Court of Appeal

Nova Scotia Court of Appeal

Citation: R. v. Clarke-McNeil, 2023 NSCA 32

Date: 20230502

Docket: CAC 513486

Registry: Halifax

Between:

Kevin Edward Clarke-McNeil

Appellant

v.

His Majesty the King

Respondent

Judge:	The Honourable Justice Anne S. Derrick
Appeal Heard:	April 3, 2023, in Halifax, Nova Scotia
Subject:	Criminal law. Aggravated assault in a correctional facility. Circumstantial Evidence. Party liability. Fitness of sentence.
Summary:	The appellant was one of six prisoners convicted of aggravated assault in the context of the stabbing and severe beating of a fellow prisoner. The assault was perpetrated inside the victim’s cell immediately following a planning meeting which the appellant attended with other defendants. As soon as the victim entered his cell, he was followed by the defendants. The appellant was the first person to enter the cell behind the victim. A number of prisoners followed. The cell door was held closed by other prisoners and correctional officers were obstructed from intervening. There was no CCTV footage and no witness testimony about what happened inside the victim’s cell. None of the defendants testified. The victim refused to cooperate with the police investigation. The appellant appealed his conviction on the basis it was unreasonable for the trial judge to have convicted him as a party to the assault where there was no direct evidence of his role. He argued the trial judge failed to take account of reasonable inferences that supported his innocence. He sought to have his conviction overturned and an acquittal entered or a new trial ordered. He also appealed his six-year sentence on the basis the judge had overemphasized aggravating factors and taken inadequate note of mitigating ones.
Issues:	(1)        Was the trial judge’s verdict unreasonable as a result of a failure to consider reasonable alternative inferences to guilt?   (2)        Was the sentence demonstrably unfit?
Result:	Appeals against conviction and sentence dismissed. The appellant’s alternative inferences were without merit. The trial judge made clear, unassailable findings of fact anchored firmly in the evidence. His findings attract considerable deference. To convict the appellant as a party to aggravated assault the judge did not need to find he used hands-on violence. He found there was a plan, formed at the pre-assault meeting, to cause bodily harm to the victim. The appellant attended that meeting. The appellant was the first defendant to follow the victim into his cell. He remained in the cell throughout the assault of the victim and left only when the attack was called off. The non-assaultive purposes for being in the cell were all considered by the judge and explicitly rejected as not reasonable. There was no evidence from the appellant of an innocent explanation for his presence in the victim’s cell, a fact which could properly be taken into account on appeal in assessing the reasonableness of the verdict. In accordance with R. v. Villaroman, 2016 SCC 33, the appellant’s guilt was the only reasonable inference to be drawn from the evidence. The appellant’s sentence was not demonstrably unfit. He was sentenced for a very serious offence that involved a high degree of moral blameworthiness. The judge took a highly individualized approach in sentencing the appellant. He committed no errors in his careful calibration of the sentencing principles and the factors he properly took into account. His determination of what constituted a fit sentence attracts significant deference. The appellant established no basis for appellate intervention.

 

Nova Scotia Court of Appeal

Citation: R. v. Clarke-McNeil, 2023 NSCA 32

Date: 20230502

Docket: CAC 513486

Registry: Halifax

Between:

Kevin Edward Clarke-McNeil

Appellant

v.

His Majesty the King

Respondent

 

 

Judges:	Bryson, Derrick, Beaton, JJ.A.
Appeal Heard:	April 3, 2023, in Halifax, Nova Scotia
Held:	Appeal dismissed, per reasons for judgment of Derrick, J.A.; Bryson and Beaton, JJ.A. concurring
Counsel:	Matthew J. Ryder, for the appellant Timothy S. O’Leary, for the respondent

 

Reasons for judgment:

Introduction

[1]             On November 30, 2021, Justice Jamie Campbell of the Nova Scotia Supreme Court convicted the appellant and six co-accused of the aggravated assault of Stephen Anderson.[1] The appellant, his co-accused, and Mr. Anderson were all prisoners at the Central Nova Scotia Correctional Facility located in the Burnside Industrial Park and known colloquially as the Burnside jail. On December 2, 2019, Mr. Anderson was a new arrival. The trial judge found he was assaulted—stabbed and badly beaten—almost immediately upon being admitted to Cell 8 in North 3 Wing and that without prompt medical attention he likely would have died.

