COURT FILE NO.: CR 23-160

DATE: 2024/10/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

SANDRA HAGGART

M. Crystal, for the Crown

G. Clark, for the Offender

HEARD: September 9, 2024

PUBLICATION RESTRICTION NOTICE

The information set out below concerning “The Offence” was taken from evidence adduced at the preliminary hearing in the case. Pursuant to s. 539 of the Criminal Code, no evidence taken at the preliminary inquiry shall be published in any document or broadcast or transmitted in any way before such time as the trial of both accused is ended. As of the date of these reasons, the trial of the co-accused, Travis Stillaway, has not begun.

Ellies J.

REASONS FOR DECISION ON SENTENCE

OVERVIEW

[1] Sandra Haggart was charged with second degree murder. With the consent of the Crown, she offered a plea to the included offence of manslaughter and was found guilty of that offence.

[2] She is now before me for sentencing.

[3] The Crown and the defence have very different views on the appropriate sentence. The Crown submits that Ms. Haggart should be imprisoned for eight to ten years and that I should exercise my discretion to order that her parole be delayed under s. 743.6(1) of the Criminal Code, R.S.C. 1985, c. C-46, until she has served one-half of her sentence. The defence submits that two to five years imprisonment is the appropriate range and that, given the time Ms. Haggart has spent in pre-sentence custody, she should be sentenced to one day in jail, to be followed by probation.

[4] To determine the appropriate sentence, I must consider the circumstances surrounding the offence, those of the offender, and the relevant principles of sentencing.

[5] I will begin by discussing the circumstances surrounding the offence.

The Offence

[6] The victim in this case is a young man by the name of Nicholas Nicholls. He was known to Ms. Haggart and her boyfriend, the co-accused, Travis Stillaway. Ms. Haggart alleged that Mr. Nicholls had stolen from them and sexually assaulted her.

[7] Ms. Haggart and Mr. Stillaway were in the downtown area of North Bay on the morning of December 4, 2021. So, too, was Mr. Nicholls. The events that led to Mr. Nicholls’ death were captured on private and public video surveillance cameras located throughout the downtown core.

[8] The surveillance videos show Ms. Haggart walking on Main Street in the direction of a pharmacy into which Mr. Nicholls is seen entering at about 10:27 a.m. Ms. Haggart appears to see Mr. Nicholls. She is shown turning around after he enters the pharmacy, at first walking and then running, in the direction of Wyld Street, where Mr. Stillaway is seen walking towards Main Street. Ms. Haggart is seen turning the corner onto Wyld Street, gesturing frantically to Mr. Stillaway, and apparently yelling at him. Her arm gestures indicate that she wanted Mr. Stillaway to join her. The two of them are then shown running from the corner of Main and Wyld Streets towards the pharmacy into which Mr. Nicholls had entered earlier.

[9] Surveillance footage from within the pharmacy and evidence from the pharmacist given at the preliminary hearing reveal that a heated discussion took place between the offender, the co-accused, and the victim such that the pharmacist asked them to leave the pharmacy. Video footage taken from outside the pharmacy then shows Mr. Stillaway making a stabbing motion towards Mr. Nicholls on two occasions: once as Mr. Nicholls was trying to back away from Mr. Stillaway, and again after Mr. Nicholls had tried to run away from Mr. Stillaway. Following the second apparent stabbing, Mr. Nicholls managed to get free. Shortly thereafter, he is seen talking to a stopped motorist, to whom he complained of a stab wound. Emergency personnel were summoned, and Mr. Nicholls was taken to the hospital. He died of a stab wound to the chest a week later.

[10] Ms. Haggart and Mr. Stillaway were arrested the next day, December 5, 2021. Ms. Haggart was interviewed by the police following her arrest. In her statement, she admitted to “egging” Mr. Stillaway on by telling him to “get” the deceased. Ms. Haggart also admitted that she believed that Mr. Stillaway suffered from Fetal Alcohol Spectrum Disorder, that he was easily influenced by her, and that he sometimes carried a knife. However, Ms. Haggart denied telling Mr. Stillaway to kill Mr. Nicholls or that she wanted Mr. Nicholls dead.

