Reasons for Sentence

Court File No.: CR-22-91105074-0000
Date: 2025-02-28
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
Dwaine Trapper Graham, Defendant

Appearances:
Ms. N. Cadman, for the Crown
Mr. E. Willschick, for the Defendant

Heard: January 22, 2025

Justice Michelle Fuerst

Introduction

[1] Dwaine Graham took the life of 24-year-old Noran Leslie-Durrant, by stabbing him with a broken golf club.

[2] Mr. Graham was originally charged with second degree murder. However, Crown counsel proceeded on a fresh indictment charging manslaughter, to which Mr. Graham pleaded guilty.

[3] Crown and defence counsel jointly submit that Mr. Graham should be sentenced to 9 years’ imprisonment, less pre-trial custody.

The Circumstances of the Offence

[4] Late in the afternoon of Friday June 17, 2022, Noran Leslie-Durrant went to a house in King Township. The residence was associated to the mother of Dwaine Graham. There, Mr. Leslie-Durrant and Mr. Graham got into an altercation.

[5] Paul Kendrick, who was the boyfriend of Mr. Graham’s mother, stood between the two men and tried to break up the fight. Mr. Graham yelled and screamed at Mr. Leslie-Durrant, who was not saying anything. Mr. Kendrick told Mr. Graham to stop. Instead, Mr. Graham picked up a golf club and broke it. It ended up in two pieces.

[6] Mr. Graham lunged toward Mr. Leslie-Durrant, with one half of the club in his hand. Mr. Leslie-Durrant was unarmed. Mr. Kendrick raised his arm to block Mr. Graham. The golf club penetrated Mr. Kendrick’s arm and came out the other side. Mr. Kendrick pulled the club out of his arm. He was bleeding profusely. He left the room briefly to attend to his wound.

[7] In the one to two minutes that Mr. Kendrick was gone, Mr. Graham stabbed the still unarmed Mr. Leslie-Durrant in the chest with the broken golf club.

[8] Mr. Kendrick returned to the room to find Mr. Leslie-Durrant sitting on the floor against the bed, and asking for water.

[9] At 5:27 p.m. Mr. Graham left the residence in a stolen vehicle. His girlfriend, Payton-Rose Biggar, and Mr. Kendrick went with him. They drove to the home of a friend of Mr. Kendrick, to get assistance for his wound.

[10] At 5:36 p.m. the police were called to the scene of the stabbing by a neighbour. When the officers arrived at the house, the neighbour was there with Mr. Graham’s mother. The house was in complete disarray, with rotting food, piles of clothing, and broken items scattered throughout.

[11] The police found Mr. Leslie-Durrant in a bedroom, seated on the floor with his back against the bed and his head laying on a mattress. He wore only his underwear. He was unresponsive. EMS attended soon after, but despite their efforts Mr. Leslie-Durrant was pronounced deceased.

[12] Post-mortem examination later revealed the cause of Mr. Leslie-Durrant’s death to be a penetrating stab wound to the chest. It ruptured a major coronary artery that supplied blood to the heart. The injury caused internal bleeding into the left chest cavity, as well as heart dysfunction due to lack of blood supply to the heart.

[13] The night following the stabbing, Mr. Graham and Ms. Biggar drove in the stolen vehicle to the home of his father and stepmother in South River. Mr. Graham’s father told him to hide out there for the weekend, that they would get him and Ms. Biggar some money, and then they could go. When the police came to a neighbouring home, Mr. Graham’s father hid him in his basement. Mr. Graham burned his blood-stained clothing in a barrel on the property. His father bought him drugs during his stay.

[14] Mr. Graham and Ms. Biggar remained in South River until June 22, 2022. That afternoon, while driving the stolen vehicle, Mr. Graham was involved in a fail to remain collision in Huntsville. Several hours later, the couple left the stolen vehicle in East Gwillimbury. Ms. Biggar’s mother picked them up and drove Mr. Graham to a York Regional Police station where he was arrested.

The Victim Impact Information

[15] No Victim Impact Statements were tendered by Crown counsel. I was advised that Mr. Leslie-Durrant’s family members found it too difficult to provide that information to the court.

The Circumstances of Mr. Graham

[16] Mr. Graham is now 36 years old. He has a prior criminal record dating back to 2015. It includes convictions for assault, aggravated assault, uttering threats, flight from police, and failing to comply with court orders.

[17] Although a Gladue report was ordered at Mr. Graham’s request, an Indigenous background could not be substantiated. As a result, no report was forthcoming. Mr. Graham instructed his counsel that he wished to proceed to sentencing without a report.

[18] Information about Mr. Graham’s background was provided by defence counsel. Mr. Graham was at one point diagnosed with ADHD. He has difficulty reading and writing. He became addicted to fentanyl when he was in his 20s. His criminal record is related to his addiction. His girlfriend having died of a fentanyl overdose, I am told that Mr. Graham appreciates the need to address his addiction.

