R. v. Clarke-McNeil, 2022 NSSC 63

SUPREME COURT OF Nova Scotia Citation: R. v. Clarke-McNeil , 2022 NSSC 63 Date: 20220311 Docket: CRH 505889 Registry: Halifax Between: Her Majesty the Queen v. Kevin Edward Clarke-McNeil SENTENCE DECISION Judge: The Honourable Justice Jamie Campbell Heard: February 24, 2022, in Halifax, Nova Scotia Counsel: Rick Woodburn and Scott Morrison, for the Crown Mathieu Boutet, for the Defence of Kevin Clarke-McNeil By the Court (Orally): [ 1 ] Kevin Clarke-McNeil is being sentenced for his

part in the assault of Stephen Anderson at the Central Nova Scotia Correctional Facility in Burnside. After 2 trials 12 people were found guilty of aggravated assault and one of obstruction. The person found guilty of obstruction has been sentenced, R. v. Nagendran , 2022 NSSC 14 , and two of the people found guilty of aggravated assault have been sentenced, R. v. Ladelpha , 2021 NSSC 352 and R. v. McIntosh , 2021 NSSC 351 . As stated in those decisions, each person is sentenced as an individual, having regard to their individual circumstances. Every sentence is unique. [ 2 ] There are of course similarities.

The law to be applied is the same. The offence and how it is characterized is the same. The cases reviewed to determine how similarly situated offenders are sentenced after committing similar crimes will be, for the most part, the same. But the result is, and must be, determined having in mind how the principles and purposes of sentencing apply to the individual and their circumstances, and their level of moral blameworthiness must be reflected in the outcome. [ 3 ] The incident at the Burnside facility resulted in charges being laid against 15 people.

The evidence in the two trials, included surveillance videos showing parts of what took place. It is important to understand that each person involved is more than the small image on that screen. What happened on December 2, 2019, was an incident in which a crime was committed. It can be easy, because of that, to define each person by the decisions he made and what he did over the course of less than 30 minutes. But each is a flawed person, like all of us. Each has strengths and weaknesses, like all of us. Most have people who care about them and about whom they care.

Each person has a life history that, even if it does not define them, is part of who they have become. They have hopes for their futures and no doubt regrets about their pasts. [ 4 ] People are sentenced as people. Whatever they have done they cannot be reduced to just being an “offender.” [ 5 ] When a person is sentenced to a period of incarceration for a crime that they have committed, it is important to acknowledge that what is imposed is imposed upon another person, whose life has many layers. That person is deprived of the experiences that many of us take for granted.

From time with family and the fellowship of real friends, to experiencing the changing seasons and making the simplest of choices about where to go, what to eat and what to do, living in jail takes away much of what we value about living. And it is monumentally important to appreciate that this is being done to a fellow human being. There is certainly no joy in it or even satisfaction for that matter. [ 6 ] Kevin Clarke-McNeil is, again like most of us, a complicated human being. I cannot presume to know him, much less to understand him.

My comments should not be taken as my offering an opinion on the ‘kind of person” Kevin Clarke-McNeil really is.

[ 7 ] Mr. Clarke-McNeil is 34 years old. He quit school after Grade 7. He was diagnosed with Attention Deficit Disorder at 13 years old and was prescribed medication. [ 8 ] Before he was incarcerated, Mr. Clarke-McNeil had his own painting business, Made To Cut Painting Services. He worked for a few years at another painting company before that and would eventually like to re-open his business. He seems to have been a talented painter. A letter was filed with the court from Robert Salah. Mr. Salah employed Mr. Clarke-McNeil over three years in his property rental business. Mr.

Clarke-McNeil worked in the leased premises and in Mr. Salah’s own home. He was a trusted employee. More than that Mr. Salah describes Mr. Clarke-McNeil as a friend. He acknowledged that it became “painfully evident that he battled with issues.” He said that Mr. Clarke-McNeil is a “hard working, honest and exceptionally decent person.” Mr. Salah stressed that “Kevin is a special individual that is very deserving of assistance and care to battle his troubles.

He more than deserves the opportunity to prove that the exceptional qualities I have come to appreciate will shine over those which have put him in this situation.” [ 9 ] It is not clear exactly what issues Mr. Clarke-McNeil was battling. He is in good health. Mr. Clarke-McNeil told the writer of the pre-sentence report that alcohol has not been a problematic presence in his life. He was, for a while, addicted to cocaine and opiates but he attended substance abuse counselling in 2018 and no longer feels that he has issues with those substances. [ 10 ] I have no reason not to accept Mr.

