



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Warner, 2019 ONCA 1014

DATE: 20191223

DOCKET: C67288

Pardu, Roberts and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Warner

Appellant

Delmar Doucette, for the appellant

Deborah Krick, for the respondent

Heard: December 5, 2019

On appeal from the sentence imposed on February 23, 2018
    by Justice Antonio Skarica of the Superior Court of Justice, with reasons
    reported at 2018 ONSC 1799.

REASONS FOR DECISION

[1]

Joshua Warner appeals from an 18-year sentence
    imposed for manslaughter, before nine years credit for pre-sentence custody.

[2]

The offence was committed at a house party in
    Hamilton. The appellant attended the party with his co-accused, Tyrone Chambers.
    Chambers had recruited the appellant to attend with him to protect him from
    another individual. The appellant brought a gun, and knew Chambers was also
    armed.

[3]

A dispute arose at the party over a trivial
    issue, the kind of music that was played. Chambers fired three shots, killing
    Brandon Musgrave and wounding Kauner Chinambu. The appellant also brandished a
    gun and fired a shot that wounded Ted Tsibu-Darkoh. The appellant admitted guilt
    to the aggravated assault of Tsibu-Darkoh and was sentenced to six years for
    that offence.

[4]

Following a joint trial, Chambers was convicted
    of second-degree murder of Musgrave and aggravated assault of Chinambu and Tsibu-Darkoh.
    The appellant was convicted of manslaughter in relation to the killing of
    Musgrave, and as a party to the aggravated assault of Chinambu. By brandishing
    a gun and backing up Chambers actions, the appellant aided Chambers to commit
    offences but did not have the intent required to support a murder conviction.

[5]

The sentencing judge imposed an 18-year sentence
    for the manslaughter of Musgrave and a six-year sentence for the aggravated
    assault of Chinambu. Both sentences were to be served concurrent to the six-year
    sentence imposed for the aggravated assault of Tsibu-Darkoh.

[6]

The sentencing judge carefully reviewed the
    mitigating and aggravating factors. The mitigating factors included:

·

Although the he grew up in a home with a loving
    mother, the appellant had no contact with his father (but for one isolated
    phone call) after he was nine years old. The appellant fell in with the wrong
    crowd.

·

The appellant was relatively young. He was 21
    years old at the time of the offence and 29 years old at the time of sentencing.

·

The appellant continued to have significant
    family support from his mother, three siblings and maternal grandmother, and
    from his girlfriend.

·

The appellant had completed his high school
    education.

·

The appellant did not appear to suffer from any drug
    or alcohol addiction, although he used marijuana both in the community and
    while in custody.

·

The pre-sentence report reflected the
    appellants remorse for his actions. Additionally, when asked if he had
    anything to say before he was sentenced, the appellant told His Honour: I know
    my words cant change anything you guys feel about what [I did] but Im truly
    sorryI wish that day never happened.

[7]

The aggravating factors included:

·

Firearms were used in acts of reckless and
    senseless violence.

·

The victims were unarmed and targeted.

·

Two of the victims suffered serious injury and
    one of them death.

·

The appellant had been prohibited from carrying
    a weapon.

·

The appellant attended the party with a loaded
    firearm.

·

The appellant was a knowing party to Chambers
    aggressive behaviour and backed him up in the series of aggressive acts that
    led to the shooting.

·

The appellants gun was never found.

·

The appellant fled from the scene and then to
    South America.

[8]

Additionally, the appellant had a criminal
    record. As a youth, he received dispositions in four proceedings in 2004 to 2006
    for failing to comply with a recognizance, failing to comply with a disposition
    (x3), possession of a scheduled drug for the purpose of trafficking (x2),
    robbery, possession of stolen property, possession of a prohibited weapon,
    tampering with a firearm serial number, flight from the police, and obstructing
    a police officer. His longest disposition as a youth was time served of 147
    days, in 2006. As an adult in early 2009, he had been sentenced to 31 days in
    jail in addition to 147 days pre-sentence custody. This was for failure to
    attend court, failure to comply with a youth disposition, and possession of a
    scheduled drug. Later in 2009, the appellant was sentenced to 35 days in
    addition to 148 days pre-sentence custody for theft under.

