Court File and Parties

Oshawa Court File No.: CR-23-16158 Date: 2024-11-05 Ontario Superior Court of Justice

Between: His Majesty The King And: Devin Mandley-Byer, Defendant

Counsel: Ms. A. Yorgiadis and Mr. A. Midwood, for the Crown Mr. M. Moon and Ms. A. Djukic, for the Defendant

Heard: May 15 and September 9, 2024

Reasons for Sentence

M. FUERST J.:

Introduction

[1] In 2021, 34 year old Maurice Fullerton and his partner Jaclynn Murdoch lived in a house at 54 Pembry Drive in Ajax. Tyshon Morton tenanted the basement of the residence.

[2] Twenty-two year old Devin Mandley-Byer knew Mr. Fullerton, and had once been to the home on Pembry Drive. Ms. Murdoch was present during that visit. Mr. Mandley-Byer never met Mr. Morton.

[3] Early in the morning of November 11, 2021, Mr. Mandley-Byer and two associates forced their way into the Fullerton-Murdoch home, looking for drugs. Mr. Mandley-Byer was armed with a loaded handgun.

[4] Within minutes, Mr. Fullerton was shot and fatally injured. Ms. Murdoch was then brutally assaulted.

[5] Mr. Mandley-Byer was charged with the second degree murder of Mr. Fullerton. He pleaded guilty to manslaughter in which a firearm was used.

[6] While Crown and defence counsel differ as to the length of the sentence I should impose, they agree that it must be a substantial penitentiary term.

Background

[7] In May 2021 Mr. Fullerton’s car was vandalized in the driveway of the home on Pembry Drive. The car windows were smashed out. Although Mr. Mandley-Byer does not admit to vandalizing the car, Mr. Fullerton believed that Mr. Mandley-Byer was involved in causing the damage. Mr. Fullerton installed surveillance cameras outside the house.

[8] In a Facebook Messenger conversation on May 20, 2021, Mr. Mandley-Byer wrote, “Heard u got ur shit smashed”, “Niggas are crazy” and “U got 5 days get my money.”

[9] Among Mr. Mandley-Byer’s associates were Trevor Kotzma and Michael Rodgers. He met Alexander Mahon-Fernandes through his brother, Kendall Mandley-Byer. None of Mr. Kotzma, Mr. Rodgers, or Mr. Mahon-Fernandes knew Mr. Fullerton.

[10] On October 28, 2021, Mr. Mandley-Byer texted Mr. Kotzma, mentioned “the Ajax House”, and told him to bring ties “so no stupid shit happen.”

[11] On November 10, 2021, Mr. Mandley-Byer and a contact named JJ texted about Mr. Mandley-Byer’s wish to purchase a Taurus handgun with a full clip.

The Circumstances of the Offence

[12] On November 7 and 10, 2021, there were numerous communications between Mr. Mandley-Byer’s cell phone and that of Mr. Kotzma. On November 10, 2021, the two men went to the home of Melissa Perry, where they retrieved some paperwork belonging to their friend who was Ms. Perry’s on again/off again boyfriend.

[13] Also on November 10, 2021, there was a text from the cell phone of Mr. Mandley-Byer to that of Mr. Rodgers, saying, “cme check me.”

[14] On the evening of November 10, 2021, Mr. Mahon-Fernandes drove his Dodge Charger to the home of his friend, Kendall Mandley-Byer. Mr. Mahon-Fernandes asked Kendall to help him out financially. Mr. Mandley-Byer was present and heard the conversation. He told Mr. Mahon-Fernandes that he needed a ride, and in return he would help out Mr. Mahon-Fernandes. Although no specific amount of money was discussed, it was understood there would be financial compensation.

[15] In the early morning hours of November 11, 2021, Mr. Mandley-Byer called both Mr. Kotzma and Mr. Rodgers. Mr. Mahon-Fernandes then transported Mr. Mandley-Byer in the Charger. At Mr. Mandley-Byer’s direction, they stopped and picked up Mr. Kotzma and Mr. Rodgers, who were waiting on the street. Mr. Mahon-Fernandes had never met Mr. Kotzma or Mr. Rodgers.

[16] Mr. Mandley-Byer directed Mr. Mahon-Fernandes to Ajax, where the Charger stopped at a gas station convenience store. Mr. Kotzma and Mr. Rodgers went into the store briefly, then returned to the car.

[17] The Charger continued on to the area of Patterson Crescent and Pembry Drive, arriving at 3:42 a.m.

