) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2365

CITATION: R. v. Adamson, 2013 ONSC 2365 COURT FILE NO.: 21/12 DATE: 2013-05-10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – BRANDON ADAMSON ) ) ) ) ) ) ) ) Monica MacKenzie, Counsel for the CrownSaara Wilson and Monica Lipson, Counsel forMr. Adamson ) ) HEARD: April 8 and 9, 2013 REASONS FOR SENTENCE GRAY J. [1] What is before me is a determination of the appropriate sentence for Mr. Adamson, who was found guilty by a jury offour offences, namely, attempted murder; assault with a weapon; break, enter and commit an indictable offence; and aggravated assault.

Also before me is the issue of whether one or more of the charges should be conditionally stayed based on the Kienapple principle (R. v.Kienapple, (SCC), [1975] 1 S.C.R. 729). Background [2] Mr. Adamson is a young man, now 21 years of age. At the time he committed these offences, he was 19. [3] Mr. Adamson had had a non-exclusive relationship with Sarah Muir for some time. In the early fall, 2010, she becamepregnant. This was the third time she had become pregnant. The first two times, she had abortions. This time, she told Mr. Adamsonshe would not have an abortion. [4] Mr. Adamson was tried before me and a jury.

It was alleged that he had attempted to murder Sarah Muir. Other chargesarising out of the same event were assault with a weapon; break, enter and commit an indictable offence; and aggravated assault. OnFebruary 1, 2013, the jury returned verdicts of guilty on all four charges. I ordered that Mr. Adamson be placed in custody pendingsentencing. [5] I will first deal with the Kienapple issue, and then I will determine the appropriate sentence for Mr. Adamson. (

a) Application of the Kienapple Principle [6] Pursuant to the well-known case of R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, where findings of guilthave been returned with respect to more than one offence, when in substance only one crime has been committed, the Court must declineto enter convictions for more than one offence.

Since the decision in Kienapple was rendered, the Courts have wrestled with what needsto be established before it can be said that only one crime was committed, and thus a stay of the superfluous count or counts isappropriate. [7] Fortunately, I am relieved of the obligation to conduct an extensive analysis of the appropriate principles, as they wererecently reviewed by Hill J. of this court in R. v. Cook, [2010] O.J. No. 3518 (S.C.J). [8] At para. 10 of Cook, Hill J. referred to the decision of the Court of Appeal in R. v. R.K. (2005), (ONCA), 198 C.C.C. (3d) 232 (Ont.

C.A.), at para. 32,where Doherty J.A. stated: Dickson C.J.C. for a unanimous court in Prince [R. v. Prince (1986), (SCC), 30 C.C.C. (3d) 35 (S.C.C.)] held that theKienapple rule precluded multiple convictions for different offences only where there was both a factual and a legal nexus connecting theoffences. The factual nexus is established where the charges arise out of the same transaction. The legal nexus exists if the offencesconstitute a single wrong or delict.

[ 9 ] At para. 11, Hill J. noted, as observed in Prince , that “In most cases... the factual nexus requirement will be satisfied by an affirmative answer to the question: does the same act of the accused ground each of the charges?” In the same paragraph, he stated that the factors to be considered include “the remoteness or proximity of the events in time and place, the presence or absence of relevant intervening events... and whether the accused’s actions were related to each other by a common objective.” [ 10 ] At para. 12 of Cook , Hill J. stated as follows: Review of the question of legal nexus tends to be a “more nuanced” exercise ( R.K. , at para. 34 ) requiring the court to compare the constituent elements of the respective offences together with their societal purpose as may be established by statutory and jurisprudential

interpretation. Do the offences constitute a single wrong or delict? [ 11 ] At para. 13 of Cook , Hill J. made further reference to the decision of the Court of Appeal in R.K. , supra . At para. 39 of R.K. , Doherty J.A. stated as follows: I think the three factors identified in Prince as severing any possible legal nexus between offences provide further support for the view that the crucial distinction for the purposes of the application of the Kienapple rule is between different wrongs and the same wrong committed in different ways .

If the offences target different societal interests, different victims, or prohibit different consequences, it cannot be said that the distinctions between the offences amount to nothing more than a different way of committing the same wrong. [emphasis added] [ 12 ] In the case before me, the Crown concedes that the offences of assault with a weapon and aggravated assault are impacted by the Kienapple principle, and accordingly they should be conditionally stayed.

