacted s. 718 of the Criminal Code (or s. 38 of the Youth Criminal Justice Act, S.C. 2002, c. 1, where appropriate). Proper consideration is to be given to various objectives such as denunciation, deterrence, rehabilitation, providing reparations for harm done to victims, promoting a sense of responsibility and, when necessary, separating offenders from society. No sentencing objective should be applied to the exclusion of all others. Courts should also consider any aggravating and mitigating circumstances relating to the offence or to the offender.

[55] In addition, s. 718.2(e) of the Criminal Code, provides a mandatory direction to consider the unique situation of Aboriginal offenders for all offense. (Gladue, at para. 93; R. v. Ipeelee, 2012 SCC 13, [2012 1 S.C.R. 433, at paras. 84-85). Sentencing judges must consider the systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender. Sanctions other than imprisonment tare to be considered. While this Court has not addressed the issue, certain provincial courts of appeal have found that, in the case of Black offenders and groups who experience systemic discrimination, social context evidence or background sentencing (see, e.g. R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 13 and 87-95; R. v. Anderson, 2021 NSCA 62, 405 C.C.C. (3d) 1, at para. 114).

[135] Courts should consider the effect of a sentence on the particular offender. The principle of proportionality implies that where the impact of imprisonment is greater than a particular offender, a reduction in sentence may be appropriate (Suter, at para. 48; B. K. Berger, “Proportionality and the Experience of Punishment”, in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (2020), 368, at p. 368). For this reason, offenders, like offenders in law enforcement, for those suffering disabilities (R. v. Salehi, 2022 BCCA 1, at paras. 66-71 (); R. v. Nuttall, 2001 ABCA 277, 293 A.R. 364, at paras. 8-9; R. v. A.R., (1994) 1994 CanLII 4524 (MB CA), 92 Man. R. (2d) 183 (C.A.); R. v. Adamo, 2013 MBQB 225, 296 Man. R. (2d) 245, at para. 65; R. v. Wallace (1973), 11 C.C.C. (2d) 183 (Ont. C. A.), at p. 100) or for those whose experience of prison is harsher due to systemic racism (R. v. A.F. (1997), 1997 CanLII 14505 (ON CA), 101 O.A.C. 146, at para. 52). To ensure that the severity of a mandatory minimum sentence is appropriately characterized under s. 12, it is necessary to consider the impact of incarceration in light of these individualized considerations (L. Kerr and B.L. Berger, “Methods and Severity: The Two Tracks of Section 12” (2020), 94 S.C.K.R. (2d) 235, at pp. 238 and 244-245).

[168] I agree with the following comments of Justice Molloy in R. v. Murray, 2021 ONSC 597 at para. 65:

[65] I recognize that it is not necessary, and often impossible, to draw a straight line between systemic racism as a concept and its impact on the criminality of any individual offender. That said, where, as here, the crime is particularly egregious and the conduct of the offender reprehensible, the concept of systemic racism will have more impact if it can be linked to the actual experience of the offender before the court.

[169] I have reviewed the extensive material filed by the defence, of which the EPSR has particular relevance. From my interpretation of all the material filed, the accused’s conduct is linked to these significant factors:

1. Lack of a strong and loving bond with a nurturing father figure.

2. Poverty.

3. Poor choices made by Mark, as previously discussed.

[170] I find that the concept of systemic anti-Black racism, on the material before me, does not account for the accused’s life long criminal conduct involving violence, including his intention to kill domestic partners and then acting out on that intention to kill in particularly extreme and vicious ways.

CONCLUSION

[171] There is no evidence that the accused has ever had any gainful legitimate adult employment. When he was a teenager, Mark worked at his stepfather’s clothing store for about one year. However, at age 14, Mark decided to sell crack, which earned him far more money than his stepfather, Keith Armstrong, earned at Mr. Armstrong’s clothing store. Mark’s family members were low income earners.

[172] Mark chose to quit school in Grade 9 to pursue drug dealing.

[173] Mark also had an opportunity to develop a close relationship with his step father but chose not to. Instead, Mark, at an early age, associated with negative friends and drug dealers who had a strong influence on him. Mark rejected positive direction from his home.

[174] By age 17, Mark was involved in gang culture which Mark felt taught him how to be a man and to live by certain principles such as loyalty and respect.