[18] At 3:45 a.m., while the Charger idled on Patterson Crescent, Mr. Mandley-Byer, Mr. Kotzma, and Mr. Rodgers (“the group”) got out of the car. Mr. Mandley-Byer wore a black and red True Religion brand jacket over a bullet-proof vest, gloves, and blue camo patterned pants. He had a hood over his head and his face was covered. Mr. Rodgers wore black Nike pants, a black hoody sweater, and gloves. His face was covered. Mr. Kotzma wore jeans, a black sweater with a hood, and gloves. His face was covered.

[19] Mr. Mandley-Byer was in possession of a loaded Taurus 9 mm handgun, which was a prohibited firearm. It was concealed on his person.

[20] The group walked eastbound along Pembry Drive, then returned westbound and went up to 54 Pembry Drive. The three males approached the front door of the house. The plan was to rob Mr. Fullerton. Mr. Mandley-Byer had told the others that he believed Mr. Fullerton was involved in the drug trade and would be in possession of illegal drugs.

[21] In addition to Mr. Fullerton, Ms. Murdoch was at home on the main floor of the house. Mr. Morton was in the basement.

[22] Mr. Kotzma smashed out the glass pane insert to the front door with his hand. Police later found his DNA in blood on the broken glass. All three men entered the house.

[23] Ms. Murdoch woke up Mr. Fullerton. They both went to the front hallway. Ms. Murdoch saw the masked men enter the home and confront Mr. Fullerton in the front hallway, pushing him back. Mr. Mandley-Byer became engaged in a physical struggle with Mr. Fullerton. During the struggle, Mr. Mandley-Byer removed his concealed handgun. Within seven seconds from the group’s entry into the house, the firearm discharged. Mr. Fullerton was shot once, through the shoulder. The bullet penetrated his lung and internal organs before lodging in his leg. He fell to the ground in the front hallway, bleeding internally.

[24] It is Mr. Mandley-Byer’s position that the firearm went off during the course of the struggle, and that he did not intentionally discharge it.

[25] After the handgun discharged, Mr. Mandley-Byer lost his grip on it and it was flung into the dining room.

[26] Mr. Kotzma and Mr. Rodgers were in the hallway entrance area when the shooting occurred. Mr. Kotzma admitted on his guilty pleas that he grabbed Ms. Murdoch by the hair and dragged her down the hallway to the basement stairs. They proceeded down the stairs, as Ms. Murdoch yelled to “call 911…they shot Mo”. She broke free of Mr. Kotzma as they went down the stairs, but he pursued her as she ran in the basement. He punched her in the head, threw her over a table, and kicked her in the chest and face multiple times. This was witnessed by Mr. Morton, who was laying on the ground. Mr. Kotzma took the cell phones of Ms. Murdoch and Mr. Morton, and went back upstairs.

[27] Mr. Mandley-Byer and Mr. Rodgers had remained upstairs. Mr. Mandley-Byer did not know what Mr. Kotzma was doing.

[28] Mr. Morton was then brought upstairs by Mr. Kotzma or Mr. Rodgers. Mr. Fullerton was in the hallway, gasping for air and asking for help. As Mr. Morton tended to Mr. Fullerton, Mr. Mandley-Byer demanded to know, “Where is the stuff.” When Mr. Morton asked to be able to help Mr. Fullerton, one of the males other than Mr. Mandley-Byer kicked Mr. Fullerton in the face and said he did not care if Mr. Fullerton died.

[29] Mr. Mandley-Byer, Mr. Kotzma, and Mr. Rodgers remained inside the house for over 20 minutes, searching it and causing significant damage. They shuttled property they stole, including wallets and jewellery, to the Charger.

[30] At some point while the group was in the house, Mr. Rodgers said, “Let’s go!” Mr. Mandley-Byer responded, “I can’t leave without it…help me find it.” He said that he was missing his “stick”, meaning his firearm. The group left the house without the handgun.

[31] At 4:10 a.m., while the Charger was along Patterson Crescent, the group ran from the residence and got into the car. After a brief stop, Mr. Kotzma directed Mr. Mahon-Fernandes to Ms. Perry’s home in Oshawa.

[32] Meanwhile, emergency personnel were called to 54 Pembry Drive. Mr. Fullerton died at hospital from the gunshot wound he sustained. Ms. Murdoch had a seizure on scene and briefly lost consciousness. She was taken to hospital. She suffered bruising and cuts to her arms and legs, and pain in her ribs as a result of Mr. Kotzma’s attack on her. She also experienced psychological trauma.