Thus, the only issue remaining is whether one of the two remaining offences should be conditionally stayed. [ 13 ] I have little difficulty concluding that there is a sufficient factual nexus between the two offences, such that it can be said that they arose from the same transaction or act. However, I am not persuaded that there is a sufficient legal nexus. [ 14 ] In order to establish the offence of break, enter and commit an indictable offence, the Crown must establish a “breaking” and “entering”, in addition to the commission of the indictable offence.

The offence of attempted murder, on the other hand, can be committed anywhere, and it is not necessary to prove that the accused broke and entered a place and, in addition, committed an indictable offence.

The societal interest in the offence is to punish not only the commission of the indictable offence, but the breaking and entering. [ 15 ] The elements of the offences are quite different, and it cannot be said that the distinctions between the offences amount to nothing more than different ways of committing the same wrong. [ 16 ] Accordingly, convictions will be entered on both the offence of attempted murder and the offence of break, enter and commit therein the indictable offence of attempt murder. [ 17 ] Notwithstanding the entry of convictions on both charges, the Crown does not suggest that sentences on the two charges should be anything but concurrent.

Since the breaking and entering was with respect to a dwelling house, the maximum sentence for that offence is life in prison, as is the maximum for attempted murder. (

b) The Appropriate Sentence [ 18 ] Counsel for the Crown proposes a sentence in the penitentiary of 10 years. Counsel for Mr. Adamson submits that an appropriate range of sentence is between 7 and 10 years, and that in the circumstances, a sentence of 7 years would be appropriate. [ 19 ] I advised both counsel that my initial reaction was that the 10-year sentence proposed by the Crown is too low, and that I might consider a longer period of incarceration to be appropriate. As required by appellate authority (e.g. R. v.

Thompson , 2013 ONCA 202 ), I afforded both counsel an opportunity to make submissions as to why I should not impose a longer sentence. [ 20 ] In such a situation, I suspect it is tempting for Crown counsel to simply accept the judge’s suggestion and argue for a longer sentence. To her credit, Ms. MacKenzie did not do so. She argued, very persuasively, that based on the mitigating factors here, particularly Mr. Adamson’s age, a sentence of 10 years is appropriate. In the final analysis, for reasons which I will articulate, I do not accept Ms.

MacKenzie’s submission and I will impose a sentence of imprisonment of 13 years, less credit for pre-sentence custody. [ 21 ] In many, if not most, cases, the accused will argue for the lowest possible sentence consistent with the requisites of the Criminal Code and appellate authority. On the other hand the Crown, as representative of the public interest, will not necessarily argue for the longest possible sentence. Counsel for the Crown, as a “Minister of Justice”, is expected to take a more balanced approach. In the best traditions of the office of Crown counsel, Ms. MacKenzie did so here.

The submissions of Crown counsel are entitled to considerable respect. However, there will be cases, albeit rare, where the court may conclude that a sentence longer than the one proposed by the Crown is required. This is one of those cases. [ 22 ] A pre-sentence report was prepared and filed. In addition, Ms. Wilson, counsel for Mr. Adamson, filed a letter of support from one Steve Oliver, who has known Mr. Adamson for about 10 years. [ 23 ] Victim impact statements were read from the witness box by Ms. Muir, the complainant, and by her parents. In Ms.

Muir’s statement, she says: My whole life flashed before my eyes during the early hours of November 10, 2010. Not only was it a traumatic event in my life but it impacted me in many different ways. Over the past couple of years since this event occurred I have always been terrified to go to certain places or do certain things in fear of something happening to not only myself but my son as well. I was terrified to be alone during the night and still to this day I have nightmares. I was very stressed out during my whole pregnancy because I was going through a whole

rollercoaster of emotions. I also feel hurt and betrayed because I trusted Brandon Adamson. Not only did I feel betrayed by someone who I had a lot of feelings for but he was my best friend and someone who I could confide in. It is very difficult to trust people in my life, and I know in present and future relationships I will have major trust issues. I’ve had some major life changes as well since the incident occurred which includes having to move with my family to a completely different area.

