R. v. Pope, 2019 NLSC 173

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pope , 2019 NLSC 173 Date : October 4, 2019 Docket : 201801G5227 Her Majesty The Queen v. Craig Pope Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 18, 2019 Date of Oral Judgment: October 4, 2019

Summary: The Offender, Mr. Craig Pope, was convicted by a jury on June 21, 2019 of the offence of second degree murder pursuant to

section 235 of the Criminal Code . Because of that conviction, I find him guilty of two charges under

section 733.1(1) since he was subject to two probation orders at the time of the murder. Mr. Pope is sentenced to life in prison with a 12-year period of parole ineligibility. He is sentenced to 60 days in prison on each of the breaches of probation – concurrent to one another and concurrent to the sentence for second degree murder. Because of his previous convictions Mr. Pope is subject to a lifetime ban in respect of firearms and restricted weapons.

Section 235 , being a primary designated offence, requires me to order that Mr. Pope provide such samples as are required for the purposes of the National DNA Data Bank of Canada.

Appearances: Shawn I. Patten and Jude W. Hall Appearing on behalf of the Crown Randolph J. Piercey Q.C. and Jonathon E. Noonan Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. Doyle, (NL SC), 2003NLSCTD 20; R. v. Hunt, 2006 NLTD 117; R. v. Bourne (1996), (NL SC), 141 Nfld. & P.E.I.R. 309, 443 A.P.R. 309(Nfld. S.C. (T.D.)); R. v. T.(J.) (2000), (NL SC), 190 Nfld. & P.E.I.R. 242, 576 A.P.R. 242 (Nfld. S.C. (T.D.)); R. v.Neville, 2013 NLTD(G) 48; R. v. Allen, 2004 NLSCTD 134; R. v. Parsons, 2007 NLTD 108; R. v.

Blundon, 2011 NLTD(G) 19 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] I wish to acknowledge, first and foremost, the victims in these proceedings. Firstly, Jonathon Collins, who lost his life onSeptember 7, 2017.

Secondly, the children of Jonathon Collins – who will now grow up without the benefit of the support,encouragement and love of their father and, lastly, the parents and sister of Jonathon Collins – who courageously took the stand and readinto the record the particulars of the horrendous loss that they have suffered, and will continue to suffer, because of a rash and senselessdeed that defies any explanation. [2] Children are supposed to outlive their parents. When they do not, under circumstances such as these, trauma inevitably results.

Jonathon’s father and mother eloquently related to the Court the despair and grief they have suffered and will continue to suffer all oftheir lives. [3] Similarly, Jonathon’s sister, Stefanie Roberts, has suffered enormous emotional strain as a result of the death of her brother.

She, too, will undergo the lasting effects of the trauma she has suffered. [4] While Jonathon’s children didn’t provide victim impact statements, the Court is mindful that they, too, have been emotionallyimpacted and that those impacts will continue well into the future. [5] The Court acknowledges that “closure” is not possible in such circumstances. Each of these individuals will feel the brunt ofthis loss every day for the rest of their lives. [6] And, of course, Jonathon Collins has had the most grievous loss.

All that he was or might have been are forever gone. [7] The family of Jonathon Collins properly want this Court to understand, remember and acknowledge the loss that they, andsociety, have suffered as a result of this senseless murder. As Mr. Collins said, in his victim impact statement, the world is worse off as aresult of Jonathon’s untimely demise. [8] In determining a sentence that is reflective of society’s denunciation and repudiation of this offence, I have considered theevidence of victim impact that was placed before me.

I recognize that no sentence that I can impose will erase the grief of this family. [9] With that background, the Court must arrive at a sentence that is fair and just under the circumstances. The sentence must beone which is lawful, and it must be one which takes into consideration precedents that exist in this jurisdiction, because it is afundamental rule of our law that convicted persons receive sentences that are similar to those given to other convicted persons incircumstances that are similar.

