R. v. Hannan, 2018 NSSC 335

SUPREME COURT OF Nova Scotia Citation: R. v. Hannan, 2018 NSSC 335 Date: 20181219 Docket: Cr. No. 448124 Registry: Halifax Between: Her Majesty the Queen v. Trevor Kyle Hannan Sentencing Decision Judge: The Honourable Justice Robert W.

Wright Heard: December 19, 2018 in Halifax, Nova Scotia Oral Decision: Written Decision: December 19, 2018 January 16, 2019 Counsel: Peter Craig and Kim McOnie for the Crown Robert Rideout for the Defence Wright, J. (orally) [ 1 ] On October 31, 2018 the jury returned a verdict of guilty of second degree murder against Trevor Hannan in the death of Daniel Pellerin which occurred on the night of August 29, 2014. [ 2 ] Mr. Hannan was arrested and charged with first degree murder on September 6, 2014 and has been in custody ever since.

With the finding of guilt of the included offence of second degree murder, the Court must now make a determination of the number of years that Mr. Hannan must serve under his life sentence before becoming eligible to apply for parole. The parole ineligibility period runs, of course, from the date of his arrest. [ 3 ] At the conclusion of the trial, sentencing was put over until today to allow time for preparation of a pre-sentence report and to obtain victim impact statements.

Those are now in hand and will be addressed shortly. [ 4 ] The Crown’s case at trial consisted largely of circumstantial evidence which the jury obviously found compelling in finding Mr. Hannan guilty of second degree murder beyond a reasonable doubt. Mr. Hannan himself did not testify and indeed no defence evidence was called. [ 5 ] The factual overview, implicit in the jury’s verdict, is that Mr. Pellerin was lured by Mr.

Hannan on the night of August 29 th to the parking lot at Farrell Community Hall in Dartmouth, ostensibly as a meeting place where he could pay the balance of a menial marijuana debt he owed to Mr. Hannan in the amount of $100, which Mr. Hannan apparently had been pressing for. Mr. Hannan had provided Mr. Pellerin with marijuana on a number of previous occasions and indeed they were long time personal friends. Mr. Hannan was often a visitor to the residence where Mr. Pellerin was then living with his sister and family, which makes this case all the more perplexing. [ 6 ] Little would Mr.

Pellerin have known of the fate that awaited him. The evidence established that after arranging this meeting, Mr. Hannan immediately contacted an acquaintance of his by cell phone who lived in the same neighbourhood. Since that person was then a youth and cannot be named under the Youth Criminal Justice Act , I will refer to him in this decision as “the youth”. [ 7 ] The youth apparently held a grudge against Mr. Pellerin for threatening one of his friends a few days earlier. That friend was one of three hooligans, a group of which the youth was also one of, who had senselessly and seriously beaten up Mr.

Pellerin’s nephew earlier on for no discernable reason. [ 8 ] Once Mr. Hannan and the youth teamed up a few minutes later, they made a brief stop at the apartment where Mr. Hannan was staying, where he changed his sneakers so as to be wearing all black clothing. They then made their way to the Farrell Hall parking lot to meet Mr. Pellerin. It was there that a security guard in a passing car saw two men attacking and beating up a man on a bicycle (which was Mr. Pellerin) with both their arms and their feet flying as the victim fell to the ground. Mr.

Pellerin was stabbed nine times with a sharp instrument with a serrated blade, thought to be a kitchen knife. As the security guard reversed direction to go back to the scene, the two assailants ran off, leaving Mr. Pellerin there to die.

[9] Although the police and paramedics soon arrived and Mr. Pellerin was whisked off to the hospital in an ambulance, he diedthere within an hour from extensive internal bleeding from the nine stab wounds. [10] As a result of some good police work, notably obtaining videos from neighbourhood surveillance cameras, obtaining cell phonerecords and the recovery of a knife in a nearby catch basin which matched a set of kitchen knives found in the execution of a searchwarrant of the apartment where Mr. Hannan was then living with his brother, both the offender and the youth were arrested within thefollowing week.

