Wednesday, February 16, 2011


This recent decision highlights the application of sentencing guidelines where the person convicted could lose appeal rights of permanent residence after a very long time in Canada. Note that the person convicted of manslaughter did not have any prior record, and that the case seems somewhat unusual in that it was a re-trial due to tainted forensic evidence in the prior conviction for murder.

R. v. Reeve

Her Majesty the Queen, and

Michael Reeve

[2010] O.J. No. 5823

Court File No. 104/98

Ontario Superior Court of Justice

Lindsay, Ontario
A. Sosna J.
Oral judgment: November 19, 2010.

(177 paras.)

Charges: S. 229 Criminal Code of Canada - First degree murder

A. SOSNA J. (orally):--


1 Michael Reeve was convicted after trial in January 2001 of first degree murder. He was sentenced to life imprisonment with no parole eligibility for 25 years.

2 Reeve's conviction was quashed by the Ontario Court of Appeal. A new trial was ordered and Reeve granted bail. At the time, Reeve had spent 10 years in custody.

3 In ordering a new trial, the Court of Appeal did so finding that expert toxicological evidence introduced by the Crown estimating the time of Hanson's death had no scientific validity.

4 Reeve's retrial commenced before me by way of pre-trial motions. Those motions were completed on March 26, 2010, with a trial date set. On April 23, 2010, prior to trial, Reeve entered a plea of guilty to the lesser and included offence of manslaughter.

5 The issue to be determined is the length of sentence to be imposed for the conviction of manslaughter.

Summary of Facts Jointly Introduced by Crown and Defence on the Manslaughter Plea

6 On January 11, 1998, David Hanson died from a massive skull fracture sustained in a heated verbal argument with Michael Reeve. Hanson and Reeve were business partners at a marina known as Skinner's Marina Inc.

7 As a result of being pushed by Reeve, Hanson fell back, striking his head on a trailer hitch. Mr. Hanson appeared to Reeve to be dead.

8 Reeve then placed Hanson's body into Hanson's car. In an effort to stage the death as a car accident, Reeve smashed out the driver's side window, the passenger's window, and a glass panel in the rear of Hanson's motor vehicle.

9 Reeve then drove Hanson's motor vehicle, placing himself in the passenger's side, with Hanson behind the wheel. Reeve drove Hanson's motor vehicle off of a bridge that crossed the Trent Canal.

10 Once the motor vehicle entered the water, Reeve extricated himself and made his way back to the marina. He then undertook extensive clean-up of the crime scene, including washing the floor of the marina with chemicals, renting a carpet cleaner to remove bloodstains from the carpet, sweeping glass from the floor, vacuuming, shovelling tracks outside and around the marina, and disfiguring evidence of his footprints that came out of the water in the area of the bridge.

11 The same evening, Reeve attended a private party to which he and Hanson had been invited. Reeve advised the guests that Hanson had left the marina earlier that day at the conclusion of the business meeting between them. Reeve advised that Hanson did not return to the marina thereafter.

12 The following day, as a result of concerns by marina employees inquiring about Hanson's whereabouts, Reeve placed a fictitious phone call to Hanson's phone number leaving a message that Hanson call him back.

13 Further, Reeve concocted a series of elaborate lies to both the police and Hanson's family, claiming he had no knowledge of Hanson's whereabouts. David Hanson's family filed a Missing Person's Report on January 12, 1998. On January 14, Hanson's motor vehicle and body were recovered from the Trent Canal by the police.

14 At the time of Hanson's death, the relationship between Reeve and Hanson was strained because of disagreements over the operation of Skinner's Marina and a common interest they had in pursuing a romantic relationship with a local real estate agent. Prior to Hanson's death, the agent had accepted Hanson's proposal of marriage. Reeve was aware of the wedding plans prior to the events of January 11, 1998.

15 David Hanson's death was determined to have been caused by blunt force head injury. It is unclear whether Hanson died before or after he entered the canal.

16 Based on forensic examination and further police investigation, Reeve was arrested and charged with first degree murder in Hanson's death on January 30, 1998.

The Offender

17 Michael Reeve is 69 years of age. He is single, but has been divorced. He has no dependants. He has no previous criminal record. He does not suffer from any psychiatric or psychological disturbance, and has no previous history of violence.

