R. v. Cromwell, 2019 NSSC 144

SUPREME COURT OF Nova Scotia Citation: R. v. Cromwell , 2019 NSSC 144 Date: 20190506 Docket: CRH 452887 Registry: Halifax Between: Her Majesty the Queen v. Aidan David Cromwell Judge: The Honourable Justice D.

Timothy Gabriel Heard: Oral Decision: Written Release: April 18, 2019, in Halifax, Nova Scotia April 18, 2019 May 6, 2019 Counsel: Rick Woodburn and Carla Ball, for the Crown David Bright and Geoffrey Franklin, for the Defence By the Court (orally): Introduction: [ 1 ] On November 28, 2018, the jury in this case returned a guilty verdict with respect to a charge of second degree murder, contrary to s. 235 of the Criminal Code . The sentence to which Mr. Cromwell is subject was thereby determined: life imprisonment. [ 2 ] My task is to decide the period of time which must elapse before Mr.

Cromwell is eligible for parole. That period can be anywhere from 10 – 25 years. It begins on the date that Mr. Cromwell was taken into custody and held pending trial. Both sides agree that this occurred on February 2, 2012, the night when the murder of Mr. Tremblay took place. [ 3 ] Eligibility for parole does not provide some form of “discount” to a life sentence. Life is still life. There are no guarantees that an accused will ever be granted parole, no matter what eligibility dates are imposed by the court.

All that his parole ineligibility period does is establish the minimum amount of time which must expire before Mr. Cromwell may even fill out the paperwork and request parole. Even if parole is ultimately granted down the road, he will be subject to some form of supervision for the rest of his life. His freedom, if granted, will be a contingent thing, dependent upon his compliance with the terms of his parole. Otherwise, it will be revoked. [ 4 ] In order to discharge my task, I must consider Mr.

Cromwell’s character, the nature of the office, the circumstances surrounding its commission, and the recommendation made by the jury pursuant to

section 745.2 of the Criminal Code . The Victim Impact Statements have also been heard and considered as well. All of these will be considered against the background of the sentencing principles and objectives, including those found in sections 718 , 718.1 , and 718.2 of the Criminal Code . Background: Circumstances of the offence [ 5 ] In convicting him of second degree murder, the jury was obviously satisfied beyond a reasonable doubt that Mr. Cromwell caused Mr. Tremblay’s death unlawfully, in circumstances where he either meant to cause death or meant to cause bodily harm to Mr.

Tremblay that was likely to result in death, and was reckless about whether or not death ensued. [ 6 ] The facts which I am bound to accept are those which are essential to the jury’s verdict. Beyond those, I am at liberty to make other findings of fact based on the evidence disclosed either at trial, or in new evidence adduced at the sentencing hearing. [ 7 ] In addition to determining the period of parole ineligibility, I must also impose a DNA order pursuant to

section 487.051, and a weapons prohibition order under

section 109. I will return to those provisions at the conclusion of my comments herein. [ 8 ] First, the facts. In the late night hours of February 2, 2012, Mr. Cromwell was walking home with his girlfriend. The two were heading up Titus Street, in the direction of Main Avenue, in the Fairview area of Halifax Regional Municipality. The accused had

attained his eighteenth birthday only two and a half months previous. The pair’s destination was the Evans Avenue home in which the young woman lived with her mother. [ 9 ] Meanwhile, Marc Tremblay and his friend, Robert MacDonald, had just exited from Mr. MacDonald’s apartment. After they crossed Titus Street, their object was to turn left, go to a nearby service station and purchase energy drinks. Instead of turning left, Mr. Tremblay veered right, and began following Mr. Cromwell and the young woman. Mr. Tremblay was much bigger than the accused. [ 10 ] Mr.

Tremblay, who had been drinking, began yelling things like “you suck” at the couple. There may have been a couple of other barbs mixed in with this, but, for the most part, they were relatively mild epithets. Mr. MacDonald testified that Mr. Tremblay, even back at the former’s apartment, had began saying this or that “sucked”. He appeared to have gotten into this state while playing videogames there, possibly fueled by the alcohol that he consumed. [ 11 ] Mr. Tremblay never really got close enough to the couple to pose a risk of physical harm to them.