We lived in the family home in which the incident occurred for more than 20 years, It was very overwhelming having the feeling of fear in our own family home. I attended a couple of counselling appointments which helped me overcome some of my fears and anxiety, unfortunately I still know that I will forever be looking over my shoulder for anything and everything which seems dangerous or harmful to myself and my son. [ 24 ] Kathy Muir, Sarah Muir’s mother, in her statement, says “On the night of November 9, 2010, I had gone to bed with good thoughts.

Then, two hours into November 10, 2010, my world as I knew it was gone. It was replaced with a feeling of terror that I never felt I would ever have to experience. Two and a half years later, I am still living in a state of fear. I feel fear that my beautiful daughter and Grandbaby could be taken away, just like they were almost taken away that night we were viciously victimized.” She also states “there has not been, nor will there be a day that will pass where I’m not looking over my shoulder or wondering if my family is safe.” [ 25 ] Ms. Wilson severely criticized the pre-sentence report.

She submitted that the purpose of a pre-sentence report is to provide the background, character and circumstances of the person who has been found guilty. She submitted that it was inappropriate for the author of the report to offer opinions about the circumstances of the offence, or whether the offender had accepted responsibility for the offence by acknowledging his guilt. She submitted that this is particularly inappropriate where the offender has pleaded not guilty, and continues to assert his innocence. She also submitted that it was inappropriate to solicit opinions from the complainant and her family.

Those opinions should be properly tendered through victim impact statements, as indeed they were in this case. [ 26 ] I am inclined to agree with a number of Ms. Wilson’s criticisms of the pre-sentence report. However, there are some portions of the report that are appropriate. To the extent that the report records Mr.

Adamson’s background, his family circumstances, his schooling, and his employment, there can be no complaint. [ 27 ] In the final analysis, I have not derived a great deal of assistance from the pre-sentence report. [ 28 ] In terms of the sentence itself, counsel for the Crown, as noted, proposes a sentence of 10 years in custody. Also as noted, the Crown submits that Mr. Adamson’s age, being 19 at the time of the offence, is a strong mitigating factor. As reflected in the pre- sentence report, Mr. Adamson has strong family support, and has been gainfully employed. [ 29 ] Ms.

MacKenzie submits that there are some strong aggravating factors. [ 30 ] Ms. MacKenzie points out that the circumstances of the offence disclose something close to a breach of trust. Mr. Adamson and Ms. Muir had been in an intimate relationship for some considerable time. Ms. Muir had come to trust Mr. Adamson, and was about to have his child. Mr. Adamson severely breached that trust, and it seems clear that his motive in committing the offence was to secure the elimination of Ms. Muir, whose pregnancy was now a problem, as well as the unborn child. In committing the offence, Mr.

Adamson breached the sanctity of the home of Ms. Muir and her family. The home is a place where one expects to be secure. [ 31 ] Of significance, Ms. MacKenzie submits, is that the attempted murder of Ms. Muir was clearly premeditated. It was planned and deliberate. It was calculated and callous. [ 32 ] Ms. MacKenzie submits that there was a serious impact on the victim and her family, to the extent that they had to move away from their home. They are frightened that Mr. Adamson might learn their new address, and they will remain frightened as long as Mr. Adamson is free. [ 33 ] Ms.

MacKenzie acknowledges that lack of remorse or lack of acceptance of responsibility for the offence is not an aggravating factor. However, she submits that in this case it is at least relevant to the question of whether there is risk in an early release of Mr. Adamson, who might well wish to do further harm to Ms. Muir. [ 34 ] Ms. MacKenzie submits that denunciation and deterrence are the primary factors to consider, and in this case, both general deterrence and specific deterrence are relevant. [ 35 ] Ms. MacKenzie submits that while Mr.

Adamson requires a significant period of time in the penitentiary, the sentence should not be so long as to crush any possibility of rehabilitation. As noted earlier, he is a young man and for our purposes must be considered to have no criminal record. As a youthful first offender, some consideration should be given to the length of sentence. A fit sentence would be 10 years. [ 36 ] Ms. Wilson, counsel for Mr. Adamson, submits that an appropriate range of sentence is 7 to 10 years, and Mr. Adamson should be given a sentence of 7 years. [ 37 ] Ms. Wilson points out that Mr.

