His Majesty the King v. Edgar Reece Kyle Smith, 2026 ONSC 1

CITATION: R. v. Smith, 2026 ONSC 1

COURT FILE NO.: CR-23-1317

DATE: 2026-01-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Edgar Reece Kyle Smith

Accused

K. Ludgate and M. Ansell, for the Crown

M. Cramer and T. Schnare, for the Accused

HEARD at Sudbury: September 4, 2025

REASONS FOR SENTENCE

A.D. Kurke, J.

Overview

1The accused, Mr. Smith, is before the court for sentencing after being found guilty by a jury on February 27, 2025 of both Criminal Code Counts on the indictment: second degree murder, contrary to s. 235(1) and dangerous operation of a conveyance causing bodily harm, contrary to s. 320.13(2) in the killing of Patrick McGregor on September 7, 2021.

2I received submissions on sentence September 4, 2025. The issues for determination by this court are the facts that were left undetermined by the jury’s verdicts, the length of the period of parole ineligibility on the mandatory life sentence for second degree murder, and the sentence for dangerous operation causing bodily harm.

Determination of facts

3Section 724 of the Criminal Code provides for the determination of facts left ambiguous by the jury’s verdict(s):

724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

4The court is bound by the express and implied factual implications of a jury’s verdict, but in the case of ambiguity, it is for the trial judge to determine the facts: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, at 523. The court’s first task, then, is to identify any relevant facts that were essential to the jury verdict. With respect to other facts that were not expressly or impliedly found by the jury verdict, the court is to engage in its own independent fact-finding exercise and rely only on aggravating facts that have been found beyond a reasonable doubt: R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at paras. 106-7. Where there is more than one legal pathway to the verdict, it is incumbent on the sentencing judge to resolve the factual basis for the conviction: R. v. Moreira, 2021 ONCA 507, at para. 19.

5In the circumstances of this case, I am satisfied that sufficient evidence was adduced at trial and filed on consent on sentencing for me to make factual determinations that are relevant to sentencing.

6There seems to be no issue that Patrick McGregor had sold drugs to Kyle Smith. Kyle Smith testified that he paid for the drugs with a silver chain. Mr. Smith almost immediately regretted having used that chain for drugs, as it held sentimental value for him and was worth more than he owed for the drugs. On the night of his death, Patrick McGregor picked up the accused in his vehicle and drove to the Esso station at Lasalle and Notre Dame in Sudbury. There, the accused went into the store and bought two bottles of pop, used the washroom and returned outside where Patrick McGregor was waiting. The two men returned to the car. As Patrick started driving, a video shows the vehicle driving over a curb near the carwash. The vehicle stopped and Patrick left from the driver’s door. Mr. Smith followed Patrick to Lasalle, and then returned to Patrick’s car and drove it.

7In the circumstances of this case, on the murder Count, the jury must have found that the accused stabbed Patrick McGregor in the neck, as there is no dispute that it was that blow, a blow admitted by Mr. Smith, that severed Patrick’s blood vessels and led to death by exsanguination. On the jury verdict, this blow was done with an intent required for murder. In addition, the jury rejected the accused’s defence of self-defence, though the basis for that rejection is ambiguous, because there are several elements required for it, and the rejection of any of them would cause the defence to fail.

8In my own assessment of the evidence, I find as fact, beyond a reasonable doubt, that the accused did not believe that force was being used against him by Patrick McGregor, and that he was not defending himself when he stabbed Patrick McGregor in the neck. Rather, I find beyond a reasonable doubt that Mr. Smith’s stabbing of Patrick was intended to kill Patrick to enable the accused to recover the chain from his victim.

