R. v. César
Between
Her Majesty the Queen, and
Rosny César
Her Majesty the Queen, and
Rosny César
[2013] O.J. No. 3623
2013 ONSC 4190
Court File No. JJ-10-1014
Ontario Superior Court of Justice
L'Orignal, Ontario
R.J. Smith J.
Heard: May 9, 2013.
Oral judgment: July 30, 2013.
Court File No. JJ-10-1014
Ontario Superior Court of Justice
L'Orignal, Ontario
R.J. Smith J.
Heard: May 9, 2013.
Oral judgment: July 30, 2013.
(77 paras.)
REASONS FOR SENTENCE
1 R.J. SMITH J. (orally):-- The offender Rosney
César ("César") was found guilty of the offence of manslaughter
contrary to s. 236(b) of the Criminal Code of Canada (the "Code")
after a trial by jury.
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A.
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Circumstances of
the Offence
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2 The
victim Danny Trineer ("Trineer") was 32 years of age and lived with
his father. On the evening of September 10, 2010, Trineer and two friends
decided to go to the Déjà Vu restaurant in the town of Hawkesbury. They then
went to the second floor which has a dance bar called the Jamais Vu, which is
the only dance bar in the town of Hawkesbury.
3 The
victim had previously worked as a bouncer or "assistant manager" at
the Déjà Vu restaurant.
4 The
offender worked until midnight on September 11, 2010. When he arrived home, his
girlfriend Marie-Pierre asked him to go to the Déjà Vu restaurant with a friend
Melissa. They arrived at the Déjà Vu restaurant at 12:39 a.m. on September 11,
2010 and went up to the Jamais Vu dance bar.
5 At
approximately 12:46 a.m., a dispute occurred between Marie-Pierre and a woman
in the victims' group. As a result of this dispute, there was a verbal
confrontation between Trineer and César. César testified that during the
confrontation the victim threatened to kill him and his girlfriend that night
and he alleged that the victim showed him a gun. I do not believe the
offender's version of events as no gun or other weapon was found on the victim
shortly thereafter and it is not credible for the offender to have left the Jamais
Vu bar, leaving his girlfriend Marie-Pierre alone and unprotected in the
presence of Trineer whom he alleged had threatened to kill her. I do find
however, that there was a verbal confrontation between the victim and the
offender as a result of the dispute between the two women in their respective
groups and accept the offender's evidence that Trineer called him "a N who
was not welcome here" or words to that effect.
6 At
12:51 a.m., the offender left the Déjà Vu restaurant and drove to his home to
retrieve a 33 centimetre long knife. César then returned to the Déjà Vu at 1:02
a.m with the knife concealed on his person to pick up his girlfriend.
7 When
the offender returned to the Déjà Vu restaurant, his girlfriend Marie-Pierre
was standing outside the main entrance in a hysterical state, accusing the
bouncers of having manhandled her and exposed her private parts when they
evicted her from the Jamais Vu dance bar.
8 At
approximately the same time as the offender returned to the restaurant, Trineer
and his two female friends walked out of the main entrance. They walked around
Marie-Pierre and continued towards the parking lot where their vehicle was
parked at the rear of the restaurant. After Trineer had walked past
Marie-Pierre, he continued towards the parking area. Marie-Pierre pointed at
Trineer and stated that he was the one who had taken her beer away. At this
point, the offender's demeanour changed such that bouncer Mr. Jalbert told a
co-worker to go and call the police. Another bouncer, Christian Sauvé, was also
present outside the main entrance, walked backwards in front of César trying to
stop César from advancing towards Danny Trineer as he walked to the rear parking
lot. Sauvé told César that he would call the police if he did not stop and to
leave the premises immediately. César told him to go ahead and call the police
and continued to walk towards Trineer.
9 As
Trineer approached his vehicle, Marie-Pierre started to charge at Trineer,
hitting him with her head on his chest on several occasions. Trineer told her
to stop and warned her that he would have to hurt her if she did not stop.
Marie-Pierre continued to ram him in this manner.
10 As
Marie-Pierre was charging Trineer, César was approaching the victim. César
testified that he wanted to speak to Triner about what Marie-Pierre told him
Trineer had done to her. Shortly after Trineer threw Marie-Pierre to the
ground, the offender stabbed Trineer three times in the chest area. One of the
stab wounds severed his aorta and was fatal; two of the other stab wounds to
his chest were potentially fatal.
11 César
testified that he was acting in self-defence and only stabbed Trineer after he
was attacked by Danny Trineer and the other bouncers. César's evidence that he
stabbed Trineer in self-defence was rejected by the jury as they convicted him
of manslaughter.
12 I
further find that César intended to kill Trineer or to cause him bodily harm
that he knew was likely to kill Trineer and was reckless whether Trineer died
or not because of the nature of the weapon used by the offender, namely a 33 cm
long knife and the infliction of three very deep stab wounds near the victim's
heart, when the victim was unarmed.