[2]             Although the trial evidence included CCTV footage of the common area outside Cell 8, known as the day room, there was no footage and no witness testimony about what happened inside. None of the defendants testified. Mr. Anderson refused to cooperate with the police investigation. Physically prevented by prisoners from intervening, correctional officers could only speak to what occurred outside the closed door of the cell and the condition of Mr. Anderson once they were able to enter the cell.

[3]             The appellant appeals his conviction on the basis that it was unreasonable for the trial judge to have convicted him as a party to the assault where there was no evidence of his role. He says the trial judge failed to take account of reasonable inferences that would support his innocence. He asks for his conviction to be overturned and an acquittal entered or a new trial ordered.

[4]             The appellant also appeals his six year sentence. He says the trial judge overemphasized aggravating factors and took inadequate note of mitigating ones. In the appellant’s submission a sentence of four years’ incarceration should be substituted.

[5]             As the following reasons explain, I am satisfied the trial judge made no errors in either convicting or sentencing the appellant. I would dismiss the appeals.

Factual Background

[6]             A total of fifteen defendants faced charges arising out of the December 2, 2019 incident at the jail. The trial judge conducted two trials—six accused went to trial first and then the seven that included the appellant. Two other accused had their trials severed.

[7]             The appellant was tried with individuals who, like him, had been inside Cell 8 and others who had barricaded correctional officers from entering. The first trial also included defendants in both categories.

[8]             At the start of his reasons, the trial judge commented on the practice of “bouncing” which can involve various methods employed by prisoners for getting someone viewed as unacceptable off the unit. The judge described how this can be achieved:

[7]        …The person can be asked to leave. They can be issued a threat of violence or an ultimatum that if they do not ask to leave the unit they will be assaulted. Or they might just be assaulted on arrival. There was no clear evidence as to how severe an assault might be used to send that message.

[9]             The trial judge found the following happened on December 2, 2019 and described the inferences he drew from the evidence:

[8]  Stephen Anderson was admitted to North 3 on December 2, 2019. He entered the dayroom at 7:24 pm. He was assigned to Cell 8. There is no question that the person in that video is Stephen Anderson. He was strip searched upon his admission to the facility and no injuries were noted that would have required immediate attention.

[9]  At 7:49 pm Mr. Anderson walked into his cell.

[10]  Andriko Crawley, Austin Mitton, Kevin Clarke-McNeil, Matthew Lambert and Wesley Hardiman entered the cell just behind him. They were joined almost immediately by Colin Ladelpha who came from his cell on the second tier and Kirk Carridice who arrived a few seconds later. Their identities are clear from the video evidence. They arrived together. There is no indication that they were arriving randomly in that all just happened upon the idea at the same time. There is no signal that is evident from the surveillance video. There is nothing to suggest that they were arriving as two or more groups with different intentions. None was trying to stop any of the others. The altercation within the cell began almost immediately.

 

[11]  Mr. Anderson entered his cell at 7:49 pm and within slightly more than 10 seconds the first of the other inmates were in the cell with him. And within a few more seconds there were 6 inmates in the cell with Mr. Anderson, and two were closing the cell door. A seventh inmate arrived about 10 seconds later. At the same time others arrived and faced the correctional officers who had responded to the commotion. The officers were trying to get to Cell 8 where they believed an assault was taking place and inmates had gathered in front of the cell and refused to move to allow them to get in. The cell door opened about 3 minutes after Mr. Anderson entered.

Inside Cell 8

[12]  There was no clear and unobstructed view into Stephen Anderson's cell. The door was mostly closed and kept closed but there are a few seconds during which there is a somewhat obstructed view into the cell.

