Reasons for Sentence

Court File No.: CR-22-91106454
Date: 2025-01-15
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Alexander George Jolly, Defendant

Appearances:
Mr. B. McCallion, for the Crown
Mr. M. Hayworth, for the Defendant

Heard: August 30 and November 29, 2024

Justice Michelle Fuerst

Introduction

[1] After a night of drinking alcohol and consuming drugs, Alexander Jolly shot and killed Nicole Mercer. He and Ms. Mercer had an intimate relationship at the time.

[2] Mr. Jolly was charged with second degree murder. With Crown consent, he pleaded guilty to manslaughter.

[3] While Crown and defence counsel agree that a penitentiary sentence of some length should be imposed, they differ as to the duration.

The Circumstances of the Offence

[4] In late July 2022, Mr. Jolly lived in Newmarket.

[5] On the afternoon of July 28, 2022, Ms. Mercer drove to Mr. Jolly’s residence, accompanied by her friend Patreena McKenzie. Mr. Jolly’s friend Maitland Doran was there with him when the two ladies arrived.

[6] The group consumed cannabis, then Ms. Mercer drove them to Willow Beach in Georgina, where they drank alcohol. When it began to get dark, the group travelled back to Mr. Jolly’s residence. After a brief stop there, they went to a pub in Newmarket. Mr. Jolly and Ms. Mercer were known to some of the pub staff. The two appeared to be enjoying one another’s company.

[7] After drinking some alcohol, the party returned to Mr. Jolly’s residence. Mr. Jolly consumed cocaine and alcohol that evening.

[8] All four individuals were feeling the effects of alcohol and drugs. They were loud. A co-tenant of the residence awoke due to the noise, and confronted Mr. Jolly about it.

[9] Ms. Mercer became annoyed. She left the residence and drove off. Ms. McKenzie, Mr. Jolly, and Mr. Doran remained in Mr. Jolly’s room. A visitor named Adam arrived to purchase cocaine from Mr. Jolly.

[10] Not long after, at about 1:30 a.m. on July 29, Ms. Mercer returned and knocked loudly on the door to the residence. The group heard the knocking from Mr. Jolly’s room. Mr. Jolly picked up a sawed-off .22 caliber rifle, and went to the door. Mr. Doran followed him.

[11] Mr. Doran observed Ms. Mercer standing at the open door on the driveway, and Mr. Jolly standing in the kitchen at the open door. The two were arguing. Mr. Jolly pointed the firearm at Ms. Mercer’s abdomen, and fired the gun.

[12] Startled, Mr. Doran immediately retrieved his personal items. Mr. Jolly gathered the firearm and other items into a duffel bag. By this time, Ms. McKenzie was at the front door and observed Ms. Mercer on the driveway. As Mr. Jolly and Mr. Doran fled from the residence accompanied by Adam, Ms. McKenzie called 911, and tried to revive Ms. Mercer. Ms. McKenzie had not heard a gunshot or observed Mr. Jolly fire the gun. She told the 911 call-taker that Ms. Mercer suffered an overdose.

[13] When EMS, fire, and police personnel arrived, they treated Ms. Mercer on the basis that she had suffered an overdose. It was not until she was transported to hospital that nursing staff noticed a single gunshot wound to her abdomen. A single bullet was removed.

[14] Ms. Mercer died as a result of bleeding from the gunshot wound.

[15] Meanwhile, Mr. Jolly and Mr. Doran entered a neighbouring apartment building, while Adam fled the area on foot. Mr. Jolly and Mr. Doran gained entrance to a unit occupied by Freskela Malual and Kyle Tardif. Mr. Jolly made admissions about the shooting. He made phone calls for transportation, and directed Mr. Doran to keep quiet. The two men then left the building. Mr. Jolly got into a taxi. Mr. Doran walked toward his residence in Newmarket.

[16] While en route home, Mr. Doran met Adam. Adam directed Mr. Doran to return to Mr. Jolly’s residence and retrieve the duffel bag that contained the firearm Mr. Jolly used to shoot Ms. Mercer. Mr. Doran returned home, changed, and then went to Mr. Jolly’s residence where he retrieved the duffel bag. He kept the bag at his house for a couple of days. Then he went to an apartment building at the direction of a third party, where he handed the bag to a person there. Mr. Doran was arrested the same day at his residence.