13 I
find that based on the evidence at trial that the jury rejected the offender's
evidence that he acted in self-defence. The jury either accepted or had a
reasonable doubt about whether César was provoked by Trineer throwing his girlfriend
to the ground in a manner where her face struck the pavement and as a result,
the jury found the offender guilty of manslaughter as opposed to second degree
murder.
14 Trineer
had no defensive wounds on his hands or wrists which indicate that he did not defend
himself from the attack with the knife. Christian Sauvé who was also a bouncer
at the Déjà Vu wrestled the knife away from the offender as Danny Trineer fell
to the ground, cutting his hand in the process. César then ran away from the
scene and turned himself in to the police several hours later.
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B.
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Offender's
Circumstances
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15 The
offender is now 29 years of age and has no prior criminal record. The defence
argues that he is a youthful offender. I agree however, he is somewhat more
mature than a 19 or 20 year old first time offender.
16 The
offender was born in Haïti and is not a Canadian Citizen and this conviction
will affect his ability to remain in Canada and is a factor to be considered in
the sentencing.
17 The
offender has been continually employed while in Canada and has supported his
girlfriend Marie-Pierre and her son since they commenced their relationship.
The offender has also supported his mother in Haïti, especially following the
earthquake.
18 César
was described in the pre-sentence report by his employer as his best employee,
a hard worker and he was very surprised that the offender was involved in a
violent altercation. The offender's employer stated that he would rehire him
even after the conviction. The employer also described him as calm and
thoughtful and someone who did not get involved in conflicts at work.
19 The
offender has no addiction issues as confirmed by his employer who has a regular
drug testing program.
20 The
offender has been double bunked throughout his pre-trial custody. The offender
breached the terms of his non-communication order shortly after he was arrested
and imprisoned. He pleaded guilty to this offence with the explanation that he
was told by the police that he could see Marie-Pierre when he went to jail.
Marie-Pierre spoke with him on the telephone after César had already given a
statement to the police. Marie-Pierre came to jail to visit which the defence
submits was an isolated breach. No additional institutional time or punishment
was imposed other than 21 days of pre-trial custody.
21 There
has been no evidence of any difficulties with the offender's conduct or
behaviour while in prison and he has been respectful throughout the trial.
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C.
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Impact on the
Victim and Family
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22 The
victim was killed by the actions of the offender. Victim Impact Statements were
filed by the victim's mother, Line St-Jean, his father, Harry Trineer, and his
close friend, Nathalie Paquette. They all testified that Danny Trineer's death
has had a huge impact on them. His mother continues to be depressed and very
sad. His father has lost the support that he was given to him by his son and
Nathalie Paquette has lost her best friend, has become depressed and has had a
relapse to substance abuse.
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D.
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Positions of
Crown and Defence
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23 Crown
seeks a total sentence of 12 years which is the upper range of the eight to
twelve years set out in the R. v. Clarke (2003),
172 O.A.C. 133 (C.A.) decision of the Court of Appeal. The Crown submits that a
sentence at the upper end of the range should be imposed due to the high level
of moral blameworthiness of the offender's conduct of stabbing the victim, who
was unaware that César was armed, as he was attempting to leave the parking
lot.
24 The
defence argues that the appropriate range of sentence is from six to nine years
and that a period of six years in jail, with credit with the pre-sentence time
served on a one and half to one basis, should be imposed.
25 The
Crown also seeks a non-communication order pursuant to s. 743 of the Criminal Code, namely a non-communication
with Line St-Jean, Harry Trineer and Nathalie Paquette and the members of their
immediate families, as well as a weapons prohibition for life pursuant to s.
109 of the Code and a DNA order.
The defence does not oppose the ancillary terms and therefore a
non-communciation order, the weapons prohibition and the DNA order as requested
are granted as part of this sentence.
26 Both
Crown and defence agree that the offender has spent 31 months of pre-sentence
custody, plus the time spent between May 9, 2013 and the sentencing date of
July 30, 2013; (another two and one half months). The total pre-sentence time
is 33 and one half months.
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E.
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Mitigating
Factors
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27 The
following are the mitigating factors:
the offender has no
prior criminal record;
the offender is
relatively youthful at 28 years of age;
his conviction and a
sentence of over two years in prison will affect his ability to remain in
Canada as he is not yet a Canadian Citizen;
prior to the incident
he was a responsible citizen; he was employed, described as the employer's best
worker; he supported his girlfriend and her son, and supported his mother in
Haïti, especially after the earthquake;
the employer described
him as a thoughtful individual who declined to get involved in conflict, who
was as a good worker and was willing to hire him upon his release;
there is no evidence
the offender has addiction issues;
the offender has
expressed remorse for what occurred in the pre-sentence report. The offender
stated that he was remorseful but also said he was feeling fear that evening
and apologized to the victim's family and friends. The offender also testified
that he acted in self-defence and his evidence was rejected by the jury.
