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Criminal - Sentencing - Manslaughter. R. v. Gibson
In R. v. Gibson (Ont CA, 2026) the Ontario Court of Appeal considers manslaughter sentencing, and when a conditional sentence may be given in cases of violence:[49] Deterrence and denunciation must be the predominant sentencing objectives where there is an unlawful killing. While the sentencing principle of rehabilitation assumes a lesser role in sentencing for manslaughter, it nonetheless remains an important consideration when sentencing a young, first-time offender: R. v. Kwakye, 2015 ONCA 108, at para. 3; Khill (ONCA), at para. 159. Likewise, the principle of restraint must still be taken into account: Khill (ONCA), at para. 159.
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[69] There is no question that a conditional sentence is legally available in this case. While conditional sentences are rare, the Supreme Court has rejected the argument that conditional sentences are presumptively unavailable in relation to certain offences, including violent ones causing death: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, paras. 80-83. Moreover, sentences of less than two years are not presumptively unavailable for manslaughter. As this court stated in R. v. Turcotte (2000), 2000 CanLII 14721 (ON CA), 48 O.R. (3d) 97 (C.A.), at para. 19: “While many, if not most, sentences for manslaughter are in the penitentiary range, maximum reformatory sentences are not unknown and are clearly within the acceptable range”.
[70] Again, while rare, a low or non-penitentiary term may be an appropriate sentence for manslaughter in the following circumstances.
[71] First, it may be appropriate where the appellant’s moral blameworthiness is low. As the Nova Scotia Court of Appeal noted in Henry, at para. 19, citing R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 48-49: “A significant distinguishing factor between cases, where a low or non-penitentiary term is appropriate and those where a lengthy sentence is imposed for manslaughter is the moral blameworthiness or fault of the offender.” In the present case, the trial judge found the appellant’s blameworthiness to be “modest”, even after erroneously applying the failure to take “other options” as an aggravating factor.
[72] Moreover, a “lenient sentence” like a conditional or suspended sentence requires “very strong mitigating factors” or circumstances where “the act, though culpable, was close to being an accident”: Myette, at para. 47, leave to appeal to S.C.C. refused, 19311 (April 22, 1985); Henry, at para. 19. Strong mitigating factors that have led to the imposition of lenient sentences for manslaughter include: “extreme stress or provocation”, an “impulsive act or immediate reaction to perceived or actual wrong by victim” and “self-defence”: Henry, at para. 20.
[73] Finally, it is necessary to determine whether a conditional sentence in all the circumstances of the present case will adequately reflect the principles of denunciation and deterrence that must predominate in the case of manslaughter. While custodial sentence provides for more denunciation and deterrence than conditional sentences, the Supreme Court in Proulx, at para. 107, cautioned against overemphasizing this point and provided assistance in how to craft a conditional sentence that appropriately respects the public interest in significant deterrence and denunciation:Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. The empirical evidence suggests that the deterrent effect of incarceration is uncertain. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. [Citations omitted.] See also R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.
[74] I turn now to consider whether a conditional sentence should be imposed in the present case. For guidance, I return to Faroughi, at para. 102:When determining whether a conditional sentence is appropriate, a court must engage in a two-step process. First, the court must make a preliminary determination that neither probation nor a penitentiary term is appropriate. Second, assuming the offender satisfies the other statutory prerequisites enumerated under s. 742.1 of the Code, the court must determine whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing. [Citations omitted.] [75] This was a very tragic case that, as the victim impact statements of Mr. Smith’s mother and stepfather made clear, took away a much-loved son. Without diminishing the terrible outcome flowing from the appellant’s acts, the trial judge characterized the circumstances of the offence as being the result of the appellant’s impetuous acts in reaction to a dynamically evolving situation where he did not intend to kill Mr. Smith. As such, for the purposes of sentencing, I would describe the offence “though culpable, was close to being an accident”: Myette, at para. 47; Henry, at para. 19. I have also earlier reviewed the exceptionally strong mitigating factors in this case. These result in an attenuated level of moral blameworthiness for the appellant.
[76] I am of the view that neither probation alone, on the one hand, nor a penitentiary term, on the other, is appropriate in this case. A sentence of two years less a day, with strict house arrest, followed by three years of probation, would be a fit sentence in all of the circumstances.
[77] The appellant meets the other statutory prerequisites for a conditional sentence under s. 742.1 of the Criminal Code: there is no minimum punishment for manslaughter; manslaughter is not one of the excluded offences; and, as the trial judge found, the safety of the community would not be endangered by the appellant serving his sentence in the community.