18 Prior to his release on bail for the retrial, Reeve had spent ten years in custody - four years in Millhaven and six years thereafter in a lower security federal institution.

19 While in Millhaven, Reeve was considered to be a "model inmate". Parole records confirm that Reeve was compliant with authorities, easy to manage, completed his work assignments diligently and posed no behavioural difficulties.

20 After his release on bail, Reeve volunteered his time at a local hospital. Presently, Reeve works as an inventory clerk at a local grocery store.

21 Reeve has now been on bail for two and one-half years. In this period, he has reported weekly to the police and has not been charged with any breaches of the bail terms as set by the Court of Appeal.

Pre-sentence Report

22 Generally, the Pre-sentence Report is positive in its review of Reeve's history and future plans.

23 Reeve immigrated to Canada from England at the age of 16 and has lived in Canada ever since. Reeve has never taken out formal Canadian citizenship.

24 Shortly after arriving in Canada, Reeve started working at a pharmaceutical company as a lab assistant, a job that he held for 18 years.

25 Reeve supplemented his employment income with investments in real estate. In the 1970s, he purchased several homes in the Beaches area of Toronto, converting them into shared apartments that were rented out to tenants.

26 He subsequently left his career as a lab assistant, sold his investment properties, and with those funds purchased Skinner's Marina in Rosedale, Ontario in 1976.

27 Known to be a workaholic, Reeve was married twice and twice divorced. Both divorces were amicable. Reeve now has one brother who also lives in Ontario. Reeve has no present ties to England.

28 Although Skinner's Marina became Reeve's life passion, by 1996 the marina fell into financial difficulty and was placed into receivership. Reeve declared personal bankruptcy in December 1996. It is at this juncture that he entered into a business relationship with the deceased, David Hanson. Hanson provided financial backing for Skinner's Marina, while Reeve managed its daily business affairs.

29 As previously noted, in the 13 months prior to Hanson's death, Hanson and Reeve had disagreements concerning the business operations of Skinner's Marina. Furthermore, both individuals were pursuing a romantic relationship with the same real estate agent. Just prior to Hanson's death, she and Hanson became engaged.

30 Addressing these tensions, Reeve makes the following comment in the Pre-sentence Report on the circumstances surrounding Hanson's death. The report states:

• "Before the Court is a soon to be 69 year old male, first time offender awaiting sentence for a single act of manslaughter after entering a guilty plea. What appears to have been a "crime of passion" has been characterized as an "accident" by the subject ... the subject admits responsibility for having made some errors in judgment, and expressed a sense of remorse for the course of events as they have unfolded. He however is apt to describe the incident as accident" denying any harm or ill intent towards the victim.

31 In a number of references in the Pre-sentence Report, Reeve reiterated that Hanson's death was "an accident".

32 The Pre-sentence Report concludes that Michael Reeve would be a suitable candidate for future community supervision.

Victim Impact Statements

33 Five statements were introduced into evidence by the Crown. Some of the statements were read into the record by their authors. The statements were prepared by David Hanson's sister, his brother-in-law, his nephew, his son, and a personal friend of both Reeve and Hanson. The statements are moving and eloquent testimonials, detailing the pain and loss still experienced 12 years after David Hanson's death.

34 As in most tragedies, David Hanson's untimely death defies both logic and rational explanation. As noted by his son, Andrew Hanson1:

• Has this crime made me a victim? It has cost me thousands of dollars in travel, lost wages and therapy and countless hours of thinking about being without a father. I went through a difficult time after my father died ... I love my father and miss him. I find it hard to understand why Mike Reeve committed the crime, but my family and I are serving a life sentence.

Position of the Crown

35 In accepting the plea to manslaughter, the Crown submits it did so aware that present day medical opinion calls into question its theory advanced at the Reeve trial 11 years earlier that David Hanson died from drowning as opposed to blunt force head injury.

36 Further the Crown submits that it had no intention of introducing the impugned toxicological evidence from the first trial if a retrial on first degree murder had proceeded.

37 Nevertheless, the Crown seeks a five-year sentence on the conviction for manslaughter.

38 Recognizing that Reeve has already spent 10 years in custody, the Crown does not seek that he be returned to prison, but requests that the five-year sentence be noted as time served.