[17] York Regional Police investigators quickly identified Mr. Jolly as the perpetrator. They made significant efforts to find him, but it was not until September 9, 2022, that he was located at Yorkdale Mall in Toronto. He was arrested without incident. He has been in custody since that date.

[18] Mr. Doran pleaded guilty to the offence of accessory after the fact to murder. He was sentenced to a 675 day conditional sentence order.

The Victim Impact Information

[19] Family members described Ms. Mercer as a precious daughter, sister, and granddaughter, and an amazing mother of a boy who was five years old when she was killed.

[20] In a Victim Impact Statement, her mother wrote that the night Mr. Jolly killed Ms. Mercer, he killed the entire family. Her mother’s days are black, dark, and hollow. She is a shell of the person she once was. She still cannot wrap her head around the fact that she will never see her daughter again. She misses her every day.

[21] Ms. Mercer’s sister wrote in her Victim Impact Statement that she lives with a black hole of pain and misery that sucks away every sliver of light or happiness. She struggles every day with crippling anxiety. She has severe depression. Her motivation for life has come to a halt.

The Circumstances of Mr. Jolly

[22] Mr. Jolly was 23 years of age when he killed Ms. Mercer. He is now 25 years old. He has never been married, and has no children.

[23] Mr. Jolly’s childhood, as described in a Pre-Sentence Report, was somewhat unstable. His parents separated when he was in elementary school. He lived with his mother and older sister, and rarely had contact with his father. He described his father as emotionally abusive, an alcoholic, and possibly schizophrenic.

[24] Mr. Jolly’s mother worked long hours to support the children. His sister was left in charge of him while his mother was at work. As a result, he had limited supervision. He started getting into trouble, including using marijuana when he was 10 years old, and drinking alcohol at the age of 11 years. Mr. Jolly acknowledges that he was an alcoholic by the time he was 21 years old.

[25] When he was 15 years of age, his mother met a man who became his stepfather. Mr. Jolly and his stepfather did not get along. This led Mr. Jolly to leave home at the age of 16 years. He lived with friends, and on the street. His stepfather would not allow him to return to the home. Although Mr. Jolly’s mother and stepfather eventually separated, Mr. Jolly chose not to resume living with his mother. His relationship with both his mother and his sister became distanced. He has had no contact with his sister since 2022, and only limited contact with his mother.

[26] Mr. Jolly was found guilty of assault as a youth in 2020. He has an adult criminal record for convictions in 2020 and 2021, including three offences of assault.

[27] The author of the Pre-Sentence Report referred to Mr. Jolly being involved in two prior relationships that resulted in charges of domestic violence against him. It appears that these incidents represent some of the four assault offences. Mr. Jolly completed an anger management program in September 2021, and the Partner Abuse Program in February 2022.

[28] Mr. Jolly’s high school attendance was, for practical purposes, non-existent. He completed his high school education in 2021 while incarcerated.

[29] Mr. Jolly’s employment history is somewhat vague. It includes work as a labourer, a cleaner, and in the junk removal business. He admitted to the author of the Pre-Sentence Report that in 2022 he was supporting himself through illegal activities.

[30] Mr. Jolly has been in custody at Central East Correctional Centre (“CECC”) a total of 861 actual days, or 1292 days calculated at one and a half to one. He has been locked down for all or part of a day because of staffing shortages on more than 330 occasions. He was triple-bunked at intervals for a total of about 77 days. I am told that he is of the Jewish faith, and has had difficulty getting Kosher food and accessing a rabbi while in custody. He completed two programs at CECC, of unspecified nature.

[31] Mr. Jolly was diagnosed with post-traumatic stress disorder while at CECC. He told the author of the Pre-Sentence Report that he was diagnosed with various mental health issues as a youth, including depression and psycho-affective disorder, but he was unable to provide confirmatory information.

[32] Mr. Jolly described to the author of the Pre-Sentence Report that he is haunted by what happened. At the conclusion of the sentencing hearing, he apologized in the courtroom for causing Ms. Mercer’s death. He said that he realizes the pain resulting from his actions.