[10] It is important to remember, at the outset, that the sentence for a person who is convicted of second degree murder is lifeimprisonment. The Court has no discretion in this regard, I must impose a sentence of life imprisonment. I cannot impose any othersentence. [11] The only discretion that I possess is with respect to the time that must pass before Mr. Pope is entitled to apply for parole to theNational Parole Board (the “Board”). That period cannot be any less than 10 years and cannot be any more than 25 years. [12] When the appropriate time has elapsed, Mr. Pope will be eligible to apply for parole.

That will set in motion a process by whichthe Board will conduct a hearing to determine whether Mr. Pope qualifies for parole. Jonathon Collins’ immediate family will be givennotice of the hearing, will be able to attend and make representations for the Board’s consideration. Only if Mr. Pope has progressedsatisfactorily while incarcerated will the Board entertain his application. One of the factors that the Board will consider is whether ornot Mr. Pope represents a risk to the public at the time of the hearing.

There will be other factors that will be taken into account as well. [13] Being able to apply for parole is not the same as getting parole. They are two completely separate and distinct processes. [14] What follows, then, is largely a discussion related to the time that must pass before Mr. Pope can apply for parole, and myreasons for exercising my discretion in the manner that I have chosen. submissions [15] The Crown and the Defence have both recommended that the period of parole ineligibility in this case be 12 years from the dateof Mr. Pope’s arrest on September 7, 2017. Theirs is not a joint submission.

I am not, therefore, bound by what they haverecommended. background [16] Mr. Pope was indicted on a charge of second degree murder. He was convicted after a trial by judge and jury on June 21, 2019. [17] The offence was committed on September 7, 2017 at the Corner of Alderberry Lane and Mundy Pond Road in the city of St.John’s, Newfoundland and Labrador at about 3:30 in the afternoon. Craig Pope and Jonathon Collins were passengers in a taxicab thatwas stopped near the intersection. A panel van driven by the Offender’s father was seen to arrive at the scene, and the Offender’s fatherapproached the taxi cab.

A sum of money, $60, was given to one of the occupants. An altercation began between the Offender andJonathon Collins. The Offender was the aggressor. He was demanding that the $60 be given to him. Jonathon Collins was trying tofend off the Offender and get away from him. Punches were thrown by both men. Eventually, Jonathon Collins was seen falling to theground. [18] The Offender got into the waiting taxi and drove away, leaving Jonathon Collins on Mundy Pond Road. En route, the Offendertold the cab driver to “run over buddy”. The cab driver did not do so, but took the Offender to an area of St.

John’s not far fromMemorial University. [19] En route, the taxi cab caught up with the panel van. The Offender and his father exchanged words. The father asked what hadhappened to the young fella. The Offender replied that he had stabbed him. The conversation was overheard by the father’s co-worker –who was a passenger in the panel van. [20] The Offender was arrested shortly thereafter in a plastic surgeon’s office not far from where he had been dropped off by the cabdriver. [21] Jonathon Collins had been stabbed once in the abdomen.

It was learned that the stab wound had perforated a major bloodvessel which caused extensive bleeding. [22] Jonathon Collins succumbed to his injuries. No one saw the stabbing, although a number of witnesses saw the two menfighting. The murder weapon was never recovered. issue [23] The sole issue before the Court is the time that must elapse before Mr. Pope is allowed to apply for parole. Both the Crown andthe Defence have recommended that the Offender be ineligible for applying for parole for a period of 12 years. There are no divergingopinions regarding the ancillary orders that I am obliged to make.