[13]  When the door was opened Mr. Crawley, Mr. Mitton and Mr. Clark-McNeil came out with others. There was nothing to indicate that they had been fighting with each other or the others who had entered with them. There were no interactions among the group that would be consistent with some of them having gone into the cell to prevent Mr. Anderson from being assaulted.

[14]  Seven people had immediately entered a confined space and as soon as they did that the cell door was closed and held closed behind them. It would be a very large delegation of inmates if the purpose were to propose to Mr. Anderson that he should ask the authorities to be removed from the North 3 dayroom. If the purpose were to deliver such an ultimatum there would be no purpose to be served by having it done in a confined space away from the view of the cameras and correctional staff.

[15]  It was suggested that perhaps Mr. Anderson had attacked those individuals after they entered the cell. The presence in the cell of 7 people with a common purpose, the closing of the door behind the group upon entry, the holding of the door shut for about 3 minutes, and the extent of the injuries to Mr. Anderson would be inconsistent with that.

[16]  When Stephen Anderson came out of the cell he was injured. He had not been injured before the incident. The injuries were sustained within Cell 8 between 7:49 pm and 7:52 pm. It is not reasonable to infer that he already had puncture wounds that were hidden from view by his clothing and the wounds and the blood coming from them were just not visible when he entered the cell.

[17]  It is not reasonable to infer that Mr. Anderson injured himself. He was badly injured. Those injuries, including several puncture wounds, would not have come from a slip and fall or other mishap. Sounds could be heard coming from inside Cell 8. Correctional officers heard slapping, punching, scuffling, kicking, and moaning.

[18]  It is not reasonable to infer that after Mr. Anderson went into his cell others arrived and a consensual fight happened to break out. It is a confined space. It is small, especially with 8 adult men in it. It would be a very awkward spot in which to hold a fight and an even more awkward space in which to watch one.

[19] The only reasonable inference from the evidence is that Stephen Anderson was assaulted.

[10]         The trial judge went on to note that just as the first individuals entered Cell 8, two prisoners could be seen on the CCTV footage holding the cell door closed. Also captured on video was the coordinated response of other prisoners, some of whom had been sitting by a bank of telephones in the dayroom—the common area outside Mr. Anderson’s cell. The trial judge was satisfied these prisoners were also purposeful:

[21]      …They did not pause to survey what was happening. They do not appear to have had any discussion about what might be happening and whether they should approach. They got up and left at the same time. They did not run. They walked over, clearly together and at the same pace. They did not go over to the door of the cell to get a look at what was going on. They turned and faced the correctional officers who were making their way toward the cell. Nothing about how that happened would suggest 3 people going over to watch a fight.

[11]         The correctional officers unsuccessfully tried to persuade the phalanx of prisoners to allow them access to Cell 8. The trial judge found the officers, having made the assessment it was unsafe to use physical force, were held at bay by the prisoners using a passive approach. “All they had to do was stand in the way”.[2]

[12]         When the door to Cell 8 opened, the prisoners who had been inside, including the appellant, filtered out and dispersed. The trial judge found they had been in the cell with Mr. Anderson for about three minutes, from 7:49 p.m. to 7:52 p.m. Correctional officers could now see Mr. Anderson in a foetal position on the cell floor. Nursing staff who attended to him once he left the cell found him to be in significant distress. He required urgent medical attention in hospital by a trauma team. He received emergency treatment for a tension pneumothorax and once stabilized, for his multiple cuts and puncture wounds.

[13]         The trial judge found as a fact the assault of Mr. Anderson was a planned attack. He made this finding on the basis of evidence about an event that occurred before Mr. Anderson was injured.

[14]         Approximately twenty minutes before Mr. Anderson arrived on North 3 a group of prisoners from the unit assembled in Cell 28. CCTV footage captured the appellant entering the cell where ten other men were already gathered. The trial judge described some of them having been summoned to attend. He made findings of fact about the gathering:

[64]  Eleven adult men were gathered in a small space. There could be no question that it was cramped. It would be an uncomfortable place to carry out a routine or friendly conversation that could otherwise have been held in relative comfort of the dayroom. The group left the cell at 7:46 pm. What happened next is relevant to making the determination of whether it is reasonable to infer that the meeting was purely social.

