Court File and Parties

Court File No.: CR-21-91103479, CR-23-00000041 Date: 2024-01-29 Ontario Superior Court of Justice

Between: His Majesty The King – and – Raphael Jacques Banon, Defendant

Counsel: Ms. J. Kim and Mr. J. Mutton, for the Crown Mr. J. Rosen and Mr. E. Neubauer, for the Defendant

Heard: November 28 and December 20, 2023

Reasons for Sentence

Before: Fuerst J.

Introduction

[1] In May 2021, 19 year old Asha Morar lived with her boyfriend, 20 year old Raphael Banon, at his apartment in Vaughan.

[2] On the evening of May 5, 2021, the couple were at home together. They began to argue. The argument escalated and became physical. Mr. Banon assaulted and injured Ms. Morar. She went to bed alone, but, tragically, succumbed to her injuries and died sometime on the morning of May 6, 2021.

[3] Mr. Banon pleaded guilty to manslaughter. There is no question that a substantial penitentiary sentence must be imposed. Crown and defence counsel disagree, however, as to its length.

The Circumstances of the Offence

[4] In the summer and fall of 2020, Ms. Morar was in a relationship with a physically abusive boyfriend. She was abusing Xanax, including street Xanax. She was depressed, and opted to discontinue her university studies.

[5] Ms. Morar became romantically involved with Mr. Banon in late January 2021, after her other relationship ended. Initially, Ms. Morar and Mr. Banon had a good relationship. She told a friend that he was treating her well and was accepting of her past. By February 2021 she was living with him.

[6] Unfortunately, however, Ms. Morar’s drug abuse continued.

[7] By March 2021, Ms. Morar was alleging that her relationship with Mr. Banon had turned violent. On March 11, 2021, one of her friends, J. O., came to the couple’s apartment and overheard them arguing loudly while she stood outside the door to the unit. Shortly after, Ms. O. saw Ms. Morar with a bump on her head. Ms. Morar was upset and crying. The next day she wrote to Ms. O. that Mr. Banon “beat the shit out of me” and that she thought he was going to kill her. A photograph found on her phone showed her with a bloody nose. Mr. Banon was shown standing behind her.

[8] That same day Mr. Banon texted Ms. O., expressing concern about Ms. Morar. He said that he was trying to calm her down, that he did not want her to hurt herself, and that he was trying to “work shit out” so that she was “good mentally.” He also referred to Ms. Morar “popping a whole bottle” of pills.

[9] In the months and weeks preceding her death, Ms. Morar sought help for her difficulties. She had sessions with a social worker. She also received counselling services and other support from Addiction Services of York Region. She told support services that she was concerned with her increasing use of street Xanax and alcohol, and that she was in an abusive relationship with her intimate partner.

[10] On April 14, 2021, Ms. Morar wrote to a mutual friend and asked her to check her Snapchat, as she had posted a private story about something she had done with a man behind Mr. Banon’s back, along with a picture. The next day Ms. Morar FaceTimed the same friend, told her that Mr. Banon found out about the Snapchat story, and said that he woke her up by beating her and slapping her in the face. She also said that he threw her phone at her.

[11] In the days preceding her death, Ms. Morar took a break from her relationship with Mr. Banon. She reconnected with her ex-boyfriend, and reported to Ms. O. that they had sex. She also had sex with another man.

[12] In the week of her death, Ms. Morar related to friends that she had told Mr. Banon “everything”.

[13] On the morning of May 5, 2021, Mr. Banon went to work. Ms. Morar stayed in the apartment alone. She called Ms. O. and said that she needed Xanax, but that Mr. Banon would not give it to her unless she sat with him in his truck. She called numerous pharmacies seeking diazepam, which she had been prescribed as part of a strategy to wean her off Xanax. Apparently there was a problem with the prescription.

[14] Mr. Banon returned to the apartment later that morning. Around 1:00 p.m. he and Ms. Morar left the building. She had an appointment for blood tests. They returned to the apartment, and Mr. Banon left again shortly after 2:00 p.m. Ms. Morar participated in a virtual counselling session with Addiction Services. She seemed upbeat and not intoxicated.

[15] Around 4:00 p.m. Ms. Morar called Ms. O. in “hysterics”, saying that she needed her Xanax but Mr. Banon would not give it to her. The two women FaceTimed just after 5:00 p.m. Ms. O. noticed that Ms. Morar’s eyes appeared to be rolling back in her head, and she was struggling to hold her head up. Ms. Morar admitted to Ms. O. that she was drinking wine.