The Positions of the Parties

[33] On behalf of the Crown, Mr. McCallion sought a sentence of 10 years in jail, less pre-sentence custody credited at one and a half to one. He submitted that the applicable range of sentence for manslaughter in respect of an intimate partner is 7 to 12 years in jail. He emphasized the aggravating factor that Mr. Jolly fled and did nothing to assist Ms. Mercer. Had she received more immediate attention for what Mr. Jolly knew was a gunshot wound, the outcome might have been different. Denunciation and deterrence require a sentence closer to the upper end of the range.

[34] On behalf of Mr. Jolly, Mr. Hayworth submitted that the applicable range of sentence is 5 to 8 years in jail. He described this case as a true manslaughter, in that Mr. Jolly did not have the intention for murder. Mr. Hayworth acknowledged it is aggravating that Mr. Jolly used a firearm, that he fled the scene, that he has a prior criminal record, and that he and Ms. Mercer had an intimate relationship. He pointed out, however, that this is not a case of a lengthy marriage involving prior acts of abuse of Ms. Mercer by Mr. Jolly. Mr. Hayworth emphasized that there are mitigating factors. Mr. Jolly pleaded guilty, and has a strong sense of responsibility for taking Ms. Mercer’s life. He had a very difficult upbringing, and he has both psychiatric and addiction issues. There are, however, indications that he wants to better himself, and this will be his first penitentiary sentence. His time in pre-sentence custody involved a measure of harshness.

[35] The parties agreed that I should make a DNA order, a s. 109 weapons prohibition order for life, and a s. 743.21 non-communication order. Mr. Hayworth asked that I waive the Victim Fine Surcharge.

The Principles of Sentencing

[36] 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.

[37] 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.

[38] 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, para 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, para 53.

[39] 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 an offender 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.

[40] 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, 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.”

Sentencing in Manslaughter Cases

[41] Under s. 236 of the Code, the maximum sentence for manslaughter is life imprisonment. Where a firearm is used in the commission of the offence, s. 236(a) mandates a minimum punishment of imprisonment of four years.

[42] Manslaughter is a serious offence because it involves the taking of a life, and ordinarily attracts a lengthy sentence. However, as noted by the Court of Appeal for Ontario in R. v. Grandine, 2022 ONCA 368, para 76, manslaughter encompasses a range of conduct from almost accident to almost murder, and so the caselaw reflects a wide range of sentence.

[43] The Court of Appeal for Ontario directed in R. v. Simcoe 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, where the Court abandoned the concept of sentencing based on subcategories of manslaughter, in favour of a case-by-case comparison of circumstances.

Analysis

[44] It is a cruel reality that regardless of the length of the sentence imposed on Mr. Jolly, it will not restore Ms. Mercer to life, or return her to those who love her. My task as the sentencing judge is to impose a fit sentence, having regard to the principles of sentencing and the particular circumstances of the case. The sentence that I impose is not intended as a measure of the value of Ms. Mercer’s life, nor can it in any way compensate those who have been left to carry on without her.

[45] The predominant principles of sentencing in cases of intimate partner violence are denunciation and deterrence. It also is important, as pointed out in R. v. Rahanam, 2008 ONCA 1, para 46, that the sentence promote a sense of responsibility in offenders and acknowledgment of the harm done to the victim and to the community at large. While I do not ignore rehabilitation given Mr. Jolly’s relatively young age, it must assume a subordinate role.

[46] The decision in R. v. Kimpe, 2010 ONCA 812 has been described as identifying a usual range of sentence for manslaughter committed in a domestic/intimate partner context as 7 to 12 years in jail. The decision in R. v. Suppiah, 2021 ONSC 3871, para 33 and the cases cited in it are examples of the application of that range. While a range of sentence is not mandatory, it is useful as a guideline for sentencing judges. I find the Kimpe range to be more applicable in the circumstances of this case than the lower range suggested to me by Mr. Hayworth. The range of sentence he suggested was based on cases in which the victims were not in an intimate relationship with the offender. That is an important distinction.

[47] Against that backdrop, I consider the aggravating and mitigating factors in this case.