[65]  Several of the inmates from Cell 28 moved to a group of tables close to the base of the stairs under which Cell 8 is located. That group included Mr. Mitton, Mr. Crawley, and Mr. Clarke-McNeil. It also included Mr. Lambert, Mr. Hardiman and Mr. Carridice, all of whom later made their way into Mr. Anderson's cell.

[66]  A smaller group of three, Mr. Cox, Mr. Fraser and Mr. Marriott went to the area around the phones across the dayroom from Cell 8. From that area they had a line of sight, under the stairs, to Cell 8.

[67]  Mr. Anderson went into his cell at 7:49 pm, about 3 minutes after the group left Cell 28 on the second level. As soon as Stephen Anderson entered the cell Mr. Lambert could see him and stood up from his seat. He started toward Cell 8 a few feet away. Within seconds a group of 6 inmates were in Cell 8. They were Kevin Clarke-McNeil, Austin Mitton, Matthew Lambert, Wesley Hardiman and Andriko Crawley who had been gathered in the area close to the cell, and Colin Ladelpha who came down the stairs from his cell.

[68]  The cell door was being closed by Jacob Lilly and Omar McIntosh. About 10 seconds later Kirk Carridice went in.

[69]  B.J. Marriott, Kaz Cox and Robert Fraser walked over to the cell from across the dayroom. They did not approach in a way that would suggest that they were just interested in seeing what was going on. The three men walked over together, almost in step with each other and close together. They arrived as a group of three. They did not go to the cell to check out the commotion. They turned to face the arriving correctional officers. Mr. Marriott motioned for others to come over. Mr. Cox said that no one was getting in the cell.

[70]  The movements of the individuals involved were not random. They were co-ordinated. Inmates filed into Anderson's cell seconds after he got there. Within seconds Mr. Lilly and Mr. McIntosh manned the door and shut it. Mr. Marriott, Mr. Fraser and Mr. Cox came across the dayroom as a group and took up a position before the correctional officers could get to the cell door. The inmates prevented the correctional officers from gaining access to Cell 8 by impeding their progress. Their posture was defiant. Their actions in blocking the correctional officers were intentional and their purpose was to prevent access to Cell 8.

[71]  Just three minutes after the gathering in Cell 28, inmates entered Cell 8 while others closed the door and others blocked access. As soon as Mr. Anderson went into his cell the first group went into his cell. It is not reasonable to infer that they all simultaneously decided to go into Cell 8 and that others simultaneously decided to close the door while others just happened to block access by the correctional officers. There was nothing random about it. The effort by inmates acting together allows for the reasonable inference that the effort was coordinated, with people having assigned roles discussed in the minutes before the assault took place.

[72]  There was a plan.

[15]         The trial judge found the only reasonable inference was that the objective of the plan was to cause bodily harm to Mr. Anderson:

[75]  It is reasonable to infer that the plan involved assaulting Stephen Anderson. The way the assault took place, in a confined space, with 7 individuals, with the door being held closed and efforts made to prevent intervention by correctional officers, allows only for the reasonable inference to be made that bodily harm to Mr. Anderson was the intended objective of the plan…

[16]         The trial judge found six of the seven defendants in this second trial guilty of aggravated assault.[3] In reaching his conclusion he addressed what is required to prove the offence of aggravated assault—“when bodily harm would be reasonably foreseen, and the person is wounded, that is an aggravated assault”.[4] He found the defendants to have been working together to accomplish the plan to assault Mr. Anderson, which introduced the principle of party liability:

[88]  …The existence of a plan to assault Stephen Anderson can be reasonably inferred from the gathering in Cell 28 and the coordinated actions of those involved leading up to the assault. Those involved in giving effect to that plan were working together toward a purpose. Section 21(1) of the Criminal Code makes anyone a party to an offence if they actually commit the offence, do anything to aid the person committing it or "abet" the person committing the offence. To abet includes encouraging, instigating, promoting or procuring the crime.