Salah’s assessment of his friend, as a hard working, honest and exceptionally decent person. That is how Mr. Salah knows him. [ 11 ] Mr. Clarke-McNeil has a good relationship with his family. He said that he is in regular contact with both parents and has a positive relationship with them. But he reported that he was raised mostly by his father and grandmother. He said that his mother left the home when he was 4 years old. He reported that both parents had issues with alcohol and drugs, and were mentally and physically abusive toward him and his sisters. Despite that, he says, “Childhood was alright, I guess.

It wasn’t bad.” That may speak more to his expectations than the quality of the parental guidance that he received. [ 12 ] Mr. Clarke-McNeil has two slightly older sisters, and he gets along well with them. [ 13 ] Mr. Clarke-McNeil’s sister, Tami Clarke, wrote a letter on his behalf. The first sentence is compelling. “It has taken me quite a while to write this letter, as there are so many emotions attached to these words.” And there clearly are. She acknowledges what her brother has done and makes no excuses for him. She provided context.

Their parents, she said, promoted drug use, violence, and crime as a way of life. “We were involved in a culture that takes what they want, without thinking of the harm caused to others.” [ 14 ] Ms. Clarke said that she and her sister were able to free themselves from their parents and took a different path. She has had discussions with her brother about right and wrong and about his incarceration. She has seen a change in him over the past few years.

His skills related to running a business, his religious faith, and his willingness to access mental health supports are all, in her view, indicators of him being successful in a way that is sustainable. [ 15 ] Mr. Clarke-McNeil’s other sister wrote that her brother can live with her when he is released from custody. She said that after two years in custody she believes that he poses no risk to public safety. [ 16 ] Mr. Clarke-McNeil has been in a relationship with his fiancée Barbara Miner, for the last 5 to 6 years. They have no children yet.

She says in her letter, “I have had a rocky yet loving road with Kevin.” She says that they have a life long unbreakable bond. She left him a few times because of his addiction issues but dealing with that has strengthened their relationship. The couple clearly share a strong religious faith. Kevin has this big beautiful heart that shines through the smile he gives to almost every person he meets. There was always something inside of him that I knew was precious and rare.

Even through struggling trying to understand and be a rock for him when he was battling addictions, I always kept my faith that he would overcome it because of his relationship with God. He truly is a man of God and in some ways perhaps just a lost soul like myself though our faith remains and our love for each other literally stops people in their tracks. [ 17 ] Ms. Miner has every confidence that Mr. Clarke-McNeil, if given a real and fair chance, will be the “noble and unfaltering man” that he represents. [ 18 ] Kevin Clarke-McNeil has people waiting for him who care deeply about him.

They have made it clear that he is more than the image on the video surveillance in Burnside. But their confidence does not erase that image. It does not erase the past. And it does not erase other aspects of Kevin Clarke-McNeil that either they may not be entirely seeing or that they just may be willing to overlook. [ 19 ] Mr. Clarke-McNeil did not have a criminal record in Nova Scotia before December 2019. But he does have several criminal convictions from Ontario. They start in 2006, with a conviction for failing to comply with a recognizance and then failure to attend court.

In 2009, he was convicted of theft under $5,000. In 2010, he was convicted of charges including assault, mischief, theft, and possession of drugs. The next year he was again sentenced twice for theft and failure to comply. In 2012, he was sentenced for obstruction and failure to comply with a court order. In 2013, he was convicted of theft, drug possession and assault, assaulting a peace officer, uttering threats and failure to comply. Then there is a gap. There are no convictions between 2013 and July 2019. [ 20 ] By July of 2019 it appears that Mr. Clarke-McNeil had returned to Nova Scotia.

Between July 14, 2019 and October 9, 2019, he was involved in various thefts that resulted in 5 charges for theft under $5,000. According to the Crown those were thefts from liquor stores. [ 21 ] In the midst of that, on October 7, 2019, he was involved in an incident that gave rise to charges of operating a motor vehicle to evade a peace officer and failure to stop at the scene of an accident. He was found apparently asleep in a car. In the car were numerous bottles of alcohol. When he was approached by the police he drove away at high speed and was involved in a police chase.