The pair merely had to keep going in order to avoid him. [ 12 ] Mr. Cromwell was not in much of a mood, either. He and his girlfriend had been arguing. The shouting by Mr. Tremblay continued for a relatively short period of time, and a correspondingly short distance up Titus Street. [ 13 ] Mr. Cromwell said, “I don’t have time for this shit”. He stopped, put down his backpack and retrieved a bread knife earlier obtained at his girlfriend’s home. He brandished it. Mr. Tremblay stopped also. [ 14 ] Although Mr. Tremblay had his hands at his side, his posture was interpreted by Mr.

Cromwell to be an invitation to fight. Knife in hand, Mr. Cromwell ran at Mr. Tremblay, and traversed the 12 – 15 feet separating the two of them. Additional momentum was conferred upon him because the gradient of the terrain was downhill. Just before making contact with Mr. Tremblay, Mr. Cromwell jumped into the air, and plunged the knife through the man’s heart, piercing some other organs as well. Enough force was administered to cause the blade to break off in Mr. Tremblay’s chest. [ 15 ] Mr. Cromwell fell in the course of delivering the blow. As he regained his feet, Mr.

Tremblay lurched after him for a second or two before succumbing to the wound. He died on the ground just as his friend, Robert MacDonald, had caught up with him and knelt down by his side. [ 16 ] Mr. Cromwell and his girlfriend ran away while Mr. Tremblay died. The accused hid in a closet at his girlfriend’s residence on Evans Avenue. Upon their arrival at the residence, the police were only able to extricate Mr. Cromwell from this closet after a great deal of effort. He fought and vigorously resisted them all the way. [ 17 ] When he died that night, Mr.

Tremblay left behind a (then unborn) daughter, who is now 7 years old. He also left behind a fiancée, a mother, and other family members who loved him dearly. For his part, Mr. Cromwell has been imprisoned, separated from his family, and removed from society since that night. [ 18 ] This is an unmitigated tragedy for both families. If I were invested with superhuman power, I could wind the clock back. It would only be necessary for me to change one of the ingredients in this deadly recipe, and Mr. Tremblay would still be alive: 1. Mr.

Tremblay might have just simply continued walking with his friend, instead of following and yelling at the couple; 2. Mr. Cromwell might have honoured the terms of the probation order to which he was subject at the time. This prohibited him from carrying a weapon on his person because of a previous stabbing; 3. Mr. Cromwell might have just ignored the relatively mild “you suck” barbs and continued walking; 4. Mr. Cromwell might have just sped up to put even more distance between them; or 5. In an absolute worst case scenario, he might have chosen to engage Mr.

Tremblay with his fists, rather than with the advantage of a knife. [ 19 ] Almost any course of action would have been better than the one Mr. Cromwell ultimately chose. [ 20 ] But, to state the obvious, I cannot undo what happened. What I am to do in this situation – the only thing that I can attempt – is to try to do the right thing. This will not make anybody feel any better, I guarantee that. But I will apply the sentencing principles that are set forth in the Criminal Code , as interpreted by the relevant case law, to the best of my ability.

Character of accused [ 21 ] I have attended carefully to the submissions of both counsel, including those in their briefs, and those provided orally today. I have also considered the current Pre-Sentence Report prepared March 12, 2019, the one dated July 7, 2014, prepared after his first trial, and an IWK Assessment Report dated October 13, 2011, prepared while Mr. Cromwell was being sentenced for an assault with a weapon charge (s. 267(b)), as a youth. [ 22 ] From the most recent Pre-Sentence Report, we learn: Mr. Cromwell advised he was born in Halifax, Nova Scotia to Mr. David Thompson (age 65) and Ms.

Paulette Cromwell (age 64). He mentioned his father was employed as a salesman and his mother a homecare worker. The subject reported his parents had never been married and their relationship ended when he was a youth. He reported he shares a positive relationship with both parents. According to the subject, his father is involved in a relationship and his mother remains single. The subject mentioned he had two siblings, Vista (age 40) whom resides in Ontario and a brother who is deceased.

In discussing his formative years, Mr. Cromwell reported he was raised by his mother, however visited his father every weekend and onspecial occasions. He denied any form of abuse in the home nor any substance abuse issues. With regard to his childhood, the subjectstated “she wasn’t very strict, but she kept me on the right path for the most part. She tried to do her best. I always had food and clothes.”The subject recalled he got into some trouble during his formative years and indicated a typical consequence for negative behaviour hadbeen a grounding. Mr.