Criminal code provisions [24] Section 235(1) of the Criminal Code, R.S.C. 1985, c. C-46 states: Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced toimprisonment for life. [25]

Section 745(

c) of the Criminal Code states that a person convicted of second degree murder shall not be eligible for parole untilhe has served at least 10 years of his sentence or such greater number of years, not being more than 25, as has been substituted thereforepursuant to

section 745.4. [26] In R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 at paragraph 19, the Supreme Court of Canada indicated thatsection 744 specifies the factors to be considered by the sentencing judge and prescribes the limits of the Court’s discretion. It states: … at the time of the sentencing under paragraph 742(

b) of an offender who is convicted of second degree murder, the judge whopresided at the trial of the offender ... may, having regard to the character of the offender, the nature of the offence and the

circumstances surrounding its commission ... substitute for ten years a number of years of imprisonment (being more than ten but notmore than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [Emphasis in original] [27] The reference to

section 743 is a reference to sentencing recommendations made by the jury. In this case, the jury were asked ifthey wished to make a recommendation with respect to parole eligibility and the jury declined to do so. judicial

interpretation [28] As a result of the decision of the Supreme Court of Canada in R. v. Shropshire, the law has been settled. Judges are allowed touse their discretion in determining an appropriate length of parole ineligibility in excess of 10 years. [29] In R. v. Doyle, (NL SC), 2003 NLSCTD 20, Green, C.J., as he then was, set out the factors that Courts mustconsider at paragraph 31: (a) — Character of the Offender (

i) general background; (ii) previous criminal record and lifestyle; (iii) medical and psychiatric history; (iv) capacity for future dangerousness; (

v) attitude, including remorse and victim empathy; (vi) motivation; (vii) mitigating circumstances, such as the entry of a guilty plea, and cooperation with the investigation. (b) — Nature of the Offence (

i) nature of the crime, (ii) victim impact, (c) — Circumstances surrounding the commission of the offence (

i) the manner in which the death was caused, including the infliction of any gratuitous, excessiveor sadistic violence, (ii) explanation by the offender, or any lack of explanation, (iii) planning and deliberation,

(iv) influence, if any, of alcohol or drugs. [Emphasis in original] age and character of the offender [30] The Offender was born on September 21, 1985. [31] He did not testify at trial and the Court has few details respecting his family, early history or schooling. There was no evidenceof any psychiatric disorders or the influence of alcohol or drugs on the date of the offence. His counsel filed documents at the time ofsentencing submissions that indicate the following:

(1) The offender has availed, in the past, of a program offered to adult children of alcoholics at Her Majesty’s Penitentiary in St. John’s.The aim of the program is to examine the impact that growing up in a dysfunctional home has on one’s behaviour.

(2) While incarcerated and awaiting trial in this matter, the offender has successfully participated in and completed a seven weeksubstance abuse treatment program. Since the program is targeted at those who present with a moderate to high level of alcohol and/orother drug dependence, we can infer that the offender has drug addiction issues. The offender was described as having made an ongoingeffort to participate in group discussions, often providing thoughtful and appropriate feedback.

(3) A letter was provided by the Roman Catholic Chaplain at Her Majesty’s Penitentiary. The Chaplain reported that the offender hastwo children, and that he has participated in a Hallmark Christmas stories program that consists of recording stories read for his children.The Chaplain reported that he was impressed by the offender’s love for his children and his determination to make sure that they areaware of that love. [32] Mr. Pope’s children are also victims. They will also be deprived of the care and upbringing that their father could haveprovided for them for some time to come. [33] Mr.

Pope has criminal convictions dating back to 2005. They include convictions for assault causing bodily harm, assault,criminal harassment, break and enter, theft, fraud, trafficking in controlled substances and impaired driving. There are, in addition, 14convictions for breaches of court orders. Firearms and weapons prohibitions were imposed in relation to his convictions for assaultcausing bodily harm and common assault. [34] Mr. Pope pleaded not guilty and a judge and jury trial was conducted. That is not an aggravating circumstance as far assentencing is concerned.

According to our rule of law every person who is charged has a right to a fair trial and to insist that the Crownprove its charges against him. nature of the offence and surrounding circumstances [35] On the afternoon of September 7, 2017 Craig Pope and Jonathon Collins made stops at a number of houses in St. John’s beforearriving at the intersection of Alderberry Lane and Mundy Pond Road. They were friends. However, the payment of $60 somehow setin motion a chain of events that resulted in an escalated interaction between these two men.