39 The Crown submits that the facts in support of the manslaughter plea are disturbing and chilling. The Crown argues that after causing Hanson to fall and sustain a significant head injury, Reeve was heedless thereafter. Although he believed Hanson to be dead, Reeve did not seek medical intervention to confirm his belief and, if incorrect, did not take steps to seek medical help.

40 Rather, Reeve embarked on an elaborate and detailed plan to make it appear that Hanson died as a result of driving his motor vehicle into the Trent Canal. Thereafter, Reeve attempted to destroy forensic evidence of the crime and concocted a series of lies in order to disassociate himself from Hanson's disappearance.

41 The Crown submits that Reeve's conduct prior to arrest was calculated, not only to avoid arrest for his criminal conduct, but also to consolidate and secure what he always sought, namely, sole control of Skinner's Marina, his lifetime passion.

42 The Crown submits that Reeve's expression of remorse in the Pre-sentence Report is disingenuous since Reeve characterizes Hanson's death as "an accident".

43 The Crown argues that on the admitted facts and surrounding circumstances, the principles of denunciation and general deterrence can only be addressed with the imposition of a five-year custodial sentence (time already served).

The Position of the Defence

44 The Defence contends that in finding that Hanson died from a head injury resulting from a push from Reeve during the course of a verbal disagreement, a custodial sentence in a reformatory of two years less one day be imposed.

45 The Defence submits that the push by Reeve, although significant enough to cause Hanson to fall back and strike his head, was an uncharacteristic act absent evidence of previous violence between the parties and, more so, absent any historical evidence of violence or threat of violence by Reeve directed to any other member of the community. The Defence further points out that, at the time of the offence, Reeve was 57 years of age with no previous criminal record.

46 In the alternative, the Defence submits if the court should consider imposing a custodial sentence of more than two years less one day, that sentence should be reduced since Reeve, not being a Canadian citizen and being sentenced to a custodial period of two years or more for the commission of an indictable offence, would be subject to immediate deportation with no right of appeal, pursuant to subsections 64(1) and 64(2) of the Immigration and Refugee Protection Act.2

47 The Defence submits that a sentencing court is entitled to consider the immigration consequences of any sentence and thus can reduce a sentence to one which has the effect of preserving the right to appeal any deportation order made after conviction.

48 Lastly, the Defence argues that, in the course of pre-trial motions in the retrial, this court has found that the Crown in the original trial breached Reeve's s. 7 Charter protection3 by not providing the Defence with full medical disclosure and by advancing partial and misleading medical evidence to the jury in support of its theory that Hanson died as a result of drowning, and not blunt force injury.

49 Although the pre-trial motion for a Stay of Proceedings brought by the Defence was dismissed, the Defence submits, given the gravity of the state trial misconduct, this court has the jurisdiction to further reduce an otherwise appropriate sentence for a Charter breach or for state misconduct short of a Charter breach, and thus impose a custodial sentence of 729 days - two years less one day (time served).

Findings of the Court

50 The unlawful act of manslaughter is made out when death results from an unlawful act which carries a reasonable risk of bodily harm that is neither trivial or transitory.4

51 Manslaughter is a serious offence. Where the offence committed has resulted in the death of a member of the community, the sentence imposed must reflect society's concern for the sanctity of human life as well as its revulsion that anyone would take the life of another.5

52 Depending on the circumstances of the offence and the offender, sentences for manslaughter can vary widely from a conditional sentence to a penitentiary term.

53 As noted in R. v. Creighton6:

• Because manslaughter can occur in a wide variety of circumstances the penalties must be flexible ... . The point is the sentence can be and is tailored to suit the degree of moral fault of the offender.

54 In cases involving the unlawful killing of an innocent victim - as in the present matter - general deterrence and denunciation are the primary principles that a sentence should address.7

55 There is no disagreement that Reeve's assault led to Hanson's death. There is no disagreement that a custodial sentence is the appropriate penalty. Where the Crown and Defence disagree is the length of the sentence to be imposed, having regard to both the aggravating and mitigating circumstances of both the offence and the offender.

56 The Crown submits that Reeve's moral fault/ blameworthiness is significant. The Crown submits that a review of Reeve's moral blameworthiness should not be limited to the events that occurred on the date of Hanson's death.

57 The Crown submits that the animus between Hanson and Reeve regarding the business operation of Skinner's Marina, and the underlying friction arising from their common interest in pursuing a romantic relationship with the same female, negates Reeve's contention that the push to Hanson was an isolated, overheated reaction absent historical disagreement.