[11] Both Mr. Stillaway and Ms. Haggart were charged with second degree murder as a result of the death of Mr. Nicholls. Both were committed to stand trial on that charge in this court. Ms. Haggart brought an application to quash the committal on the basis that there was no evidence before the preliminary hearing judge that she had the knowledge necessary to be convicted of murder. I held otherwise and remitted the matter back to the preliminary hearing judge to consider that evidence: R. v. Haggart, 2024 ONSC 4103. However, the Crown preferred an indictment, instead, and the matter remained in this court.

[12] With the consent of the Crown, Ms. Haggart entered a plea of not guilty to murder, but guilty to manslaughter, instead. This means that the Crown accepts that Ms. Haggart did not have the subjective foresight required for murder, meaning that she did not know, and was not willfully blind to the fact, that Ms. Stillaway intended to kill Mr. Nicholls or to cause him bodily harm that he knew would likely cause Mr. Nicholls’ death: Haggart, at paras. 23 and 27. Rather, by admitting that she is guilty of manslaughter in these circumstances, Ms. Haggart has admitted that she encouraged Mr. Stillaway to injure Mr. Nicholls when she ought to have known that his death would ensue: Haggart, at para. 20.

The Offender

[13] I turn now to the circumstances surrounding the offender.

[14] I do not have the benefit of a pre-sentence report in this case. All I know about Ms. Haggart apart from the facts of this case and her criminal record is what Mr. Clark has told me.

[15] Ms. Haggart is 37 years old. She lost her father at age 11 and had to move from the North Bay area to Gravenhurst as a result. I do not know how far she went in school.

[16] Ms. Haggart's criminal record is minor, in my view. It begins in 2007, when Ms. Haggart was just 19 years old, with a conviction for possession of stolen property and failing to attend court. It ends in 2019 with a conviction for uttering threats. Prior to her arrest on this offence, the only time she had spent in jail was one day. As of today, she has spent 1058 days in jail following her arrest on December 5, 2021. I will return to the time Ms. Haggart has spent in pre-sentence custody shortly.

[17] I also know that Ms. Haggart also has three children, ages 5, 7, and 14 years. I am told her children are in the legal custody of her mother, as a result of which Ms. Haggart is able to maintain contact with them, which she has done everyday during her time in jail. Mr. Clark advises that Ms. Haggart's mother has seen a positive change in her daughter over the course of that time, although Ms. Haggart has suffered physically for want of exercise while incarcerated, something I will also come back to shortly.

THE POSITIONS OF THE PARTIES

[18] On behalf of the Crown, Mr. Crystal submits that this was an “aggravated” manslaughter, as the cases have come to call it. He submits that this case “is a hair short of murder” and that, therefore, the appropriate range of sentence is eight to twelve years. He also submits that this is an appropriate case for the court to make an order under s. 743.6(1) of the Criminal Code that Ms. Haggart not be eligible for parole until she has served one-half of her sentence in custody, rather than the usual one-third.

[19] On behalf of Ms. Haggart, Mr. Clark submits that this is not a case that can be described as being just short of murder. He points to the transcript of Ms. Haggart's interview with the police after her arrest in which she denied knowing that Mr. Stillaway had a knife with him on the day in question and that she did not intend that Mr. Nicholls be killed. Mr. Clark submits that, in these circumstances, the appropriate range of sentence is two to five years imprisonment. Given the enhanced credit for pre-sentence custody to which Ms. Haggart is entitled of roughly 52 months, Mr. Clark submits that she should spend no further time in custody, and should be placed on probation, instead.

THE RELEVANT LEGAL PRINCIPLES

[20] Before I address these submissions, I will briefly discuss the law of sentencing.

The Fundamental Purpose of Sentencing

[21] The fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society: Criminal Code, s. 718.1.