…

[90]  The sequence of events from the gathering in Cell 28 to the opening of the door of Cell 8, cannot reasonably be inferred to have been random or the spontaneous actions of individuals acting independently. The coordinated actions in having several inmates quickly follow Stephen Anderson into his cell, having the door closed immediately and blocking access by the correctional officers, do not allow for a reasonable inference that the plan was simply to talk to Stephen Anderson. The nature of Mr. Anderson's injuries, along with the number of people involved, the confined space and the time during which the assault took place do not allow for a reasonable inference that the intent was merely to threaten, restrain, push or in some other way assault Mr. Anderson without causing him bodily harm. The only reasonable inference that can be made is that there was a plan developed to have several inmates assault Stephen Anderson, causing him bodily harm, while others held the cell door closed and others blocked access.

…

[93]  There is no evidence as to which of the individuals who entered Mr. Anderson's cell assaulted him. The door was, for the most part closed. There was no evidence from Mr. Anderson as to who assaulted him. One person may have administered the blows and created the puncture wounds. Or all of them may have done so. People cannot avoid criminal liability for an assault in these circumstances by saying, "It could have been any one of us and because there is no proof of which one of us did it, none can be found guilty." All went into Stephen Anderson's cell in furtherance of the plan to assault him. They were all part of the group that facilitated that assault by overwhelming him with 7 people in a confined space.

[94]  It is not reasonable to infer from the evidence that any of the three individuals named in this indictment who were in the cell, was there as a bystander. They each entered the cell purposefully and together. They had been involved in the gathering in Cell 28. They came down to the area outside Cell 8. They entered that cell as soon as Mr. Anderson went in. It is not reasonable to infer that they were there by chance. They were not there to help Mr. Anderson. And they were not there to watch a consensual fight in a small cell.

[95]  It was argued that Mr. Anderson may have been the aggressor and that the inmates who caused his injuries were acting in self defence. The Crown would be required to prove that the accused were not acting in self defence if there were an air of reality to the defence. There is no air of reality to the suggestion that Stephen Anderson presented a threat to the seven people who filed into his cell after him. There is no evidence of any aggressive words or behaviour by him toward them. Having 7 people enter the cell in rapid succession, having the door closed and held closed and remaining there for three minutes are not consistent with the suggestion that the individuals who entered the cell were acting in self defence.

[17]         The trial judge found the appellant was a party to the aggravated assault of Mr. Anderson. Although he did not specifically note it in his trial decision, the CCTV footage which formed part of the evidence before the trial judge establishes that the appellant was the first person into Cell 8 after Mr. Anderson.

Issue – Conviction Appeal

[18]         The essential issue in the appellant’s conviction appeal is whether the trial judge’s verdict was unreasonable as a result of a failure to consider reasonable alternative inferences to guilt.

Standard of Review

[19]         This being an entirely circumstantial case, the trial judge’s reasons must be assessed according to this test: whether, acting judicially, he could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the totality of the evidence.[5]

[20]         As noted by this Court in R. v. Coburn,[6] a trial judge’s conclusion that there are no reasonable inferences other than guilt is due to a high level of deference.

Analysis – Conviction Appeal

[21]         Although the trial judge did not expressly cite the Supreme Court of Canada decision in R. v. Villaroman which articulated the legal principles to be applied in a circumstantial case, his application of the law was wholly correct. He reached his conclusions by drawing the reasonable and supportable inferences I reviewed earlier. He considered a number of alternative inferences, proffered by the defendants, and rejected them as not reasonable. He found it could not be reasonably inferred that: the actions of the defendants were spontaneous; the intent was to merely “threaten, restrain, push or in some other way assault Mr. Anderson without causing him bodily harm”; the appellant as one of the three defendants in this trial was in the cell as a bystander or was there by chance, to help Mr. Anderson, or to watch a consensual fight.[7] He dismissed the notion that Mr. Anderson injured himself or was the aggressor and was wounded by the defendants acting in self-defence.[8]

[22]         The trial judge found the essential element of the offence of aggravated assault—“objective foresight of bodily harm”—was the only reasonable inference on the evidence:

[87]      …He was beaten when attacked by several men in a confined space. Anyone involved in the plan to have one person assaulted in a cell by a group of 7 others, behind a door held closed, over a period of time permitted by preventing correctional officers from intervening, could not have reasonably foreseen anything less than bodily harm. It is not reasonable to infer that the intent of the plan was simply to assault Mr. Anderson in a way that involved a use of force that did not extend to causing bodily harm.