58 The Crown submits that Reeve's moral blameworthiness is heightened by evidence of the elaborate steps he took to make it appear that Hanson himself drove his own motor vehicle into the canal and died as a result of that mishap. Thereafter, in order to further disassociate himself from Hanson's disappearance, Reeve embarked on a meticulous plan to destroy any forensic evidence connecting him to the crime and concocted a series of false alibis, divorcing himself from Reeve's disappearance.

59 The Crown submits that these additional factors can satisfy the court that Hanson's death did not result from a singular, spontaneous act or from an "accident", as described by Reeve.

60 I am guided by the observations in R. v. Druken as to appropriate inferences a sentencing judge can draw from a plea of guilty based on an agreed statement of facts8:

• Counsel must provide sufficient facts to permit the sentencing judge to determine whether the sentence is reasonable in the circumstances. The court is bound by the agreed statement of facts; the sentencing judge cannot "find" additional facts. As well, any inferences the judge may draw must follow clearly from what is set out in the agreed statement. It is preferable that counsel provide a factual basis for the judge to assess the proposed sentence that does not require the judge to draw factual inferences.

61 The previous strained relationship between Hanson and Reeve and evidence of the steps taken by Reeve to hide his culpability in Hanson's death are not irrelevant. However, the plea to manslaughter, as accepted by the Crown, is an acknowledgment that Hanson's death was an unintentional killing, short of what would be required to infer the intent for murder.

62 Nevertheless, in its submissions the Crown argued that Reeve killed Hanson twice: One, by pushing him, and two, by placing Hanson in a motor vehicle and driving the car into a canal, indifferent as to whether Hanson was dead or alive. I am not prepared to infer that Reeve's moral blameworthiness is heightened on this submission. To do so would be tantamount to inferring the intent for murder, an intent incompatible to the finding of manslaughter.

63 I am further not prepared to accept the Crown's submission that Reeve's moral culpability is heightened because of the elaborate measures he took to cover up evidence of the crime and the false alibis he provided to employees, Hanson's family, and the police during the investigation. I agree that these facts do not mitigate Reeve's culpability, but they do not necessarily aggravate it, since Reeve's conduct is equally consistent with self-preservation, conduct not uncommon for many crime suspects.

64 I am further not prepared to find, as argued by the Crown, that Reeve's post-offence conduct was directed to consolidate his sole control of Skinner's Marina.

65 The Crown places significant reliance on the victim impact statements. It is difficult not to be moved by these statements. I have reviewed them carefully and have taken them into consideration to the extent that I am able in determining the appropriate sentence.

66 However, as noted in R. v. Costa9:

• It is also worthy of observation that the sentence to be imposed is governed by fixed principles applied to the circumstances as I have found them to be. Too often and erroneously, it is thought to afford some measure or indication of the value which a court places upon the life of a deceased. ... The sentence imposed ought not to be thought reflective of the intrinsic value or worth of the deceased. It is not. That is not the function of a sentence in this or any criminal case. No sentence will ever breathe life into the deceased person, nor restore him or her to his or her family and/or friends. Would that it were that simple.

67 In determining the appropriate penalty, the principles of sentence as set out in sections 718.1 and 718.2 of the Criminal Code are applicable.10

68 Section 718 mandates that the fundamental purpose of sentence is the protection of society. In that regard, the court is to consider factors of prevention, deterrence and, if applicable, rehabilitation.11 Both the Crown and Defence agree that, given Reeve's advanced age, rehabilitation is not relevant.

69 In submitting the facts surrounding Hanson's death to be chilling, the victim impact statements to be powerful, and Reeve's remorse for Hanson's death as qualified and disingenuous, the Crown submits that a five-year penitentiary sentence is warranted. The Crown argues that the only mitigating factor for the court's consideration is that, at the time of the offence, Reeve had no criminal record.

70 With respect, I find there are additional mitigating factors appropriate for consideration:

• 1) Reeve entered a plea of guilty without a trial, albeit to the lesser and included offence of manslaughter.

• 2) At the time of the offence 11 years ago, Reeve was 58 years of age. Presently, he is 69.

• 3) At the time of the offence, Reeve had no previous record or any previous history of violence. His act of pushing Hanson, causing Hanson to fall, causing his death, was isolated and uncharacteristic. There was no weapon used in the assault.