At all times the Offender was the aggressor.Jonathon Collins was trying his best to get away from him. The altercation did not last very long. It started as a verbal harangue,evolved into a fist fight and culminated in Jonathon Collins being stabbed once in the abdomen. There was no evidence of the inflictionof any gratuitous, excessive or sadistic violence. There was no mutilation or dismemberment. [36] Civilians, paramedics and officers at the scene attempted to stabilize Jonathon Collins. Ultimately, their efforts were notsuccessful.

In his last lucid moments, on his way to the hospital in the ambulance, he opened his eyes, smiled at the police officeraccompanying him and flashed him a peace sign. After that he never regained consciousness. [37] I find aggravating the fact that the Offender told the cab driver to drive over his friend as they were leaving the scene. This mayhave been uttered in the heat of the moment, but it is aggravating nonetheless. [38] A toxicology screen completed on Jonathon Collins showed that he had methadone in his system. He was in a methadoneprogram and was grappling with a drug addiction problem.

However, at the time of his death he was not under the influence of anydrugs. Decisions Cited [39] The Crown and the Defence cited a number of decisions for the Court to consider in arriving at an appropriate period of paroleineligibility. [40] In R. v. Hunt, 2006 NLTD 117, Stephen Eugene Hunt shot his 69-year old victim to death by means of a single shot to the head. Mr. Hunt had stolen the .303 rifle from the victim’s home earlier. He returned to the home with the rifle still loaded. Feeling paranoidabout the victim’s reaction, and fearing what the victim might do upon discovering he had stolen the rifle, Mr.

Hunt shot the victim. The23-year old offender had a long criminal record. He entered a guilty plea to the charge against him and was sentenced to life in prisonwith a parole ineligibility period of 12 years. [41] In R. v. Bourne (1996), (NL SC), 141 Nfld. & P.E.I.R. 309, 443 A.P.R. 309 (Nfld. S.C. (T.D.)), WallaceCarson Bourne was ejected from an all-night drinking party. He went home and obtained two knives. He forcibly returned to the househosting the party and threatened to kill its occupants. The victim entered a hallway in which Mr. Bourne was standing, whereupon he

was stabbed once in the upper chest. The stab wound perforated a blood vessel, which resulted in his death. Mr. Bourne had a lengthyrecord, including three convictions for violent crimes. After a trial by judge and jury, and a finding of guilt in relation to second degreemurder, a parole ineligibility period of 12 years was imposed. [42] In R. v. Shropshire, Michael Thomas Shropshire pleaded guilty to second degree murder. The murder occurred in relation to adrug transaction but there was no apparent motive and no explanation given for the offender’s actions. Mr.

Shropshire was 23-years oldand had a criminal record for narcotic offences and robbery. A parole ineligibility period of 12 years was imposed. [43] In R. v. T.(J.) (2000), (NL SC), 190 Nfld. & P.E.I.R. 242, 576 A.P.R. 242 (Nfld. S.C. (T.D.)), the offenderwas found guilty of second degree murder following a trial by judge and jury. The victim had been drinking and had passed out. Theoffender and his co-accused attempted to steal money and cigarettes from the victim and began to beat him. When approached bypassersby, they dragged the victim into the woods – where they continued to beat him.

The victim died as a result of his injuries. Themajority of the jury members recommended a parole ineligibility of 10 years. The remaining jurors expressed no opinion. The Courtimposed a parole ineligibility period of 12 years. [44] In R. v. Neville, 2013 NLTD(G) 48, Steven Michael Neville stabbed one person to death and seriously injured another. Bothvictims were stabbed multiple times. Mr. Neville got out of a car as it passed the victims when they started to chase the car. Almostimmediately after alighting from the vehicle he stabbed one victim – who ran away and fell. He engaged the other victim in a fight.