[33] At 4:34 a.m. the Charger arrived at Ms. Perry’s home. Video surveillance camera footage showed Mr. Mandley-Byer, Mr. Kotzma, Mr. Rodgers, and Mr. Mahon-Fernandes removing bags and other items stolen from 54 Pembry Drive from the car and bringing them into the residence.

[34] All four men went to the living room where Mr. Mandley-Byer, Mr. Kotzma, and Mr. Rodgers sorted and divided the property. Mr. Mandley-Byer, Mr. Kotzma, and Mr. Rodgers discarded some of their clothing. Mr. Mandley-Byer said he lost his “stick” and was “out $4500”.

[35] Meanwhile, police “pinged” the stolen cell phone of Mr. Morton. It returned as being at Ms. Perry’s residence. Around 5:00 a.m. police set up a large containment in the area. At 5:45 a.m. a taxi was seen attending the house, then leaving. It was stopped by police. The passengers were Mr. Mandley-Byer and Mr. Rodgers. The taxi was searched, and items including identification in the name of Mr. Fullerton, electronics, and jewellery were found.

[36] Mr. Kotzma remained at Ms. Perry’s home, and was arrested there. In the residence the police found clothing and various other items linked to the home invasion.

[37] Mr. Mahon-Fernandes fled from the house, but was arrested on November 22, 2021.

[38] At 54 Pembry Drive the police found a Taurus handgun on the main floor. It is a prohibited firearm. With it was a detachable magazine that is a prohibited device. It contained nine bullets. A spent cartridge shell was found nearby. Forensic examination established that the handgun fired the bullet that was retrieved from Mr. Fullerton’s body at autopsy.

[39] Mr. Mandley-Byer has been in custody continuously since his arrest.

The Victim Impact Information

[40] Victim Impact Statements were provided by Ms. Murdoch, her mother, Mr. Fullerton’s mother, the mother of Mr. Fullerton’s children, and one of his aunts. All of them report that their lives were changed forever by Mr. Fullerton’s death and its circumstances. They continue to feel intense pain and anger.

[41] Ms. Murdoch described feeling that her life is over. She cannot sleep. She cannot work. She has constant thoughts of Mr. Fullerton dying in her arms. She was diagnosed with Post-Traumatic Stress Disorder. She has panic attacks all the time. She lives with the terror of the events, and an intense feeling of helplessness. She fears there will be retaliation for that night and for coming to court.

[42] The mother of Mr. Fullerton’s children described their struggles with grief over the loss of their father. Their lives are marked by sadness, anxiety, anger, and lack of trust in others.

The Circumstances of Mr. Mandley-Byer

[43] Mr. Mandley-Byer is now 25 years old. He has no adult criminal record. He does have a youth record that began when he was 14 years old and carried on until he was almost 18 years of age. It includes findings of guilt for assault on four separate occasions, and a finding of guilt for carrying a concealed weapon. He was non-compliant with several community supervision orders.

[44] Mr. Mandley-Byer’s background was detailed in a pre-sentence report. His parents, who were never married, split up when he was a young child. He and his older brother were raised by their mother. He did not have a close relationship with his father. His mother began living with another man when Mr. Mandley-Byer was 7 or 8 years old, and she had more children. Mr. Mandley-Byer felt that his mother’s partner was emotionally and physically abusive of him.

[45] When Mr. Mandley-Byer was around 13 years old, his mother kicked him out of her house because of his poor behavior. He lived with his father for about a year, then on his own, in group homes, and again with his mother. During this time he was getting into trouble with the law, and spending time with antisocial peers.

[46] Mr. Mandley-Byer dropped out of school in grade 9 or 10. He worked at various general labour and construction jobs. For about a year prior to the offence, he was unemployed and receiving social assistance. He reports that he completed his high school education in 2023 while in pre-trial custody. He wants to pursue a post-secondary education.

[47] Mr. Mandley-Byer used marijuana regularly since he was 13 years old. From age 20 he also used “lean” several times a week. He and his mother report that he was diagnosed with bipolar illness when he was around 18 years old, but I was not provided with any medical records about this diagnosis. Apparently he refused to see a psychiatrist in the community. While in custody for this offence he has received medication for bipolar illness, anxiety, and Post-Traumatic Stress Disorder.