• 4) After being convicted of first degree murder in 1999, Reeve spent 10 years in custody prior to his release as ordered by the Court of Appeal. The parole authorities considered Reeve to be a model prisoner.

• 5) Since being released on bail two and one-half years ago, Reeve has religiously followed his bail terms and has committed no bail breach.

• 6) The Pre-sentence Report filed for the purpose of sentencing is positive, recommending that Reeve would be a suitable candidate for community supervision.

71 As noted in R. v. Hamilton and Mason12:

• Sentencing is a delicate case-specific exercise ... . the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender. ... The case-specific nature of the sentence inquiry is reflected in the proportionality requirement, described as the fundamental principle of sentencing in s. 718.1 of the Criminal Code.

72 In determining the appropriate sentence, the court must take into account both sides of the proportionality test. Factors which may elevate the gravity of the offence cannot set aside factors mitigating personal responsibility. At the same time, those mitigating factors cannot justify a disposition that improperly minimizes the seriousness of the offence committed.

73 I agree with the Crown's submission that manslaughter is a serious offence; a human life has been taken. Accordingly, the objectives of denunciation and deterrence as set out in section 718.1 subsections (a) and (b) are central to the court's determination in imposing a just and fit sentence.

74 I agree that Reeve's qualified remorse as noted in the Pre-sentence Report, describing Hanson's death to be "an accident", is borne out in his post-offence conduct by staging Hanson's death to appear to be the result of a car accident, by his calculated efforts to destroy physical evidence of the crime, and by his repeated false accounts regarding his last meeting with Hanson.

75 However, I am also mindful of Reeve's age, his unblemished antecedents, and his lack of previous record and history of violence. The agreed statement of facts in the manslaughter plea support the finding that Reeve's use of violence in pushing Hanson, causing Hanson to strike his head, was spontaneous and uncharacteristic. Lastly, Reeve has entered a plea of guilty.

76 Addressing these factors, a custodial sentence of three years (36 months) is warranted. However, this sentence does not take into account the additional Defence submissions that further mitigation be accorded in light of:

• a) The Charter violations and prosecutorial misconduct as found in Reeve's first trial; and

• h)the immigration implications resulting from the imposition of a custodial sentence in excess of two years.

77 In this retrial, the Defence brought an application for Stay of Proceedings. The Defence argued that disclosure breaches and trial misconduct by the original prosecutor warranted that remedy.

78 I dismissed the Stay application, holding that:

• 1) the public interest required that an allegation as serious as first degree murder be resolved on its merits; and

• 2) "only in exceptional circumstances or relatively very rare circumstances will past misconduct be so egregious that the mere fact of going forward in light of it will be offensive"13

79 Nevertheless, I found the Charter breaches and prosecutorial misconduct to be serious and significant.

80 I rejected the evidence in the Stay application of the original trial prosecutor who testified she had no recollection of receiving additional medical disclosure from a Crown witness, Doctor McLellan, prior to his trial testimony. Doctor Barry McLellan testified that he did meet with the prosecutor on the morning of his scheduled evidence and provided her with additional medical opinion which had not been canvassed in his earlier medical report. That additional disclosure was not provided to the Defence thereafter.

81 I rejected the trial Crown's evidence that if she had received such disclosure, which she maintained she had no recollection receiving, receipt of the additional medical opinion provided by Doctor McLellan would be exempt from the disclosure obligations as set out in R. v. Stinchcombe.14

82 I further found not only had full disclosure of Doctor McLellan's evidence not been provided to the Defence, the context and limitations of his medical opinion regarding cause of death, a central issue at trial, was misrepresented by the Crown to the jury.

83 I dismissed the submission in the Stay application that the conduct of the original trial prosecutor was an error in judgment in the context of many witnesses and many experts called in a lengthy and bitter adversarial hearing.

84 It should be noted that the evidence led in the Stay application was unknown to appellate counsel and therefore not advanced as a ground of appeal when Reeve's conviction was quashed by the Court of Appeal.

85 In R. v. Rasogaluak15, the Court found that a trial judge should not be prevented from reducing a sentence as long as the incidents giving rise to a breach of the Charter are related to the sentencing regime. At paragraph 48, the Court held:

• A sentence cannot be "fit" if it does not respect the fundamental values enshrined in the Charter. Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise. As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by section 718.2 of the Code. Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence. Specifically, section 718.2(a) provides that the Court should reduce a sentence "to account for any ... mitigating circumstances relating to the offence or offender."