[9]

In arriving at an 18-year sentence for the
    manslaughter, the sentencing judge indicated that Warner was going to back up
    Chambers regardless of how bullying, dangerous, or homicidal Chambers chose to
    be. This is inconsistent with the jury verdict acquitting the appellant of second-degree
    murder and convicting him as a party to manslaughter. The appellant did not
    shoot Musgrave, nor did he intend that Musgrave be killed or suffer from bodily
    harm likely to cause death, factors highly relevant to the appellants moral
    culpability.

[10]

The sentencing judge compounded this error by
    referring to the offence as aggravated manslaughter. In
R. v.
    Devaney
,

213
    C.C.C. (3d) 264, at para. 33, this court indicated that using subcategories of
    manslaughter is not appropriate:

The first
    question is whether it is appropriate to label a subcategory of manslaughter as
    aggravated manslaughter for the purpose of sentencing. In my view, it is not
    useful to attach a label to a subcategory of the offence, then to try to pigeonhole
    the facts of any case into the label. Adding a descriptive label to a set of
    facts within the defined offence adds a level of complexity to the sentencing
    exercise that is both unnecessary and potentially diverting for the court and
    could lead to errors.

[11]

These
    are errors in principle that had an impact on the sentence. It falls to this
    court to determine the appropriate sentence. We turn therefore to this courts
    jurisprudence about sentencing parties to manslaughter.

[12]

In
R. v. Almarales
, 2008 ONCA 692, 237 C.C.C. (3d) 148, the offender
    arguably played a similar aider role to the shooter, who was a long-time friend
    he met in prison. The offender drove the shooter to and from the offence site,
    knowing the shooter had a gun. He assisted the shooter in intimidating the
    victims (e.g. putting a knife to a victims throat) and generally complied with
    the shooters directions (e.g. to switch lights on/off, turn up the volume on a
    stereo).

[13]

On
    appeal, amongst other things, this court reduced the 20-year manslaughter
    sentence to 12 years. Watt J.A. found the sentencing judge erred in considering
    the offender a principal in the manslaughter and failing to consider the
    offender had been in pre-sentence custody for about 21 months. He wrote at
    para. 144 that 20 years was beyond the range of sentence imposed on secondary
    participants in manslaughter cases. Indeed, few persons convicted of
    manslaughter as a principal, who have been in custody prior to sentence for 21
    months, receive a sentence of imprisonment for 20 years.

[14]

The
    jurisprudence suggests that 12 or 13 years is generally appropriate for aiders
    or abettors to manslaughter, where those offenders have a high degree of moral
    culpability.
[1]


[15]

We
    would therefore grant leave to appeal from the manslaughter sentence, allow the
    appeal, and substitute a sentence of 15 years, concurrent to the six-year
    sentence for the aggravated assault of Chinambu, and concurrent to the six-year
    sentence for the aggravated assault of Tsibu-Darkoh. After deducting nine years
    of pre-sentence custody, the net sentence is six years. A 15-year sentence is
    very substantial and adequately reflects the aggravating circumstances
    surrounding the appellants conviction as a party to the manslaughter.

G. Pardu J.A.

L.B. Roberts J.A.

J.A. Thorburn J.A.





[1]

R. v. Thompson
, [2005]
    O.J. No. 3351, affd 2008 ONCA 693;
R. v. Jones-Solomon
, 2015 ONCA 654, 329
    C.C.C. (3d) 191;
R. v. Chretien
, [2009] O.J. No. 2578;
R. v. Dirie
,
    2018 ONSC 5536;
R. v. Monk
, 2003 BCSC 449, affd 2005 BCCA 394, 198
    C.C.C. (3d) 495.