[48] The author of the pre-sentence report concluded that Mr. Mandley-Byer “recognizes that there are consequences to his actions and appears to want to continue working towards prosocial goals whilst incarcerated.” His mother remains supportive of him.

[49] Mr. Mandley-Byer has been in custody at Central East Correctional Center for 2 years and 360 real days, or 1090 days, which I treat at one and a half to one as 1635 days, or 4 years, 6 months and 15 days. He has been locked down because of staffing issues for all or part of a day on more than 400 occasions. In some instances, there have been lockdowns over successive days. He was triple-bunked for about two months. In an affidavit, he described unsanitary conditions at the jail, and difficulty accessing timely medical treatment, including for a cut finger tendon.

The Guilty Pleas of the Former Co-Accused

[50] Mr. Kotzma pleaded guilty to manslaughter, and assault causing bodily harm of Ms. Murdoch. He was sentenced on the basis of a joint submission to 11 years and 6 months in jail on the manslaughter, less credit of 38 months for pre-sentence custody, leaving a sentence to serve of 8 years and 4 months in jail, and to 3 years in jail concurrent for the assault causing bodily harm.

[51] Mr. Rodgers pleaded guilty to manslaughter. He was sentenced on the basis of a joint submission to 8 years and 6 months in jail, less credit of 40 months for pre-sentence custody, leaving a sentence to serve of 5 years and 2 months in jail.

[52] Mr. Mahon-Fernandes pleaded guilty to robbery. He was sentenced to 3 years and 10 months in jail, less 13 months’ pre-sentence custody and Downes credit, leaving a sentence to serve of 2 years and 9 months in jail.

[53] The Crown did not rely on the use of a firearm for the purpose of invoking a mandatory minimum sentence for any of the three former co-accused.

The Positions of the Parties

[54] On behalf of the Crown, Mr. Midwood seeks a sentence of 14 and a half years in jail, less credit for pre-sentence custody calculated on the basis of one and a half to one. He submits that the aggravating factors make a range of sentence of 12 to 15 years in jail appropriate. He points in particular to the fact that this was a targeted home invasion planned by Mr. Mandley-Byer; it was carried out by a group of men and in the middle of the night when the victims were vulnerable; Mr. Mandley-Byer brought a loaded illegal firearm with him; the motivation for the home invasion was greed; and the events have shattered the lives of multiple persons. Mr. Midwood contends that the sentence proposed by the Crown takes into account the mitigating factors, including Mr. Mandley-Byer’s guilty plea, his relative youth, and his lack of an adult criminal record. It also incorporates a six month reduction in the sentence that would otherwise have been sought of 15 years in jail, because of the conditions of Mr. Mandley-Byer’s pre-sentence custody.

[55] In addition, Mr. Midwood seeks a DNA order, a weapons prohibition order under s. 109(2)(a) for 10 years and s. 109(2)(b) for life, a non-communication order, a forfeiture order, and a Victim Fine Surcharge order.

[56] On behalf of Mr. Mandley-Byer, Mr. Moon seeks a sentence of 9 to 11 years in jail, less credit for pre-sentence custody calculated on the basis of one and a half to one. Mr. Moon says that a sentence in this range incorporates a 12 to 18 month reduction from a sentence of 10 to 12 years that would otherwise be appropriate, because of the harsh conditions of Mr. Mandley-Byer’s pre-sentence custody. The conditions at Central East Correctional Center have been inhumane, with many lockdowns due to staff shortages, triple-bunking, and a lack of medical attention.

[57] Mr. Moon acknowledges that Mr. Mandley-Byer committed a significant crime, and that there are aggravating factors. Mr. Mandley-Byer was the controlling mind behind the home invasion, his motive was greed, he armed himself with a handgun, and it discharged very quickly in the house. Mr. Moon emphasizes, however, that this will be Mr. Mandley-Byer’s first adult sentence, he is youthful, and he wants to engage in pro-social activities going forward. Unlike Mr. Kotzma, he is not a high risk to re-offend violently. He pleaded guilty even though there were triable issues.

[58] Mr. Moon does not object to the ancillary orders sought by Crown counsel, but he asks that the Victim Fine Surcharge be waived in light of the lengthy period of time that Mr. Mandley-Byer will be in custody.

The Principles of Sentencing

[59] 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.

[60] 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.

[61] Section 718.1 of the Code 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 has indicated that proportionality is the chief organizing principle in determining a fit sentence. See, R. v. Parranto, 2021 SCC 46, at para. 10.