86 Given the gravity of the Charter breach and misrepresentation of medical evidence provided to the jury by the original trial prosecutor, additional mitigation of sentence is appropriate.

87 Regarding the question whether deportation from Canada is a factor to be considered in mitigation of sentence, the courts have held that deportation cannot be used to justify a sentence which would be inconsistent with the purposes and principles of sentencing. Further, the sentencing regime cannot be used to circumvent the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.16

88 However, as noted in R. v. Melo17 the fact that the offender will face automatic deportation with no prior right of appeal if a sentence of two years or more is imposed is "one of the factors which is to be taken into consideration ... in conjunction with all other circumstances of the case in choosing the appropriate sentence to fit the crime and the offender".

89 The recent decision of R. and B.R.C.18 provides this court with additional guidance on this issue.

90 In B.R.C., the Appellant had pled guilty to sexual exploitation. The victim was his stepson. The Appellant was sentenced to 30 months in custody. He appealed that sentence. The Court of Appeal reduced that sentence to one of two years less one day.

91 In B.R.C., the antecedents of the Appellant were not dissimilar to the antecedents of Reeve. The appellant came to Canada from Scotland as a 14-month infant. No steps were taken thereafter to apply for Canadian citizenship. The Appellant was 45 years of age, having lived in Canada for 44 years. At the time of the appeal, the Appellant had no ties to Scotland, other than Scotland being his place of birth.

92 Although it is arguable that a conviction for sexual exploitation may be less serious than a conviction for manslaughter, the Court of Appeal in B.R.C. found the allegations of sexual exploitation to be serious. The victim was the son of the Appellant's common-law wife. The victim was 15 to 17 years of age when he was sexually assaulted over a prolonged period. The sexual assaults included acts of anal intercourse. The Court found that the Appellant had breached a position of trust.

93 In B.R.C., parole authorities confirmed that the Appellant presented a low risk of reoffending since he had successfully completed rehabilitation programs dealing with substance abuse and sexual offender issues.

94 I find that Reeve also presents a low risk of reoffending in light of his age, his lack of previous record and history of violence, and the positive assessment accorded to him by the parole authorities.

95 Reeve has already spent 10 years in custody. On the present plea to manslaughter, he has effectively served his sentence and considerably more. At this juncture, to impose a notional sentence in excess of two years (being time served) with the consequences "of condemning" [Reeve] to exile to a country with which he has no meaningful connection ... would be patently unjust and unfair".19

96 In summary, the immigration consequences just reviewed and the gravity of prosecutorial Charter and trial misconduct evidenced at the first trial are factors relevant to sentencing pursuant to the provisions of section 718.2(a) of the Criminal Code.

97 Accordingly, the sentence to be imposed on the conviction for manslaughter is two years less one day (time served).

98 Additionally, Reeve is placed on probation for three years. During the period of probation, Reeve is to report to a Probation Officer within 14 days, and thereafter only as required by his Probation Officer.

99 Further, Michael Reeve is to have no contact or communication directly or indirectly with Jane Gibson, Darryl Gibson, John Crisp, Geoff Gibson and Andrew Hanson.

100 Lastly, pursuant to the provisions of the Criminal Code, Michael Reeve is bound by a ten-year Weapons Prohibition Order and the additional requirement that he supply a sample of his DNA to the police authorities within 14 days.

101 That is the judgment of this court.

102 MR. BAYLISS: Thank you, Your Honour.

103 MS. HAWTHORN: Just one minor point, Your Honour. You said Darryl Hanson [sic]. I believe you meant to say David Gibson.

104 THE COURT: Yes. I'm sorry. David.

105 MS. HAWTHORN: You said Darryl Gibson. I believe you intended to say David.

106 THE COURT: With respect to the non-communication term?

107 MS. HAWTHORN: Sorry?

108 THE COURT: With respect to the non-communication term?

109 MS. HAWTHORN: Yes. David Gibson, I believe, is the name you intended to say.

110 THE COURT: All right. If I may read their names: Jane Gibson ...

111 MS. HAWTHORN: Yes.

112 THE COURT: ... Darryl Gibson ... .

113 MS. HAWTHORN: David.

114 THE COURT: David Gibson. I'm sorry. I apologize. Thank you. The rest of the names are correct? John Crisp, Geoff Gibson, and Andrew Hanson. Is that correct?