Cromwell noted he has never lived independently and has always resided with his mother. [23] Mr. Cromwell has completed his grade 9, and made some progress into some grade 10 subjects – he plans to get his GED inthe future. [24] He was diagnosed with paranoid personality disorder in 2013, as well as depression and anxiety in 2016, and is being treatedfor those conditions. [25] His social worker at the correctional facility speaks well of him, and refers to the development of clear, pro-social goals on hispart.

She credits his own reflectiveness, his freedom from negative outside influences, and the refinement of his talent for music andwriting poetry as catalysts for this personal growth. She cites his work with other individuals while incarcerated, helping them transitioninto the dayroom and relating his experiences while incarcerated to help them improve their chances for similar personal growth anddevelopment.

He has received only three “levels” since his incarceration, all for relatively minor infractions. [26] He told the writer of the report that he accepted responsibility for his actions saying. “I accept I did it and I wish he could havehis life back. It was kind of self-defence but more provoked”. [27] The case management officer at Central Nova Scotia Correctional Facility described Mr. Cromwell as “a very polite andrespectful inmate”. There is a tension between this observation and one mentioned in the IWK Assessment Report dated October 13,2011.

The author said at that time: Throughout interviews Aidan presented as a truly likeable and charming young person. He did not appear overly reticent or evasive ininterview. However, at times he deliberately presented with a wide-eyed naivete around certain subjects (for example, ganginvolvement) in such a light-hearted, affable manner that his responses did not appear genuine. In other words, this young man may bemore criminally sophisticated and instrumental in his delinquent and aggressive manners than others believe (due to his positive qualitiesand engaging style) or he cares to let on.

Jury Recommendation [28] As for the jury members, nine recommended the minimum period of 10 years ineligibility, two abstained, and onerecommended a period of 15 years. [29] These recommendations have significance. So does the apparent concurrence between the jury, Crown and Defence that Mr.Cromwell falls within the lowest of the three ranges of parole ineligibility as determined by the case law (I will discuss that case lawmore fully in a moment) which is the 10 – 15 year range. [30] As to the significance of the jury’s recommendation, there is much force to the court’s observation in R. v.

Shevalev, 2018BCSC 1612. At para. 30 of Shevalev, Justice Wedge observed: This jury, after hearing all of the facts, determined that Mr. Shevalev had the requisite intent, but the majority has expressed the view asto the number of years this young man must spend in custody before he has a chance of resuming his life. In my view, the jury'srecommendation is entitled to serious consideration. The community has spoken. If we did not want their opinion, we should not haveasked for it. [Emphasis added] Applicable range [31] In R. v.

Shropshire, (SCC), [1995] SCJ No. 52, the Supreme Court of Canada reviewed the principles ofsentencing with respect to parole ineligibility. At para. 29, Justice Iacobucci wrote:

Section 742(

b) of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible forparole "until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, ashas been substituted therefor pursuant to

section 744". In permitting a sliding scale of parole ineligibility, Parliament intended torecognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees ofmoral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median periodgravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is "unusual". [32] In R. v.

Ward, 2011 NSCA 78, our Court of Appeal explained at para. 98: In this country the sentence following a conviction for murder is imprisonment for life. Parole may reduce the time behind bars. In R. v.Hawkins, 2011 NSCA 7, Justice Beveridge explained it this way: 2. Life imprisonment is the maximum sentence of incarceration in Canada. Since the abolition of capital punishment, the only penaltyfor any accused convicted of murder is life imprisonment. Subject to a grant of clemency from the executive, the offender will always besubject to this sentence for the rest of his natural life.

3. Parole is a possibility. For an offender convicted of first degree murder, there is no eligibility for parole prior to serving 25 yearsincarceration. Offenders convicted of second degree murder must serve a minimum period of ten years before being eligible to apply forparole. However, a sentencing judge is required to consider whether that minimum period of ten years should be increased by somenumber up to a maximum of 25 years. [33] Similarly, in R. v. Beaver, 2014 NSSC 10, Justice Rosinski summarized the relevant authorities and determined that the firststep required is to fix the acceptable “range”.