Adamson enjoys the support of his family, who have remained concerned and supportive throughout the trial process. In the family unit, in addition to his parents, Mr. Adamson has an older brother, a younger sister, and a younger brother. [ 38 ] Mr. Adamson was born in Canada and in 2005 his family commenced living in Milton. He began his high school in Milton. [ 39 ] Mr. Adamson has no criminal record, although there is a reference to a youth disposition in the pre-sentence report. It should be disregarded. The Crown does not disagree. [ 40 ] Ms. Wilson points out that Mr.

Adamson was released on bail, and in January, 2011 he was arrested for failing to comply with his recognizance. He remained in custody pending his trial on that charge, and was eventually acquitted. He was then re-released on the original recognizance which was still in good standing at the time of the trial on these offences.

[41] After graduation from high school, Mr. Adamson planned to attend college to study to become a chef. Given the charges,he has not attended college although he is still interested in doing so. [42] Ms. Wilson points out that in the letter of support from Mr. Oliver, Mr. Adamson is described as hard-working andfriendly. [43] Mr. Adamson has been consistently employed, both before and after high school. He worked at Wendy’s restaurant whilein high school, and at Casey’s restaurant both during and after high school. While he was on bail, Mr.

Adamson obtained employment atEast Side Mario’s in Milton, where his father was employed. [44] There is no evidence that Mr. Adamson misuses alcohol or drugs. [45] Both counsel agree that Mr. Adamson should be entitled to enhanced credit for pre-sentence custody, at a ratio of 1.5:1:see R. v. Summer, 2013 ONCA 147. The parties disagree as to whether Mr. Adamson should be given any credit for the time spent incustody after being charged with breaching the terms of his recognizance. [46] The parties also disagree as to whether Mr. Adamson should be given any credit for the time spent on bail. Ms.

Wilsonargues that since Mr. Adamson was subjected to very strict bail terms, particularly house arrest, he should be given some credit for thetime spent on bail. Ms. MacKenzie, for the Crown, submits that Mr. Adamson should not be given any credit for the time spent on bail. [47] The cases relied on by the parties include R. v. Botelho, 2010 ONCA 497; R. v. Boucher (2004), (ONCA), 186 C.C.C. (3d) 479 (Ont. C.A.); R. v. McLeod, 2002 BCCA 334; R. v. Shannon, [1991] B.C.J. No. 2905 (B.C.C.A.); R. v.Fitzpatrick, [1991] B.C.J No. 3586 (B.C.C.A.); R. v. Denkers, (ON CA), [1994] O.J. No. 660 (C.A.); R. v.

Campbell, (ON CA), [2003] O.J. No. 1352 (C.A.); R. v. Bryan, 2008 NSCA 119 , [2008] N.S.J. No. 569 (N.S.C.A.);R. v. Cormier, (NB CA), [1999] N.B.J. No. 83 (N.B.C.A.); R. v. Young, 2004 MBCA 69 , [2004] M.J. No.188 (Man. C.A.); R. v. Corpus, (ON CA), [2000] O.J. No. 549 (C.A.); R. v. Sankar, [1993] O.J. No. 3076 (Gen. Div.);and R. v. Neely, [2003] O.J. No. 1977 (S.C.J.). [48] I consulted certain cases on my own, including R. v. Chevers, 2011 ONCA 569 , [2011] O.J. No. 3893 (C.A.); R.v. Tan, 2008 ONCA 574 , [2008] O.J. No. 3044 (C.A.); R. v. Spurway, (ON CA), [1996] O.J. No. 3160(C.A.); R. v.

McArthur (2004), (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.); and R. v. Varga (2001), (ON CA), 159 C.C.C. (3d) 502 (Ont. C.A.). Analysis [49] In both McArthur and Varga, supra, the Court of Appeal made the point that the only difference between a murder and anattempted murder is luck. In the case of an attempted murder, the attempt did not succeed. [50] In McArthur, at para. 47, Doherty J.A. stated: Without diminishing the seriousness of any of the crimes committed by the respondent, it can be safely said that the four attemptedmurder convictions are the most serious crimes.

Under our law, a person can only be convicted of attempted murder if he or she intendedto kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction andthe automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was notkilled. [Emphasis added] [51] In Varga, Doherty J.A. made the same point at para. 95, where he stated: It is also significant that the slight tilt of Ms. Suzana’s head was literally the difference between a murder and an attempted murder.

