R v Honorio, 2016 ABQB 351

Court of Queen’s Bench of Alberta Citation: R v Honorio, 2016 ABQB 351 Date: 20160628 Docket: 140112699Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Real Honorio Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Background [ 1 ] Mr. Honorio pled guilty to the Second Degree Murder of Kevin Su’a, Count 3 of the Amended Indictment: COUNT 3: THAT HE ON OR ABOUT THE 1 ST DAY OF JANUARY, 2009, AT OR NEAR THE CITY OF CALGARY, IN THE

PROVINCE OF ALBERTA, DID CAUSE THE DEATH OF KENI SU’A AND THEREBY COMMIT MURDER IN THE SECONDDEGREE CONTRARY TO SECTION 235(1) OF THE CRIMINAL CODE OF CANADA Issue [2] The only issue in this sentencing hearing is: What is the proper period of time for parole ineligibility? Principles of sentencing [3] The sentence for second degree murder is imprisonment for life without eligibility for parole until the person has served atleast ten years of the sentence: Criminal Code, s 745(c).

Section 745.4 of the Criminal Code empowers a sentencing judge to increasethe period of parole ineligibility from 10 years to a maximum of 25 years.

The sentencing judge must consider the character of theoffender, the nature of the offence, and the circumstances surrounding its commission.[1] [4] In R v Shropshire, (SCC), [1995] 4 SCR 227 at para 29, Iacobucci J writing for the Supreme Court ofCanada, described a sliding scale of parole ineligibility based upon the moral culpability of the offender: ...In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder,there will be a broad range of seriousness reflecting varying degrees of moral culpability.

As a result, the period of parole ineligibility forsecond degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribedfor first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto, mean thatany other period of time is “unusual”. [5] Iacobucci J noted that determining whether to extend the period of parole ineligibility is “a very fact-sensitive process”.

Healso stated at para 31 that “the power to extend the period of parole ineligibility need not be sparingly used.” The issue for determinationis “what is a fit sentence?” applying the proper guidelines. [6] When determining the appropriate period of parole ineligibility, the courts also must consider the general principles ofsentencing codified in sections 718 to 718.2 of the Criminal Code. The fundamental purpose of sentencing is to contribute to respect forthe law and the maintenance of a just, peaceful and safe society.

The objectives of sentencing are: • to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; • to deter the offender and other persons from committing offences; • to separate offenders from society, where necessary; • to assist in rehabilitating offenders; • to provide reparations for harm done to victims or to the community; and • to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [7] A proper sentence fits both the offender and the offence; it should vary according to the circumstances of the offence butalso the circumstances of the offender.

Section 718.1 states that “a sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender.” The principle of proportionality is central to the sentencing process; it has a long history as aguiding principle in sentencing: R v Nasogaluak, 2010 SCC 6 at para 41. Proportionality is inherently linked to the moralblameworthiness of the offender.

Lebel J stated at para 42 in Nasogaluak: ...the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’ssentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus convergein a sentence that both speaks out against the offence and punishes the offender no more than is necessary. [8]

Section 718.2 requires the court to consider a number of aggravating and mitigating factors, as well as to consider sentencesimposed on similar offenders for similar offences.

Common aggravating and mitigating factors include planning and deliberation;association with a criminal organization; weapons; vulnerability of the victim; post-offence conduct; previous good character of the accused; potential for rehabilitation; age of the offender; remorse, and guilty plea: Clayton C Ruby et al, Sentencing, 7th ed, looseleaf,(Markham, Ont: LexisNexis Canada, 2008), ch 5. [9] The framework to assess whether or not the parole ineligibility period should be raised beyond 10 years comes from section745.4 of the Criminal Code, informed by the factors set out in sections 718 and 718.2.

As the Supreme Court of Canada stated in R vCAM, (SCC), [1996] 1 SCR 500 at para 82, “the overarching duty of a sentencing judge is to draw upon all thelegitimate principles of sentencing to determine a “just and appropriate” sentence which reflects the gravity of the offence committed andthe moral blameworthiness of the offender.” Admissions [10] According to the Agreed Statement of Facts, the Crown alleges and Mr. Honorio admits the following facts for the purpose ofsupporting his guilty plea and determining his sentence:

The “FOB” (the “Fresh off the Boat” AKA “Forever Our Brother”) was a street gang operating in Calgary between 2002 and 2009. In 2002 a faction that became known as the FK (the “FOB Killers”) developed. Between December 29, 2002 and January 13, 2009 there were twenty-four retaliatory murders involving members and associates of the FOB and FK. Mr. Honorio was a member of a gang called the “403 Soldiers” which by the late fall of 2008 had become allied to the FOB. G. H. and Nathan Zuccherato (Zuccherato) were members of the FOB in 2008-2009. ...