During the fight he drove the knife into the victim’s temple – piercing his skull and brain. The wound was fatal. The infliction of thewounds was multiple and aggressive. Mr. Neville was convicted by a jury of second degree murder. Parole ineligibility was set at 12years. I note that this case was appealed to the Supreme Court of Canada and a new trial was ordered for reasons unrelated to thesentence that was imposed. [45] In R. v. Allen, 2004 NLSCTD 134, two accused were convicted of second degree murder. The victim was stabbed some 60times and bled to death.

The trial judge described the murder as “nothing short of brutal”. The pattern of stabbing was excessive andsadistic. One of the accused was found to be the prime offender in the death of the victim and was sentenced to a parole ineligibilityperiod of 25 years. He had previously been convicted of murder and had a long criminal history. The other accused, Mr. Allen, wassentenced to a parole ineligibility period of 10 years. [46] In R. v. Parsons, 2007 NLTD 108, Benjamin Parsons killed his wife by shooting her once with a .303 rifle in the course of anargument. She died almost instantly.

He pleaded guilty to second degree murder. He had no prior convictions. His lifestyle prior to theoffence was quiet, domestic and relatively uneventful. He suffered from poor health. A period of 12 years’ parole ineligibility wasimposed. [47] In R. v. Blundon, 2011 NLTD(G) 19, Craig John Albert Blundon entered a guilty plea to second degree murder in the shootingdeath of his friend. After shooting the victim, Mr. Blundon hid the body in the woods. Thereafter, he participated for some time in thesearches that were conducted while the victim was still “missing”. Ultimately, he gave a full confession.

He had no previousconvictions. Mr. Blundon was sentenced to a period of parole ineligibility of 12 years. the principles of sentencing [48]

Section 718 of the Criminal Code states: 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [49]

Section 718.1 of the Criminal Code states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [50] The relevant subsections of

section 718.2 of the Criminal Code state:

718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; disposition and conclusion [ 51 ] The offence of second degree murder is one that requires denunciation and deterrence to be prime considerations in passing sentence. The offence in this case was precipitated over an argument concerning $60. It defies logic that the victim lost his life over such a paltry sum. No sense can be made of it other than the Offender completely lost control and was unable to manage his anger.

No sentence that I am allowed to impose can ever undo the wrong that has been suffered. [ 52 ] Yet, I am required to balance the principles of sentencing and impose a sentence that is fair and just, and one which will protect the public, deter like-minded individuals and convey society’s condemnation of this senseless act. [ 53 ] The sentence must be proportionate to the gravity of the offence and the Offender’s responsibility. It must be similar to that imposed on other offenders in similar circumstances. [ 54 ] Mr.

Pope is a young man and I must take into account that rehabilitation is a significant consideration in arriving at a fit sentence. The goal of incarceration is to assist offenders in changing their ways so that, upon release, they will be law abiding citizens. We are not always successful in this endeavor, but that does not mean that we should not work towards that goal. It is always in society’s best interests that offenders be rehabilitated. [ 55 ] Mr. Pope, please stand. [ 56 ] You have been found guilty of second degree murder in the homicide of Jonathon Collins, and a conviction has been entered against you.

You are sentenced to a period of imprisonment for life without eligibility for parole until you have served 12 years of your sentence, to be calculated in accordance with

section 746 (

a) of the Criminal Code from the date of your arrest. [ 57 ] You have been found guilty of two counts of breach of probation pursuant to

section 733.1 of the Criminal Code . In respect of each of those counts I sentence you to serve 60 days in prison. The sentences in respect of the two counts will be concurrent to one another and concurrent to the life sentence I have imposed. [ 58 ] Pursuant to section 109(1) (

a) of the Criminal Code you are prohibited from having in your possession any firearm, crossbow, restricted or prohibited weapon or device, ammunition or explosive substance for life. [ 59 ] Pursuant to

section 487.05(1) of the Criminal Code , I am authorizing appropriate peace officers, or a person authorized under their direction, to take from you any number of samples of bodily substances that are reasonably required for forensic DNA analysis and inclusion in the National DNA Data Bank of Canada under the conditions set out in the Criminal Code . _____________________________ Vikas Khaladkar Justice