Sentences – the art of consistency


In August, the Ontario Court of Appeal issued a decision reconsidering sentences handed down to two individuals involved in a drive-by shooting (R. v. Grant, 2016 ONCA 639).

This ended a nearly-decade long saga for the accused individuals, Anthony Grant and Devon Vivian.

In June 2007, four men robbed Mr. Grant and Mr. Vivian, 21 years old and 20 years old, respectively, at gunpoint. On their way home, Mr. Grant and Mr. Vivian spotted the robbers in a nearby Honda. Mr. Vivian was driving. He followed the Honda onto a residential Toronto street. Mr. Grant pulled out a handgun and proceeded to discharge 13 shots. One of the passengers from the Honda was struck by six bullets and passed away. The other three passengers were injured but survived.

Mr. Grant and Mr. Vivian were both charged with first-degree murder.

 

Murder in Canada comes with a mandatory life sentence but the period of parole ineligibility is up for grabs, with the minimum acceptable period being 10 years under the Criminal Code.

 

The first trial took place in 2010. A jury found both Mr. Grant and Mr. Vivian guilty of first-degree murder and four counts of attempted murder. In 2012, the Ontario Court of Appeal set aside the conviction and ordered a new trial, citing an error in the jury instructions (R. v. Vivian, 2012 ONCA 324).

The retrial was heard in 2013. The jurors acquitted both accused of first-degree murder but found both Mr. Grant and Mr. Vivian guilty of second-degree murder. Mr. Grant was also convicted on the four counts of attempted murder while Mr. Vivian was found guilty of four counts of aggravated assault.

Murder in Canada comes with a mandatory life sentence but the period of parole ineligibility is up for grabs, with the minimum acceptable period being 10 years under the Criminal Code.

The trial judge in this case, currently retired Ontario Superior Court Justice Ewaschuk, known for taking a “tough on crime” stance, characterized the events in this case as “outrageous, shocking and horrendous.” He noted that “the use of guns remains a scourge to the Toronto community” and added that “[i]t was miraculous that the accused Grant did not kill any innocent bystanders.” As part of his analysis, he did find that Mr. Grant and Mr. Vivian had some prospects of rehabilitation.

For the shooter, Mr. Grant, the jury suggested parole ineligibility of 15 years and the Crown asked for 17 years; the trial judge gave 18 years. For the driver, Mr. Vivian, the jury suggested 11 years for parole ineligibility and the Crown said 15 years; the trial judge gave 13 years.

This proved to be too harsh for the Ontario Court of Appeal. Justice Laskin, writing for the panel, acknowledged that sentence appeals are only available in very limited circumstances, namely where “the trial judge imposed a sentence that is demonstrably unfit or committed an error in law or principle that had an impact on the sentence,” this includes not considering a relevant factor or improperly consider any (mitigating or aggravating) factor.

That the trial judge exceeded the sentences requested by the Crown meant that he was required to give the parties an opportunity to make further submissions and to give reasons for his determination. The trial judge did neither. This was thought to impact the fairness of sentencing.

Justice Laskin however went to lengths to emphasize Mr. Grant and Mr. Vivian’s youth. He wrote that “their youth alone argues for a shorter rather than longer period of parole ineligibility” and the trial judge’s failure to give any real weight to their youth, aside from other mitigating factors such as their lack of previous violence and family support, all affected the fitness of the sentence.

As such, the Ontario Court of Appeal reduced each of Mr. Grant and Mr. Vivian’s sentences: Mr. Grant was sentenced to parole ineligibility of 14 years (down by 4 years) and Mr. Vivian to 11 years (down by 2 years). For shooting at the other passenger in the car, Mr. Grant got a 13-year concurrent term (from a life sentence) and Mr. Vivian got 10 years (down from 14 years).

 

sentences for similar crimes committed by similarly situated accused individuals should be similar.

 

People who support Justice Ewanschuk’s harsh sentencing and, like him, are appalled at the rise of cavalier gun violence in Toronto may lament this recent decision by Ontario’s highest court. They may wonder at the key role the offenders’ youth played in sentencing for the court, or how Mr. Grant and Mr. Vivian’s history of drug trafficking, albeit with relatively low violence, affected their sentences. They, like the trial judge, may be unsympathetic to their upbringings and may dismiss their recent efforts at self-improvement as showing very little, certainly not “excellent rehabilitation prospects.”

Gun violence is undoubtedly menacing Toronto – and many other cities and towns – but sentencing ought not to be a forum for airing political views or “making a point”. Sometimes it is. General and specific deterrence, after all, continue to be relevant factors in sentencing. It is well known that sentencing is thought to be an art – it’s certainly not an exact science and, for however objective we might try to believe it is, a personal, subjective element is inevitable. And yet, sentences for similar crimes committed by similarly situated accused individuals should be similar. This is a hallmark of a fair justice system. This case is but another reminder of the importance of “checks and balances” in the criminal justice system and shows how one judge, known for taking a tough stance on crime, can throw consistency in sentencing out the window. After nine years, Mr. Grant and Mr. Vivian can put trials and appeals behind them, finish the remainder of their respective sentences, and, with any luck, fulfill what the parole authorities found are “excellent rehabilitation prospects.”


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About Katrina Trask

Katrina Trask is a graduate student at the University of Toronto’s Faculty of Law. Prior to beginning her graduate studies, she was a legal research lawyer at the Newfoundland and Labrador Court of Appeal. Katrina’s undergraduate and law degrees are both from the University of Manitoba.