The youth plead guilty to second degree murder early on and Mr. Hannan was found guilty of the same offence afterthis trial. [11] Inexplicably, Mr. Hannan was acquitted by the jury of the second count in the indictment of the s.88 offence of possession of aweapon, specifically a knife, for a purpose dangerous to the public peace or for the purpose of committing an offence. [12] As alluded to earlier, second degree murder carries with it an automatic sentence of life imprisonment.

However, it remains forthe court to now fix a minimum period of time between the range of 10 years and 25 years that must be served before Mr. Hannan iseligible to apply for parole. [13] The authority for this sentencing disposition, and the criteria to be applied, is embodied in s.745.4 of the Criminal Code whichreads as follows: 745.4 Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder,the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard tothe character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, ifany, made pursuant to

section 745.2, by order, 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. [14] As stated by the Supreme Court of Canada in the leading case of R. v. Shropshire (SCC), [1995] 4 S.C.R.227 (at para. 18): 18. The determination under s. 744 [now 745.4]is thus a very fact-sensitive process.

The factors to be considered in fixing an extendedperiod of parole ineligibility are: 1. the character of the offender; 2. the nature of the offence; and 3. the circumstances surrounding the commission of the offence; all bearing in mind the discretionary power conferred on the trial judge. [15] To this must be added, of course, consideration of any recommendation made by the jury pursuant to s. 745.2 of the CriminalCode for setting the minimum period of parole ineligibility.

In this case, after returning its verdict of guilty of second degree murder, thejury was given the standard instruction in respect of the recommendation to be made. After a short period of deliberation, the juryreturned with differing recommendations. Six jurors recommended the minimum 10 year period before parole eligibility, two jurorsrecommended a 15 year period and three jurors recommended a 20 year period. One juror declined to make any recommendation. [16] It should be noted that the views of the jury on parole eligibility are just a factor for the Court to take into account, and nothingmore than that.

The Court is not obliged to give strong deference to the jury’s recommendation or the weighted majority thereof. Juries,of course, do not have as complete a set of facts or any case law knowledge as the Court does, when making such a recommendation. [17] Neither do they have the benefit of a pre-sentence report or victim impact statements which are now before the court and whichI will now address. [18] Mr.

Hannan’s pre-sentence report is dated November 30, 2018 and records that he is now age 27, single with no dependents,and has a grade 12 education. [19] The only source for preparation of the pre-sentence report other than the offender was an interview with his case manager atthe Central Nova Scotia Correctional Facility. It was noted in the report that Mr. Hannan did not provide names of other people whomight be contacted as references. Through his counsel, Mr.

Hannan asked for an adjournment of the sentencing this morning so as topursue that opportunity, but that request was denied by the Court. [20] The pre-sentence report discloses that Mr. Hannan was raised by his grandparents after his father committed suicide when hewas age four and his mother was unable to take care of him and his two brothers. Mr.

Hannan reported he had a positive upbringing andcontinued to live with grandparents until 2011(when he was age 20) when he began serving his first term of incarceration for 2 ½ yearsfor aggravated assault, careless use of a firearm, and possession of a prohibited firearm. [21] Mr. Hannan reported in his interview that up until his incarceration in 2014, he had only ever held one position of employmentand that was a short term job in a warehouse. He presently has no assets or debts and described himself as a loner, commenting hemainly sticks to himself. [22] Mr.

Hannan does not accept responsibility for his actions and maintains his innocence. He displayed no remorse in hisinterview. I interject here that the absence of remorse is never to be treated as an aggravating factor on a sentencing; rather it is simply

absent from being a mitigating factor. [ 23 ] The pre-sentence report also references Mr. Hannan’s criminal record. His most egregious prior convictions were those in 2011 above referenced for aggravated assault, careless use of a firearm and possession of a prohibited firearm. Crown counsel has informed the Court that these convictions arose from an incident in 2011 when Mr. Hannan shot his brother Brandon Hannan in the chest with a shotgun following an argument. [ 24 ] Apart from those convictions, Mr.