115 MS. HAWTHORN: Those names are correct.

116 THE COURT: Thank you very much.




117 MS. HAWTHORN: Your Honour, if I may first address the matter of the sentence that you imposed.

118 THE COURT: Yes. It has been brought to my attention technically it is a ...

119 MS. HAWTHORN: Technically ... .

120 THE COURT: ... it is a sentence that is illegal on its face. We have two choices here. The calculation for two years less a day I believe was 729 days, is that correct?

121 MR. BAYLISS: Yes.

122 THE COURT: The intent of this sentence is clear. One of the intents of this sentence is to ensure that, if the immigration process proceeds, that Mr. Reeve remains in this country. My concern is if the sentence remains as is, it being an illegal sentence, the only choice I have is two years less a day plus one day makes it two years.

123 MR. BAYLISS: Mm-hmm.

124 THE COURT: That is not the intent of this sentence. So may I ask counsel this? Does counsel believe I am functus at this point? Let's deal with that issue.

125 MR. BAYLISS: No. In my submission, Your Honour, and I can get the case law for you if you want, but if there is an error, an inadvertent error of this nature, in my submission you always do have jurisdiction to ... . As I say, if my friend disagrees with that, I can fairly quickly find some case law.

126 THE COURT: I would like to hear your friend on that issue. Am I functus at this point, Ms. Hawthorn?

127 MS. HAWTHORN: For purposes of what is essentially an administrative matter, I don't think you are.

128 THE COURT: All right.

129 MS. HAWTHORN: I would agree with my friend on that.

130 THE COURT: All right. Now, may I ask you this then, Mr. Bayliss? Technically, when a sentence is imposed with time served, there must be more than time served and probation. I mean, the law is clear on that. What happens in these situations is, as a matter of practicality, sentences are often time served plus one day, plus probation. Now, if that is what is to happen today, then the position of this court is the sentence should ensure that there are no immigration consequences, 725 days time served, plus one day, plus probation. That would entail your client going into custody today and being released.

131 MR. BAYLISS: Right.

132 THE COURT: That is the reality of the situation. I take it that is something that he is prepared to accept.

133 MR. BAYLISS: Well, he would, except for the fact that he is here with the gentleman, George, and I can't remember George's - George Dagg, who was his brother's life partner essentially ...

134 THE COURT: Yes.

135 MR. BAYLISS: ... and his brother has passed away. George has to have someone with him at all times. So if Mr. Reeve went into custody, George Dagg would be here by himself, without a way to get back to Toronto or any of that. So my friend and I had another proposal, which we would ask the court to consider.

136 THE COURT: Which is?

137 MR. BAYLISS: Which is that you impose a suspended sentence with a comment, a suspended sentence in light of time served, acknowledging that the appropriate sentence would have been ... .

138 THE COURT: I am not prepared to do that. I am not prepared to do that. Whatever inconvenience is caused to your client, I am not prepared to do that. The sentence of this court must reflect the gravity of the offence.

139 MR. BAYLISS: All right.

140 THE COURT: As much as I would like to accommodate you, I think that would be improper. No, I am not prepared to do that.

141 MR. BAYLISS: Okay. Well maybe ... . There's no one. I am just wondering if he could - would go into jail here in ... .


142 MR. BAYLISS: Ms. Hawthorn is suggesting ... . My concern is that he'd have to be taken to a formal jail like Lindsay or whatever and then, then you know, I don't know. I suppose I can give Mr. Dagg a ride home in a pinch, but he really needs to have someone with him all the time. So if the security agreed that he could simply step into custody here for a brief period of time, any minute of a day becomes a day, and then that would satisfy that ... .

143 THE COURT: I will not get involved in the administrative end of the sentence. That is something that I leave to the authorities. But I cannot suspend the passing of sentence in this offence, notwithstanding whatever immediate difficulty is caused to your client.

144 MR. BAYLISS: Okay. All right. That's fine. All right. Maybe we could address the second issue then, and if we could take a brief break after that, we could speak to the security people. I mean, I guess what would - if he does have to go to a - rather than stepping into custody here, he has to go to a more formal institution, then I guess I could take responsibility for Mr. Dagg for today at least, to get him back to Toronto. But anyway, we can discuss that with the security people.