[16] Mr. Banon returned to the building and went up to the apartment shortly after 5:00 p.m.

[17] At about 6:40 p.m., Ms. Morar communicated with Ms. O. using Mr. Banon’s phone, because she had forgotten the password for her own phone. Ms. O. supplied the password after ensuring that she was communicating with Ms. Morar and not Mr. Banon.

[18] Between 8:44 and 9:33 p.m., Mr. Banon and Ms. Morar’s mother spoke by text. He said that his relationship with Ms. Morar was ending, that she had been communicating with her ex-boyfriend and other men, and that he would be dropping her off at the mother’s house in the morning.

[19] In the early morning hours of May 6, 2021, Ms. O. texted and FaceTimed with Mr. Banon, who initiated the conversation by texting Ms. O. from Ms. Morar’s phone. At 12:13 a.m., Mr. Banon sent the following comments by text:

“I kno she hu wit that nigga” “And sucked hos dick” “Shes gonna need u these next few days” “She was cutting herself earlier” [three laughing emojis attached]

[20] According to Ms. O., the term “hu” in the message meant “hooked up”. She understood Mr. Banon to be saying that he knew Ms. Morar had sex with another man.

[21] After this exchange, Ms. O. called Ms. Morar’s phone via FaceTime at 12:14 a.m. During the call, Ms. O. could see part of Mr. Banon’s hair, but she did not see Ms. Morar. A woman who was with Ms. O. yelled at Mr. Banon, “ What’s the matter with you? Your girlfriend is cutting herself.” Mr. Banon did not say anything. Ms. O. ended the call.

[22] Ms. O. then received the following texts from Mr. Banon, who was again using Ms. Morar’s phone:

“Tell ur friend fuck u lol” “Asha gonna need u badly after she leaves here lol” “She’s chopped” [slang for both drunk and high]

[23] Between 11:00 p.m. on May 5, 2021, and 1:30 a.m. on May 6, 2021, neighbours in the units adjoining the apartment heard a vibration under foot, as if someone was making frequent bangs or cracks for about 10 to 20 minutes, and a sound like something heavy was being dropped, pushed, or moved around.

[24] At 1:05 a.m., Mr. Banon called his mother, Frédérique Amar. The call lasted one minute and 48 seconds.

[25] Later that morning, Mr. Banon found Ms. Morar in bed and unresponsive. Rather than calling 911 for help, he called his mother. He had a series of FaceTime calls with his mother between 6:38 and 7:30 a.m., using Ms. Morar’s phone. When they finished speaking, Ms. Amar drove to the apartment.

[26] Ms. Amar arrived at the apartment at 8:00 a.m. She found Ms. Morar in bed, stiff and not breathing. At 8:08 a.m., she called 911 for help. As directed by the operator, Ms. Morar’s body was moved from the bed to the floor and CPR was started.

[27] Firefighters arrived and found Ms. Morar lying naked on the floor of the second bedroom. Her body was stiff, with obvious signs of blunt force trauma. She was not breathing. EMS arrived and pronounced death.

[28] The first police officers on scene noted blood spatter on the curtains, on the south and east walls of the bedroom, near the bed, and on the baseboards. They also noted a baggie with white pills on top of the nightstand next to the bed, along with a bottle of white wine that was about two-thirds empty.

[29] On subsequent attendance at the apartment, officers found a bloodstained pillowcase on the bed, paper towel fragments with blood on them in the bathroom, multiple instances of small blood spatter marks on the walls, and a Swiffer mop pad with red staining on it. Forensic examination revealed signs of clean-up in the bedroom and bathroom.

[30] Dr. Maggie Bellis performed a postmortem examination. She noted multiple areas of bruising on Ms. Morar’s head, neck, torso, and extremities. She also noted evidence of neck compression, as well as petechial hemorrhaging in the neck, face, interior of the mouth and interior of the throat. She opined that the injuries to the face and mouth could have been caused by a punch or a slap, and the injuries to the neck and inside of the throat likely were caused by some form of choking, hands or clothing, during a struggle.