In December 2008, members of the “FOB” developed a plan to target Sanjeev Mann, a high-ranking member of the “FK” street gang. It was the belief at the time that Sanjeev Mann had murdered Roger Chin, a prominent member of the “FOB” on July 5, 2008. Whether or not Sanjeev Mann did, in fact, kill Roger Chin is unknown. G. H. and MM met regarding Sanjeev Mann and then spoke to Zuccherato about their plan. Later in the month, G. H. and Zuccherato had a meeting with two members of the 403 soldiers: Mr. Honorio and “Mr. B”. The 403 Soldiers were at the time a Calgary street gang. Mr.

Honorio was looking to align with the FOBs to secure a source of drugs, guns, and bullet proof vests. A subsequent meeting took place between Mr. Honorio and some of the FOB including Zuccherato at Chinook Mall where a co- operation agreement was formalized. Suveillance video from Chinook Mall is confirmatory of this meeting. Over time a plan was developed. “MM” would arrange a meeting with Aaron Bendle, the person who could lead them to Sanjeev Mann. “MM”, G. H., Zuccherato, and Mr. Honorio would then kidnap Aaron Bendle and use him to lead them to their target.

The plan was put into effect on December 31, 2008. ... [ 11 ] After kidnapping Bendle, Zuccherato used Bendle’s cell phone to contact Sanjeev Mann. Mann refused to meet Bendle that night. The group had not expected this development and made hurried arrangements to keep Bendle overnight. After they settled in, G. H. and Zuccherato went into a washroom. They decided that Bendle would have to be killed after he led them to Mann. Bendle had seen them and could be a witness. It was agreed that Zuccherato would kill Bendle and that G. H. would kill Mann. [ 12 ] The Agreed Statement of Facts goes on to state: ...Mr.

Honorio was not part of this conversation and was not aware that they had planned to kill Bendle. During the course of the evening, Mr. Honorio volunteered to be a shooter. He wanted to prove himself to the “FOB”. Zuccherato and G. H. did not assign a specific role to Mr. Honorio. G. H. did, however, provide him with a handgun which was a .357 revolver. Zuccherato and G. H. had their own handguns which were semi-automatic pistols. ... ...Mann agreed to meet Aaron Bendle at the Bolsa Restaurant located at 180-94 th Avenue SE. Aaron Bendle was forced to drive to the location in his own vehicle.

He had been assured that he would not be harmed if he complied with direction. Mr. Honorio was in the vehicle with Bendle. Mr. Honorio was in possession of the handgun that had been provided to him the previous night. ... Mr. Honorio left the Bendle vehicle and got in the back seat of the rented Mazda that was occupied by G. H. and Zuccherato. ... Aaron Bendle was told to drive to the front of the Bolsa Restaurant, park, and then enter the restaurant in a calm manner. Bendle drove ahead first and, as he entered, G. H. drove up quickly and parked near his vehicle. Zuccherato and Mr.

Honorio were to join him as he rushed into the restaurant to shoot Sanjeev Mann. Witnesses described Bendle as the first person to enter into the restaurant. Immediately after Bendle, two men (Zuccherato and G. H.), entered wearing dark masks which covered their faces. Zuccherato began shooting after he entered the restaurant. Zuccherato shot and killed Aaron Bendle as planned. G. H. spotted Sanjeev Mann in the restaurant and focused on him. Mann was seated with his two friends at a table located at the end wall of the restaurant. G. H. shot Sanjeev Mann several times and killed him. G.

H. then ran from the restaurant with Zuccherato. As they did so, Mr. Honorio shot and killed Keni Su’a in the parking lot. Keni Su’a was a customer at the restaurant and he was shot and killed outside of the restaurant as he tried to flee from the shooting inside. In addition to Mann, his two friends, Bendle and Su’a, two elderly women were having a meal at one table and two other staff members were working within the restaurant. There are conflicting versions of what happened outside of the restaurant. ... Mr. Honorio has given different accounts of the events as well. ...

There were no bullet casings found outside of the restaurant which is consistent with Mr. Su’a having been shot outside of the restaurant with a revolver as a revolver does not eject bullet cartridge casings. The bullet fragment found outside and near the post where Mr. Su’a was found, is a match to the bullet in Su’a’s spine. The evidence of the firearms expert was that a piece of a bullet found near Mr. Su’a’s body was from the same gun (a .357 calliber) as the bullet in Mr. Su’a’s spine. The autopsy results were that Mr. Su’a was shot three times. Two shots were fatal.

There was a fatal shot to the head and two shots to the back, one of which was fatal. It is impossible to know which fatal shot occurred first. Mr. Honorio admits to shooting Mr. Su’a at the Bolsa restaurant parking lot and killing him. Mr. Honorio only admits to the two shots to Mr. Su’a’s back, one of which was fatal. ... After the shooting, G. H. drove Zuccherato and Honorio back to the McKenzie Towne home. “B” was there. The shooters took off their clothing and placed it in a garbage bag. The firearms were wiped and then placed in another bag. “D” came to the home and drove G. H., Zuccherato and “Mr.

B” to a location outside of Calgary, where “B”, at the direction of the group, disposed of the firearms and at least some cellular phones. A firearm matching the .357 description and cellular phones were later found in the location described by G. H. and “B”.