I have found that the
jury concluded or had a reasonable doubt that the offender was provoked by the
actions of the victim in throwing his girlfriend to the ground, hitting her
head on the pavement, thus reducing a conviction for second degree murder to
manslaughter; and
the offender's
girlfriend, Marie-Pierre, was the source of the first confrontation when she
was became in a dispute with the another woman that had accompanied Trineer to
the Jamais Vu dance bar. Marie-Pierre's conduct also led to her being evicted
from the bar. She refused to leave the dance bar when asked to leave and had to
be removed by the bouncers. Marie-Pierre was very emotional and attacked
Trineer as he walked to his car in the parking lot and she also became involved
in a dispute with one of the girls in Trineer's group as they were
leaving.
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F.
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Aggravating
Factors
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28 Pursuant
to s. 724(3) of the Criminal Code, any aggravating factors must be proven beyond a reasonable doubt
by the Crown. The following are the aggravating factors.
The offender was
involved with a relatively minor verbal confrontation with the victim at the
Jamais Vu dance bar. Immediately following this confrontation he left the
restaurant and returned to his home to retrieve a 33 cm long knife and then
returned to the bar with the knife concealed on his person.
After he returned to
the Déjà Vu bar with the knife, the offender did not pick up his girlfriend and
leave the restaurant even though he was told to leave the premises by the
bouncer.
César advanced towards
the victim into the parking lot as Trineer was walking to his car to leave the
premises. Trineer did not initiate the confrontation. Rather, César advanced
towards Trineer who was the person he had previously confronted at the Jamais
Vu dance bar who he alleged had called him a "nigger" who was not
welcome at the dance bar. The offender chose to confront the victim as he
testified he wanted to ask the victim if the allegations made by his girlfriend
Marie-Pierre were true.
The offender approached
Trineer while armed with a large knife concealed on his person. The victim was
unaware that the offender was armed with a knife and as a result, was very
vulnerable to serious injuries by being stabbed by the offender.
Christian Sauvé, one of
the bouncers, tried to stop the offender from advancing towards the victim and
told him to go home or he would call the police. The offender ignored the
warning and told the bouncer to go ahead and call the police.
The victim was stabbed five
times by the offender. Three of the stab wounds were potentially fatal. One was
a fatal stab wound to the victim's chest which severed his aorta. Two other
deep stab wounds were in close proximity to the fatal wound in Trineer's chest
area and were potentially fatal. The pointed end of the blade of the knife
stopped when it struck the victim's rib bones in his back. There were two
further minor stab wounds in the victim's back.
Trineer was unarmed and
unaware that César was armed as he approached. The attack was sudden, however
this is consistent with provocation having occurred after the victim threw the
offender's girlfriend to the ground. The victim was unable to land any punches
and he was described as flailing in the air with his fists. The victim had no
defence wounds on his hands or wrists and arm area indicting that he had not
tried to defend himself against the knife attack.
The offender fled the
scene after the other bouncer took the knife from him and he did not remain at
the scene or offer assistance to the victim.
The offence was not
committed while the offender was under the influence of drugs or alcohol. This
is not an aggravating factor but the absence of a mitigating factor.
The stabbing of Trineer
has had a serious effect on the victim's family, both emotionally on the mother
and Trineer's best friend as well as financially and emotionally on the
father.
The Crown submits that
a serious crime, namely a stabbing death, has a large effect on a small
community. The Crown relies on the Ontario Court of Appeal case in R. v. Brunet, 2010 ONCA 781, (2010), 271
O.A.C. 25, I agree that the impact of a serious offence is important in a small
community, however, the impact on society or a larger community is also
significant when a serious offence is committed.
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G.
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Principles of
Sentencing
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29 The
principles of sentencing are set out in s. 718 of the Criminal
Code. The applicable principles in this case are
specific and general deterrence, denunciation and the rehabilitation of the
accused given the lack of a criminal record and his relatively youthful age.
30 The
Crown submits that greater weight should be given to the principles of
denunciation and deterrence and that rehabilitation should be recognized as a
secondary principle. The Crown submits that rehabilitation is not a principle
to be given great weight because the offender does not suffer from any drug or
alcohol problems, has no psychological problems and has no previous background
which requires counselling, treatment or other rehabilitative approaches.
31 The
defence submits that the principles of restraint as set out in s. 718.2(d) and
(e) of the Criminal Code are
applicable given that the fact that the offender has no prior criminal record
and is relatively youthful.
32 I
find that denunciation and general deterrence are the predominant sentencing
principles in the circumstances of this case. However, the principles of
restraint recognized in s. 718.2(d) are also important factors to be considered
given that this accused has no prior criminal record and is of relatively youthful
age.
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H.
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Case Law
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33 In
R. v. Clarke, supra, a decision
of the Court of Appeal, the trial judge imposed a sentence for a manslaughter
conviction of 14 years of prison and gave credit for pre-sentence custody. In
the Clarke case, the victim was
47 years of age, was emaciated and frail and suffered numerous health problems.
The offender stabbed him several times in his own home which was a rooming
house where the offender also had a room. Two of the wounds were likely fatal.
The victim had a blood alcohol level of 196 milligrams of alcohol per 100
millilitres of blood and the court described it as a brutal killing. The
offender was 29 years of age at the time of the offence and in good health.