[31] The internal examination revealed blunt force injuries to the liver, right kidney, and bowel. The liver was almost split in two. Dr. Bellis described these injuries as blunt force injuries consistent with an assault. She opined that the injury to the liver was caused by a considerable amount of force to the torso and was unlikely to be caused by a fall from a bed or a push into a wall. Rather, she described force being applied to the torso at a point where Ms. Morar’s back was supported by a firm surface, such as the floor or a wall. Dr. Bellis could not rule out the possibility that attempts at CPR before Ms. Morar’s death was pronounced exacerbated the initial injury to the liver. But for the injury to the liver, none of the other injuries alone would have caused death.

[32] Dr. Bellis also described a fracture to the posterior twelfth rib and multiple fractures to Ms. Morar’s lumbar spine, which she opined were not consistent with a fall out of bed but were more likely caused by force being applied to the torso, such as a stomp while Ms. Morar was on the floor or against a wall. Dr. Bellis further opined that the attempts at CPR before death was pronounced did not cause the fractures to the rib and spine.

[33] Dr. Bellis concluded that there had been multiple impacts to Ms. Morar’s head and body. The cause of death was blunt force trauma, with the mechanism of death being hemorrhagic shock primarily due to the injury to the liver.

[34] Dr. Bellis agreed that, taking into account histological findings, the overall picture was consistent with Ms. Morar being assaulted, injured, and then going to bed and dying hours later.

[35] Toxicological analysis showed that at the time of death, Ms. Morar had flubromazolam, known as street Xanax, antidepressants citalopram/escitalopram, and ethanol in her blood. However, Dr. Bellis concluded that the toxicological findings did not contribute to death.

The Victim Impact Information

[36] Several Victim Impact Statements were provided. It is clear that Ms. Morar was a caring, compassionate, and vibrant young woman. She was much-loved by family and close friends. All who wrote described feelings of immense grief and sorrow at the loss of someone who was taken from them far too soon.

[37] Ms. Morar’s mother recounted that she was utterly devastated by her daughter’s death. The weight of the loss overwhelms her, and she is a shell of her former self. Ms. Morar’s grandparents said they struggle to get through each day, feeling as though they are submerged by misery and sadness. The simple pleasures of life now feel like burdens to them. Ms. Morar’s aunt expressed that she feels the entire family is living in a parallel universe, as prisoners sentenced to a lifetime of pain.

The Circumstances of Mr. Banon

[38] Mr. Banon is now 22 years old. He was born in Montreal. He has one younger brother. Mr. Banon’s father is a lawyer and his mother is a teacher.

[39] Mr. Banon’s parents separated before he started elementary school, divorcing about a year later. His mother moved to Toronto with the boys. However, his father maintained a close relationship with his sons, even after he remarried. He visited them in Toronto and had them come to Montreal for stays with him and family there.

[40] Mr. Banon’s father has a daughter with his second wife, both of whom are close with Mr. Banon. Mr. Banon’s mother remarried and had three children with her second husband before they divorced. Mr. Banon’s stepfather continued to have contact with him.

[41] Mr. Banon had difficulties from the time he was a young child. A professional assessment identified his needs as complex. He suffered from abandonment issues, was diagnosed with ADHD for which he was prescribed medication, and had significant learning disabilities. By grade 10, he dropped out of high school. He worked at various jobs, including in construction. At the time of the offence, he was employed as a tow truck driver.

[42] Mr. Banon’s father paid the rent for the apartment where Mr. Banon lived. He became aware that Ms. Morar had moved in with his son. Both Mr. Banon’s father and his mother were concerned that their son was too immature for a long-term relationship, but felt unable to intervene.

[43] Mr. Banon was not arrested until October 13, 2021. He was held at Central East Correctional Centre (“CECC’) from October 14, 2021, to June 14, 2022, when he was moved to Toronto South Detention Centre (“TSDC”). Lockdown records were provided by both institutions. At CECC, he was locked down for all or part of a day because of staffing shortages and/or COVID-19 medical protocols, on over 75 occasions. He was triple-bunked on eight occasions. At TSDC, he was locked down for all or part of a day because of staffing shortages and/or COVID-19 medical protocols, on over 110 occasions. He was not triple-bunked.

[44] A document was provided to me on behalf of Mr. Banon, which asserted that he was locked down on more days than shown in the institutional records. It also detailed other hardships to which he was subjected, including being placed in segregation for periods of time because of attacks on him by other inmates.