The group travelled to Mr. C’s residence in Rundle where they discussed what actions to take after the murder. A decision was made that G. H., Zuccherato and Honorio would get a change of clothing and other people would deal with the old clothing. G. H., Zuccherato and Mr. Honorio purchased new clothing then burned the clothing worn during the shootings. Before leaving “C’s” home, G. H. asked “MM” to start a fire to burn the clothing contained in the bag and to destroy the cellular telephones that had been used. After new clothing was purchased G. H., Zuccherato, and Mr.

Honorio returned to “C’s” residence and eventually all went their separate ways. On January 2, 2009, G. H. and another member of the FOB cleaned the rental vehicle in an effort to remove all trace evidence. The rental vehicle was then returned. Mr. Honorio received no money for his involvement in the shootings. Victim Impact Statements [ 13 ] The Crown tendered a victim impact statement from Lenni Folden-Su’a, Mr. Su’a’s ex-wife, with whom he still had a good relationship. In it she writes that Mr.

Su’a’s murder “left a lot of people devastated.” He was a good man, loyal friend and husband; a giving, caring, gentle and compassionate person “who did not deserve to have his life taken from him in such a terrible and violent way.” [ 14 ] Ms. Folden-Su’a had to take time off from her professional education program to deal with the situation and escort Mr. Su’a’s body back to Samoa and to spend time with his family to help them cope. She has experienced significant delay in the pursuit of her studies as a result of his untimely death.

She describes herself as overcome with grief if she goes near the areas of his residence or the murder. Yet she also has compassion for Mr. Honorio and expresses sadness at the path he has chosen in life. She prays that he will be held accountable, but mostly that he will take personal responsibility for his decisions and actions and feel remorse for his choices. [ 15 ] The Honorio family also submitted an open letter in court to the Su’a family that relates the Honorio family’s sorrow and shame.

They describe their son’s actions as “inexcusable” and the burden of his sin as “demoralizing and numbing” and state that this tragedy “has left us with heavy hearts and our family journey laid with uncertainties and worries.” On Mr. Honorio’s behalf, they convey their deepest apologies and ask for the forgiveness of Mr. Su’a’s family. Submissions The Crown [ 16 ] The Crown is seeking a parole ineligibility period of 20 years. The Crown argues that Mr. Honorio participated in a planned and calculated gangland assassination that involved the kidnapping and murder of Mr. Bendle, along with the murder of Mr.

Mann and Mr. Su’a. [ 17 ] With respect to Mr. Honorio’s character, the Crown acknowledges as mitigating factors Mr. Honorio’s relative youth (age 25 at the time of the murder), no prior criminal record, and his guilty plea, which can be viewed as an expression of remorse. The aggravating factors, however, include Mr. Honorio’s membership in 403 Soldiers and his agreement to participate in the kidnapping of Mr. Bendle and the murder of Mr. Mann to obtain a source of drugs, guns and bullet proof vests for the 403 Soldiers. Furthermore, not only did he want to participate; he wanted to be a shooter.

These factors speak to a high degree of planning and commitment to a criminal lifestyle and point to a high degree of dangerousness. The Crown submits these factors ought to increase the ineligibility period from the minimum 10 years. [ 18 ] Regarding the nature of the offence and the circumstances surrounding its commission, the Crown notes that the murder of Mr. Su’a occurred in the context of the kidnapping of Mr. Bendle and first degree murder of Mr. Mann – criminal acts that Mr. Honorio planned to do in advance of January 1, 2009 – and in the larger context of heightened gang warfare in Calgary.

Furthermore, Mr. Honorio sought to be a shooter to prove himself to the FOB. [ 19 ] The Crown also submits that Mr. Su’a was an innocent bystander at the Bolsa Restaurant. He had gone there for lunch, an everyday activity that members of our community should be able to do without putting their lives at risk. He was not a member of any gang and posed no threat to Mr. Honorio. Mr. Honorio shot and killed him for reasons unknown. Mr. Honorio’s degree of responsibility is high. [ 20 ] The Crown argues the murder of Mr.

Su’a strikes at the heart of a civil and ordered society and for this reason the commission of this crime should attract a sentence at the very high end of the range. Defence [ 21 ] The Defence admits this case is a difficult and emotional tragedy and for that reason a second degree murder sentence of life imprisonment is understandably appropriate. The defence fully acknowledges a number of aggravating factors in this case, namely that Mr.

Honorio acted as part of a criminal organization; he used a firearm in the commission of the offence; there was planning and deliberation involved in the offence, although the intended target was not Mr. Su’a; Mr. Su’a was an innocent bystander; and, Mr. Honorio’s post-offence conduct of purchasing new clothing and burning the clothing worn during the shooting were an attempt to cover up his involvement in the offence. [ 22 ] The defence also identifies a number of mitigating factors. Mr. Honorio entered a guilty plea, which is evidence of remorse. The defence submits Mr.