Aggravating Factors

[48] The aggravating factors include:

1. As I have said, Mr. Jolly and Ms. Mercer were in an intimate relationship. This is a statutory aggravating factor under s. 718.2(a)(ii) of the Criminal Code. That the relationship was not one of cohabitation and/or of many years duration is not a mitigating circumstance. It is the absence of additionally aggravating features.
2. Mr. Jolly used a firearm to kill Ms. Mercer. It was at hand in his residence, loaded and so, ready for use.
3. Ms. Mercer was unarmed, and in that way, vulnerable.
4. Mr. Jolly did nothing to summon help for Ms. Mercer after shooting her. Instead, his concern was for himself. He fled the premises, directed a witness to say nothing about the shooting, and avoided apprehension by the police for days.
5. Mr. Jolly has a prior adult criminal record that includes three convictions for assault, as well as a finding of guilt of assault as a youth. The Pre-Sentence Report indicates that some of those assaults were acts of intimate partner violence.
6. He committed this offence while still on probation for the youth assault of which he was found guilty in November 2020, and the adult assault of which he was convicted in December 2020.
7. He aimed a gun at and shot Ms. Mercer notwithstanding that he had previously attended both the Partner Abuse Program and an anger management course. Those programs had no lasting positive impact on his behaviour.
8. Mr. Jolly has a substance abuse problem that remains unresolved notwithstanding multiple previous periods of probation supervision.
9. The loss of Ms. Mercer’s life has been devastating to her family, including for her young child who was left motherless.

Mitigating Factors

[49] In mitigation, I consider that:

1. Mr. Jolly pleaded guilty, which is an indication of remorse and willingness to accept responsibility for the killing of Ms. Mercer. His guilty plea avoided the need for a trial, and provided certainty of outcome.
2. He expressed remorse in his remarks in the courtroom.
3. He was relatively young at the time he committed this offence.
4. He had a difficult upbringing, and may have unaddressed mental health issues.
5. The circumstances of his pre-sentence custody involved a measure of harshness, in particular a large number of lock-downs.
6. There are glimmers of rehabilitative potential, in that he completed his high school education during a previous period of incarceration, and two courses during his current pre-sentence custody.

[50] To be clear, the fact that Mr. Jolly did not commit acts of violence against Ms. Mercer in the past is not a mitigating circumstance. It is the absence of an aggravating factor.

[51] The killing of another human being, whether in law a manslaughter or a murder, is the gravest of offences. Further, Mr. Jolly’s moral blameworthiness is very high. This is not a case like that of R. v. Thompson, 2010 ONCA 463, to which Mr. Hayworth referred. Mr. Jolly was not a party to an act of violence initiated by another person. He is solely responsible for shooting and killing Ms. Mercer.

[52] Mr. Jolly’s current offence in combination with his previous record demonstrates that he has a propensity for violence, and in particular for violence against intimate partners. Previous efforts to modify his behaviour through supervision in the community with supports failed. It is particularly concerning that he paid no heed to measures directed at ensuring his pro-social behaviour in respect of his intimate relationships. Instead, he used a firearm to shoot and kill Ms. Mercer. He had no business possessing it, much less using it to cause death. His conduct after the shooting was cold, callous, and cowardly, demonstrating no empathy for his victim. Were it not for the mitigating factors I have mentioned, and the fact that this will be his first penitentiary sentence, I would be inclined to agree with Crown counsel that a sentence of 10 years in jail should be imposed.

[53] Taking into account the aggravating and mitigating circumstances of this case, and the applicable principles of sentencing, the appropriate sentence is one of 9 years in jail. That sentence incorporates consideration for the harsh conditions of Mr. Jolly’s pre-sentence custody, as endorsed by the Court of Appeal for Ontario in R. v. Marshall, 2021 ONCA 344.

Conclusion

[54] Mr. Jolly, please stand.

[55] I sentence you to 9 years in jail. I credit you with 861 days of pre-sentence custody enhanced at one and a half to one as 1292 days, which I treat as 43 months and 2 days. That leaves a sentence to serve of 5 years, 4 months and 28 days in the penitentiary.

[56] There is a DNA order, a s. 109(3) weapons prohibition order for life, and a s. 743.21 non-communication order in respect of those persons named by Crown counsel.

[57] The Victim Fine Surcharge is waived in light of the length of time you have been out of the community in pre-sentence detention.

Justice Michelle Fuerst
Released: January 15, 2025

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.