9In making this finding, I reject the account offered by the accused at trial, as unbelievable. Mr. Smith testified that after going into the store at the gas station and returning with Patrick to Patrick’s car, Patrick pulled a knife on him while driving. That required Mr. Smith to take defensive action. He disarmed Patrick and reflexively plunged the knife with a backhanded motion into Patrick’s neck, never intending to cause the injury that was caused. I reject the notion that Patrick, while driving, pulled a knife on Mr. Smith. Such an act is nonsensical on the evidence in this case, for Patrick had no reason to do any such thing. It was Mr. Smith who very much wanted to recover the chain that he gave to Patrick to pay for drugs, and Patrick who was reluctant to return it. I find that it was not Patrick, but Mr. Smith, who was very angry, though he denied being so in his evidence. That anger and his repeatedly stated desire to recover his chain caused him to plunge a knife into Patrick’s neck as Patrick was beginning to drive out of the gas station. Negotiations were at an end.

10With respect to the Count alleging dangerous operation, the accused conceded that in all of the circumstances he drove in a manner that was dangerous to the public, and that his driving caused bodily harm to Patrick McGregor. But the evidence at trial had Mr. Smith follow Patrick McGregor out of the car as Patrick ran from it leaving a trail of blood to Lasalle Boulevard. Ultimately, after some interactions between Mr. Smith and the dying man, Mr. Smith returned to Patrick’s car and set it in motion. The vehicle left the gas station and turned left onto Lasalle Boulevard heading east in the westbound lanes. The vehicle ran into Patrick McGregor at the north curb on Lasalle, causing him severe, but non-fatal additional injuries. At issue is whether the accused deliberately drove into Patrick McGregor or whether he panicked and was unable to see properly because of effects on his vision of his drug consumption, and only drove into Patrick by accident.

11I find, beyond a reasonable doubt, that Mr. Smith deliberately drove Patrick McGregor’s vehicle into Patrick. In doing so, I reject Mr. Smith’s evidence that panic and vision problems contributed to his driving into Patrick McGregor, which he claimed he did not intend to do.

12I accept the police evidence that there was nothing mechanically wrong with the car. I reject the evidence of Mr. Smith that his vision problems caused him to drive poorly. Mr. Smith found his way around the store at the gas station, was able to find pop and pay for it, and to find and apparently use the washroom, shortly before returning outside without any particular difficulty. He was able to glimpse and block Patrick McGregor’s alleged thrust at him with the knife; though I do not believe in that knife play by Patrick, this evidence demonstrates that Mr. Smith acknowledged himself as in control of his faculties and fine motor control.

13Mr. Smith could have turned right onto Lasalle and avoided altogether the danger zone where Patrick was located. Instead, he inexplicably turned left, towards Patrick, though there was still ample space on the road to avoid hitting him. On the video and police scene evidence, Mr. Smith turned and drove directly into Patrick; the vehicle headlights even turned northward to face the gas station video from initially heading eastbound. Road marks and gas station video show that Mr. Smith was able to aim the vehicle and drive away from Patrick’s body towards and onto Notre Dame without any apparent difficulty. Other evidence in the case shows Mr. Smith continuing on without incident to the Kent Court parking lot, and parking within a parking spot, though uncomfortably close to another car.

14Mr. Smith proceeded to a hasty but thorough search of Patrick’s car, and then disposed of incriminating evidence, being his bloodied jacket and a knife, as well as items from the vehicle. Disposing of the knife in a firepit demonstrates to me that Mr. Smith’s mind was capable of reflection; it does not require expert evidence to think that fire will corrupt biological evidence on a knife. From the point that Mr. Smith followed and engaged Patrick McGregor on foot on Lasalle after stabbing him in the neck, Mr. Smith showed a clear ability to make decisions and follow them through. I reject Mr. Smith’s claims that he panicked at the thought of what he had done to Patrick McGregor, and could not consider what he was doing, or that he could not properly see where he was driving the vehicle and what he was doing. That the striking of Patrick with the vehicle was intentional on the part of Mr. Smith is the only reasonable way to construct the evidence in this case and represents the accused’s effort at finishing the job that he had begun with the knife, and I so find, beyond a reasonable doubt.

15At the time of this murder, Mr. Smith was on a release order for outstanding charges. He was not to be out of his residence unless in the company of his grandfather Edgar Smith (or for reasons that have no application here). He was not to possess weapons or unlawful drugs, operate a motor vehicle, or buy or consume any intoxicating substances. On the facts in this case, beyond a reasonable doubt, Mr. Smith breached all of these conditions.