34 In
Clarke, supra, the Court of
Appeal referred to the decision of Bastarache J. in R.
v. Stone, [1999] 2 S.C.R. 290 at para. 237, where he
held that "'[t]he argument that the provocation factor was spent because
it had already served to reduce the legal character of the crime overlooks the
purpose of s. 232 and therefore must fail.'". The Court of Appeal went on
to state "[t]hus, provocation is one of the many factors to be considered
when assessing the appropriate sentence. In this case, it deserved some modest
consideration."
35 At
para. 8 of the Clarke, supra,
decision, the Court of Appeal stated that "[i]n light of these aggravating
factors, we agree that the proper range for this offence and this offender is 8
to 12 years imprisonment. The 14-year sentence imposed by the trial judge is
outside that range." The Court of Appeal imposed a sentence of nine years
imprisonment.
36 In
R. v. Devaney (2006), 215 O.A.C.
253 (C.A.), the offender was convicted by a jury of manslaughter in the death
of his landlady. The victim who was in her early 60's, was stabbed 107 times
all over her body. She also sustained a blunt force injury to her head and
about 25 defensive wounds indicating a significant struggle. The respondent
killed the victim shortly after she told him that he had to move out so that
another tenant, who was able to pay rent, could move in. The jury's verdict of
manslaughter indicated that they accepted or had a reasonable doubt that the
respondent committed the offence while under the influence of alcohol and was
sufficiently intoxicated to lack the requisite intent for murder. The offender
had no criminal record, was in his early 40s and was sentenced to 11 years in
prison. The Crown appealed and sought a sentence to be increased 18 to 20
years. The appeal was dismissed.
37 In
Devaney, supra, there were a
greater number of stab wounds, the offender was substantially older, and he was
so intoxicated that he was unable to form the intent for murder when the
offence was committed. These factors distinguish it from the case before me.
38 In
R. v. Cleyndert, 2006 CanLII
33851 (C.A.), the offender was convicted of manslaughter after being charged
with second degree murder following a 21 day jury trial. The trial judge
imposed a global sentence of 12 years imprisonment less credit for pre-sentence
detention. The offence took place after the victim and others attended a field
party after a high school graduation. A confrontation occurred during the
course of the party involving insults and spitting on the victim's girlfriend.
In the fist fight that followed, the victim threw the first punch and the
appellant stabbed the victim eight times in the torso resulting in the victim's
death. The victim was unarmed and had no knowledge that the offender carried a
weapon. The weapon used was a butterfly knife with a five inch blade that the
offender had concealed on his person.
39 In
Cleyndert, the trial judge
concluded that the verdict of manslaughter demonstrated that the jury had a
reasonable doubt on the question of intent, however, as the appellant's moral
blameworthiness was very high, and in the trial judge's view it was one of near
murder. The offender was only 19 years of age at the time and there was
evidence of good character and good behaviour while in pre-trial custody. The
aggravating factors included that the victim was vulnerable, the offender had a
youth record including convictions for assault and threatening, there was a
substantial impact on the victim and his family, and the offender fled the
scene.
40 At
para. 11 of the Cleyndert, supra,
decision, the Court of Appeal stated that the trial judge "... did not err
in considering the appellant's use of a concealed prohibited weapon in a
fistfight with an unarmed man as an aggravating factor on sentencing." In
the case before me, Mr. César had a concealed weapon, namely a 33 cm knife
concealed on his person, which he used in what the victim thought was to be a
fist fight. This is an aggravating factor on sentencing.
41 In
Cleyndert, supra, the Court of
Appeal did not interfere with the sentence of 12 years imprisonment as the
offender had inflicted multiple stab wounds in a cluster on a vulnerable part
of the victim's body. The offender had been looking for a fight, was armed with
a concealed prohibited weapon, and was prepared from the outset to use that
weapon and used it repeatedly on an unarmed man who had approached the incident
as a fist fight. This case has many similarities although the offender was much
younger. He was only 19 years old and had a youth record. Also, the trial judge
inferred that the offender did not have the necessary intent for murder or
there was a reasonable doubt as to whether he had the intent to commit murder.
In the case before me, I found that Mr. César had the requisite intent but
acted under provocation.
42 In
Hermiz, supra, the offender was
originally charged with second degree murder but agreed to plead guilty to
manslaughter based on the accepted defence of provocation. The victim initially
attended a party at a motel. During the same evening, the offender attended a
separate gathering at the same motel with a number of other individuals. The victim
and his group ordered a pizza which arrived at 2:27 a.m. which caught the
attention of members of the offender's group. The offender and members of his
group followed the pizza delivery to the victim's motel room. When the victim
answered the door to receive the pizza, a dispute occurred with the offender.
The argument turned into a fight between the two groups. The victim broke a
double sized full bottle of beer over Mr. Hermiz's head. After being struck
with the beer bottle, the offender fell to the ground. He then got to his feet,
immediately pulled his knife and struck the victim with it once, in the right
lateral chest area. The victim died shortly thereafter.