Honorio pleaded guilty at the earliest time possible, even though it was late in 2015 and even though the case had a lengthy history that included an appeal to the Court of Appeal, which sent it back for a new trial. In spite of the procedural history,

the guilty plea saved valuable judicial resources including 6 to 8 weeks of trial and avoided the need for several lengthy pre-trial applications. The defence submits Mr. Honorio should be given full mitigation for his guilty plea. [ 23 ] The defence also notes that Mr. Honorio has spent nearly five years in pre-sentence custody in the harsh conditions of the Remand Centre, without access to rehabilitative programs, often in segregation for 23 hours per day. He was also in the Edmonton maximum security institution where he was beaten in front of his parents. The defence advised the court that Mr.

Honorio has learned from his already terrible jail experience. [ 24 ] Defence counsel argues, relying on R v Ryan , 2015 ABCA 286 (leave to appeal to the Supreme Court of Canada denied on May 27, 2016), that although Mr. Honorio cannot be given credit for his time at the Remand Centre to reduce his period of parole ineligibility, the time spent in pre-trial custody nonetheless can be considered to offset some of the aggravating factors that might otherwise result in an increased period of parole ineligibility. [ 25 ] The defence also argues that Mr.

Honorio was previously of good character, in that he had no prior criminal record. He has strong family support (including his mother, father, and younger sister) and a large number of people in the Catholic Filipino community. The defence suggests these factors offer better prospects for Mr. Honorio’s rehabilitation. Also, Mr. Honorio was 25 years old at the time of the offence – fairly youthful, which further suggests a better likelihood of rehabilitation. [ 26 ] With respect to rehabilitation, the defence also points out that Mr.

Honorio had only six months left to get his GED; he wants to complete a business course; he was gainfully employed before the murder offence; and, he and his family are strongly religious. Indeed, the court is told that God is present in all of these circumstances and both sides are looking for forgiveness and peace. During sentencing submissions, at times, half of the gallery was packed with Mr. Honorio’s family and friends. [ 27 ] The defence suggested (and the Crown agreed) there are no cases on point with the facts of this case.

The defence cautions against the Crown’s heavy reliance on Ryan , given the split reasons for decision and the very different rationales presented by Picard JA and Wakeling JA in their respective reasons. Rather, the defence argues that sentencing remains an individualized exercise and must reflect the proportionality principle. In R v Arcand , 2010 ABCA 363 at para 65 , the Court of Appeal stated: But the sentencing objectives in s. 718 , like the sentencing principles in s. 718.2 , are not applied in a vacuum. Parliament did not intend sentencing to be an unguided missile.

The sentencing process Parliament has prescribed, which includes numerous checks and balances to guide the courts, is designed to produce just sanctions and fair and equal justice in sentencing. Nothing is more important than the proportionality principle. That is because it explicitly mandates a specific sentencing outcome, namely that the sentence imposed must be proportionate to the gravity of the offence and degree of responsibility of the offender .

Therefore, no matter what objectives or combination of objectives a sanction is intended to achieve, to be a just sanction, the sentence imposed must comply with the proportionality principle. [Emphasis in original.] Case authorities [ 28 ] The Crown and defence offer a number of cases in support of their respective positions of 20 years and 12 years of parole ineligibility.

I describe those cases below and set out the guidance I take from them. [ 29 ] The Crown relies upon R v Lee , 2013 BCSC 1259 ; R v Johnson , 2010 CarswellOnt 9357 ; R v Iyamuremye , 2015 ABQB 638 ; and, Ryan , supra . [ 30 ] In Lee , Justice Dillon was sentencing a number of offenders for conspiracy to commit murder. All the offenders were members of the UN gang in the lower mainland of British Columbia. The murders that were the subject of the conspiracy pleas occurred in the context of a gang war between the UN gang and a rival gang.

Justice Dillon made the following comments at paras 22 & 27-28 regarding the overall context: These facts are extremely disturbing. They demonstrate ruthless disregard for life, not only of rival gang members, but of the public in general. Killing for hire is heinous, completely wicked and evil, and low. It places these offenders at the bottom of society, a danger to everyone who walks the streets or drives a car, villains deserving of the utmost rebuke. ...

In sentencing these offenders, proportionality requires that the sentence be commensurate with the gravity of the offence and the degree of responsibility of the offender. When the crime involves contracted killing in a gang environment, the primary focus in sentencing is denunciation of this despicable crime and general deterrence of others from similar conduct, particularly gang related crime. Such conduct will not be tolerated. Police will hunt you down. Once convicted, you will be severely sentenced.

The fact of killing for financial gain and the high degree of planning and deliberation seen here requires a high sentence. Also, the fact here is that a murder was accomplished; the plan of these offenders resulted in the killing of an innocent man. [ 31 ] The Crown relies on Lee to establish the importance of examining the entire context in which the crime was committed and the need to focus on denunciation and general deterrence in this context. The defence distinguishes Lee on the grounds that Mr. Honorio received no money or financial benefit for his involvement in the plot to kill Mr.

Mann and in the death of Mr. Su’a. The defence argues his situation is not one of “killing for financial gain” requiring a higher sentence as was the case in Lee . I find Lee helpful, nonetheless, for the purpose of underscoring the ruthless disregard for life exhibited by gang members who conspire to kill and the need to condemn such actions because they destroy Canada’s peaceful society. [ 32 ] The Crown also relies heavily on the relatively recent Alberta Court of Appeal decision in Ryan to establish the importance of evaluating the circumstances surrounding the crime.