16Several sets of charges were involved in that release order. Mr. Smith had accumulated them over time between September 2020 and April 2021. On September 24, 2020, Mr. Smith was involved in a motor vehicle collision on Main Street in Chelmsford. It took some time for police to locate Mr. Smith, whom the police investigation had determined to be the driver of the vehicle involved in the accident. He was arrested at nearly 1 a.m. on September 25, 2020. Based on indicia of alcohol consumption police made a lawful ASD demand on Mr. Smith, who was belligerent with police and would not provide a sample of his breath. The refuse charge was resolved on March 28, 2023, while Mr. Smith was in custody.

17On April 9, 2021, about five months before the murder, Mr. Smith and two other men grabbed Robert Peuhkuri and Raymond Villeneuve off the street in Chelmsford and brought them into an apartment building. During the assault that followed, Mr. Smith punched the men multiple times, struck Mr. Villeneuve on the back of the head with the butt-end of a firearm, and held the firearm to the side of Mr. Peuhkuri’s head. The men sustained minor injuries. Assault with weapon charges were resolved on March 28, 2023.

18On August 18, 2022, while in custody on the murder charge, Mr. Smith resolved outstanding charges of weapons possession (x2) and drug possession stemming from April 15, 2021, for 1 day jail time served after 90 days of pre-trial custody.

19Mr. Smith came into custody for the murder charge at the same time as he was arrested for a robbery that he committed on September 9, 2021, two days after the murder of Patrick McGregor. Just before 5 p.m. on September 9, 2021, Mr. Smith and another person robbed the Variety Plus convenience store at 1355 Falconbridge Road. The two piled up nearly $220 worth of items from the store at the front counter of the store. Mr. Smith collected bear spray from outside the store and sprayed it under the protective plexiglass at the counter at the store owners and their two young children. The robbers put the items in bags and fled the store. The store owners and their children were transported to hospital and treated there for the chemical exposure. Mr. Smith was arrested shortly afterwards and has been in continuous custody since September 10, 2021. Mr. Smith resolved that matter by a plea of guilt to robbery with a weapon on March 28, 2023, and received a sentence of 603 days custody, concurrent to the same sentence on the assault with weapon charges from April 9, 2021. 857 days of pre-trial custody were noted on these charges, as well as a 10-year order under s. 109.

Jury recommendation

20Pursuant to s. 745.2 of the Criminal Code, the jury in this case was polled and provided their own recommendations regarding the appropriate period of parole ineligibility. Three of the jurors made no recommendation; two of them recommended 10 years; six of them recommended 20 years; and one of them recommended 25 years.

Pre-sentence report

21A pre-sentence report was prepared to assist with this sentencing.

22The report describes that Mr. Smith was raised by grandparents and believed his mother to have been his sister. For a time, Mr. Smith lived in Mississippi. His grandfather was often away driving truck, and his grandmother developed a relationship with another man who was physically and sexually violent with him and his brother. The accused has had counseling to address the abuse that he suffered.

23As an adult, the accused re-connected with his mother in Manitoba, after losing touch with her in his childhood. They currently enjoy a positive relationship. The accused has never met his biological father, with whom his mother is once again residing.

24The accused had understood that he was of Indigenous heritage. His mother indicated that she had been adopted by an Inuit father, and that was the extent of that heritage. Aboriginal Legal Services had been tasked with preparing a Gladue report but was unable to establish Indigenous heritage. In submissions, Mr. Smith’s counsel indicated that in such circumstances Gladue factors were not relied upon at this sentencing.

25The accused has four daughters. He lived with a partner in Red Lake, but eventually broke up with her because of his use of substances. The relationship had not always been peaceful, and there are records of police interventions in Red Lake and Sudbury. His partner resides in Sudbury with their children. Mr. Smith’s drug and alcohol issues prevented the successful reunification of the family.

26For a time, Mr. Smith relocated to Snow Lake, Manitoba, to be close to his biological mother and to work under a mining contract. He then returned to Sudbury, and secured housing that could also accommodate his children. A further relationship with another woman in Sudbury led to the birth of a fourth daughter before that relationship ended. Mr. Smith speaks regularly with his children.

