Toronto florist Felicia Hosany died a horrific death at the hands of Nevin Joseph and Andre Clarke. The two men stormed Hosany’s flower shop in the winter of 2008. They were wearing masks, and their purpose was to rob her. During the attack, Clarke bound Hosany’s entire face so tightly with duct tape that she died of suffocation.

A jury convicted Clarke of manslaughter. Dambrot J, of the Superior Court of Justice, sentenced Clarke to a global sentence of 18 years imprisonment, less pre-trial custody. Clarke appealed from both conviction and sentence: 2014 ONCA 777.

With respect to his sentence appeal, Clarke advanced two arguments.

First, Clarke argued that the trial judge erred by attributing a specific state of mind to him – recklessness as to the likelihood of death – that was at odds with the jury’s verdict of manslaughter.

Second, he argued that a sentence of 18 years was outside the typical range for manslaughter [para 15].

Concerning the first argument, Clarke submitted that the jury must have accepted only one of two facts in reaching their verdict: that Clarke either did not bind the victim, or, that he bound her, but left a hole in the duct tape for Hosany to breathe through [para 16].

The Court of Appeal rejected these submissions. At trial, Dambrot J concluded that “the circumstances of the case lead…inexorably to the view that while the offender did not know that what he was doing was likely to cause death, he did know that what he was doing put her at risk of death – but he did not care” [para 18, emphasis added]. The Court of Appeal concluded the trial judge was permitted to make such a finding, and did not err in citing Clarke’s knowledge of the risk of death as an aggravating factor [paras 18-19].

Clarke’s acquittal from first degree murder implicitly demonstrated that the jury was not satisfied beyond a reasonable doubt that Clarke either intended to kill the victim, or that he knew that what he was doing was likely to cause death. As such, these conclusions would not have been open for the trial judge to reach [para 21].

The mens rea for manslaughter is the objective foreseeability of the risk of bodily harm, which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required: R v Creighton (1993), 83 CCC (3d) 346 (SCC). Although a foreseeability of the risk of death is not required, such a mental state is not precluded for a manslaughter conviction [para 24]. In fact, as what occurred in this case, the foreseeability of the risk of death can be an aggravating factor in the imposition of a harsher sentence for manslaughter [para 24].

The Court of Appeal accordingly concluded that the trial judge was entitled to make such a factual finding. Further, in using the term “inexorably”, it was clear to the Court of Appeal that Dambrot J was satisfied of this factual finding beyond a reasonable doubt, as is required for aggravating factors upon sentence [para 25].

Concerning the second argument, the Court of Appeal concluded that the trial judge gave extensive and compelling reasons for the sentence imposed. While it was outside of the “normal range”, it was not demonstrably unfit. The trial judge was entitled to deviate from the range, based on circumstances that distinguished this case significantly. The offence was one of extreme gravity; Clarke was an offender of high moral culpability. There were callous, aggravating features, including the horrifying and intimidating treatment of the victim [para 31, 34 and 37].

For these reasons, Clarke’s sentence appeal was dismissed. The trial judge did not err in the crafting of his sentence. A global sentence of 18 years imprisonment, less pre-trial custody, was upheld.