Hannan has a conviction for assaulting a corrections officer (in 2015 while on remand), being unlawfully at large (relating to the first week of 2014) and two convictions as a youth dating back to 2009. The convictions there were for the offences of possession of an unauthorized firearm and possession of drugs for the purpose of trafficking under s.5(2) of the CDSA. [ 25 ] At the beginning of this sentencing hearing, there were three victim impact statements read by members of the Pellerin family. The authors were the deceased’s mother, Myra Pellerin, his sister Melissa Weir and his nephew Morgan Weir.

In addition, a written victim impact statement was provided to the court written by Melissa Weir describing the traumatic effect of Mr. Pellerin’s death on his two young daughters. These victim impact statements show the depth of the impact Mr. Pellerin’s death has had on members of his family. They have been nothing short of devastated by the loss of Mr. Pellerin as a son, father, brother and uncle.

It is painstakingly clear that his loss will have a lasting and profound effect on all his family members. [ 26 ] The overall approach to be followed by trial judges in making a s.745.4 disposition is well-established, dating back to the leading Supreme Court of Canada decision in Shropshire in 1995. The principles of sentencing for parole ineligibility to be derived from that case are nicely summarized by Justice Beveridge in R. v. Hawkins 2011 NSCA 7 . I can do no better then to quote from that decision as follows: 15 . In R. v.

Shropshire , the Supreme Court of Canada authoritatively explored the standard to be met before an increase is merited beyond ten years. Iacobucci J. wrote: [27] In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed.

To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded. [28] I am supported in this conclusion by a review of the legislative history, academic commentary, and judicial

interpretation of s. 744, and the sentencing scheme for second degree murder. [29]

Section 742(

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

section 744". 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 for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto , mean that any other period of time is "unusual". 16 .

Although the criteria specified by s. 745.4 references but three factors (the character of the offender, the nature of the offence, and the circumstances surrounding its commission), it is plain that these factors are not to be narrowly construed. For example, in R. v. Shropshire , Iacobucci J., after enumerating the three statutorily prescribed factors, announced that denunciation can be considered under the criterion "nature of the offence" and concerns over the possible future dangerousness of the offender under "character of the offender" (para. 19).

Indeed since parole ineligibility is part of the "punishment" and thereby an element of sentencing policy, deterrence is also relevant in justifying an order under s. 745.4 (paras. 21-23). 17. Following the release of the Supreme Court's decision in R. v. Shropshire , Parliament amended the Code by introducing ss. 718- 718.2 "Purpose and Principles of Sentencing". These sections, in effect, codified many of the principles established by decades of case law, but also clarified the approach to be taken by the courts in exercising their discretion in imposing sentence. It is useful to set them out. They are: 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii)evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii)evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv)evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 27 ] As Justice Beveridge further noted (at para. 47), it is to recognized as well that “The provisions of s.718 et. seq. generally inform the discretion to be exercised in setting the period of parole ineligibility”.

He added further perspective on the s.718 sentencing principles at para. 42 where he said “ I have no quibble with the role of an increased period of parole ineligibility to express denunciation and the community's revulsion over the offence, nor some scope for general deterrence, but to conclude that deterrence is the overwhelming imperative is to overemphasize this factor”. [ 28 ] Although these

section 718 sentencing principles generally inform the judicial discretion to be exercised here, the Court must pay particular attention to the three factors set out in s.745.4 . As emphasized in Shropshire (at para. 31 ), sentencing judges in this situation are to adhere to the preferable approach of viewing the 10 year period as a minimum, contingent on what the judge deems fit in the circumstances, the content of this fitness being informed by the criteria listed in s.745.4 . [ 29 ] These three factors need not be compartmentalized in this analysis.

There will invariably be some overlap such that I am inclined to consider them collectively. [ 30 ] The pre-sentence report does not give much insight into Mr. Hannan’s character nor, given his exercise to the right of silence, do we have any conclusive explanation as to why he committed this murder in concert with the youth. It is difficult to imagine why he would participate in this murder over a menial drug debt when the victim was a long time friend. It leads the court to suspect that there is more to this than meets the eye in terms of motive, in the dark side of that neighbourhood.