27The accused did much of his elementary and secondary education in Sudbury, where he was suspended for fighting. He has continued educational upgrading while in custody.

28Mr. Smith has worked in construction, at a local gas station, and in mining. Mining took him to Red Lake, but substance abuse caused him to miss work and ultimately to be fired. In Sudbury he worked in landscaping for three years. In Snow Lake, he worked in mining and construction. Mr. Smith has shown that, but for his substance abuse, he can contribute to society through his employment.

29Mr. Smith began drinking at age 11. He drank throughout high school and into adulthood, to the point that he was having six to eight drinks of beer and liquor a day, often while working. He sold cocaine in Red Lake after separating from his partner. When he returned to Sudbury from Manitoba, the accused progressed to using speed and crack cocaine. He stole hundreds of dollars from his mother once to support his habit. He eventually also began to use fentanyl intravenously. Upon going into custody, the accused claims to have “quit cold turkey” and he has begun the methadone program.

30The accused has taken medication for ADHD, anxiety, sleep issues and arthritis. He exercises daily. He has denied thoughts of suicide but has had prior thoughts of self-harm and poor self-esteem and insecurities. In custody, Mr. Smith has completed programs in Substance Use, Thoughts to Action, Use of Leisure Time, Goal Setting, Looking for Work, Changing Habits, Planning for Discharge, Problem Solving, Recognizing Healthy Relationships, Supportive Relationships, Understanding Feelings, Anger Management, and Managing Stress. He completed a Sobriety Self-Study Independent Workbook.

31The accused’s criminal record extends from March 2011 in Sudbury, and includes convictions for break and enter, drinking and driving, breaches of court orders, and assault (in 2013). After a 10-year gap, in 2023 he was convicted of robbery, assault with a weapon (x2), unauthorized possession of a weapon, and refusing a breath sample, among other offences. These most recent convictions yielded him a significant period in custody and a driving prohibition. The accused noted that his criminal record caused him to miss time with his children.

32Mr. Smith wants to continue with his education and with work opportunities while incarcerated. His goal is to support himself and his family upon his release.

33Mr. Smith expressed remorse to the author of the PSR and stated that he replays the offence over and over in his head. His view of the incident is based, he says, on his “shock, panic, and fear” at the time of the offence. His statement, “it hurts to know what I did,” would seem to carry little weight as remorse after I have rejected entirely his claims that he was defending himself and only ran a car into Patrick McGregor unintentionally. In October 2021, he expressed to medical staff at the Sudbury District Jail that “what I did is getting to me … guilt, remorse, all of it.” At an assessment in custody in November 2023, Mr. Smith indicated that he suffered flashbacks to the offence, stating, “someone died and he [Mr. Smith] is having a hard time coping with that.”

34When given the opportunity to address the court prior to sentencing, Mr. Smith spoke movingly that these offences should never have happened, and that he and Pat should have done other things. Mr. Smith felt that his addiction had played a large part in events and that drugs had ruined his life and the lives of many others. He wished that he could change the events. Pat’s death continues to haunt him, and he would do anything to bring Pat back. The victim impact statements “tore his heart out.” He let his daughters down by his conduct, and he should have been getting help for his addiction. He was using drugs and Pat was supplying them, and “he took advantage of me.”

35The pain of what he did and his sleepless nights still haunt Mr. Smith; “no one deserves this pain.” He has to live with it for the rest of his life. While Mr. Smith continues to maintain that he did not mean to hurt Mr. McGregor that night, I nevertheless accept as genuine the unending pain that Mr. Smith feels from having killed Mr. McGregor and from causing so much pain to Mr. McGregor’s family and his own.

Pre-sentence lockdown and medical issues

36Since his arrest, Mr. Smith has been housed at the Central North Correctional Centre (CNCC) and the Sudbury District Jail (SDJ). Due to staffing shortages, Mr. Smith experienced lockdowns of at least 12 hours per day for 354 days at CNCC and for 214 days at SDJ. During lockdowns, inmates experience loss of shower time, phone calls, visitors, and programming. On this calculation, Mr. Smith has spent some 1.5 years of his time in pre-sentence custody in lockdown.