43 At
para. 11 of Hermiz, supra, Hill
J. recited a number of principles from a number of cases and stated that the
crime of manslaughter attracts a broad range of sentences depending on the
circumstances of the offence and the offender (R. v.
Clarke, supra). In Hermiz, supra, there were a number of aggravating factors which were similar to
the case before me including that the offender was carrying a large knife on
his person; the offender had no legitimate reason to follow the pizza man to
the third floor of the motel, just as Mr. César had no legitimate reason to
follow the victim to his car in the rear of the bar after been told to leave
the restaurant by the bouncer. Mr. Hermiz did not make any effort to extricate
himself from the confrontation nor did he reveal a knife before using deadly
force. These facts are very similar to the facts of Mr. César's case. César's
use of a knife is an important aggravating feature, the size of the weapon as
well as the depth and the position of the stab wounds demonstrate that César
had the intention to kill or cause bodily harm knowing it was likely to cause
death with indifference to whether death ensued or not, and the offender fled
the scene. All of the factors as set out in para. 13 of the Hermiz, supra, decision are present on the
facts before me.
44 Mr.
Hermiz was almost 19 years of age and was younger than César, the violence was
unplanned and he acted under provocation after having a beer bottle broken over
his head. The offender had no prior criminal record and was under the influence
of alcohol which is not the case before me. In addition, the offender, Mr.
Hermiz, pleaded guilty to manslaughter at the outset.
45 A
very important factor which distinguishes Mr. Hermiz from the facts before me
in Mr. César's case is there was a joint submission on sentencing and partial
guilty plea at the outset. The offender, Mr. Hermiz, was approximately 19 years
of age while Mr. César was 27 years of age at the time of the offence. A
sentence of eight years imprisonment was imposed in Hermiz,
supra.
46 In
R. v. Mohammed, 2008 CanLII
60979 (Ont. Sup. Ct.), I.V.B. Nordheimer J. sentenced a 19 year old offender
who pleaded guilty to manslaughter, to imprisonment for six and one half years.
The trial judge stated that the appropriate sentence was nine years plus credit
for time served.
47 In
Mohammed, supra, a verbal and
physical altercation occurred between the parties during which the offender
pulled out a knife and stabbed the victim eight times and then fled the scene.
The 21 year old victim later died from his wounds. The offender was 19 years
old at the time of the offence, was single, had no prior criminal record, had a
positive pre-sentence report which suggested that the conduct of the offender
on the day in question was out of character. These facts are very similar to
those in the case before me, however, is distinguished on the basis that Mr.
Mohammed was only 19 years of age, much younger than Mr. César, and he had also
been drinking with the victim before the altercation.
48 In
Mohammed, supra, the court
stated at para. 26 "... that the attitude that carrying a weapon as a
legitimate form of self-protection is an approach that must be firmly and
absolutely rejected." César testified that he returned to his home to get
the knife, which he then hid on his person, in order to defend himself. I agree
with the statement in Mohammed, supra, that using a knife as a legitimate form of self-protection should
be firmly and absolutely rejected. The decision of Mohammed,
supra, was upheld by the Court of Appeal in R. v. Mohammed 2009 ONCA 586.
49 In
R. v. Cioppa, 2013 ONSC 1242
(Ont. Sup. Ct.), a decision of I.V.B. Nordheimer J., an 18 year old offender
stabbed a 16 year old victim. Mr. Cioppa was slapped by the victim and then
responded by taking out the knife and stabbing the victim once in the chest
causing his death. The offender ran away from the scene and disposed of the
knife in an alley. The offender had no prior record. Two psychiatric reports
concluded that he was not a risk to re-offend, that he was remorseful and
accepted responsibility for his actions. The offender was sentenced to eight
years in prison.
50 The
defence referred to the case of R. v. Yeung, [1994] O.J. No. 1495 (C.A.). In the Yeung decision, the trial judge had imposed a sentence of seven years for
manslaughter after the trial judge determined that the jury had accepted that
provocation was a factor. The Court of Appeal held that the trial judge gave
undue weight to general deterrence in view of the fact that provocation had
been accepted by the jury and stated that the appropriate sentence should have
been five years in prison. This case is given limited weight as it was decided
before R. v. Clarke, supra,
which established the range for a morally blameworthy manslaughter to be in the
eight to 12 year range. In addition, very few facts were referred to in the
appeal decision as a result of the age of the offender and whether a knife was
used or not is unknown.
51 R. v. Simcoe (2002), 156 O.A.C. 190 (C.A.),
was an appeal from sentence where the offender had pleaded guilty to
manslaughter in the death of her father. At trial, she was sentenced to four
years in prison in addition to eight months of pre-sentence custody. The Court
of Appeal varied the sentence to time served of approximately one year plus the
pre-sentence custody for a total sentence of two and one half years in prison.