Perhaps the youth, a notorious criminal, lead the instigation of this plot, as defence counsel suggests. [ 31 ] Be that as it may, the evidence convincingly established that Mr. Hannan lured Mr. Pellerin to the Farrell Hall parking lot to pay the drug debt he owed, where he would be vulnerable to attack by the youth and Mr. Hannan together. Implicit in the jury’s finding is that Mr. Hannan was a co-principal who intentionally and unlawfully caused Mr. Pellerin’s death. When Mr.

Pellerin arrived, he was seen by the security guard witness to be thrown off his bicycle onto the ground and viciously beaten up by his two assailants, namely, (as we now know) the youth and Mr. Hannan who stabbed Mr. Pellerin nine times. It was a brutal, callous and senseless killing and the ultimate betrayal of a friend to set him up like that and then participate in his murder. The gratuitous violence of this offence and the circumstances surrounding its commission speaks volumes of Mr.

Hannan’s character and moral blameworthiness. [ 32 ] This gratuitous violence, the luring of the victim by a trusted friend, the preparatory steps leading up to the murder, and the ganging up of the two assailants in the attack on Mr. Pellerin at a vulnerable location are all aggravating factors that support an increase in the period of parole ineligibility over the ten year minimum. Mr.

Hannan’s criminal record serves as a further aggravating factor, as does the severity of the impact on the members of the Pellerin family who have suffered such a profound loss as evidenced by their victim impact statements. [ 33 ] There is little in the way of mitigating factors present here, in the absence of a guilty plea or any expression of remorse. All that can be identified here are the relatively youthful age of the offender at 23 when the offence was committed and his personal family circumstances as a child. [ 34 ]

Section 718.2(

b) sets out a further sentencing principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, (bearing in mind as already noted from Shropshire , that any judicial determination made under s.745.4 is a very fact sensitive process). [ 35 ] The above quoted decisions in Shropshire and Hawkins in particular provide a very useful guide to trial judges on the approach to be taken in a s.745 disposition and the sentencing principles to be applied on the facts of any given case.

Because the underlying facts can vary so widely in second degree murder cases, individual case precedents are of limited value. However, it is still useful to review a sampling of s.745 sentencing cases (and there are many of them) to get a general sense of direction for where along the 10 to 25 year spectrum a sentence to be imposed should fall in the case to be decided. [ 36 ] Again, I rely on the spadework of the Nova Scotia Court of Appeal in Hawkins to this end. There, Justice Beveridge

summarized some 30 cases from across the country in a variety of fact situations. The outcomes range from the minimum of 10 years to 21 years along that spectrum. Several of those cases resulted in a period of parole ineligibility of 15 years. [ 37 ] There is no need for me to embark on a similar exercise for purposes of the disposition in this case.

Suffice it to say that I have considered the three factors listed in s.745.4, the general principles of sentencing applicable that are set out in s.718 et. seq. , including the aggravating factors here present, the profound impact on the victims of this crime, the jury recommendations, and the sampling of the case law summarized by the Court of Appeal in Hawkins . [ 38 ] I have also taken into account the submissions of counsel where the Crown urges the Court to impose a period of parole ineligibility in the range of 17 to19 years while defence counsel argues for a period between 10 to12 years. [ 39 ] In the final analysis, I have concluded that a fit sentence on the facts of this case, and the circumstances of this offence, requires an increase in the period of parole ineligibility over the minimum 10 year mark.

All things considered, I have reached the conclusion that the period of parole ineligibility for Mr. Hannan should be set at 15 years (which runs from the date of his arrest). [ 40 ] I will also grant the two ancillary orders sought by the Crown, namely, a DNA Order under s.487.051 and a firearms prohibition order under s.109 of the Criminal Code . [ 41 ] To add some perspective to this sentencing outcome, primarily for the benefit of the members of the public present today, I will close by reiterating the final paragraph from the Hawkins decision which also serves as a fitting conclusion in the present case: 98.

It must be remembered that the appellant will forever be subject to a sentence of imprisonment. He may never be released on parole. Whether his risk of re-offending is such that he be permitted to be released conditionally will be up to the Parole Board. If he is released, it is only on his satisfactory compliance with whatever conditions the Board places on him to ensure his respect for a peaceful and safe society. [ 42 ] The Court need no longer consider the imposition of a victim surcharge in light of the recent decision of the Supreme Court of Canada. J.