In Ryan , the court was determining the parole ineligibility period of a man convicted of second degree murder. The murder was committed to even the score with a rival drug dealer. Ryan was a 29 year old drug

addict, supporting his addiction by selling drugs. He employed the victim to sell drugs for him, but the victim stole Ryan’s truck and drugs. The victim, Ryan and a third individual had plans to make up the loss by buying a wholesale quantity of crack cocaine and selling it. All three attended a campground. Ryan entered a trailer and emerged with a hunting rifle and, shortly thereafter, shot the victim in the head. Ryan then ordered the third individual out of the truck, disposed of the victim’s body in some bushes, and attempted to destroy the truck by pouring gasoline on it and lighting it on fire.

He reported the truck as stolen. He had a criminal record that reflected escalating criminal conduct. [ 33 ] Ryan was sentenced to life imprisonment with a 13 year period of parole ineligibility. The Crown appealed the sentence and argued that a 22 year parole ineligibility period was appropriate. The Court of Appeal split on the proper disposition, and for this reason, defence counsel cautions against reliance on this case. [ 34 ] Justices Picard and Wakeling agreed that the 13 year period of parole ineligibility imposed by the sentencing judge was unfit.

They differed, however, not only in their analysis to reach this conclusion, but on the more appropriate ineligibility period. Justice Picard fixed the period of parole ineligibility at 17 years. Wakeling JA would have imposed a parole ineligibility period of 23 years, but in the interests of resolving the appeal, he acceded to Justice Picard’s 17 year selection. Interestingly, the sentencing judge had selected 17 years as an appropriate period, prior to applying mitigating factors to reduce it to 13 years.

Justice O’Ferrall, in dissent, found no error with the sentencing judge’s conclusions. [ 35 ] Justice Wakeling commented on the nature of the offence at para 88: The nature of the offence and the circumstances surrounding its commission – a drug dealer planning to even the score with another drug dealer – considered alone, warrant a parole ineligibility period of twenty-three years. Consideration of Mr. Ryan’s character does not require any adjustment of this assessment. There are no mitigating factors.

The fact that the offender offered in open court to plead guilty to manslaughter does not constitute a mitigating factor.

A guilty plea to second degree murder would have been a mitigating factor. [ 36 ] The Crown argues that these comments are consistent with those of Justice Dillon in Lee and suggests that courts should take a harsh approach to crimes committed by gang members who are prepared to arm themselves and commit murders that put all members of the public at a grave and substantial risk. [ 37 ] The Crown also points to para 57 of Justice Picard’s decision in which she sets out a list of factors that might result in an increase in the period of parole ineligibility. The factors potentially relevant to this case include:

i) gratuitous violence: The Crown notes that although there was no gratuitous violence on the facts of Mr. Honorio’s case, the use of a firearm is certainly extreme violence, particularly since the victim was running away; ii) targeting or luring of the victim: The Crown concedes that Mr. Su’a was not targeted, but the plan was to kill Mr. Mann who was most certainly targeted; ... iv) murder committed while on bail or probation: Mr. Honorio was on bail for weapons related offences at the time of the offence (although those charges were later stayed). Nevertheless, the shooting was contrary to his release conditions at the time;

v) murder committed in the presence of an innocent bystander or non-party: The offence was committed in a parking lot of a restaurant on January 1, 2009. There were people nearby (eye witness bystanders) and there were certainly patrons in the restaurant, as well as employees; ... viii) gang attack: Although this offence did not involve a large group, or gang attacking a person, it did occur in the context of gang warfare in Calgary between the FOB and the FK; ...

x) circumstances of retaliation, revenge or enforcement: As noted above, the murder of Mr. Su’a happened within the context of a planned act of revenge by the FOB group to kill Mr. Mann; xi) obstructing justice in service of the murder or cover-up: Mr. Honorio took steps to cover up the murder, for example, he purchased and changed clothing; xii) profit from the murder: Mr.

Honorio’s involvement was for the purpose of gaining guns, drugs, and bulletproof vests, items of value to an aspiring gang member; ... xv) murder committed in the context of a criminal enterprise: The Crown submits the overall scheme to kill Mr. Mann took place in the context of a criminal enterprise, i.e. the FOB and FK war, and within the sub-context of the scheme to kidnap Mr. Bendle and kill Mr. Mann; xvi) preparatory steps leading to the murder: Although there was no specific plan to kill Mr. Su’a, there was considerable preparation to carry out the plan of killing Mr. Mann.

These plans included meeting beforehand, kidnapping Mr. Bendle over a two day period, and selecting a date for the offence that would most insult the FK group; xvii) murder committed in the course of committing other crimes: As previously stated, this offence took place in the context of a planned and deliberate killing of Mr. Mann. Mr. Honorio took

part in the kidnapping of Mr. Bendle, which was designed to “get” Mr.