[175] Mark lived with his biological father and stepmother when he was a young boy, somewhere between 3 and 7 years old. Mark’s biological father did not develop a close relationship with Mark and did not provide direction and support. Mark’s stepmother “tortured” Mark, isolated him in the basement and broke his arm. This abuse resulted in Mark becoming resentful and withdrawn.

[176] Mark, due to this abuse, developed a mentality of “self-protection” and began to react violently in confrontational situations.

[177] According to Janet, Mark’s sister, poverty and Mark’s desire for material property attributed to Mark’s trajectory towards drug dealing and crime. Mr. Armstrong, the stepfather, believed that Mark’s poor choices, and environment, led him to his current path.

[178] Mark’s early years were marked by experiencing violence and seeing violence around him. Mark developed the expectation to be violent to settle disputes. Violence came to be part of Mark’s everyday life. Mark left the family home at 16 and remained with his gang from 17 until his Attempted Murder sentence in 2000.

[179] This background informs that Mark was fully entrenched as a violent criminal trafficking in drugs. As the EPSR states at page 13, “Mark engaged in a long history of criminal activity since his teenager years and participated in drug trafficking and more serious and violent offences as he got older.”

[180] Ms. Pemberton concludes, at page 14 of her report, that “[i]t appears that some of his challenges stem from his childhood, lack of direction, the impacts of poverty, and the influence of his peers and neighbourhood”.

[181] Mark admitted at page 12 of the EPSR that violent reactions are the way he learned to communicate and deal with “hard situations”. Mark admitted as well that he reacts violently if he is in “any extreme or tough situation.” However, Mark also minimized being a violent domestic offender, indicating at page 6 of PSR#1, “I don’t slap my girlfriends […] I’m not typically violent. I don’t start fights, but I can finish them.” Given this background, it is obvious that Mark’s character at a young age was that of a violent and dangerous man.

[182] Accordingly, in 2000 when Mark was just 23 years old, Mark was sentenced to 13 years, 3 months for Attempted Murder of his girlfriend and Aggravated Assault of her 5-year-old son. As an example of minimization, Mark at page 4 of PSR#1 indicated that the victim was his girlfriend – They had been dating for a couple years. The PSR#1 states, at pages 4-5, Mark “relayed they had an argument and he got upset. In Mr. Champagne’s words, “I’m not typically violent. I don’t start fights, but I can finish them.” There is no mention of any other victims.

[183] The Court of Appeal’s assessments of the Attempted Murder and Aggravated Assault and other assaults is alarmingly different.

[184] In R. v. Champagne 2002 CanLII 22947 (ON CA), [2002] O.J. No. 4656, the Court of Appeal indicated the accused attempted to kill Ms. Wilson and committed an aggravated assault of her 5 year old son. It appears that the accused was in a rage when he stabbed Ms. Wilson numerous times: Champagne at para. 6. The Court of Appeal concluded, “This was a terrible case of domestic abuse. There were three separate victims and two discrete attacks. During the second attack, the appellant attempted to kill Ms. Wilson. His failure was not through any lack of effort on his part.”.

[185] Mr. Champagne, in the various reports, attributes learning violence in his youth, being the recipient of abuse, including his step mother inflicting a broken arm when Mark was approximately 5 years old. This experience did not prevent him from committing an aggravated assault on Ms. Wilson’s 5-year-old son.

[186] Mark completed the custodial part of his Attempted Murder, Aggravated Assault and Assaults with a Weapon sentence in approximately 10 years, being released in September 2009. The accused in his affidavit complains that he should have received, in the penitentiary, a high intensity family violence program that he requested. Instead, Mark was provided a moderate intensity Family Violence Program. From the reports I have reviewed, the 33-year-old-man who was released from the penitentiary in 2009 was just as dangerous and violent as the young man who entered it in 2000.

[187] Accordingly, I find that it was entirely predictable, if not inevitable, that the accused would attack yet another domestic partner with extreme violence.

[188] So it was, in November 2017, that Mark, now in his early 40’s, would react violently when confronted with Natasha’s demand that he leave her house.