[22] Section 718 of the Criminal Code sets out the objectives to be achieved in fulfilling the fundamental purpose of sentencing. They include denunciation of the unlawful conduct and the harm caused by it, deterrence of the particular offender and others, and the rehabilitation of offenders.

[23] Where the offence of manslaughter is concerned, no one objective necessarily takes precedence over another; each case is unique: R. v. Jiwa, 2012 ONCA 532, at paras. 27-28.

The Fundamental Principle of Sentencing

[24] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1.

[25] In this case, it is also important to bear in mind the “parity” principle set out in s. 718.2(b) of the Criminal Code that sentences for similar offences committed by similar offenders in similar circumstances should, as far as possible, be the same.

The Gravity of the Offence

[26] The seriousness of an offence is reflected in the essential elements of the offence; the more blameworthy the required mens rea (the mental element), and the more harmful the prohibited conduct, the more serious the crime. The gravity of the offence is also reflected in the applicable penalty provision: R. v. Morris, 2021 ONCA 680, at para. 67. The maximum punishment for manslaughter is life imprisonment: Criminal Code, s. 236(b). It necessarily involves the loss of life. There is no doubt it is a very serious offence.

[27] The seriousness of an offence is also reflected in the circumstances surrounding the commission of the offence. As many courts have pointed out, the circumstances surrounding manslaughter can vary from causing death almost by accident to near murder: R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10. Because of the wide variety of circumstances in which it can be committed, it is often very difficult to respect the parity principle precisely in a given case. The cases show that penalties for manslaughter can range from suspended sentences to sentences of life imprisonment: R. v. Turner, 2019 ONSC 5435, at para. 11.

[28] Like many of my colleagues, I agree with the analysis performed by Shreck J. in R. v. Smith, 2022 ONSC 3800 and summarized by Code J. in R. v. Wight, 2022 ONSC 5137, at para. 43, that there are three broad ranges of sentence for the offence of manslaughter in this province:

• a lower range of six to eight years in less serious cases where, for example, the accused was not aware of a firearm possessed by a co-accused or where the accused was a youthful first offender with significant rehabilitative potential: see R. v. Turner, 2019 ONSC 5435, R. v. Sahal, 2016 ONSC 6864, and R. v. Kwakye, 2015 ONCA 108;

• a mid-range of 8 to 12 years in cases where some significant aggravating factors are present, such as the use of a firearm or brutal violence against a vulnerable elderly victim: see R. v. Tahir, 2016 ONCA 136, R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.); and R. v. Clarke (2013), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.); and

• a higher range of 12 to 15 years in cases where the most serious aggravating factors are present such as a significant criminal record, planned violence, active participation in brandishing or discharging firearms or in a planned home invasion involving beating of the victims: see R. v. Jones-Solomon (2015), 2015 ONCA 654, 329 C.C.C. (3d) 191 (Ont. C.A.), R. v. Atherley, 2009 ONCA 195, R. v. Thompson, 2008 ONCA 693, and R. v. Warner, 2019 ONCA 1014.

[29] See also: R. v. Kerr, 2023 ONSC 3892, at para. 29; R. v. Zaban, 2024 ONSC 2704, at para. 35; and R. v. Johnson, 2024 ONSC 3273, at para. 60.

[30] Where this case fits will depend not only on the gravity of the offence, but also on the moral blameworthiness of the offender.

The Moral Blameworthiness of the Offender

[31] Like the gravity of the offence, the moral blameworthiness of an offender varies with the circumstances surrounding the commission of the offence and can vary widely in the case of manslaughter because of the wide variety of circumstances in which the offence can occur.

[32] I turn to those circumstances now.

Aggravating and Mitigating Circumstances

[33] Section 718.2 of the Criminal Code requires that a sentence be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender.

[34] Under the Criminal Code, the burden of proving the existence of an aggravating circumstance falls upon the Crown, who must prove the existence of such a circumstance beyond a reasonable doubt: Criminal Code, s. s. 724(3)(e). The burden of proving the existence of a mitigating circumstance falls upon the offender, who must prove the existence of the circumstance on a balance of probabilities: R. v. Aragon, 2022 ONCA 244, at paras. 105-107.