Mann (although there is no evidence Mr. Honorio knew Mr. Bendle would be killed). Mr. Honorio accompanied Mr. Bendle in the car to the restaurant and volunteered to be a shooter. [ 38 ] The defence takes issue with the Crown’s reliance on Ryan . In particular, the defence argues that there are a number of aggravating factors, such as Mr. Ryan’s criminal record and his attempt to dispose of the victim’s body, that do not exist in Mr. Honorio’s case. Most importantly, however, Mr. Ryan was found guilty after trial and did not tender a guilty plea.

The defence submits that the Alberta Court of Appeal has recognized that “an offender may, in effect, purchase a discount within the appropriate range by a guilty plea”: Ryan at para 33 . [ 39 ] The Crown also relies on Johnson , in which the accused and an associate robbed a nightclub. As they ran into the parking lot of the commercial complex, they were followed by one of the club’s security guards. In the course of the ensuing scuffle, the accused pulled out a handgun and fired three shots at the guard, all of which missed.

Tragically, the shots hit innocent bystanders, killing one of them. [ 40 ] Johnson was 23 years old at the time of the offence and 27 at the time of sentencing. He had a criminal record dating back 15 years to when he was a youth. It included 10 prior convictions, four of which were for offences of violence. Nordheimer J found it aggravating that Johnson brought a gun to a public establishment where hundreds of people had gathered and that the shooting occurred in the parking lot of a commercial complex, making it a very real possibility that innocent people might be killed or seriously injured.

It was also aggravating that the shooting occurred because the guard interfered in the robbery. Johnson’s prior criminal record was also aggravating. [ 41 ] There were few mitigating factors, although the judge considered that Mr. Johnson was still “a relatively young man”. He noted, however, that Johnson was not a youth or teenager, he was an adult. It was also somewhat mitigating that Mr.

Johnson had no prior conviction for a weapons offence, nor was he subject to a weapons prohibition order. [ 42 ] In selecting a period of parole ineligibility, Nordheimer J commented at para 32 that the paramount sentencing objectives in that case were denunciation and deterrence: ...The citizens of this city must be protected from individuals who choose to illegally possess weapons and even more importantly, who choose to use those weapons especially in such a premeditated and merciless manner.

Individuals who choose to engage in such behaviour must be given the strongest possible message that such conduct simply will not be tolerated and, if it is committed, it will attract the severest of consequences.

Severe consequences are also necessary to serve as a clear deterrent to others who might be inclined to engage in such conduct given the manifest danger that it poses for the lives and safety of other people. [ 43 ] Having considered the character of the offender, the nature of the offence and the circumstances surrounding the commission of the offence, the judge fixed the period of parole ineligibility at 18 years. I find this case instructive. Mr. Johnson shot and killed an innocent bystander in the course of committing a different criminal offence. He was a similar age to Mr. Honorio at the time.

While he had a prior record, his crime did not have the gang related overtones applicable to Mr. Honorio’s circumstances. There also was no guilty plea or expression of remorse and limited prospects for rehabilitation. [ 44 ] In Iyamuremye , Burrows J set the period of parole ineligibility at 17 years for second degree murder involving a shooting in a public place. The deceased was shot in the back while running away in a moderately busy street in the middle of the afternoon.

The judge found there were elements of planning in the murder, in that in the hour preceding the shooting the accused and his partner planned to follow the deceased with the intention of confronting him. It was also aggravating that Mr. Iyamuremye used a firearm, particularly while subject to a recognizance forbidding possession of a weapon. He also had a few prior convictions for possession of drugs, breach of recognizance, and one conviction for obstruction of a police officer. [ 45 ] The only mitigating factors were Mr. Iyamuremye’s relative youth.

He was 23 years old at the time of the offence, but the judge acknowledged that he was “probably at the upper end of the age range where age has a mitigating effect.” Another mitigating factor was the accused’s childhood experience of witnessing his mother and grandmother’s execution in the Rwandan Genocide. [ 46 ] Like Johnson , the facts in Iyamuremye differ from those in the case at bar, yet the balancing of factors and the ultimate conclusion is instructive. [ 47 ] Defence counsel referred the court to several cases in which parole ineligibility was set at 12 years, including R v Bramley, 2014 ABQB 179 ; R v Blandon , 2012 ONSC 3864 ; R v Lewis , 2012 ONSC 2488 ; R v Tokarchuk, 2004 MJ no 468 (QB) , affirmed 2006 MBCA 46 ; and R v Maciel , 2007 ONCA 496 . [ 48 ] In Bramley , the accused fatally stabbed the deceased in the course of a confrontation in their home.

He used a Philips head screwdriver to strike the deceased 45 times in the back and head, including multiple stabs to the eyes, neck and chest before leaving him to die. Bramley then searched the internet for “how to dissolve a body” and “how to dispose of a body” and attempted to conceal evidence of his actions. After a five-day alcohol and substance abuse binge, Bramley turned himself in to police. [ 49 ] At the time of sentencing, Bramley was 29 years old and the father of two children.