Theappellant fired at Ms. Suzana’s head from close range fully intending to kill her. He stands convicted of attempted murder rather thanmurder by pure luck. His culpability is hardly distinguishable from that of a murderer. [Emphasis added] [52] The same observation is true in this case. Mr. Adamson is guilty of attempted murder rather than murder only because byhappenstance he selected a dull knife with which to attempt to kill Ms. Muir rather than a sharp knife.

If he had selected a sharp knife, hewould in all probability be guilty of murder. [53] Of further significance, in my view, is the fact that in the circumstances of this case, had Mr. Adamson succeeded inkilling Ms. Muir he would have faced a charge of first degree murder. It is clear, and I am satisfied of this beyond a reasonable doubt,that Mr. Adamson’s actions were planned and deliberate. He drove to Ms. Muir’s residence, which took between five and 10 minutes. He entered her residence and went to the kitchen. He picked up a knife. He ascended two flights of stairs, to Ms. Muir’s room.

Heopened the door and turned on the light. He went over to Ms. Muir and began to slit her throat. Had the knife been sharp, he wouldlikely have succeeded in killing her. [54] It is beyond doubt, in my view, that had Mr. Adamson succeeded he would have been charged with first degree murder,and, in all probability, convicted. If convicted, he would have received a sentence of life in prison without possibility of parole for 25years. [55] In addition to killing Ms. Muir, had Mr. Adamson succeeded, he would also have killed Ms. Muir’s unborn baby.

Thatchild would not be alive, as it is today, and would not be a source of joy to Ms. Muir and her family. [56] It is clear from the jury’s verdict that Mr. Adamson intended to kill Ms. Muir.

[ 57 ] It is clear that Mr. Adamson must serve a lengthy term of imprisonment. The question is how long. [ 58 ] The range of sentences imposed for the offence of attempted murder is vast. Sentences from six years to life imprisonment have been drawn to my attention. To the extent that many of these sentences were the subject of appellate review, some were upheld simply because of the principle of deference accorded by an appellate court.

As noted by Laskin J.A. in Tan , supra, at para. 39 , “In some cases, these widely varying sentences for attempted murder reflect the principle of appellate deference.” [ 59 ] In Tan itself, the Court of Appeal upheld a sentence of 15 years for a 34 year old first time offender who made an early guilty plea and expressed remorse for his crimes. The appellant argued that he should have received a sentence of six to 9 years’ imprisonment.

The Court of Appeal disagreed, and upheld the 15 year sentence. [ 60 ] In Tan , after the complainant rejected the advances of the appellant, he bound her and drove to a friend’s cottage and tried to sexually assault her. Eventually, he slit her throat with a knife and stabbed her, collapsing her right lung. He dragged her into the bush and left her to die. She managed to crawl out of the bush and was rescued. [ 61 ] The appellant gave two separate statements of remorse. He was willing to accept responsibility for what he had done. He said he pleaded guilty to spare the victim from testifying.

He was very sorry for putting her and her family and friends through the ordeal. [ 62 ] At para. 32, Laskin J.A. noted that very serious offences and offences involving violence are generally excluded from the principle that sentences for first offenders should emphasize individual deterrence and rehabilitation.

At para. 33, he stated, “Even accepting that the appellant is entitled to the shortest sentence possible consistent with the relevant sentencing principles, that sentence must still be proportionate to the gravity of his offences.” [ 63 ] Commencing at para. 35, Laskin J.A. noted that sentences for attempted murder imposed or upheld by the Court of Appeal have varied widely. He referred to Campbell , supra , as a case at the lower end of the range, where the Court upheld a sentence of 9 years’ imprisonment.

He referred to the even lower sentence in Boucher , supra , where, on a Crown appeal of a sentence of two years less a day, the Court held that a sentence of six years imprisonment less credit for time served was appropriate. As Mr. Boucher had already served the custodial portion of his sentence, the Court did not require him to serve the remaining portion of his sentence. [ 64 ] At para. 36, the Court noted that it had upheld life sentences for attempted murder. [ 65 ] At para. 37, Laskin J.A. referred to Spurway , supra , as a sentence in the middle of the range. In that case, Mr.

Spurway broke into his former wife’s home and brutally attacked her. He placed a loaded .22 calibre revolver against her forehead and said “You fucking bitch, you’re going to die.” He then tried to shoot her but fortunately the revolver was defective and did not fire. The trial judge gave him a global sentence of 17 years imprisonment, of which 15 years related to the attempted murder.