THE PRINCIPLES APPLIED

Aggravating Circumstances

[35] I will begin by examining the aggravating factors in this case and will then examine those that mitigate the sentence.

The Extent of the Offender's Participation in the Offence

[36] The most aggravating circumstance in this case is the extent to which Ms. Haggart participated in the attack that resulted in Mr. Nicholls’ death.

[37] I do not agree with the Crown that Ms. Haggart's moral culpability is higher because this was a “group” assault. This was not a group assault. In my view, the culpability of someone involved in a group assault is higher because the involvement of that person makes it more difficult for the victim to defend himself. That is not the case here. There is no evidence that Ms. Haggart was physically involved in the assault or that she prevented Mr. Nicholls from avoiding it.

[38] However, Ms. Haggart participated in another way. Mr. Stillaway and Mr. Nicholls did not just run into each other by chance on that fateful day in December 2021. Ms. Haggart actively ensured that there would be a confrontation between the two of them. And then, when there was, she ensured that it would become a physical one.

[39] While it is true, as Mr. Clark submits, that Mr. Stillaway had his own axe to grind with Mr. Nicholls, what Ms. Haggart did was to get Mr. Stillaway to grind her axe, too. She told the police that Mr. Nicholls had not only stolen from them, but that he had also sexually assaulted her. While I accept that she did not know that Mr. Stillaway would murder Mr. Nicholls, it is clear that she wanted Mr. Nicholls to be hurt physically. As the Crown has put it a couple of times, borrowing from Shakespeare’s Othello, she was the Iago to Mr. Stillaway's Roderigo.

The Failure to Render Assistance

[40] After Mr. Nicholls was stabbed, both Mr. Stillaway and Ms. Haggart left the scene. No effort was made to seek medical assistance for Mr. Nicholls. Mr. Clark submits that there is no evidence from which to conclude that Ms. Haggart knew that Mr. Nicholls had been stabbed. I disagree.

[41] The surveillance footage showed that, following the stabbing, Ms. Haggart and Mr. Stillaway went to a nearby bus terminal, where Mr. Stillaway gave the hat he was wearing to one individual and exchanged footwear with another. This is evidence of post-offence conduct which, in my view, supports an inference that Ms. Haggart knew that Mr. Nicholls had been stabbed.

[42] To justify such an inference, the post-offence conduct of Ms. Haggart must be capable of justifying no reasonable inference other than that she knew that Mr. Nicholls had been stabbed: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. In my view, no other reasonable inference is possible on this evidence. The only assault that Ms. Haggart would have witnessed according to the video evidence is a jab by Mr. Stillaway towards Mr. Nicholls. Without a knife being in Mr. Stillaway's hand at the time, the jab would have been more-or-less harmless. It would not have justified fleeing the scene and changing clothes. Ms. Haggart knew that Mr. Stillaway sometimes carried a knife. She had to be aware, either at the time of the assault, or when she saw Mr. Stillaway exchanging items of clothing with people, that Mr. Nicholls had been stabbed. And yet, she did nothing to ensure that he received medical attention.

[43] I view this as aggravating circumstance, as have other judges: R. v. Jiwa, 2012 ONCA 532, at paras. 45 and 55; R. v. Lee, 2021 ONSC 7672, at para. 42.

The Devastating Impact on the Deceased's Family

[44] Finally, I come to the effect that this killing had on the family of the deceased. I heard from many of the deceased's family members during the sentencing hearing, some of whom read their own victim impact statements, and others of whom had their statements read into the record by the Crown. All of them were heart wrenching.

[45] Mr. Nicholls had his own issues. He was going to the pharmacy to get his methadone the day he was stabbed. But the sense I have after listening to the victim impact statements is that Mr. Nicholls was a work in progress. Because he was taken from his family at a young age, and because he had so much potential, the family's sense of loss is understandingly accentuated.