Those charges were consolidated for sentencing on June 10, 2020. That sentencing on June 10, 2020, took place after the assault at the Burnside facility though the offences occurred before that. [ 22 ] Just a few days before that Mr. Clarke-McNeil escaped from custody. He was at the facility in Pictou and managed to climb out

onto the roof. He stole a truck and drove away. The truck burned and he stole an all-terrain vehicle which he drove at high speed on the road. The ATV crashed and he was taken into custody. He was sentenced for those offences on April 6, 2021. Again, those offences took place after the events at the Central Nova Scotia Correctional Facility on December 2, 2019. [ 23 ] A criminal record does not lead in a straight line to a lengthier sentence. It is a factor to be considered when determining a person’s prospects for rehabilitation.

When a criminal offence takes place after the offence for which the person is being sentenced, it can be argued that it is entirely irrelevant as a factor in sentencing. A criminal act committed after the one for which the person is being sentenced is not an aggravating factor. [ 24 ] But if sentencing is an individualized process and context matters, as it does, a person’s behaviour after the fact cannot be treated as if it did not exist. In this case, Mr. Clarke-McNeil has provided letters to indicate what a fundamentally decent person he is.

Accepting that, at face value, and without any reference to information that would allow for other inferences to be drawn, would paint him in an artificial light. Mr. Clarke-McNeil’s escape from jail is something for which he has been sentenced and he should not pay for that crime twice, with a longer sentence. But it can be used to suggest that one kind of portrayal of Mr. Clarke-McNeil may be, at least to some extent, distorted. [ 25 ] While in custody Mr. Clarke-McNeil has been placed on 34 discipline levels.

They range from possession of contraband, detrimental behaviour, intimidation, unauthorized movement, assault of an inmate, assault of staff and disobeying an order. As noted by his counsel, Mr. Boutet, those disciplinary levels have not been adjudicated by any court. They are a record of his behaviour within the correctional institution as alleged by the administration of the institution. It is not like a criminal record of offences committed after the offence for which he is being sentenced.

But like a criminal record it should not be used to punish him again for the same offence. [ 26 ] It should also be recognized that perhaps few inmates can maintain a record clear of any disciplinary offences. [ 27 ] Again though, it is hard to square this record of behaviour with the person described by his sisters, his fiancé and his friend. That is not to say that their impressions are wrong. It does illustrate that people are too complex to be characterized as good or bad, kind-hearted or cruel, violent or peaceful.

Kevin Clarke-McNeil’s character is made up of the sum of everything he has ever done, for better or for worse. Neither the post offence convictions nor the institutional disciplinary record are aggravating factors in his sentencing. Both provide some context with which to consider Mr. Clarke-McNeil’s assertions about his generally congenial disposition. [ 28 ] Mr. Clarke-McNeil was one of the first people to enter Stephen Anderson’s cell. When he came out and was visible to surveillance cameras again, Stephen Anderson was on the floor, having been seriously beaten and stabbed.

There is no evidence to indicate that Mr. Clarke-McNeil was the person who stabbed Mr. Anderson, that he had a weapon or that he knew that someone else had a weapon or intended to use one. Mr. Clarke-McNeil’s comment to the writer of the pre-sentence report was that he went into the cell and accepts responsibility for being there. “But I didn’t aggravate assault anybody”. He said that he didn’t know what was going to happen and wouldn’t have been there if he had known that someone was going to get stabbed. [ 29 ] At the sentencing hearing Mr.

Clarke-McNeil spoke and encouraged me to look once again at the surveillance video. He said that it would confirm his contention that he did not personally assault Stephen Anderson. [ 30 ] Mr. Clarke-McNeil, as was his right, did not give evidence at the trial and no inferences can be drawn from that. When a person makes a statement to the writer of a pre-sentence report in the sentencing process, or addresses the court at the time of sentencing, he is not subject to being cross-examined by Crown counsel.

Any explanation offered that is intended to lessen the level of his culpability must be considered having regard to that limitation and the evidence that was admitted in the trial itself. [ 31 ] Kevin Clarke-McNeil may wish that he had not been there and may have not been there had he known there was a weapon involved. But he was there. And he was there with several other inmates for the purpose of assaulting Stephen Anderson in a way that would cause him bodily harm. Whether Mr.