37Institutional and hospital records and photographs upon Mr. Smith’s arrest in September 2021 also indicate that he was injured on his arrest. In September and October 2021, Mr. Smith experienced severe headaches, blurred vision, and dizziness, from an injury to the left side of his head, discharge from his left ear and some difficulty hearing. He also reported pain in his flank and groin. On admission to custody, he had a sore head, abrasions to his face, a bleeding ear, a black eye, bruising on the back of his neck, scalp, and behind his left ear, and he claimed that these injuries, and a concussion, had been caused by Sudbury police when he was picked up. In November 2022, Mr. Smith claimed to staff at the SDJ that he was having nightmares and flashbacks from his arrest and injuries that he suffered during arrest. Headaches have continued over time.

38As the Crown pointed out, however, there is no evidence before this court concerning the circumstances of Mr. Smith’s arrest shortly after the killing of Patrick McGregor and the convenience store robbery that followed. In such circumstances, this court is unable to make findings that Mr. Smith’s injuries were caused by improper or illegal police conduct.

39During an assessment at the Royal Ottawa Hospital in March 2022, Mr. Smith was diagnosed with ADHD, “unspecified trauma and Stressor related disorder”, moderate cocaine use disorder, moderate opioid use disorder, moderate cannabis use disorder, and adult antisocial behavior.

Letters of support

40Letters written by two of his daughters were filed on behalf of Mr. Smith:

a. Christine Smith described her father as a hard-worker, gentle, kind and very empathetic, and someone she looks up to. She has loved hanging out and doing things with him. She has seen him better himself while in custody by volunteering, helping friends, and working. He listens to her problems and offers guidance to her, putting her needs first. She and her family support him.

b. Kyrsten Smith believes that her father has shown deep remorse. Even in custody, he has worked to be present in Kyrsten’s life, and to offer her guidance. She believes that he has worked to make himself a better person since the incident before the court.

Victim Impact

41Patrick’s death has had a huge impact on his family, several members of which have offered Victim Impact Statements (VIS). At times, the depth of feeling of those left behind by Patrick’s death caused them to stray beyond the proper bounds of the VIS and offer opinions that they are not permitted to offer under s. 722 of the Criminal Code. I have viewed such passages only as expressions of the depth of emotion they feel because of Patrick’s loss and have been careful to put aside the prejudicial thinking that such comments might encourage. All of these victims came forward to read their statements to the court.

42Christine McGregor is Patrick’s mother. Her VIS was edited before its filing and presentation, but still contains material whose sentiments, as I have explained, cannot be considered by this court. She remembers Patrick as a good son and companion who did what he could to help her, support her, and reassure her. She is deeply affected by the pain and terror he must have experienced after his neck was cut, seeing his own car coming to “finish him off”. She lives where Mr. Smith dropped off Patrick’s car, and her surroundings now remind her of her son’s killing. Enjoying time with Patrick’s children makes her feel guilty that Patrick will not be able to do so himself. Christine has obviously been deeply affected by the killing of her son.

43Jessica McGregor grieves the loss of her brother. Every day she misses Patrick’s smile, “goofy laugh,” and his ability to improve bad situations. Patrick was always there for someone who needed him, “that’s just who he was.” Patrick helped her through very difficult times that she was experiencing; she feels that she would not still be here were it not for him. His death made her feel as though her heart had been torn from her chest. The passing of her children’s father shortly after Patrick’s death only compounded her sorrow. Patrick’s loss, the loss of a sibling, causes her grief for what once was and for what should have been.

44Andrew McGregor was Patrick’s big brother. He describes the family living a personal “hell” since September 7, 2021. He misses things that he wanted to do with his brother, and he had wanted them to grow old together. Thoughts of what happened distract Andrew from his work. He feels “hollow…empty…unemotional” after so much grief in the past.