145 THE COURT: So there is no misunderstanding given the intent of the Reasons for Sentence. It is agreeable, because of the technical difficulty of the sentence that was imposed, the sentence will be one of 725 days (time served), plus one day in custody, plus probation of three years and the other ancillary orders. That is agreeable and on consent?

146 MS. HAWTHORN: Yes. And I am relying on your arithmetic, because I ... .

147 THE COURT: Well, I am relying on counsel's arithmetic. He went to 729. I am going to 725 to give us a window of opportunity here.

148 MR. BAYLISS: Yes. No, I think that makes sense. I'll check my math while Your Honour is out.

149 THE COURT: All right. Thank you very much then. We will rise to resolve the remaining issues. Thank you.



150 MS. HAWTHORN: Greg Harris is the director of security here, and he has made some inquiries as to the one-day issue. If Your Honour endorses, as I understand, if Your Honour makes an endorsement that the one day can be served here, then all that has to happen is Mr. Reeve has to step into custody and he can be released.

151 THE COURT: I am happy to make that endorsement. What is the address?

152 MS. HAWTHORN: Here?

153 THE COURT: Here. I can't say, "To be served here."

154 COURT REGISTRAR: 440 Kent Street West.

155 MS. HAWTHORN: 440 Kent Street West, Lindsay. Is that correct?


157 THE COURT: Thank you for your assistance.

158 SPECIAL CONSTABLE HARRIS: You're welcome, Your Honour.

159 THE COURT: All right. We can deal with that matter in due course. Now with respect to the issue of bail.


160 THE COURT: Thank you. May I see the indictment just for the purposes of the endorsement? Thank you. These are the fraud charges. Can I see the indictment for the first degree murder charge? Thank you. Now, Mr. Bayliss and Ms. Hawthorn, we agree, based on our previous conversation, to reflect the intent of the sentence, the sentence would be one of 725 days (time served), plus one day, plus probation for three years, plus the ancillary orders.

161 MS. HAWTHORN: Yes.

162 MR. BAYLISS: Yes.

163 THE COURT: Bear with me, please.

164 MS. HAWTHORN: With the addition that the one day be served at 440 Kent Street West

165 THE COURT: Yes. Yes, thank you for that. Yes. With respect to the indictment, I have endorsed it as follows:

• The sentence for the conviction for manslaughter is as follows: 725 days in custody (time served), plus one day, to be served at 440 Kent Street West, Lindsay, Ontario. Additionally, Mr. Reeve is bound by a three-year Probation Order, with terms as set out in the Probation Order. Copy appended to the indictment. Pursuant to the provisions of the Criminal Code, Mr. Reeve is bound by a 10-year Weapons Prohibition Order and the additional requirement that he provide a suitable sample of his DNA to police authorities. Copies of both these orders also appended to the indictment.

166 MR. BAYLISS: Thank you, Your Honour.

167 MS. HAWTHORN: Thank you. And Your Honour, I don't know whether you would need to put it on there, but the Crown is not opposed to the Probation Order being transferred to Toronto, if that's where he wants to serve it.

168 MR. BAYLISS: I don't know how long that would normally take, Your Honour, but the problem is he has the non-attendance in Kawartha Lakes condition on the bail, so he couldn't comply with the probation order if it remained, and he has to do that within 14 days. So I don't know if the staff is aware how long that transfer process usually takes.

169 COURT REGISTRAR: I think he is supposed to report today, and then I'm not sure what they do on their end.

170 THE COURT: I think if he reports today, he will comply. Surely, if he has to report technically to this jurisdiction for probation, there will be no action taken. I don't think I need to be any more specific on the indictment than that.

171 MS. HAWTHORN: And he is present with his surety anyhow, so ....

172 THE COURT: I'm sorry?

173 MS. HAWTHORN: His surety is present in any event.

174 THE COURT: Yes, I understand that.

175 MS. HAWTHORN: Certainly, no, we are not going to arrest him for going to the Probation Office.

176 THE COURT: But if he is required to report for probation here, that would not be a breach of any order. Bear with me. All right. I have simply added a clause: "The Crown is not opposed to having the probation order transferred to Toronto."

177 MS. HAWTHORN: Thank you.

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