[46] Mr. Nicholls leaves behind a daughter, who was only four years old at the time of his death. As many members of Mr. Nicholls’ family poignantly pointed out, his daughter has been robbed of a loving father, and of all the support that such a loving father can give over the course of her lifetime.

[47] In my view, this is a significant aggravating factor in this case. However, I bear in mind that a sentencing court should not let the enormity of the tragic consequences of a crime unduly distort what would otherwise be an appropriate penalty: R. v. Mellstrom (1975), 1975 CanLII 1270 (AB CA), 22 C.C.C. (2d) 472 (Alta.S.C. App. Div.), at para. 41. As Shreck J. said in Smith, the sentence I impose in this case is not meant to and does not reflect the value of the victim’s life or the extent of his family's suffering. Neither of these things can be measured, least of all by the length of a prison sentence: Smith, at para. 13,

Mitigating Circumstances

[48] I turn now to the mitigating circumstances in this case.

The Plea of Guilty

[49] One of the most significant mitigating circumstances is the fact that Ms. Haggart has entered a plea of guilty.

[50] Although I held in my decision on the application to quash the murder charge that there was evidence upon which the preliminary hearing judge could have committed Mr. Haggart to stand trial on the charge, a conviction for that charge was far from certain. So, too, was a conviction for manslaughter, although it was more likely. Ms. Haggart's plea has spared the family what might have been a long wait for an uncertain outcome.

[51] Ms. Haggart’s plea is also an expression of remorse, a sentiment that she began to express as soon as she was interviewed by the police.

The Lack of a Significant Record

[52] Also mitigating is the fact that Ms. Haggart has only a minor, unrelated criminal record. I agree with the Crown that it is irrelevant in most respects. However, the lack of a significant record may bode well for Ms. Haggart's prospects of rehabilitation, to which I turn now.

The Prospect of Rehabilitation

[53] I accept Mr. Clark's submission that Ms. Haggart has a serious substance abuse problem. I agree with him that her problem was obvious from her comportment during the video-recorded interview at the police station after her arrest.

[54] I also accept Mr. Clark's submission that Ms. Haggart has been sober since her arrest and that her attitude has improved markedly since then. Mr. Clark tells me that Ms. Haggart is driven by a desire to be involved in her children's lives and this appears to be borne out by her daily contact with them.

[55] Of course, whether she will succeed at turning her life around once she has served her sentence remains to be seen. I have no evidence upon which to assess this prospect. As a result, I cannot give this possibility much weight.

The Harnish of the Offender's Pre-sentence Incarceration

[56] As a last mitigating circumstance, I have considered the nature of Ms. Haggart's pre-sentence custody.

[57] Ms. Haggart has been in custody since December 2021. When she was arrested, the pandemic was still a very disruptive force for those in custody. Lockdowns due to COVID-19 were a frequent occurrence. Therefore, it is customary for offenders who have been in custody during the pandemic to ask that their sentences be mitigated due to the harsh conditions in jails throughout the province, as they are entitled to do: R. v. Duncan, 2019 ONCA 754; R. v. Marshall, 2021 ONCA 344.

[58] Ms. Haggart does not make that request and, therefore, has not provided the court with any evidence as to the extent to which she experienced lockdowns while in pre-sentence custody. However, I find it impossible to ignore the many sentencing cases in which I have been involved since 2020, in almost all of which I have received evidence of a disproportionate number of lockdowns due to COVID-19 and staffing shortages throughout the province. For that reason, I also find it impossible not to consider as a mitigating factor the generally harsher conditions of pre-sentence custody that prevailed at least in the early part of Ms. Haggart's pre-sentence custody.

THE APPROPRIATE SENTENCE

[59] Having considered all of these aggravating and mitigating circumstances, I come at last to what I believe is the appropriate sentence in this case.