[45] Despite the lockdowns, Mr. Banon’s father and brother maintained frequent contact with him by telephone and visited him regularly.

[46] While at TSDC, Mr. Banon participated in the Amadeusz program, which supports incarcerated young people to complete their high school education. He obtained multiple secondary school credits, and was described as a dedicated and capable student. In addition, he reconnected with his Jewish heritage and religion, through study and regular meetings with a rabbi.

[47] I received multiple letters of support from family members and friends of Mr. Banon. They indicated that the offence was very much out of character for him. Mr. Banon’s father described his son as profoundly sorry for his offence, accepting of his responsibility for it, and committed to leading a productive life on his release from jail. His father expressed his own remorse for his son’s actions, and apologized to Ms. Morar’s family for their anguish. He undertook to support and guide his son in every way possible to make positive choices going forward and to be a positive contributor to society. Other family members and close friends expressed their intention to assist Mr. Banon in reintegrating into society.

[48] In a letter he read at the sentencing hearing, Mr. Banon said that it weighs heavily on him every day that he took Ms. Morar’s life. He takes full responsibility for what he did. He apologized for his actions. He said that he will always be haunted by the pain he caused Ms. Morar’s family and friends. He is trying to improve himself, and wants to do something positive with his life upon his release from jail.

The Positions of the Parties

[49] On behalf of the Crown, Ms. Kim and Mr. Mutton seek a sentence of nine years in jail, less pre-sentence custody credited at one and a half to one. They contend that the applicable range of sentence is seven to twelve years in jail. Denunciation and deterrence are the paramount objectives of sentencing. The aggravating factors include that the parties were in an intimate relationship even though it was not of long duration, Ms. Morar was small in stature and additionally vulnerable because of her ingestion of drugs and alcohol, the assault on her was brutal and prolonged, based on the text messages Mr. Banon knew that she was badly injured, he called his mother not 911, and Ms. Morar’s death has devastated her family and friends. In mitigation, Crown counsel acknowledge that Mr. Banon pleaded guilty, he has no criminal record, he was relatively youthful at the time, and the conditions of his pre-sentence custody have been harsh.

[50] Crown counsel seek a DNA order, a s. 109 order, and a s. 743.21 order of non-communication with named persons.

[51] On behalf of the defence, Mr. Rosen and Mr. Neubauer seek a jail sentence of seven to eight years, less pre-sentence custody calculated at one and a half to one. They do not object to the ancillary orders sought. They acknowledge that the domestic context of the offence is a major aggravating factor, although they point out that this was a short relationship between two immature and troubled young people. They emphasize the mitigating factors, including that Mr. Banon is a youthful first offender who pleaded guilty. He is sincerely remorseful. He recognizes that he has personal issues, and has taken some steps while in custody to try to address them. He has a very supportive family who continue to stand behind him. Mr. Rosen and Mr. Neubauer contend that the harsh nature of Mr. Banon’s pre-sentence custody is an important mitigating factor.

The Principles of Sentencing

[52] The Criminal Code (“the Code”) sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case.

[53] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.

[54] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court of Canada reiterated in R. v. Friesen, 2020 SCC 9, at paragraph 30, that proportionality is the fundamental principle of sentencing. Proportionality is determined on an individualized basis, in that the sentence must reflect the gravity of the offence, the offender’s degree of responsibility, and the unique circumstances of each case: see, R. v. Lacasse, 2015 SCC 64, at para. 53.

[55] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

[56] In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation: see, Lacasse, at para. 58. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at paragraph 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.” The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge: see, Lacasse, at paras. 58 and 143.

Sentencing in Manslaughter Cases

[57] Under s. 236 of the Code, the maximum sentence for manslaughter is life imprisonment. Manslaughter is a serious offence because it involves the taking of a life, and ordinarily attracts a lengthy sentence: see, R. v. Head, [1985] O.J. No. 153 (C.A.).

[58] However, a diversity of circumstances will found a conviction for manslaughter, and so the caselaw reflects a wide variation in the range of sentence.

[59] The Court of Appeal for Ontario directed in R. v. Simcoe, [2002] O.J. No. 884 that to arrive at the appropriate sentence in a particular case of manslaughter, the sentencing judge must consider the context in which the manslaughter occurred, meaning the case-specific circumstances of the offence and the offender. This was echoed in R. v. Devaney (2006), 213 C.C.C. (3d) 264 (Ont. C.A.).