[19] Mr. Graham has had some employment in landscaping, and may be able to do that kind of work again in the future.

[20] Mr. Graham has been in custody since June 22, 2022, but on August 7, 2024, he began serving a sentence on another matter. Accordingly, his pre-trial custody is limited to 778 real days.

[21] In his remarks at the conclusion of the sentencing hearing, Mr. Graham expressed that he had not intended to take Mr. Leslie-Durrant’s life when the fight began.

The Position of the Parties

[22] Crown and defence counsel jointly submit that Mr. Graham should be sentenced to 9 years in jail, less his available pre-trial custody credited at one and a half to one. They agree that the sentence should be ordered to run concurrent to the 12 month sentence he is currently serving, which was imposed on August 7, 2024. They agree that there should be a DNA order, a s. 109 weapons prohibition order for life, and a s. 743.21 non-communication order in respect of any member of Mr. Leslie-Durrant’s family. Counsel submit that the sentence they jointly suggest takes into account the aggravating factors, including that Mr. Graham used a weapon against an unarmed man, he fled without doing anything to assist Mr. Leslie-Durrant, and he has a prior criminal record, as well as the mitigating factors, which include his guilty plea, and the harsh conditions of his pre-trial custody.

The Principles of Sentencing

[23] 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.

[24] 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.

[25] 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, 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.

[26] 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.

[27] 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

[28] Under s. 236 of the Code, the maximum sentence for manslaughter is life imprisonment.

[29] 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.). However, as noted by the Court of Appeal for Ontario in R. v. Grandine, 2022 ONCA 368, manslaughter encompasses a range of conduct from almost accident to almost murder, and so the caselaw reflects a wide range of sentence.

[30] 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, 213 C.C.C. (3d) 264 (Ont. C.A.), where the Court abandoned the concept of sentencing based on subcategories of manslaughter, in favour of a case-by-case comparison of circumstances.

Analysis

[31] The aggravating circumstances in this case include:

1. Mr. Graham ignored the attempts of Mr. Kendrick to de-escalate the situation, and instead obtained and turned a golf club into a deadly weapon. While the passage of time was brief, his actions were deliberate.
2. Mr. Graham used a weapon against his victim who was defenceless and vulnerable because he was unarmed.
3. After inflicting injury to Mr. Leslie-Durrant that obviously was very serious, Mr. Graham did not summon help for him, or try to assist him in any way. Instead, he selfishly fled the residence in a stolen vehicle.
4. The way in which Mr. Graham brandished the weapon resulted in significant injury to Mr. Kendrick, who had been trying to break up the fight.
5. Mr. Graham destroyed evidence, actively evaded the police, and remained at large for several days.
6. Mr. Graham has a substantial prior criminal record that includes previous crimes of violence, as well as crimes that demonstrate a disregard for court orders.
7. He has an unaddressed drug addiction that contributed to his criminal behaviour in the past.
8. Mr. Leslie-Durrant’s death at the young age of 24 years has left those close to him too traumatized to provide Victim Impact Statements.

[32] In mitigation I consider that:

1. Mr. Graham pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for his offence. His guilty plea saved several weeks of court time.
2. While in pre-trial custody at Central East Correctional Centre, Mr. Graham was subjected to harsh conditions, including numerous lockdowns due to staff shortages.

[33] This is an extremely serious offence, and Mr. Graham’s moral culpability is substantial. He took the life of an unarmed young man by using a weapon against him. He then callously and cowardly left his victim to die. Thinking only of himself, and knowing that he would be wanted by the police, he remained at large for several days. It appears that he learned little from jail sentences imposed on him in the past, including for crimes of violence. His untreated addiction to fentanyl calls into question his ability to be a productive member of society in the future. His rehabilitative potential is uncertain at best. This is a case in which denunciation and deterrence both of others and of Mr. Graham must be the paramount objectives of sentencing.

[34] Crown and defence counsel jointly ask that I impose a jail sentence of 9 years. In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada instructed trial judges that a joint recommendation as to sentence should be rejected only where it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. This is not such a case. The joint submission made to me by Ms. Cadman and Mr. Willschick falls within the range of sentence of 8 to 12 years’ imprisonment referenced by the Court of Appeal for Ontario in R. v. Clarke, a case of the stabbing of an unarmed victim that featured a number of aggravating factors. See also R. v. Mohamed, 2023 ONSC 6294, and R. v. Lee, 2021 ONSC 7672.

Conclusion

[35] Mr. Graham, please stand.

[36] I accept the joint submission made by your lawyer and Crown counsel. I sentence you to 9 years in jail (108 months), less pre-sentence custody of 778 days that I treat at one and a half to one as 39 months, leaving a sentence still to serve of 5 years and 9 months (69 months), concurrent to the sentence being served.

[37] 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 the persons named by Crown counsel.

Justice Michelle Fuerst

Released: February 28, 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.