[60] I am unable to accept the Crown’s submission that this case falls squarely into the category of an “aggravated” manslaughter for which the range of sentence is at least eight years. Many of the cases falling into this category involve the use of firearms, brutal beatings, and/or very vulnerable victims: Wight, at para. 43. None of these circumstances are present here. While Mr. Nicholls was unarmed and tried to avoid the conflict, the Crown has not demonstrated that he was the type of vulnerable victim contemplated in cases involving the elderly or those who are incapacitated by drugs or alcohol at the time of the offence.

[61] However, I am also unable to accept the defence submission that the appropriate range of sentence for this case is two to five years. I agree with the Crown that the cases relied upon by Mr. Clark in support of this submission are distinguishable.

[62] The offences in R. v. Braune, 2006 ONCJ 50, R. v. Tabbara, [2009] O.J. No. 4397 (Ont. S.C.J.), and R. v. Sharpe, 2019 BCSC 1754, involved the accused delivering a single blow to the victim. No weapon was involved, as it was in this case.

[63] In R. v. Pimental, 2022 ONSC 3023, a baseball bat was used. The accused was sentenced to five years in prison. However, there were significant Duncan issues regarding the severity of his pre-sentence custody that mitigated against a longer sentence.

[64] In Turner and in Smith, firearms were used. In Turner, the accused was sentenced to four years, time served, and placed on probation for three years. However, in that case, the accused was being sentenced after all of the more culpable parties had been sentenced and the sentencing judge was, therefore, required to situate his sentence accordingly. Perhaps for that reason, the Crown in Turner was seeking only a six-year sentence: Turner, at para. 7. In Smith, the accused was, in fact, sentenced to nine and one-half years after mitigation for harsh pre-sentence custodial conditions: Smith, at para. 45. Neither case supports the position of the defence.

[65] In my view, considering these cases, the circumstances surrounding the commission of this offence, and those surrounding the offender, a fit and proper sentence is at the high end of the lower range of sentence, namely seven and one-half years.

Pre-sentence Custody

[66] According to s. 719(3.1) and the decision of the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, Ms. Haggart must be given credit at the rate of one and one-half days for every day spent in custody awaiting sentence because she does not earn remission on pre-sentence custody, as she will on the time spent in custody as part of the sentence.

[67] As I stated earlier, Ms. Haggart has spent 1,058 days in custody. At the rate of 1.5:1, that is the equivalent of 1,587 days. The sentence of seven and one-half years is the equivalent of 2,737.5 days. Deducting the enhanced credit of 1,587 days leaves 1,150.5 days, or roughly the equivalent of 38 months still to serve.

Delayed Parole

[68] I see no basis upon which to exercise my discretion to require that Ms. Haggart spend one-half of her sentence of seven and one-half years in custody before being paroled.

[69] In R. v. Zinck, 2003 SCC 6, [2004] 1 S.C.R. 41, at para. 31, the Supreme Court of Canada characterized a delay in parole eligibility as an additional punishment, necessitated by the objectives of denunciation and deterrence. I have already reflected the aggravating factor of Ms. Haggart’s participation in the offence in the length of the sentence I have imposed. Had Ms. Haggart been sentenced to seven and one-half years at the time she was arrested, she would have qualified for parole already. By my calculation, she has served about five months more than she might otherwise have served.

[70] In these circumstances, I do not believe that the objectives of denunciation and deterrence require more.

ANCILLARY ORDERS

[71] There is no dispute about the ancillary orders requested by the Crown. Therefore:

(1) under s. 743.21 of the Criminal Code, Ms. Haggart shall not contact or communicate with Travis Stillaway while he is in custody;

(2) under s. 487.04(a) of the Criminal Code, Ms. Haggart shall provide a sample of her DNA; and

(3) under s. 109 of the Criminal Code, Ms. Haggart shall not possess anything listed in that section for life.

[72] I would like to thank counsel for their submissions.

M.G. Ellies J.

Released: October 28, 2024

COURT FILE NO.: CR 23-160

DATE: 2024/10/28

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

SANDRA HAGGART

REASONS FOR decision ON SENTENCE

M.G. Ellies J.

Released: October 28, 2024