Clarke-McNeil knew of the use of a weapon or not, he was part of the assault and that assault resulted in serious life-threatening injuries to Stephen Anderson. [ 32 ] Mr. Clarke-McNeil rushed into the cell with the others. He looked no more hesitant or tentative than anyone else. He had been waiting with the others to go into a space where they would be with Mr. Anderson, out of sight of the correctional officers and the surveillance cameras. Mr. Clarke-McNeil was part of the group who had gathered earlier to plan the assault. He knew what was happening and acted on cue.

He was not a person who came upon an assault and decided to join in at the last moment. Kevin Clarke- McNeil cannot evade responsibility for his

part in the assault on Stephen Anderson by saying now, at his sentencing, that he accepts responsibility for being there but didn’t do anything when he was there. [ 33 ] This was a planned and coordinated attack within a jail. The rule of law applies there. Prison culture cannot be permitted to take its place.

The safety of inmates and staff demands that the rule of law run to the internal working of correctional facilities of all kinds. [ 34 ] The inmates involved ganged up on and assaulted Stephen Anderson and did that in a way designed to prevent correctional officers from intervening. [ 35 ] There have been other cases that have addressed sentencing in individual assaults within a prison. They can range from 3.5 years to 10 years in length. All stress the importance of deterrence: R. v. McNeil , 2020 ONCA 595 , R. v. Laverdiere , 2020 ABCA 290 , R. v. Slade , 2007 NBQB 415 , and R. v.

Thompson , 2017 NBQB 81 . [ 36 ] Mr. Boutet offered the case of R. v. Duke , 2019 ONSC 6240 and 2021 ONCA 813 . In that case the Ontario Court of Appeal upheld a conviction for attempted murder but with respect to a second incident set aside a conviction of assault causing bodily harm and replaced it with a conviction for the included offence of assault. The Crown conceded the point. The trial judge had imposed a 6-year sentence on attempted murder with concurrent sentences on the other charges.

The quashing of the assault causing bodily harm charge resulted in a reduced sentence from 3 years concurrent to 1 year concurrent. The actual time to be served remained the same. The case did not involve an assault by a group of people within a correctional facility. [ 37 ] In R. v. Larade , 2017 NSSC 135 , Mr. Larade was one of five inmates involved in an attack. They surrounded the victim, Curtis

Lynds, in an open range, and attacked him, with all five of them delivering punches and kicks. That continued after the victim went to the floor. Mr. Lynds was knocked unconscious. His skull was fractured, and he had a severe cut to his head that required 40 stitches to close. He was discovered about a half hour later by a corrections officer. Crown and defence counsel provided Justice Wright with a joint recommendation for a sentence of 2 years imprisonment followed by 2 years of probation. It was described as a true joint recommendation negotiated over several months. [ 38 ] Mr. Boutet argued on behalf of Mr.

Clarke-McNeil that the 2 year sentence imposed, in order to have been accepted, must have been within the range of reasonable sentences. The test to be applied, and the one applied by Justice Wright, was whether the sentence proposed by counsel would bring the administration of justice into disrepute or would otherwise be against the public interest. That test is applied having regard to the importance of plea negotiations within the criminal justice system. The acceptance of the joint recommendation in that case does not offer guidance in the decision regarding a fit and proper sentence in this case.

There is a fair bit of latitude between a negotiated sentence in exchange for a guilty plea, that brings the administration of justice into disrepute, and a fit and proper sentence. [ 39 ] Setting a sentence for an offence of this kind does not involve simply finding cases that are the same in some respects and different in others. The offence of aggravated assault is a broad spectrum one. It covers a broad range of offences, from a relatively minor stab wound, to a case in which the victim is very close to death.

It can happen in a broad range of circumstances, from bar fights to premediated gang beatings. [ 40 ] Deterrence and denunciation must be the primary purposes of the sentence in crimes of violence. An assault within a jail takes the aggravated assault to another level. Serious injuries, take it further. Coordinated activity resulting in a gang assault, take it even further.

Open defiance of the authorities seeking to intervene, as part of the coordinated effort, take this case to a level more serious than the other prison assaults provided as examples. [ 41 ] In any sentencing several factors remain in tension with each other. They are not necessarily contradictory, but they can pull in different directions. They are not merely a checklist of factors. Courts must consider the potential for rehabilitation. That may suggest a shorter sentence of incarceration. But the crime may be one that requires denunciation and deterrence, which cries out for a substantial punitive jail sentence.