[62] 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 for similar offences committed in similar circumstances, that where consecutive sentences are imposed the combined sentence not be unduly long or harsh, that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[63] In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 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, R. v. Lacasse, 2015 SCC 64, at paras. 58 and 143.

Sentencing in Cases of Manslaughter

[64] Under s. 236 of the Code, the offence of manslaughter is punishable by a maximum sentence of life imprisonment. Where a firearm is used, manslaughter carries a mandatory minimum sentence of four years’ imprisonment under s. 236(a).

[65] Manslaughter is recognized as 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.). That said, because a diversity of circumstances will found a conviction for manslaughter, the caselaw reflects a wide variation in the range of sentence. 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.), where the Court rejected the concept of sentencing based on pigeon-holing the facts of a case into a subcategory of manslaughter, in particular that of “aggravated manslaughter”, in favour of a case-by-case comparison of circumstances.

[66] In two relatively recent Ontario Superior Court of Justice decisions, R. v. Smith, 2022 ONSC 3800, at paras. 26-32, and R. v. Wight, 2022 ONSC 5137, at para. 43, trial judges identified three broad ranges of sentence in manslaughter cases. These ranges, which of course are not air-tight compartments, or etched in stone, are as follows:

• 6 to 8 years in jail in less serious cases, for example where 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;
• 8 to 12 years in jail in cases where significant aggravating factors are present, such as the use of a firearm, or brutal violence against an elderly victim;
• 12 to 15 years in jail where the most serious aggravating factors are present such as a significant criminal record, planned violence, or active participation in brandishing or discharging firearms or in a planned home invasion involving beating of victims.

[67] Cases relied on in support of these broad ranges included some, but not all, of the cases to which Crown and defence counsel referred me. While I have reviewed all of the cases referenced by counsel, those that involved the discharge of a firearm during a home invasion deserve particular consideration.

[68] In R. v. Spalding, 2023 ONSC 2136, the offender, a man in his 30s, pleaded guilty to manslaughter. He played an instrumental role in planning a home invasion robbery and a leadership role during its execution. The victim of the home invasion was involved in drug trafficking. The adult offender drove a 17 year old to the victim’s apartment, which they both entered wearing masks. The youth had a loaded handgun in his pocket. As the victim went to pick up a shotgun, the offender took out a gun, although the trial judge could not determine if it was a real or an imitation firearm. When the victim approached the intruders with the shotgun, the offender assisted the youth in removing the handgun from the youth’s pocket. The youth then shot and killed the victim during an exchange of gunfire. The adult offender had a dated criminal record, had been steadily employed prior to his arrest, and had rehabilitative prospects. He suffered some measure of harsh conditions while in pre-sentence custody. The adult offender was sentenced to 9.5 years in jail, less credit for pre-sentence custody.

[69] In R. v. Khan, 2023 ONCA 553, the offender was found guilty of manslaughter after a trial. The then 18 year old offender and another man entered a home without permission, intending to rob the residents. They held the residents at gunpoint. A struggle began. During the course of it, the firearm went off multiple times, killing one of the residents. The trial judge was not satisfied beyond a reasonable doubt that the offender was the person who had the gun when it discharged, but she was satisfied that he was a party to an armed home invasion knowing that somebody had a firearm that would be used to intimidate the residents. The offender had a youth record, but this was his first adult offence. She sentenced him to 8.5 years in jail less credit for pre-sentence custody, after giving him 18 months’ “credit” because of harsh custodial conditions. That sentence was upheld on appeal. The trial judge commented that on a review of the caselaw, where an offender was the gunman the applicable range of sentence is between 11 and 13 years.

[70] In R. v. Jones-Solomon, 2015 ONCA 654, the former girlfriend of the victim went to his apartment building with three or four males. The group planned to beat and severely assault the male victim and his new girlfriend. One of the men had a sawed-off shotgun. The former girlfriend knocked on the apartment door. When the door was opened to admit her, she went in and began to fight the female victim. Two or three of her male companions followed her into the apartment. They began to hit and kick the male victim. One of the men used the shotgun to shoot the male victim. The victim was struck again after he was shot. He died of his wounds. The accused was identified as one of the men who went into the apartment. He was convicted at trial of manslaughter. In sentencing him, the trial judge found that he drove the group to the apartment building and actively participated in the beating of the male victim. The offender was not the shooter, but he knew that one of the co-perpetrators had the gun, and it was used even though the male victim offered no resistance. Although the offender’s degree of culpability was less than that of the shooter, he was sentenced to 13 years in jail, less credit for pre-sentence custody. The Court of Appeal for Ontario upheld that sentence.