He used alcohol and drugs, including crack cocaine, and testified that he was using those substances at the time of the murder. He accepted responsibility for his actions and there was no reason to believe he could not be rehabilitated. Justice Millar set parole ineligibility at 12 years. [ 50 ] Although Bramley’s offence was deemed spontaneous and not gang related, it was extremely violent and he took significant steps to cover up. The defence argues that although Mr. Honorio burned his clothes, he did not make the same attempts as Bramley to conceal the evidence of his crime.

Also, the victim in Bramley was the offender’s roommate who was attacked in his own bedroom, thus, the defence submits, there was a higher vulnerability factor. [ 51 ] In Blandon , the accused pleaded guilty to second degree murder and attempted murder after getting into an altercation during which he stabbed one of the victims twice. When the second victim ran to assist the first, Blandon stabbed him twice; the chest wound

was fatal. Justice Nordheimer noted that Blandon was 19 years old at the time of the offence, with a youth record of carrying a concealed knife, assault, and failing to comply with a recognizance. Blandon had limited formal education and a documented problem controlling his temper. He had the support of his family and common-law wife, with whom he had a young son. He had pleaded guilty and expressed remorse.

In setting parole ineligibility at 12 years, Nordheimer J stated at para 19: ...the fact that this attack with a weapon occurred on unarmed strangers on a public street in the middle of the city are particularly aggravating factors that require, in order to properly achieve the objectives, principally of denunciation but also of deterrence, some increase in the period of parole ineligibility. [ 52 ] In Lewis , the accused lured the victim to a vacant apartment on the pretext that a gun was available for sale.

Upon arrival, the deceased was ambushed by a group of armed men, forcibly confined, beaten, and shot to death. The victim suffered a total of 11 gunshot wounds to the head, back, and groin. The jury did not find that Lewis was the shooter, but found him guilty of second degree murder. [ 53 ] Lewis was 20 years old at the time of the shooting and 28 at the time of sentencing. He had a youth record for assault and robbery, and a prior adult record for possession of a loaded firearm. He was also under a weapons prohibition at the time of the offence.

Although the police considered him to be a member of a gang, the court concluded only that he lived a high-risk criminal lifestyle. The Crown sought a 15 year period of parole ineligibility, but the court imposed only 12 years. [ 54 ] Defence counsel argues that in Mr. Honorio’s case, although he was a member of a gang, there are more mitigating factors at play than in Lewis , including a guilty plea and no prior criminal record at the time of the offence. Furthermore, there are less aggravating factors than in Lewis , in particular the victim was not forcibly confined, beaten and shot 11 times, nor was Mr.

Honorio bound by a weapons prohibition. [ 55 ] I find the assistance to be gathered from these cases to be modest at best, since each has unique features that distinguish it to some degree from every other case. [ 56 ] Finally, the defence points to Tokarchuk in which the accused was found guilty of second degree murder after trial. Mr. Tokarchuk was in financial difficulty and owed the victim between $10,000 and $15,000 in drug debt. Mr. Tokarchuk arranged to meet the victim in a back alley and brought a gun.

He then shot him 3 times. [ 57 ] In its sentencing decision, the court noted the aggravating facts of actual violence, carrying and use of a gun, drug involvement, vulnerability of the victim, forethought, gang connection, increasing use of handguns in the community, and a prior record. The mitigating factors were strong family support and a remorseful attitude. The Crown sought 15 years parole ineligibility, but the court imposed only 12 years. The defence argues that Mr.

Honorio has even more mitigating factors, including his guilty plea and lack of criminal record. [ 58 ] In Maciel , the deceased was shot in the back, then six more times, in the context of ongoing negotiations concerning a drug debt. The accused arranged a meeting with the deceased in a location where he could act without fear of anyone coming forward as a witness against him and brought a loaded handgun to the meeting place.

While these were all significant aggravating factors, the Ontario Court of Appeal carefully examined the offender’s character at the time of sentencing. [ 59 ] The court found that the offender had spent almost eight years in custody and that he was, by all accounts, a changed man. During his incarceration, he had finished high school and taken some additional courses. He had developed significant work skills and gained personal insight into his prior behaviour. He had found spiritual comfort and support in the Catholic Church and he had helped and mentored others while in custody.

He had no record of any significant disciplinary offences while in custody. [ 60 ] The court also noted that he now had the support of a loving wife and family, many members of whom attested to the fundamental change in him during his incarceration. A life of crime had lost its allure and now he was interested in furthering his education, working for a living, and raising a family. [ 61 ] The appeal court acknowledged that courts must always be concerned about the bona fides of rehabilitation while incarcerated, but it found good reason for optimism in this case. The court noted that

section 745.4 speaks to the character of the accused at the time of sentencing and gave significant credit for these factors in setting the period of parole ineligibility at 12 years. Analysis [ 62 ] Sentencing must be carried out on the specific facts of the case. A “fit sentence” takes into account the particular circumstances of the offender and the offence and is proportionate to the offender’s moral culpability. All of the above described authorities merely demonstrate that, as in most situations, sentencing in each case depends very much on the particular facts.