He elaborated at paras. 7 and 8: 7. In deciding what would a "fit" period of parole ineligibility, judges are guided by what periods of parole ineligibility have beenimposed on similar offenders in similar circumstances of second-degree murder convictions. Attempting to provide some consistencybetween the periods of parole ineligibility for similar offenders in similar circumstances leads judges to review the outcomes in suchother similar cases with a view to establishing the "acceptable range" of parole ineligibility. 8.

Thus once the "acceptable range" of parole ineligibility is identified, a "fit" or reasonable period of parole ineligibility can then beselected as the specific period of parole ineligibility for a particular offender ... [34] Even where counsel (and, in this case, the jury) agree as to the applicable range, the caveat expressed in R. v.

Cromwell, 2005NSCA 137, at para. 26 is apt: In my opinion the range is not the minimum to maximum possibilities for the offence but is narrowed by the context of the offencecommitted and the circumstances of the offender ("... sentences imposed upon similar offenders for similar offences committed in similarcircumstances ..." per MacEachern, C.J.B.C. in R. v. Mafi (2000), 2000 BCCA 135 , 142 C.C.C. (3d) 449 (C.A.)). The actualpunishment may vary on a continuum taking into account aggravating and mitigating factors, the remedial focus required for theparticular offender and the need to protect the public.

This variation creates the range. [35] To continue with Beaver, at para. 13: In

summary therefore, the starting point is a 10 year period of parole ineligibility. After considering: the factors in

section 745.4(character of the offender; nature of the offence; circumstances surrounding the commission of the offence; and any juryrecommendation made pursuant to

section 745.2, if there has been a trial); and sections 718 - 718.2 of the Criminal Code, a judge will bein a position to assess where along the range of acceptable periods of parole ineligibility, the specific offender being sentenced should beplaced, that is: in the 10 - 15 year range; the 15 - 20 year range; or, the 20 - 25 year range. [36] In R. v. Gabriel, 2017 NSSC 90, Justice Campbell noted at para. 119: In R. v. Hawkins the Court of Appeal accepted the categorization of parole eligibility into three parts.

The first category of 10-15 years isreserved for those offenders for whom the prospects of rehabilitation appear to be good and little would be served by extending theperiod of parole ineligibility other than to further the sentencing objectives of denunciation and retribution. The third category of 20-25years is reserved for the worst offenders who commit the worst offences. The category between 15-20 years is for those who do not fallinto either of the other two. [37] Crown and Defence have referred me to a number of authorities. I have reviewed these and others, including R. v. Shevalev,supra, R. v.

Othman, 2016 ONSC 8115, R. v. Cormier, 2015 NBQB 96, R. v. Pandurevic, 2013 ONSC 3323, R. v. Bengy, 2012 ONSC4463, R. v. Bhandher, 2010 BCSC 1812, R. v. Smith, 2014 NSSC 352, R. v. Blandon, 2012 ONSC 3864, R. v. Cleyndent, 2006CarswellONT 6157, (Ont. C.A.), R. v. Sodhi, (ONCA), and R. v. Krasniqui, 2009 CarswellONT 1001. Application of the facts to law [38] I agree with the jury, Crown and Defence that Mr. Cromwell falls within the first tier of the range of parole ineligibility, whichis to say 10 – 15 years, for the reasons earlier discussed.

In any event, it would be very rare for the court to disregard such unanimity. [39] Within that range, the Crown seeks a period of 13 years, the Defence argues for 10, the latter of which is in accord with therecommendation of the majority of the jurors. The Justice who sentenced Mr. Cromwell after his first trial in this matter in 2014 (whichwas overturned and new trial ordered), had imposed an 11 year period of parole ineligibility. [40] Obviously, none of these “numbers” is binding upon me.

I have considered and earlier outlined the observations made in bothPre-Sentence Reports and the IWK Assessment with respect to the character of the offender, as well as my own observations with respectto that character, together with the nature of the offence, the circumstances surrounding its commission, and the jury’s recommendation. [41] Certain aggravating factors bear emphasis. I have discussed the fact that this was a knife attack upon an unarmed man. Itoccurred upon very little pretext. Mr.