52 In
Simcoe, supra, the offender had
been drinking with her father and a family friend when her father sexually
assaulted her. She was intoxicated at the time. The friend pulled the daughter
away and took her upstairs to calm her down. Her father shouted obscenities and
taunted Ms. Simcoe then came down in a rage and began throwing things around
the room and subsequently stabbed her father repeatedly with a knife. The
father had sexually assaulted Ms. Simcoe when she was a child, she had
attempted suicide several times, abused drugs and alcohol, was 41 years of age
at the time of the stabbing, and had no criminal record.
53 Simcoe, supra, is distinguished by the fact
that the offender pleaded guilty to manslaughter, and there was very
provocative conduct by the victim which affected the moral culpability of this
defendant. This case was also decided before the Court of Appeal's decision in R. v. Clarke, supra, which established a
range of eight to 12 years. The manslaughter plea may not have been based on
the defense of provocation but rather on a lack of intent to kill. Also in this
case, the offender had been abused by the victim in the past and the victim had
sexually assaulted her that evening which were substantial mitigating factors.
The offender had also consumed alcohol that evening and there was extreme
provocation of the sexual assault by her father in front of a friend followed by
the taunting obscenities addressed to the offender by her father.
54 The
defence referred to the case of R. v. Q.B. (2003), 63 O.R. (3d) 417 (C.A.), where the offender pleaded guilty
to a number of offences including possession of a loaded restricted weapon,
aggravated assault and using a firearm in the commission of an indictable
offence. This is not a manslaughter conviction. The offender was 18 years of
age when the offences were committed. The sentence was reduced from 12 years
and two months to four years and two months. The case is referred to for the
principle that the restraint should be exercised and that the first
penitentiary sentence should be as short as follows for a very youthful 18 year
old first time offender. I agree with the rationale in R.
v. Q.B., however it is distinguished by the fact that
it does not deal with a manslaughter conviction, and the offender was only 18
years of age as opposed to 27 years of age in Mr. César's case. The Court of
Appeal stated at para. 36 that "where the offender has not previously been
to penitentiary or served a long adult sentence, the courts ought to proceed on
the basis that the shortest possible sentence will achieve the relevant
objectives." This principle must be considered in addition so that "[t]he
length of a first penitentiary sentence for a youthful offender should rarely
be determined solely by the objectives of denunciation and general
deterrence." Following the R. v. Q.B. rationale, I find that the principle of rehabilitation should also be
given substantial weight.
55 In
R. v. Batisse, 2009 ONCA 114,
(2009), 93 O.R. (3d) 643 (C.A.), the offender was an aboriginal woman who
abducted a newborn infant from a Sudbury hospital in 2007. She pleaded guilty
to one count of abduction of a person and was sentenced to five years'
imprisonment in addition to time served of 23 days. The defence relies on this
case for the principle that rehabilitation also applies in serious cases
involving violence. Rehabilitation is not the determinative factor, but is a
factor to be considered along with general deterrence and denunciation. This
case is distinguished by the fact that it is not a manslaughter case, that the
offender suffered from a mental illness which was an important factor and that
the offender was an aboriginal offender where the principles of Gladue had to be considered. A sentence of
two and one half years of incarceration was imposed.
56 R. v. Pham, 2013 SCC 15, (2003), 293 C.C.C.
(3d) 530, is a decision of the Supreme Court of Canada where the offender was
convicted of two drug related offences where the sentencing judge had imposed a
sentence of two years' imprisonment in light of a joint submission by the Crown
and defence counsel. At the sentencing hearing, neither party raised the issue
of collateral consequences of a sentence of two years' imprisonment to the
offender under the Immigration and Refugee Protection
Act, (S.C. 2001, c. 27) (the "Act"). Under the Act, a non-citizen sentenced to a term of imprisonment of at least two
years looses the right to appeal a removal order against him or her. The
Supreme Court reduced the sentence of imprisonment to one of two years less one
day to avoid the additional penalty to the offender. The collateral
consequences of a sentence in excess of 24 months, namely the loss of
immigration appeal rights was a factor to be considered, especially in
circumstances where the sentence imposed is one of two years rather than two
years less one day, and where the defence, Crown and sentencing judge had not
adverted to the effect of the length of sentence by one day. The facts in this
case are very different than the circumstances before me as the offender has
already spent more than two years in pre-trial custody and the sentence
proposed by the offender of six years already greatly exceeds the two years
served. The fact that the offender will be in all likelihood deported because
he has received a sentence of imprisonment in excess of two years is a factor
to be given some weight in sentencing.
57 In
R. v. Milina, [1992] O.J. No.
3072 (Ont. Ct. (Gen. Div.)), Watt J. sentenced the offender to five years
imprisonment in a penitentiary. The offender and the victim had been
quarrelling over the manner in which the offender took coffee from the pot
which the deceased was in charge of. The deceased constantly berated the
offender. The day of the incident, the offender thrust her fist in the air as a
sign of triumph over the offender, whereupon the offender approached the
deceased and stabbed her with a knife. The offender had a troubled past and was
a first time offender. This case has some similarities as the offender was
found not guilty of second degree murder but guilty of manslaughter to which
she had pleaded guilty. This is distinguished by the fact that it was decided
many years before the R. v. Clarke decision, the offender lacked the mental element of the state of
mind to constitute murder. There was no excessive or gratuitous violence,
although a weapon (a knife) was used on an unarmed assailant who posed no
physical threat to the offender. An additional important factor is that the
offender had been depressed for a substantial period of time beforehand. The
offender had become fatigued through lack of sleep and felt exasperated and
overwhelmed by the circumstances. The offender acted out of character and was a
58 year old first time offender.