45Naomi is Patrick’s 12-year-old daughter. She feels hopeless and empty and regrets the lost opportunity to “get new memories with” her father. Her birthdays on September 15 will also be contaminated with her memories of having to say goodbye to her father around that time. She concluded, “My dad wasn’t a perfect person but he will always be my blood. I loved him no matter what and I do miss him so much.”

46Nathan is Patrick’s 11-year-old son. He has lost the “could be” times, and seen them replaced with “what ifs?” He looks like Patrick and writes that “it is hard to be the spitting image of someone who is no longer here.” He will never get the chance to truly know his father and make memories with him. He remembers instead his mother screaming and crying at his father’s loss.

Sentencing for second degree murder

47On conviction for second degree murder, Mr. Smith is subject to life imprisonment. On the life sentence, eligibility for parole is to be set by the trial judge. Minimum and maximum periods of parole eligibility for second degree murder are 10 and 25 years, respectively: Criminal Code, s. 745(c). By s. 745.4 of the Criminal Code, the trial judge is to determine the length of time the offender must serve before he is eligible to be considered for parole within that time frame, having regard to the character of the offender, the nature of the offence and circumstances surrounding its commission, and the recommendation by the jury.

48Unusual circumstances are not necessary to increase the period of parole ineligibility from the minimum. Rather, Parliament intended to recognize that the broad range of circumstances that reflect varying degrees of criminal responsibility permit a broad range of periods of parole ineligibility for second degree murder: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at paras. 27-29.

49The offence carries with it a prohibition against possessing firearms, and liability to provide a sample of bodily substances for the purposes of the National DNA Databank.

50Section 718 of the Criminal Code sets out that the purpose of sentencing includes protecting society and furthering the objectives of denunciation of unlawful conduct and the harm done to victims or communities; specific and general deterrence; separation of offenders from society, where necessary; rehabilitation; reparations to victims for harm done; and promoting responsibility in offenders. Proportionality, which requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender, is named as a fundamental principle on sentencing (s. 718.1).

51Section 718.2 includes statutory aggravating and mitigating circumstances, including whether the offence had a significant impact on victims (s. 718.2(a)(iii.1)).

52In determining the period of parole ineligibility in sentencing an offender for second degree murder, harsh conditions of pre-sentence custody may be considered as a mitigating factor but may not reduce the period below what is set out in the Criminal Code: R. v. Lamba, 2024 ONCA 778, at paras. 18-25.

53The Crown submits that the period of parole ineligibility should be set at 16 years, taking into account the mitigating and aggravating factors. Mr. Smith proposes a period of 12-15 years.

Sentencing for dangerous operation causing bodily harm

54By section 320.2 of the Criminal Code, the maximum penalty for dangerous operation causing bodily harm is 14 years incarceration. The minimum can involve a fine or a short sentence of incarceration of up to four months, depending on the offender’s prior record for such offences. The sentence on this offence can only be sentenced as concurrent to the life sentence on the murder conviction.

55In addition to incarceration, by s. 320.24(4) and (5)(b) of the Criminal Code, Mr. Smith is also subject to a driving prohibition on this offence of not more than ten years in addition to the entire period to which he is sentenced to imprisonment on this offence. The prohibition commences on the date that it is imposed.

56It is an aggravating factor on sentencing for the driving offence that at the time of its commission an accused was not permitted under federal or provincial law to operate a motor vehicle: s. 320.22(g). Mr. Smith was a suspended driver at the time that he drove into Patrick McGregor.

57The Crown proposes a sentence on Count 2 of 5 years concurrent incarceration, and a driving prohibition of ten years in addition to the length of the sentence. The defence proposes that the period of incarceration be 3-5 years concurrent.

Authorities on parole ineligibility

58The defence argues that the parole ineligibility in this case should be in the range of 12 to 15 years. The Crown submits that 16 years would be the appropriate length. Counsel have provided me with cases to guide me in my decision concerning parole ineligibility, but as they have noted, cases are inevitably so fact specific as to do little more than establish ranges and point to aggravating and mitigating factors.

59Among the authorities, I found the following particularly helpful.