Analysis

[71] I note that where, as in this case, the Crown invokes the mandatory minimum required by s. 236(a) of the Code, the use of a firearm in the commission of the manslaughter is already taken into account, such that that fact by itself cannot be an aggravating consideration on sentencing for the manslaughter. However, the circumstances surrounding its use can aggravate the sentence. See, R. v. Araya, 2015 ONCA 854, at paras. 24-26.

[72] With that in mind, I turn to the aggravating factors in this case. There is a significant constellation of them, that includes the following:

1. Mr. Fullerton was attacked in his own home, the one place that he was entitled to be safe and secure.
2. The invasion of the Fullerton-Murdoch home was a planned and premeditated venture, conceived and organized by Mr. Mandley-Byer. He was the one who knew Mr. Fullerton. He was the one who had been to the house before. He determined when the home invasion would take place. He recruited two men to participate with him. He hired an additional man to provide transportation to and from the scene. He gave instructions to the group, for example telling Mr. Kotzma to bring ties, and Mr. Mahon-Fernandes which route to take.
3. Mr. Mandley-Byer’s motive for planning and executing the home invasion was greed. The objective was to steal illegal drugs that he believed Mr. Fullerton had at the house.
4. The home invasion was designed to maximize its intimidating impact and capitalize on the vulnerability of the victims. It was carried out around 4:00 a.m., when it could reasonably be expected that Mr. Fullerton and his girlfriend would be asleep in their home. Entry to the house was gained on the sudden, by smashing the glass pane on the front door. Mr. Mandley-Byer brought two men into the house with him. All of them had their faces concealed. As a group, they confronted and pushed back Mr. Fullerton when he came to the front hallway.
5. Mr. Fullerton was unarmed. He had no way of knowing that Mr. Mandley-Byer was carrying a loaded handgun.
6. I appreciate that on the Agreed Statement of Facts, the firearm went off during Mr. Mandley-Byer’s struggle with Mr. Fullerton, in other words the discharge itself was not intentional. Nonetheless, the circumstances surrounding the use of the firearm are highly aggravating. Mr. Mandley-Byer chose to carry to the planned home invasion robbery a prohibited firearm, one that he purchased and possessed illegally, one that was loaded with 10 bullets including those in the magazine, and one that he concealed on his person. A loaded firearm is a means by which to wound, maim, or kill another human being. There is no doubt that Mr. Mandley-Byer recognized the prospect of gun violence during the home invasion. He wore a bullet-proof vest under his clothing.
7. Although he did not assault Ms. Murdoch, he had been to the house before and knew that she was Mr. Fullerton’s partner. It was entirely foreseeable that she, in addition to Mr. Fullerton, would be physically harmed in some significant way.
8. After the shooting, Mr. Mandley-Byer did nothing to assist the obviously gravely wounded Mr. Fullerton, who was begging for help. Instead, as Mr. Morton tried to look after Mr. Fullerton, Mr. Mandley-Byer demanded to know where the “stuff” was. He participated in damaging and looting the house, and ferrying the stolen property to Mr. Mahon-Fernandes’ car.
9. Once at Ms. Perry’s home, Mr. Mandley-Byer’s behaviour was cold and callous. He expressed no concern for the fact a man had been shot with a firearm that he produced during the struggle. Instead, he focused on disposing of clothing that would link him to the events, dividing up the spoils of the robbery, and complaining that he was “out” $4500 for the handgun he lost.
10. Although he has no prior adult criminal record, Mr. Mandley-Byer’s past behaviour shows a proclivity for assaultive behaviour. Further, while he was not bound by a weapons prohibition order at the time of the shooting, such orders had been imposed on him as a youth on four occasions in the past. He failed to absorb the message that anti-social behaviour and the possession of weapons is a toxic mix.
11. The events of that night have been devastating for Ms. Murdoch, Mr. Morton, and relatives of Mr. Fullerton. In particular, Mr. Fullerton’s children have been left to grow to adulthood without a father.