[23]         The appellant has criticized the trial judge for making “inferential leaps” and “speculating”. He says there are links missing in the judge’s reasoning process. In his submission the judge failed to satisfy the requirement established by Villaroman, that guilt must be the only reasonable inference from the evidence.

[24]         As Villaroman held: “If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”.[9] The trial judge was required to consider “other plausible theories” and “other reasonable possibilities” based “on logic and experience applied to the evidence or the absence of evidence…”[10]. Villaroman prohibits speculation. However, reasonable alternative inferences must not be hastily dismissed.

[25]         At the appeal hearing, the appellant said the trial judge overlooked reasonable inferences that had been available to him. The appellant may have been: checking on a newly admitted prisoner; delivering a verbal warning; or engaging in another type of non-assaultive interaction. He suggested it was open to the trial judge to have found that the fact of his entering Cell 8 with other prisoners did not support the inference he was participating in a plan. A shared intention to cause bodily harm to Mr. Anderson was not the only reasonable inference available. It could have been reasonably inferred the appellant entered the cell with a different understanding of what was to occur.

[26]         The appellant’s propositions have no traction. The trial judge made clear, unassailable findings of fact anchored firmly in the evidence. He found there was a plan, formed in Cell 28, to cause bodily harm to Mr. Anderson. The appellant attended that gathering. The appellant was the first person to follow Mr. Anderson into his cell. The non-assaultive purposes for being in the cell were all considered by the trial judge and explicitly rejected as not reasonable.

[27]         There was no evidence from the appellant of an innocent explanation for his presence in Cell 8. We are entitled to take that into account in assessing the reasonableness of the verdict.[11] As stated by Justice Bryson in R. v. Roberts, silence at trial cannot be used to overcome deficits in the Crown’s case at trial, however an appellant:

[55]      …cannot at once remain silent and then ask this Court to transform speculative alternative explanations, on which he offered no evidence, into reasonable doubt.

[28]         More significant in this case than the absence of any innocent explanation from the appellant is the fact that the trial judge considered a number of alternative inferences to be drawn from the evidence and found none of them to be reasonable. His conclusions were sound and entitled to deference.

[29]         The appellant was convicted of the aggravated assault of Mr. Anderson on the basis of the criminal law principle of party liability. To convict him as a party the trial judge did not need to find he used hands-on violence. As stated by the Manitoba Court of Appeal in R. v. Beardy:

[38]      …Evidence that shows that the accused had knowledge that the offence was going to be committed, and in some way helped or encouraged the offence, can support a finding that he was party to the offence. [cite omitted] Where there is a lack of clear evidence amounting to aiding or abetting, surrounding circumstances and other factors can still lead the trier of fact to conclude that a party’s presence at the scene of the offence was not innocent, but was for the purpose of aiding or abetting the offence…Circumstantial evidence can lead to a finding that an alleged party to an offence was not there by accident, but was there with the purpose of aiding or abetting the offence. [cite omitted]

[39]      Presence can be a way of encouraging the perpetrators of the unlawful act and preventing the escape of the victim, this being something more than mere presence and passive acquiescence. [cites omitted] Strength in numbers can, at times, be a source of encouragement.[12]

[30]         The appellant entered Mr. Anderson’s cell having attended the Cell 28 meeting with ten other prisoners. He was first in. Others from the planning session followed close behind. The appellant remained throughout the assault of Mr. Anderson and left only when the attack was called off.[13] After a careful review of all the evidence, the trial judge found the appellant was a party to the violence that had been perpetrated against Mr. Anderson. I will reiterate the trial judge’s application of the party doctrine as it applied to the defendants who went into the cell:

[93]  There is no evidence as to which of the individuals who entered Mr. Anderson's cell assaulted him. The door was, for the most part closed. There was no evidence from Mr. Anderson as to who assaulted him. One person may have administered the blows and created the puncture wounds. Or all of them may have done so. People cannot avoid criminal liability for an assault in these circumstances by saying, "It could have been any one of us and because there is no proof of which one of us did it, none can be found guilty." All went into Stephen Anderson's cell in furtherance of the plan to assault him. They were all part of the group that facilitated that assault by overwhelming him with 7 people in a confined space.

                                                                                                (emphasis added)

Conclusion

[31]         Having correctly applied the law in Villaroman, the trial judge rendered a reasonable verdict. The appellant’s guilt was the only reasonable inference to be drawn from the evidence. I would dismiss the appeal against conviction.

The Sentence Appeal

[32]         The appellant argues his six year sentence (less credit for pre-sentence custody) is excessive. He says the trial judge committed errors in principle and imposed a demonstrably unfit sentence. It is his submission that he should have received a sentence of four years. He criticizes the trial judge for failing to take into account:

•        His having no prior convictions for serious violent offences.

•         What he characterizes as “the circumstantial nature of his conviction and his identification by the trial judge as a party to the assault”. He also says the “nuance of his involvement” should have justified a lesser sentence.

•        The absence of any testimony “to confirm the participation of [the appellant] one way or another”.

[33]         The appellant says his six year sentence represents the trial judge:

•        Taking into account post-incident offences and institutional discipline infractions to offset positive characterizations of the appellant by family, friends and a former employer.

•        Overemphasizing “the aggravating factor of a group assault in prison versus the gap in [the appellant’s] criminal record, lack of significant violence on that record and positive support network”.

•        Not imposing on the appellant a comparable sentence to those of the defendants Matthew Coaker[14] and Kaz Cox[15]. Coaker and Cox were convicted alongside the appellant for aggravated assault and received four years and four-and-a-half years’ incarceration respectively.

Standard of Review

[34]         Sentencing decisions are accorded a high degree of deference in appellate review. Intervention is warranted only if (1) the sentencing judge committed an error in principle that impacted the sentence or, (2) the sentence is demonstrably unfit. Errors in principle include “an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor”.[16]

[35]         In assessing the issue of demonstrable unfitness, appellate review must focus on whether the sentence is proportionate to the gravity of the offence and the degree of the offender’s responsibility.[17] Proportionality is the fundamental principle of sentencing.[18]

Analysis

[36]         The trial judge’s sentencing decision[19] can only be described as thoughtful and comprehensive. He demonstrated how keenly he understood sentencing as a highly individualized process “that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case”.[20] He considered in detail the personal circumstances of the appellant and the supportive comments made on his behalf by his sisters, his fiancé, and his former employer, who had employed him as a painter and regarded him as a friend. He was explicit about not treating either the appellant’s post-offence convictions or his institutional disciplinary record as aggravating factors. He took them into account as part of the context of understanding that the appellant’s “character is made up of the sum of everything he has done, for better or for worse”.[21]

[37]         The trial judge recognized he was sentencing the appellant for a very serious offence that involved a high degree of moral blameworthiness:

[28]  Mr. Clarke-McNeil was one of the first people to enter Stephen Anderson's cell. When he came out and was visible to surveillance cameras again, Stephen Anderson was on the floor, having been seriously beaten and stabbed. There is no evidence to indicate that Mr. Clarke-McNeil was the person who stabbed Mr. Anderson, that he had a weapon or that he knew that someone else had a weapon or intended to use one. Mr. Clarke-McNeil's comment to the writer of the pre-sentence report was that he went into the cell and accepts responsibility for being there. "But I didn't aggravate assault anybody". He said that he didn't know what was going to happen and wouldn't have been there if he had known that someone was going to get stabbed.