Tremblay’s behaviour was unruly, and he was a much bigger man, but he never was a threat to Mr.Cromwell or his girlfriend in these circumstances, and he ought not to have paid for this conduct with his life. [42] There is also the fact that Mr. Cromwell had been convicted of a related offence as a youth and was still on probation for it atthe time of the murder. His probation order prohibited him from being in possession of a weapon at the time Mr.

Tremblay was killed. [43] As I reflect upon the jury’s recommendation of 10 years ineligibility, I must also consider the fact that they were unaware ofthis prior offence and the terms of his earlier probation order when the majority recommended the minimum period of ineligibility forparole. [44] I also consider the victim impact statements and the enormity of the loss inflicted upon the Tremblay family, including hismother, fiancé, and daughter. Indeed, I was struck by the palpable pain in the voices of the first two as they read their victim impactstatements, as well as that in Mr.

Rob MacDonald’s voice when he testified at the trial as to how he came to observe the death of theman whom he considered to be the best friend that he has ever had.

[ 45 ] I consider the flight from the scene after the blow was struck, the discarding of the knife handle by Mr. Cromwell as he ran, his hiding in his girlfriend’s closet, and the vigor with which he resisted police when they attempted to extricate him from it. [ 46 ] Against these considerations, I am also mindful of the very positive comments of the people noted in Mr.

Cromwell’s most recent Pre-Sentence Report, the insight that he has obtained while incarcerated, the increase in his pro-social awareness, his extreme youth at the time of the offence, and the remorse that he has expressed to the author of the Pre-Sentence Report, and to the court today. In addition, he has a supportive family, which may also augur well for his rehabilitation. I balance all of these factors. Conclusion [ 47 ] After a great deal of thought, I have concluded that the appropriate period of parole ineligibility shall be 11 years from the time Mr.

Cromwell was first taken into custody, which is to say, from February 2, 2012. [ 48 ] The DNA order is granted on a primary designated basis, as is the weapons prohibition order, for life, under

section 109. [ 49 ] Mr. Cromwell, hopefully it is apparent to you that I have chosen to regard your outburst in court after the jury’s verdict to the effect of “where’s the f-ing justice” to be simply a spontaneous reaction after hearing a disappointing verdict. [ 50 ] I have also regarded the views expressed in your most recent Pre-Sentence Report to be more accurate than those contained in the IWK Assessment dated October 13, 2011. It is apparent that you have matured a great deal since that Assessment was prepared. I trust that you have, as a result, realized that members of Mr.

Tremblay’s family will be mourning Mr. Tremblay’s death for the rest of their lives. While his conduct that evening was mildly insulting, he did not deserve to pay for it with his life. After all, you are not being asked to forfeit your life. Society does not seek vengeance, but will exact just retribution. [ 51 ] Therefore, Mr. Cromwell, while we may not agree on what the definition of justice entails in this specific set of circumstances, rest assured that you have received it, to the very best of this court’s ability. What you make of this opportunity is up to you.

Eleven years of imprisonment will have passed before you may even file the paperwork to request parole. It is up to you, and your continued pro-social development in the interim, including how you conduct yourself, and the insight you acquire as to whether the Parole Board is ever willing to consider your application. That is entirely in your hands. [ 52 ] I am going to ask you, Sir, to make genuine efforts to acquire insight into the enormity of what you have done, if you haven’t completed that process yet. You have taken a life. It is very easy, as you have done today, to say that you are sorry.

You must dedicate the rest of your life to showing that you are sorry. That will be what matters. Show your mother, show your family, show your father, that you really are sorry for what you have put them through. Most importantly, show Mr. Tremblay’s family. [ 53 ] Make something of your life. Show everyone that this second chance that you will receive, one that Mr. Tremblay doesn’t get, is something that you are prepared to grab and run with. [ 54 ] You have been in prison since February 2, 2012.

You have some prospect of release – parole isn’t a picnic either, and you may never be released on parole in any event – as I said, it all depends on you. [ 55 ] I hope you take full advantage of your opportunity and the programming that is available to you, in conjunction with the outlet that poetry and writing affords to you, and turn your life around. If you do and if the Parole Board determines that it is appropriate to do so, when the time comes, you may have some prospect of release back into society. I wish you luck with that, and also luck in coming to terms with the life that you have taken. Gabriel, J.