[73] There are mitigating factors, including:

1. Mr. Mandley-Byer pleaded guilty. While it was not an early guilty plea as it was entered after a trial date was set, it nonetheless is a sign of Mr. Mandley-Byer’s remorse and acceptance of responsibility for his wrong-doing. His guilty plea saved court time that would have been necessary for a multi-week trial. There were triable issues in the case. By pleading guilty he gave up the opportunity to pursue them.
2. He has no prior adult criminal record.
3. He is relatively youthful.
4. He has the support of his mother, which will assist in his reformation on his eventual return to the community.
5. He had a difficult upbringing, but there are some signs that he has rehabilitative potential. He completed his high school credits while in custody. He told the author of the pre-sentence report that he is interested in programming and educational opportunities that may be available to him while he is incarcerated.
6. The conditions of his pre-sentence custody have been harsh. Despite many judicial warnings that the conditions imposed on remand inmates at the Central East Correctional Center are inhumane, those conditions persist, as the materials in this case illustrate. Regrettably, it seems that persons in positions of authority at the Ministry of the Solicitor General have chosen to ignore those judicial warnings.

The Court of Appeal in R. v. Marshall, 2021 ONCA 344, made it clear that particularly punitive conditions of pre-sentence custody can be a mitigating factor to be taken into account along with the other mitigating and aggravating factors to determine the appropriate sentence. However, the Court cautioned, at para. 53, that as one mitigating factor to be taken into account, punitive pre-sentence conditions cannot justify the imposition of a sentence that is inappropriate, and warned that quantifying the time allocated to this one factor can “skew the calculation of the ultimate sentence.” See also, R. v. Cunningham, 2023 ONCA 36, at paras. 59-62. For that reason, I decline to assign a precise numerical “credit” for the difficult conditions at the remand center. I have taken this factor into account in mitigation, along with all the other mitigating factors.

[74] This was a killing that occurred in the course of a planned invasion of a private dwelling in the middle of the night, and as the result of the discharge during a struggle of a loaded firearm that Mr. Mandley-Byer unlawfully possessed.

[75] In 2006, the Court of Appeal for Ontario expressed concern in R. v. Wright, 83 O.R. (3d) 427 that home invasion had become a “serious and increasingly prevalent” crime: see, para. 13. Time has not diminished the legitimacy of that concern. The Court went on to say, at para. 14, that in sentencing in cases of home invasion, “The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public’s confidence in the administration of justice.” This is even more so where an offender elects to carry a loaded firearm to a home invasion, demonstrating, as Mr. Mandley-Byer did, a complete disregard for the lives and safety of those he chose to victimize.

[76] Mr. Mandley-Byer’s offence is grave, and notwithstanding that he is a relatively young first adult offender, his moral blameworthiness is very high.

[77] The sentencing goals of denunciation, general and specific deterrence, and protection of the public are paramount in this case. Rehabilitation also must be considered because Mr. Mandley-Byer is a relatively young first adult offender, but it is deserving of less weight given the seriousness of his offence.

[78] I of course am aware of and have considered the sentences that I imposed on the former co-accused, in particular Mr. Kotzma. Those sentences were the result of joint submissions. None of the three former co-accused were involved in creating the plan for the home invasion robbery but rather were recruited by Mr. Mandley-Byer, none of them armed themselves with a loaded illegal firearm or knew that Mr. Mandley-Byer had done so, and in respect of none of them did the Crown rely on a mandatory minimum sentence based on the use of a firearm. However, Mr. Kotzma had an appalling prior adult criminal record, while Mr. Mandley-Byer has none. Mr. Kotzma was on bail when he committed the home invasion. Unlike Mr. Kotzma, Mr. Mandley-Byer has not been identified as a high risk for violent re-offence. And, it cannot be ignored that Mr. Mandley-Byer has been subjected to an additional measure of punitive pre-sentence custody conditions.

[79] I conclude that the appropriate sentence for Mr. Mandley-Byer for the offence of manslaughter with use of a firearm is 11 years in jail.

Conclusion

[80] Mr. Mandley-Byer, please stand.

[81] I sentence you to 11 years in jail, less pre-sentence custody credited at one and a half to one as 4 years, 6 months and 15 days, leaving a sentence to serve of 6 years, 5 months and 15 days.

[82] There is a DNA order, a s. 109(2)(a) weapons prohibition order for 10 years, a s. 109(2)(b) order for life, a forfeiture order, and a s. 743.21 non-communication order.

[83] The Victim Fine Surcharge is waived given Mr. Mandley-Byer’s circumstances.

Justice M. Fuerst

Released: November 5, 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.