Each case must be approached individually. [ 63 ] With this in mind, I turn to the fundamental sentencing principle of proportionality and assess the appropriate sentence on the facts of this case. It must be remembered that the sentence imposed for second degree murder is life imprisonment. It is possible that an offender guilty of second degree murder will never be released, if the parole board determines that it would be a danger to the community to do so. My task is to determine the minimum number of years Mr. Honorio must serve before he is eligible to seek parole.

The amount of time imposed reflects the principles of sentencing in expressing the community’s denunciation of his conduct, as deterrence to him and others from committing such crimes, promotes public safety, and provides opportunities for rehabilitation. [ 64 ] I acknowledge the wide gap in the period of ineligibility between the Crown (20 years) and defence (12 years) within the framework that sentencing is individualized: see, for example, R v Ipeelee , 2012 SCC 13 ; R v Lacasse , 2015 SCC 64 ; R v Pham , 2013 SCC 15 ; R v McLaren , 2015 BCCA 478 .

[ 65 ] Acknowledging the proportionality principle ( Nasogaluak and Arcand ) weighed against the general principles of sentencing and any mitigating and aggravating factors, I turn to

section 745.4 of the Criminal Code to analyze (

a) the character of the offender; (

b) the nature of the offence; and (

c) the circumstances surrounding the commission of the offence. [ 66 ] Mr. Honorio was 25 years old at the time of the offence. He was a member of the gang known as the 403 Soldiers that had become allied with the FOB. Although he had no criminal record at the time of the offence, he was on bail for weapons charges that were later stayed. [ 67 ] Mr. Honorio’s offence was heinous and the circumstances surrounding its commission were egregious. An innocent man is dead because he tried to escape the violence that had descended upon the restaurant where moments before he had been eating his lunch. Mr.

Honorio’s actions occurred in the context of gangland warfare and resulted in the death of an innocent bystander. [ 68 ] Furthermore, Mr. Honorio actively participated in the kidnapping of Mr. Bendle and the planned assassination of Mr. Mann. These activities were planned in advance and took several days to carry out. He even offered to be the shooter. He did so to prove himself to the FOB, to raise his status in their eyes, and to obtain guns, drugs and bulletproof vests for the 403 Soldiers. It does not matter that, in the end, he did not obtain these benefits. [ 69 ] Mr.

Honorio’s actions express a ruthless disregard for life, not only of rival gang members, but of the public in general by shooting an innocent person in the back, in a public parking lot with bystanders in the vicinity. As stated by Nordheimer J in Johnson , citizens of Calgary must be protected from individuals who choose to illegally possess weapons and even more importantly, who choose to use them in this way in a public place.

Murders such as this one strike at the heart of a civil and ordered society. [ 70 ] There are a number of aggravating factors in this case including the planning and deliberation involved in the circumstances surrounding the offence; the gang involvement; the use of a gun; the public nature of the location of the offence; and Mr. Honorio’s post- offence conduct of changing clothes and disposing of weapons and cell phones to avoid detection. [ 71 ] Mr. Honorio’s relative youth is somewhat mitigating, although not particularly so.

He was not yet a hardened criminal, but his actions at the time clearly show an intention to pursue a life of gang affiliation and crime. [ 72 ] His guilty plea clearly warrants some consideration. Although he pleaded guilty after a first conviction and an appeal to the Court of Appeal, his plea nonetheless saved significant court time. He admitted to murder and in so doing, forfeited his constitutional right to a trial. [ 73 ] Mr. Honorio is now 32 years old.

It appears he has learned a great deal from his extended time at the Remand Centre and at the Edmonton maximum security institution (where, among other things, he was assaulted in front of his parents). He appears remorseful for his actions, telling this court that although he cannot take back what he has done, he will live with the anguish and grief of it for the rest of his life. He takes full responsibility for his actions and asks that his family and loved ones are not blamed for what he has done.

His crime has had an enormous impact on his close family, although he continues to have their strong support, as well as that of his faith community. [ 74 ] I reject defence counsel’s argument that Mr. Honorio can be given any credit for his pre-sentence custody, in the sense of using it to balance against aggravating factors. Justices Picard and Wakeling in Ryan concluded that doing so is an error in principle: see paras 25-27 & 206-208. Conclusion [ 75 ] First, I impose a sentence of life imprisonment.

Second, taking into consideration the character of the offender, the nature of the offence and its surrounding circumstances, as well as the aggravating and mitigating factors, and keeping in mind the general principles of sentencing, the principle of proportionality, and the necessity of imposing similar sentences for similar offenders and similar offences, I find that it is appropriate to impose a 16 year period of parole ineligibility. [ 76 ] I also order that Mr. Honorio provide a DNA sample for the DNA data bank and that he be subject to a lifetime weapons prohibition. Heard on the 11 th day of April, 2016.

Dated at the City of Calgary, Alberta this 28 th day of June, 2016. W.A. Tilleman J.C.Q.B.A.

Appearances: Adam May & Steven Johnson Alberta Crown Prosecution Service, Specialized Prosecutions for the Crown Tonii Roulston and Andrea Urquhart Roulston Criminal Defence Firm for the Accused