58 In
R. v. Phan, [2000] O.J. No. 6004
(Ont. Sup. Ct.), Mr. Phan pleaded guilty to manslaughter, which was accepted by
the Crown due to evidence of provocation. The victim was involved with Mr.
Phan's wife and when Mr. Phan asked him to cease contact, the victim challenged
Mr. Phan to a fight. The offender armed himself with a carving knife and
stabbed the victim to death. He then called 9-1-1 and reported the offence
immediately. The offender was 32 years of age, was married with two children,
was employed, and had no prior criminal record. Mr. Phan was sentenced to six
years in prison.
59 In
R. v. Kokopenace, [2008] O.J.
No. 4582 (Ont. Sup. Ct.), the offender was charged with second degree murder
but convicted of manslaughter. The offender was convicted of stabbing the
deceased in the chest. The Crown argued that the appropriate range of sentence
was eight to 12 years in jail. The defence argued that the appropriate range of
sentence was incarceration between four to five years. The defendant was
sentenced to seven and one half years in jail, did not accept responsibility
for his conduct, did not express remorse, and posed a serious risk to public
safety. His criminal record was extensive and the court held that denunciation
and deterrence of serious criminal conduct were significant factors that
mandated the need to separate the offender from the community.
60 In
the Kokopenace decision, both
the victim and the offender participated in binge drinking over a two day
period in April 2007. The victim's death was caused by a single stab wound that
entered his body in the left chest between the first rib and perforated the
artery and jugular vein. The jury found that neither accident nor self-defence
had any application. The trial judge found that the jury rejected the
offender's testimony on all essential points save for the intoxication.
61 In
Kokopenace, supra, the trial
judge found that the jury could have concluded due to the extensive consumption
of alcohol that the offender had not formed the intent necessary for second
degree murder and also could possibly have found provocation. The trial judge
found that it was more probable owing to the excessive consumption of alcohol,
that Mr. Kokopenace had not formed the intent necessary for second degree
murder. The trial judge imposed a term of imprisonment of seven and one half
years and gave credit for pre-sentence time served. This case is distinguished
by the fact that the offender was severely intoxicated at the time of the
offence, he was an aboriginal man entitled to consideration of the Gladue factors, and also had a very extensive
and disturbing criminal record as an adult for violent assaults.
62 In
R. v. Abeyewardene, [2009] O.J.
No. 3077 (Ont. Sup. Ct.), W.B. Trafford J. imposed a sentence of eight years in
prison less a credit for pre-sentence custody. The offender had stabbed the
victim in the neck causing his death. The victim had just left the residence of
a woman after abusing her emotionally, physically and verbally and damaging her
parents' residence. The offender who was 19 years of age at the time, drove
towards her place of residence in response to her request to help clean up the
residence. The offender saw the victim walking along the side of the road. The
offender intentionally struck the victim multiple times with his vehicle after
which the victim began to run in the general direction of the young woman's
residence. The offender stopped his vehicle, grabbed a machete and gave chase.
At one point, the victim placed the offender in a chokehold saying "...
you are dead ... I am going to kill that fucking bitch and her family too
..." The offender then took out his knife and stabbed the victim multiple
times in a frenzy, causing the fatal wounds.
63 The
court emphasized the principles of denunciation and specific deterrence having
regard for the rehabilitative interest of the offender and the need to develop
a sense of responsibility for his own conduct. The attack was brutal, included
the use of a vehicle, a machete and a knife. The victim was vulnerable however,
this was a case where the immature Judgment of a 19 year old was clouded by
moral outrage and unreasonable mistakes of fact. The defendant fled the scene
failing to provide any assistance to the victim. The offender expressed
remorse, had no prior criminal record, and had an impressive list of character
references.
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I.
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Sentence and
Reasons
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64 Considering
the above case law and the specific facts of this case outlined above, I find
that given the seriousness of the multiple stab wounds inflicted by Mr. César
on Trineer, including three deep stab wounds to the chest area with a 33
centimetre long knife, I find that the principles of deterrence and the
denunciation are the primary factors in sentencing. However, due to the
offender's lack of a criminal record that his actions appear to have been out
of character, given his responsible behaviour both at work and to his family,
his relative youthful age of 27 years at the time of the offence, the
principles of restraint and the rehabilitation of the offender are also
important factors to be considered.