Similarly situated offenders should be treated similarly. But no two offenders commit the exact same offence, in the exact same way, with the same personal circumstances. A person may have a long criminal record, but it may be, in part, a function of the condition of that person’s mental health. A person may be a member of a racialized group and the history of racism and marginalization of those groups as well as their over representation in jails is a factor. Another person may not be a member of a racialized group but may come from an economically disadvantaged family.

Parity in sentencing exists in tension with those considerations. [ 42 ] A person should be sentenced in a way that is proportional to their degree of moral blameworthiness. Deterrence may be a factor in crafting an appropriate sentence, but it should never descend to the point of making an example of a person. [ 43 ] Courts must keep all those tensions in mind. A list of sentencing factors may make it easier to explain what is being considered but it loses some of the nuance. Each factor exists in tension with all or some of the others and it is not possible to assign a percentage weight to each of them.

Sentencing is not done by algorithm. [ 44 ] Kevin Clarke-McNeil is still a young man. He has a future. He has family who care about him and who will be there for him. The prospect of his rehabilitation must not be shunted into the background to make room for the rhetoric of deterrence. He is a person who has shown that he can run his own business and have positive relationships with those in his life who are important to him. He is not a person who should be separated from society just to make a point. [ 45 ] Mr. Clarke-McNeil grew up in a family where he was not provided with guidance and given opportunities.

He has struggled with addictions. He has been in jail before. His life has not been an easy one. Something has to happen to put it right and set it on a course that will lead him toward success and stability. [ 46 ] While rehabilitation remains an important and valuable goal it will not be achieved through a brief sentence. Mr. Clarke-McNeil has a lot of work to do if he expects to return to society, start up his business and resume a normal life. His decision to involve himself in the assault on Stephen Anderson was an exercise of profoundly poor judgement. It may have been an impulse.

It may have involved the need to act in solidarity with the group. It may have been fear of the consequences of not participating. But he became involved, and that involvement has serious consequences. He deeply regrets it now. [ 47 ] A sentence is imposed upon an individual person. But fairness, expressed through the sentencing principle of parity, demands that similarly situated people convicted of the same crime, should receive similar sentences. Mr. Clarke-McNeil’s sentence should not be driven by the sentences imposed on those involved in this incident who were sentenced before him.

But it would also be unfair if his sentence were imposed without regard to the sentences in McIntosh and Ladelpha. Mr. McIntosh was sentenced to 5½ years and Mr. Ladelpha to 6 years. [ 48 ] The sentence of 5 years has been imposed in cases in which inmates were assaulted within correctional institutions. Those cases did not involve large and coordinated groups. The injuries that Mr. Anderson suffered were very serious. But for prompt and skilled medical intervention he could have died and those involved would have been facing murder or manslaughter charges.

A planned and coordinated assault in a jail demands a significant sentence. [ 49 ] Mr. Clarke-McNeil was a direct participant in the assault of Stephen Anderson. He entered the cell and remained there while the assault took place. His level of moral culpability requires a sentence of 6 years. That would be 2,190 days without regard to leap years. [ 50 ] Mr. Clarke-McNeil’s remand status is complicated. It relates to the way in which his remand time has been “used up”, by the other sentences that have been imposed.

He was arrested with respect to this offence on or about December 3, 2019, the day after the assault. On June 10, 2020 he was sentenced for the offences arising from his flight from police when they approached him in his car. On June 10, he was given credit for the time that he had been in jail on those charges, up to June 10, 2020. So, all of his remand time was used, up to that point. He was sentenced to a further 81 days, which would take him to August 30, 2020.

[ 51 ] Mr. Clarke-McNeil was then in jail on remand for these charges. On April 6, 2021, he was sentenced for the offences related to his escape from custody. He was given credit for remand time from August 30, 2020 to April 6, 2021, and sentenced to an additional 60 days. That took him until June 6, 2021. As of that date, he was no longer serving any sentence but on remand with respect to this charge. [ 52 ] Kevin Clarke-McNeil has been in custody on this charge from June 6, 2021 to March 11, 2022, which is a total of 279 days.

Credit for remand should be given at one and a half days for each day served, which is a total of 418 days. To complete a 6 year term of imprisonment the calculation would be 2,190 days, less remand credit of 418, for a total of 1,772 days, so the go forward sentence is 4 years and 312 days. [ 53 ] The s. 109 firearms prohibition and DNA order will be signed. Campbell, J.