The Court of Appeal reduced the sentence to 11 years. [ 66 ] At para. 40, Laskin J.A. stated, “I accept that a 15 year sentence for an offender who pleaded guilty early on, who has no previous criminal record, and who expressed remorse to the victim, is a high sentence.” However, he held that such a sentence was justified by the following considerations, some of which are applicable here: (

a) the domestic-like context; (

b) specific intent to kill; (

c) elements of planning and deliberation; (

d) prolonged duration of the attack; (

e) the victim’s identity and body concealed; (

f) the victim left to die; (

g) serious physical and psychological injuries. [ 67 ] Some of these features are present here, and some are not. However, in addition to the features that are listed, there is in the case before me the fact that Ms. Muir was pregnant, and her death would have resulted in the killing of her unborn baby. [ 68 ] In Chevers , supra, the Court of Appeal upheld a 15 year sentence for attempted murder. While it involved the use of a handgun and the accused had a criminal record, he was 24 years old when he committed the offence.

At para. 9, the Court listed the factors that, in its view, justified a sentence of 15 years. Those factors included premeditation and the impact on the victim and on the community. [ 69 ] In Denkers , supra, the Court of Appeal upheld a sentence of 15 years for attempted murder. There are some features of that case that are similar to this case. [ 70 ] At the time of trial, the appellant was 27 years of age. He had worked as a restaurant manager.

The appellant and the victim were romantically involved and had lived together for some months. [ 71 ] The appellant left a number of messages for the victim, in which he threatened her. In the early hours of the day the crime was committed, the victim was at home in her bed asleep when she was awakened by a presence in the room. The appellant came to her bed and stabbed her twice in the chest, and then slit her throat. Subsequently, he stabbed her a third time. The knife caused a two inch laceration across the victim’s throat. It caused two major internal injuries.

[ 72 ] The Court held that the principles of general and specific deterrence must be the overriding considerations in the determination of a fit sentence. The Court held that the trial judge had made no error in principle in imposing a sentence of 15 years upon the appellant. [ 73 ] In fashioning a fit sentence, I must, of course, be governed by the principles of sentencing as set out in the Criminal Code . [ 74 ] The relevant provisions of the Code are as follows: 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, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (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. [ 75 ] The most relevant principles for the purpose of this case are: (

a) denunciation and deterrence; (

b) separating the offender from society; (

c) proportionality to the gravity of the offence and the degree of responsibility of the offender; (

d) taking into account relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 76 ] From the cases I have reviewed, it is clear that the principles of denunciation and deterrence are paramount, and considerations of the offender’s youth or his potential rehabilitation are secondary. The gravity of the offence here is extraordinary, and the degree of responsibility of the offender is apparent. [ 77 ] Mitigating circumstances include:

(

a) the youth of Mr. Adamson; (

b) his lack of a criminal record; he is a first offender; (

c) he has strong family support; (

d) he has maintained steady employment, and has prospects for improving his education. [78] The aggravating factors include: (

a) Mr. Adamson committed this offence against someone who trusted him and was intimate with him; (

b) Ms. Muir was pregnant, and her death would have meant the death of the unborn baby; (

c) Mr. Adamson had the specific intent to kill Ms. Muir; (

d) in committing the offence, Mr. Adamson breached the sanctity of the home of Ms. Muir and her family; (

e) the attempt on Ms. Muir’s life was premeditated, planned and deliberate; it was calculated and callous; (

f) the impact on the victim has been significant, as reflected in her victim impact statement delivered under oath; she is petrifiedthat Mr. Adamson will do her harm, and her family has had to uproot itself and move away. [79] I do not accept, as counsel for Mr. Adamson submits, that a sentence of 7 years is appropriate. Such a sentence would besingularly inadequate to reflect society’s revulsion at Mr. Adamson’s conduct, and would fail to send a clear message that such conductis entirely unacceptable. Where it occurs, it will be met with a very serious sentence indeed.