…

[31]  Kevin Clarke-McNeil may wish that he had not been there and may have not been there had he known there was a weapon involved. But he was there. And he was there with several other inmates for the purpose of assaulting Stephen Anderson in a way that would cause him bodily harm. Whether Mr. Clarke-McNeil knew of the use of a weapon or not, he was part of the assault and that assault resulted in serious life-threatening injuries to Stephen Anderson.

[32]  Mr. Clarke-McNeil rushed into the cell with the others. He looked no more hesitant or tentative than anyone else. He had been waiting with the others to go into a space where they would be with Mr. Anderson, out of sight of the correctional officers and the surveillance cameras. Mr. Clarke-McNeil was part of the group who had gathered earlier to plan the assault. He knew what was happening and acted on cue. He was not a person who came upon an assault and decided to join in at the last moment. Kevin Clarke-McNeil cannot evade responsibility for his part in the assault on Stephen Anderson by saying now, at his sentencing, that he accepts responsibility for being there but didn't do anything when he was there.

[33]  This was a planned and coordinated attack within a jail. The rule of law applies there. Prison culture cannot be permitted to take its place. The safety of inmates and staff demands that the rule of law run to the internal working of correctional facilities of all kinds.

[34]  The inmates involved ganged up on and assaulted Stephen Anderson and did that in a way designed to prevent correctional officers from intervening.

[38]         The trial judge found no “nuance” in the appellant’s role as a party to the brutal assault of Mr. Anderson. And, as he noted, the appellant could not be appropriately compared to Mr. Coaker whom he described as having an involvement that was “less direct than that of the others”. Mr. Coaker was “not an outwardly eager participant” and on the periphery of the group blocking the correctional officers. The trial judge characterized his actions as “tentative and largely quiet” and “consistent with those of someone who does not know quite what he is supposed to be doing”.[22]

[39]         The appellant was convicted of being a party to a planned and coordinated attack on a defenseless prisoner trapped by an overwhelming number of assailants in a cramped cell. The plan’s execution ensured no help could reach him until the attackers decided to end their ruthless assault. Mr. Anderson survived by luck and timely medical intervention. The trial judge was entitled to take these circumstances into account in deciding the appellant’s sentence:

[40]  Deterrence and denunciation must be the primary purposes of the sentence in crimes of violence. An assault within a jail takes the aggravated assault to another level. Serious injuries, take it further. Coordinated activity resulting in a gang assault, take it even further. Open defiance of the authorities seeking to intervene, as part of the coordinated effort, take this case to a level more serious than the other prison assaults provided as examples.

[40]         The trial judge was alive to the challenge of balancing the factors that exist in tension at sentencing. As he noted, “… they can pull in different directions” and “are not merely a checklist…”[23] He acknowledged the “important and valuable goal” of the appellant’s rehabilitation and reintegration into society. However he concluded that the appellant’s moral culpability required a sentence of six years. He distinguished the Coaker and Cox cases which involved considerations of racialization and possible Indigeneity. He viewed the principle of parity[24] as better served in the appellant’s case by a longer sentence, in line with the sentences imposed on Omar MacIntosh and Colin Ladelpha, who received sentences of five-and-a-half and six years’ incarceration, respectively.[25] Of the ten offenders sentenced for the aggravated assault of Mr. Anderson, four, including the appellant, received six year sentences.[26]

[41]         The Supreme Court of Canada has described proportionality as the “organizing principle” in reaching the objective of “a fair, fit and principled sanction”.[27] The trial judge’s reasons explain clearly how he navigated his way through the considerations he had to weigh to arrive at a proportional sentence for the appellant. The appellant has essentially asked this Court to re-visit the trial judge’s calibration of the sentencing principles and the factors he properly took into account. That is not the role of this Court in a sentencing appeal.

[42]         The trial judge committed no errors in principle in undertaking the sensitive task of determining a fit sentence for the appellant, a sentence that cannot be characterized as demonstrably unfit.

[43]         I would dismiss the sentence appeal.

Disposition

[44]         I would dismiss both appeals.

Derrick, J.A.

Concurred in:

Bryson, J.A.

 

 

Beaton, J.A.