Analysis

[60] The usual range of sentence for manslaughter committed in a domestic context is seven to twelve years in jail: see, R. v. Kimpe, 2010 ONCA 812, at para.14. I recognize that a range is not etched in stone, but it is useful as a guideline in determining the appropriate sentence for Mr. Banon. The sentences sought by Crown and defence counsel respectively fall within this range.

[61] There are a number of aggravating factors in this case. They include the following:

1. Mr. Banon fatally assaulted the young woman who was his intimate partner, even if for just a period of months. This is a statutorily aggravating factor under s. 718.2 (a)(ii) of the Code, and also under s. 718.2 (a)(iii) as an abuse of a position of trust. These provisions serve to emphasize the seriousness of domestic violence.
2. The killing occurred in the apartment that was then Ms. Morar’s home.
3. Ms. Morar was vulnerable at the time. In addition to being small of stature, she had consumed alcohol and drugs. Mr. Banon knew that she was both drunk and high that night. This impacted her ability to defend herself against attack.
4. Mr. Banon’s assault of Ms. Morar was vicious, and prolonged. He inflicted multiple blunt force injuries to her, by multiple blows including to vulnerable areas of her body. Although it was not the cause of death, she was choked either by hands or clothing.
5. Mr. Banon’s texted remarks show that his anger was fuelled by Ms. Morar’s involvement with other men.
6. Given the nature of the assault, Mr. Banon knew that Ms. Morar was injured, yet he did nothing to summon medical aid for her.
7. Upon finding Ms. Morar unresponsive later in the morning, Mr. Banon did not call 911 to get her immediate help. Instead he called his mother.
8. There was some prior abuse of Ms. Morar by Mr. Banon.
9. Ms. Morar’s death has significantly impacted her family and friends, most particularly her mother, grandparents and aunt.

[62] The circumstances that I consider in mitigation include:

1. Mr. Banon pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his offence.
2. He has expressed sincere remorse for his actions, and taken full responsibility for causing Ms. Morar’s death.
3. He is a relatively young first offender.
4. The conditions of his pre-sentence custody have been particularly harsh. In addition to lockdowns, which have become “standard operating procedure” for detention centres in the Greater Toronto Area notwithstanding repeated admonitions from the judiciary that such a practice is inhumane, Mr. Banon was threatened, and assaulted by other inmates. He was held in segregation for periods of time as a result.
5. Mr. Banon has taken some rehabilitative steps while in custody, working to complete high school credits, and reconnecting with his religion and heritage.
6. He comes from a pro-social background. His close family members and friends are committed to supporting and guiding his reintegration into society on his release from jail.

[63] Although it is not mitigating, I note the absence of the aggravating circumstance of use of a weapon against Ms. Morar.

[64] In determining the appropriate sentence for Mr. Banon, denunciation and deterrence are important sentencing objectives: see, R. v. Suppiah, 2021 ONSC 3871, at para. 28. The sentence must also promote a sense of responsibility and acknowledgment of the harm done to the victim and the community at large. Additionally, because Mr. Banon is a younger first offender, rehabilitation must be considered.

[65] This was a brutal killing of an unarmed, vulnerable young woman by the man with whom she was intimately involved, and in the place that was her residence at the time. Mr. Banon’s reaction to finding Ms. Morar unresponsive may have been influenced by his immaturity, but it was cowardly with an element of callousness nonetheless. Both the gravity of the offence and Mr. Banon’s moral blameworthiness are high.

[66] Were it not for the mitigating circumstances, including that Mr. Banon pleaded guilty, and has experienced harsh conditions of pre-sentence custody, I would be inclined to impose the sentence sought by Crown counsel.

[67] In light of the constellation of mitigating circumstances, I have concluded that a somewhat lesser sentence of eight years in jail is appropriate.

Conclusion

[68] Mr. Banon, please stand.

[69] I sentence you to eight years in jail, less pre-sentence custody of 2 years and 109 days, which I treat at one and a half to one as 42 months, leaving a sentence to serve of 54 months, or 4 years and 6 months in jail.

[70] There is a DNA order, a s. 109(2)(a) order for 10 years, a s. 109(2)(b) order for life, and a s. 743.21 order of non-communication with the persons named by Crown counsel.

Justice M.K. Fuerst

Released: January 29, 2024

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.