I do not think the mitigating factors aresufficient to justify a significantly lower sentence, certainly not one in the range submitted by Mr. Adamson’s counsel. [80] For the same reasons, I do not accept the Crown’s submission that a sentence of 10 years is appropriate. [81] Based on the analysis of the Court of Appeal in Denkers, Chevers, and Tan, I think a sentence of 15 years would beentirely appropriate. However, I am prepared to give credit for Mr. Adamson’s youth, and his potential for rehabilitation.

If he applieshimself, his desire to obtain further education can be accommodated in the penitentiary. [82] In the final analysis, I think a sentence of 13 years imprisonment is appropriate, subject to credit for pre-sentenceincarceration and possibly restrictive bail terms, an issue to which I will now turn. [83] As noted earlier, the Crown concedes that with respect to periods of incarceration that can be properly considered by me,Mr. Adamson should be given credit on the basis of 1.5:1. [84] From the date of Mr. Adamson’s arrest to the date he was originally released on bail, he was in custody for 24 days.

From February 1st, 2013, the day he was found guilty, and May 10, 2013, the date of his sentencing, he will have been in custody for 99 days. Thus, the period of time for which it is not disputed that Mr. Adamson should receive credit on the basis of 1.5:1 is 123 days. Accordingly, on the basis of 1.5:1, Mr. Adamson shall be given credit for 185 days. [85] After his arrest for his alleged violation of the terms of his recognizance, Mr. Adamson was in custody for 82 days. Asnoted earlier, he was acquitted. Counsel for Mr.

Adamson submits that he should be given credit for this period of time in custody, onthe same basis of 1.5:1. [86] Counsel for the Crown submits that Mr. Adamson should not be given credit for this period of incarceration, because hewas not in custody on the charges for which he was convicted. Rather, he was in custody for a breach of recognizance charge. [87] In R. v. Wilson (2008), 2008 ONCA 510 , 236 C.C.C. (3d) 285 (Ont. C.A.), the accused was in custody on acharge that was stayed on the basis of s. 11(

b) of the Charter, and he argued that he should be given credit for that time for sentences hewas serving on unrelated matters. The majority of the Court of Appeal rejected that submission. [88] In Wilson, the offences were entirely unrelated. In this case, however, Mr. Adamson was charged with violating the bailterms on the recognizance for the offences for which he was ultimately convicted. He was acquitted on the breach of recognizancecharge. In theory at least, he should not have spent any time in custody on that charge.

It would be unfair, in my view, to not give himcredit on the charges for which he was ultimately convicted. [89] That being the case, I will give Mr. Adamson credit for the 82 days he spent in custody at the rate of 1.5:1, for a total of123 days. When added to the other 185 days for which I am giving him credit, he will receive a total credit of 308 days. [90] Mr. Adamson submits that he should get credit for the approximately 22 months he spent on stringent bail conditions. Herelies primarily on R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.).

I do not accept this submission. [91] In the subsequent case of R. v. Ijam (2007), 2007 ONCA 597 , 226 C.C.C. (3d) 376 (Ont. C.A.), a five judgepanel of the Court of Appeal reconsidered, to some extent, the decision of the Court in Downes. [92] In the case before me, Mr. Adamson was able to spend all of his pre-trial time in the comfort of his own home, with hisfamily, with the exception of the time he spent in custody on the breach of recognizance charge. During part of his time on bail, he wasable to secure employment at the same workplace as his father worked.

The Crown was reasonable in consenting to variations of Mr.Adamson’s bail terms where appropriate. I am not persuaded that Mr. Adamson suffered any significant hardship or deprivation as aresult of his bail terms. As stated by MacPherson J.A. in Ijam at para. 36:

Fourth, I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, commonsense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty. [ 93 ] For all of the foregoing reasons, I determine that an appropriate and fit sentence for Mr.

Adamson is to be incarcerated for 13 years, less credit for pre-sentence custody of 308 days, as calculated above, for a net sentence of 12 years and 57 days. He will be sentenced to the same term of imprisonment on the charge of attempted murder and the charge of break, enter and commit the indictable offence of attempt murder. The sentences will be served concurrently. [ 94 ] I will entertain submissions from the parties as to any appropriate ancillary orders. GRAY J. Released: May 10, 2013 CITATION : R. v.

Adamson, 2013 ONSC 2365 COURT FILE NO.: 21/12 DATE: 2013-05-10 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – BRANDON ADAMSON Defendant REASONS FOR SENTENCE GRAY J. Released: May 10, 2013