60In R. v. Van Every, 2016 ONCA 87, 346 C.C.C. (3d) 381, the 33-year-old accused was convicted after trial for shooting his housemate with a shotgun at close range. The accused and another occupant of the home then stole the victim’s truck, money and other items and went on a partying road trip. He told a witness that he blew a guy away who had disrespected him. The accused had a lengthy criminal record for numerous alcohol related crimes of violence, and a history of breaching court orders. The accused was Indigenous and the trial judge considered Gladue factors, including intergenerational harm caused by the residential school system, the accused’s unstable childhood and exposure to violence and alcoholism. Parole ineligibility was set at 16 years.

61In R. v. Tutiven, 2022 ONCA 97, 411 C.C.C. (3d) 475, the accused went to a gas station to steal gasoline. An attendant chased the accused to stop him from leaving without paying and was struck by the front of the accused’s vehicle, trapped beneath it, and dragged for some 78 metres before his body was dislodged. The victim died of multiple blunt force and crush injuries. The accused had a lengthy criminal record and was on a lifetime driving prohibition and probation at the time of the offence. The court noted that there were “virtually no mitigating factors in the case” except for strong support from the accused’s parents. Parole ineligibility was set at 16 years.

62In R. v. Gordon, 2022 ONCA 799, the youthful accused had stabbed to death his victim, a friend and a drug dealing colleague, in the victim's apartment. The accused’s record contained a conditional discharge, but no other adult criminal record. He was bound by an order of probation and a weapons prohibition at the time of the offence. Character references were submitted. The trial judge found that the accused had a criminal lifestyle in the drug business at the age of 19 and was carrying the knife that he used to commit the murder while on a weapons prohibition. He continued to engage in crimes after the murder. The period of 14 years parole ineligibility that was imposed was found to be within the range suggested by the jury.

63In R. v. Kostyk, 2014 ONCA 447, 312 C.C.C. (3d) 101, the victim was the accused’s drug dealer, to whom the accused owed money for drugs. The two appeared to have been on friendly terms before the killing. The accused brutally beat his victim to death with at least eight blows from a baseball bat to his head in the accused’s home. His motive was to get more drugs, and he used some while his victim lay dying. He did not call an ambulance after the beating, though he thought the victim was still alive. He then took active steps to cover up the killing and destroy evidence. Still, the court noted that the accused had a difficult upbringing, and yet had become a productive member of society. He only had a dated criminal record, and the trial judge had found that the accused did not have a violent disposition. Parole ineligibility was set at 13 years, which sentence was upheld by the Court of Appeal.

64In R. v. Reid (2003), 2003 14779 (ON CA), 65 O.R. (3d) 723 (C.A.), the accused had struck his victim in the head with a hammer, fracturing his skull, and then stabbed him 20 times in the chest, back, and abdomen with a knife. The victim died from loss of blood. The accused’s claim of self-defence was rejected by the jury. The 15-year period of parole ineligibility imposed by the trial judge was reduced to 12 years by the Court of Appeal because the trial judge did not adequately account for the accused’s lack of a prior criminal history of violence, the fact that he had called police, and the accused’s expression of regret for what he had done. He had been gainfully employed and had letters attesting to his good character and the support of his family.

65In R. v. Tubic, 2021 ONSC 5051, the accused, who was the victim’s drug dealer, killed his victim in an altercation and drove with his body in the trunk of his car to a bank where he tried to withdraw money from the victim’s account. The victim’s body was then thrown into the water at a hydro facility. The accused had an extensive criminal record. The killing had a severe impact on the victim’s mother. The accused had had a difficult childhood, had recently lost his best friend to cancer, and was a heavy drug user at the time of the offence. He had an extensive, but somewhat dated, criminal record, mostly for property offences. Parole ineligibility was set at 13½ years, but would have been 15, had it not been for expressions of support for him in the community and steps that he had taken in custody to rehabilitate himself.