[189] The amount of violence that occurred is very disturbing. I cannot imagine anyone engaging in the undeniable evil cruelty of pointing a gun at a partner’s face/head from a distance of a metre or less and then firing into that face/head again and again. Natasha struggled and was moving about as she was terrifyingly shot ten times. What an indescribably horrible death for this woman who deserved none of this.

[190] This execution of a defenceless mother of two young children was a despicable and senseless ruin of the lives, not only of Natasha Thompson, but her family as well, and has to be condemned in the harshest manner possible.

[191] Now 5 years after Natasha’s brutal murder, the reports before me suggest that the accused, now 46, is as dangerous as he ever was in his teens, twenties, thirties, and early 40’s.

[192] I agree completely with the assessment of the author of PSR#1 when she concluded, “[w]ithout intervention, the concerns and risks to the offender’s intimate partners are very high and extremely concerning”.

[193] The only real positive, in the reports, confirmed from what I observed at trial, is that Mark is a very, very intelligent. Had he made better choices, he could have been a very effective trial lawyer. Further, consistent with the reports filed, I find that Mark has the ability to be both charming and persuasive, if not manipulative. This is a double-edged sword. These personal qualities can be used to deceive a future intimate partner who would have no idea as to her potential danger until it was too late to avoid it.

[194] This case is in line with comments in the caselaw where the proper range of sentence was determined to be 20-25 years of parole ineligibility. The present case can be fairly described as a particularly egregious offence, coupled with the most aggravating of offender characteristics such as a history of violence, and a high risk of recidivism. The Court of Appeal has indicated in such cases a range of 20-25 years will be appropriate: Brunet at para. 20.

[195] The killing of Natasha was a cold-blooded execution. All the material before me establishes, without any doubt, that the accused was, is, and continues to be, a very dangerous man with a high risk of committing future acts of violence. The Court of Appeal has determined, in a case where the accused received a sentence of parole ineligibility for 20 years, that sentences of ineligibility for parole for 20 years is reserved for offenders who have an established pattern of violence in their lives from which it can be reasonably inferred that they present a high risk to re-offend in a violent manner: R. v. Lane at paras. 90, 94. The accused is such a man.

[196] In R. v. Owusu-Ansah, the accused was convicted of an egregious second degree murder, The accused had a criminal record for crimes involving domestic abuse situations. The convictions were related to Dangerous Driving and Assault Causing Bodily Harm convictions. The court sentenced the accused to parole ineligibility for 22 years: R. v. Owusu-Ansah at para. 35.

[197] This brings me full circle back to the recommendation of the jurors for 20-25 years of parole ineligibility. This range is in accord with the caselaw cited above. The majority of the jurors – 7 – recommended parole ineligibility of 25 years. They were aware of some, but not all, of the aggravating factors presented at this sentencing hearing. There is nothing presented at this sentence hearing, in my opinion, that would have persuaded them to lower their recommendation.

[198] I have considered the various s. 718 Criminal Code objectives of denunciation, deterrence, rehabilitation, promoting a sense of responsibility, the social context and relevant background factors of Mr. Champagne: see Hills at paras. 54-55.

[199] Further, I have considered that Mr. Champagne’s experience in prison may be harsher due to systemic racism: see Hills at para. 135.

[200] The Supreme Court has also indicated that another relevant factor in sentencing is, where necessary, separating offenders from society: see Hills at para. 54. Mr. Champagne’s current crime and criminal history cry out for him to be separated from law abiding society.

[201] In my opinion, an early release of Mark Champagne would likely result in an almost certain death sentence (or at best grievous bodily harm) of an unsuspecting future female partner.

[202] In the result, after considering all the factors outlined in s. 745.4 of the Criminal Code and the relevant authorities, I sentence Mark Champagne to life imprisonment with a parole ineligibility term of 22 years. The court also makes the following ancillary orders:

i. DNA (primary) (s. 487.051);

ii. S. 109 weapons prohibition order for life;

iii. Section 743.21 order prohibiting communication while in custody with Hana Thompson or Cora Thompson or any of their immediate family members; and

iv. Forfeiture of seized firearm (s. 491).

Skarica J.

Released: February 21, 2023

COURT FILE NO.: CR-17-146

DATE: 2023-02-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Applicant

• and –

MARK CHAMPAGNE

Respondent

REASONS FOR SENTENCING

JTS

Released: February 21, 2023