[78] This is not the case where the need for denunciation is so pressing that incarceration is the only appropriate means to reflect that sentencing principle: Proulx, at para. 106. In the circumstances of this case, the principles of restraint and rehabilitation must also be considered. Given the appellant’s status as a first-time, youthful offender, the sentencing principle of restraint “takes on an elevated importance” and requires that the sentence “be tailored to the circumstances of the accused and give appropriate consideration to rehabilitation”: Faroughi, at paras.70-71.
[79] In reaching the conclusion that a conditional sentence is fit in the particular circumstances of this case, I am in no way suggesting that the wide sentencing range for manslaughter is now lowered. As in all sentencing, each case must be determined on its specific facts having regard to the applicable sentencing principles. In the unusual circumstances of this case, the predominant purposes of deterrence and denunciation, as well as the principles of rehabilitation and restraint, can be achieved by a conditional sentence with strict house arrest, followed by three years of probation. . R. v. Khill
In R. v. Khill (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal (but allows a sentencing reduction), here from a manslaughter conviction - this in the defendant's second trial, where the first went up to the SCC.
Here the court considers sentencing in manslaughter:[116] The trial judge reviewed the case law governing sentencing in manslaughter cases. A wide range of sentences may be imposed. This is due to the broad spectrum of scenarios and varying levels of blameworthiness in manslaughter cases that range from situations of “near accident” to “near murder”: see R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.), at para. 10. Notably, where an offender’s conduct is accompanied by aggravating factors, the applicable range of sentence is usually between eight to twelve years’ imprisonment: see e.g., R. v. Jones-Solomon, 2015 ONCA 654, 329 C.C.C. (3d) 191, at paras. 81-83.
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[154] The key to determining an appropriate sentence for manslaughter is the moral culpability or blameworthiness of the offender: R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 48-49; R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at pp. 410-413; Carrière, at para. 10. This assessment engages a plethora of factors relevant to the circumstances of the offender and the offence.
[155] Although Mr. Styres was in the process of committing a criminal offence that night by breaking into the appellant’s truck, it was the appellant who created the dangerous situation that unfolded. He chose not to take a number of obvious, alternative courses of action, such as turning the lights on in his house, making noise, or even firing a warning shot. He should have called 911; it is unfathomable that he did not do so. Instead, he armed himself with a loaded shotgun and decided to confront someone on his property – someone who appeared to be, at most, a thief. As the trial judge found, the appellant could have avoided “the foreseeable violent outcome” that unfolded that night and resulted in the senseless death of Mr. Styres: R. v. Yaali, 2020 ONCA 150, at para. 6.
[156] The appellant submits that the trial judge erred by failing to give effect to his finding that the appellant feared for his life. We disagree. The trial judge accepted that the appellant perceived that he had no other choice short of using lethal force. This finding had the impact of reducing the appellant’s moral blameworthiness. We agree that this finding is to be factored into the analysis.
[157] It is true that the trial judge found that the appellant expressed genuine remorse. However, as the trial judge noted, the appellant told the author of the Pre-Sentence Report that he does not believe that he should be punished for what he did. Moreover, we echo the trial judge’s observations that, while the appellant made attempts to resuscitate Mr. Styres, he did not do so right away.
[158] These factors foreclose the imposition of the mandatory minimum sentence of four years’ imprisonment. This was not a case of “near accident”. It was further along the “near accident”/“near murder” continuum.
[159] An appropriate sentence must take into account all of the relevant principles of sentencing, including totality, parity, and restraint: Criminal Code, ss. 718-718.2. The trial judge acknowledged the appellant’s strong rehabilitative prospects. However, as this court has said, rehabilitation takes on a lesser role in sentencing for manslaughter: R. v. Kwayke, 2015 ONCA 108, at para. 3. Denunciation and general deterrence must be the predominant sentencing objectives in this case, especially in view of the normative character of the appellant’s conduct. His actions that night must be strongly discouraged.
[160] In our view, the applicable goals of sentencing can only be achieved with a term lengthier than the mandatory minimum sentence of four years’ imprisonment, the existence of which does not displace the range of sentences for manslaughter developed by this court: see e.g., Jones-Solomon. A sentence of six years’ imprisonment is justified on the basis of previous decisions of this court: R. v. Kwakye, 2015 ONCA 108; R. v. Green, 2023 ONCA 317; and R. v. Araya, 2015 ONCA 854, 344 O.A.C. 36. In reaching this conclusion, we rely on the Victim Impact Statements and the Community Impact Statement that describe the “devastating impact” that the death of Mr. Styres had on his family and community.
[161] We reduce the sentence to six years’ imprisonment.
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