66In R. v. Zoldi, 2011 ONSC 3903, the accused, accompanied by another man, shot and killed a drug dealer in a public setting to get revenge on Jamaican drug dealers for an earlier incident in which Zoldi had been stabbed in the shoulder. At the time, he was on bail for robbery and should have been home on a curfew and not using drugs or possessing weapons. He was heavily addicted to cocaine at the time of the murder. He had not completed high school. He had a long criminal record, but not for offences involving weapons. He had four children and not much of a work history. He offered on sentencing 17 letters of support from family and friends. He had not shown promise of rehabilitation in earlier sentencings. Parole ineligibility was set at 13 years.

Analysis

67This was a vicious killing in which the knife blow to Patrick McGregor’s neck left him helpless and certain to die, a dead man walking. After that blow fell, Mr. Smith proceeded to deliberately strike Mr. McGregor with his own car, adding further trauma to the dying man. Mr. Smith’s apparent motive for this killing was his desire to recover a chain that he had given Patrick McGregor to pay for the drugs that Mr. Smith could not lawfully possess or consume. The brutal senselessness of this murder has deeply affected Patrick’s family, and the murder was a tragic loss for his mother, his sister, his brother, and his children in many, many ways.

68Had Mr. Smith heeded his release order, these offences would not have happened. He would not have used drugs or paid for them with a chain he did not want to lose. He would not have been out in Patrick McGregor’s car or driving it the night of the killing.

69Although there was a break in Mr. Smith’s criminal record after his 2013 conviction for assault, he cannot be said to be of good character. The murder of Patrick McGregor was bookended by significant violence inflicted on others in the community. Mere months before the killing of Patrick McGregor, Mr. Smith was involved in violent assaults with a weapon on two other men, and in possessing weapons for a dangerous purpose on another occasion, days after the assaults. Shortly after the killing, Mr. Smith took part in the violent robbery of a convenience store, at which a pepper spray was discharged against the proprietors and their children, requiring treatment at hospital.

70Substance issues of long standing have undoubtedly contributed to Mr. Smith’s criminality. However, the point has long since been reached and passed where the community can tolerate and forgive violent criminality from Mr. Smith related to his substance abuse.

71The majority of jury members, in their recommendations, have proposed a sentence of 20 years or more.

72Still, Mr. Smith’s own two daughters have described a man who contributes to their happiness. Mr. Smith has shown that he is prepared to earn money by working, at least until his substance addictions interfere. The difficult conditions of his pre-trial incarceration need to be acknowledged as a mitigating factor.

73Mr. Smith has expressed remorse for this killing, and some credit must be given to his acknowledgement that by his conduct a man has died. While Mr. Smith is not prepared to acknowledge that this killing was motivated by his own desire to recover his chain, and not by any need to defend himself from Patrick McGregor’s aggression, some mitigation must be extended to him for his remorse and his regret for the killing of Patrick McGregor and its impact on so many others. I accept that remorse as sincere.

74In all the circumstances of this case, the Criminal Code dictates that Mr. Smith be sentenced to life imprisonment. That shall be the sentence on his conviction for second degree murder.

75In my view, taking into account the character of the offender, the nature of the offence and circumstances surrounding its commission, and the recommendation by the jury, as well as the other factors I have set out above, I am setting the period of parole ineligibility for Mr. Smith at 15 years. The aggravating factors in this case significantly outweigh any mitigation on these facts.

76As to Count 2, I agree with the Crown. The accused’s intention to strike Mr. McGregor with his own vehicle is a significantly aggravating factor. The sentence on that charge will be five years jail, concurrent to Count 1. There will be a driving prohibition of ten years in addition to the custodial period. Driving a conveyance is a privilege. Using a conveyance as a weapon demands that the court look to deterrence and denunciation as key aspects of sentencing.

77There will also be a lifetime firearms prohibition on Count 1. DNA will be ordered on both Counts. DNA on Count 1 is mandatory, and I find, based on all the circumstances of the case and Mr. Smith, that DNA sampling on Count 2 is in the best interests of the administration of justice. There will be an order under s. 743.21 of non-communication by Mr. Smith with all members of Patrick McGregor’s family.

The Honourable Mr. Justice A.D. Kurke