65 I
find that the fact that the offender was provoked or insulted by the victim
throwing his girlfriend to the ground such that her head hit the pavement, is a
mitigating factor. However, there are also a number of serious aggravating
factors which were set out above under the heading of aggravating factors,
including in particular, that the offender left the restaurant to retrieve a
long knife which he concealed on his person, then returned to the restaurant,
where the unfortunate hysterical actions of his girlfriend led him to advance
towards the victim. Trineer was attempting to get to his car and leave the
restaurant when César advanced towards him. Trineer was a former bouncer at the
restaurant and was a large man, who was prepared for a fist fight, however, he
was vulnerable to the offender armed with a large knife which was concealed on
his person. In these circumstances, I find there was a high degree of moral
blameworthiness in the offender's conduct of returning to his home to get a
knife, and then returning to the bar after being told to leave the premises and
then initiating a confrontation with the unarmed victim armed with a concealed
weapon on his person and using the knife to stab Trineer.
66 In
Clarke, supra, the Court of
Appeal set a range of sentence for high morally blameworthy conduct at between
eight to 12 years imprisonment prior to credit for pre-sentence custody. The
Court of Appeal has upheld sentences in this range and while the defence has
referred to a number of sentences that are slightly lower, none of those cases
were decided following the Clarke, supra, decision and all have other distinguishing factors.
67 The
facts in Hermiz, supra, decision
are the closest to the circumstances in this case, other than it was a joint
submission after a guilty plea, the offender was younger than Mr. César, there
was extreme provocation of having a beer bottle broken over his head by the
victim, as well as some evidence that the offender was under the influence of
alcohol. Mr. Hermiz was sentenced to eight years' imprisonment. I find that
César's sentence should be slightly higher than in Hermiz,
supra, because he was not under the influence of
alcohol, returned to his home to get a large knife and returned to confront the
victim who was unarmed and there was no guilty plea or a joint submission on
sentence.
68 Having
considered all of the above factors, I find that a sentence of imprisonment of
nine years in jail is appropriate in the circumstances and reflects society's
concern for the sanctity of life and would provide adequate denunciation and
general deterrence while allowing for an opportunity for rehabilitation.
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J.
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Pre-Sentence
Custody
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69 The
offender has been in custody before sentencing for 31 months plus the time
spent from May 9, 2013 to sentence for a total of 33 and one half months; 21
days of the pre-sentence custody has been removed and allocated to the breach
of the no contact order.
70 In
R. v. Summers, 2013 ONCA 147
(C.A.), the offender pleaded guilty to manslaughter in relation to the death of
his baby daughter, attributed to shaken baby syndrome. The trial judge gave Mr.
Summers enhanced credit of 1.5:1 for remand time exclusively on the basis of
his inability to earn remission or parole while in remand custody.
71 Section
719(3.1) of the Criminal Code
states as follows:
· Despite subsection (3), if the circumstances justify it, the maximum
is one and one-half days for each day spent in custody unless the reason for
detaining the person in custody was stated in the record under subsection
515(9.1) or the person was detained in custody under subsection 524(4) or
(8).
72 The
Court of Appeal concluded at para. 79 that:
· Stated differently, the fact that crediting to a maximum of 1.5:1 is
an expressly permitted exception to 1:1 crediting does not mean that the
circumstances warranting such enhanced credit must themselves be
exceptional.
73 The
Court of Appeal at para. 117 in Summers, supra further stated:
· That said, nothing in these reasons should be understood as
suggesting that enhanced credit will be available under s. 719(3.1) to every
remand offender on the basis of the absence of remission and parole
eligibility. There must be some basis in the evidence or the information before
the sentencing judge to support the conclusion that this factor merits enhanced
credit for a particular offender in a given case.
74 In
this case, the evidence before me is that the offender, other than the one
breach, has been a model prisoner and has not been disciplined for breaching
any of the prison's rules or regulations and has been respectful throughout the
trial. However, the offender did breach the terms of a non-communication order
and was sentenced to 21 days of pre-trial jail time.
75 In
Summers, the Court of Appeal
upheld the trial judge's decision to award a credit for pre-sentence custody on
the basis of 1.5 to 1.0, based on the loss of eligibility for earned remission
and early parole for the time spent in pre-sentence custody. This situation
also applies to Mr. César as there is evidence that he has not breached any of
the prison rules and regulations other than the terms of a no contact order.
This breach was based on a misunderstanding, and he has pleaded guilty and
served 21 days for this offence. Based on the circumstances of the breach and
the great likelihood that he has lost earned remission as he has maintained
good conduct while in prison awaiting trial and sentence. Mr. César is given
credit for 46 months of pre-sentence custody.
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K.
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Disposition
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76 The
offender is sentenced to nine years in prison with credit of 46 months for
pre-sentence custody, leaving a balance of five years and two months to be
served in prison. Enhanced credit was given to the offender due to his loss of
remission and the right to early parole. Credit was not given at the full one
and one-half times to one due to the breach of the no contact order while he
was in prison.
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L.
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Ancillary Orders
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77 The
offender is required to provide a DNA sample. The offender is banned from
possessing any weapons for life pursuant to s. 109 of the Criminal Code. The offender is ordered not to
contact Line St-Jean, Harry Trineer, Nathalie Paquette, or any members of their
immediate family while in custody.
R.J. SMITH J.
