New & Notable: The last word on the appropriate sentence

Brandon Adamson was 19 when he broke into his ex-girlfriend’s home and tried to murder her.  He was found guilty by a jury of four offences: attempted murder, assault with a weapon, break and enter, and aggravated assault. He then faced sentencing before Gray J: 2013 ONSC 2365.


Justice Gray stayed the convictions for aggravated assault and assault with a weapon pursuant to the principles of Kienapple.

The Crown took the position that a 10 year sentence was the appropriate disposition; Adamson argued that a sentence of 7 years. When the Crown advised the Court of their position on sentence, Gray J offered the following to counsel:

…my initial reaction was that the 10-year sentence proposed by the Crown is too low, and I might consider a longer period of incarceration to be appropriate. As required by appellant authority (eg R v Thompson, 2013 ONCA 202), I afforded both counsel an opportunity to make submission as to why I should not impose a longer sentence [para 19].

Despite the Court’s stated initial view on the position of the parties on sentence, the Crown did not return before Gray J and request a lengthier sentence. Rather, as the sentencing judge found, the Crown:

[a]rgued, 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.

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 [paras 20-21].

In imposing a longer sentence than the Crown was seeking, Gray J noted that often the difference between murder and attempted murder is simply luck.

Mr. Adamson is guilty of attempted murder rather than murder only because by happenstance 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, he would in all probability be guilty of murder.

Of further significance, in my view, is the fact that in the circumstances of this case, had Mr. Adamson succeeded in killing 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. He opened 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 would likely have succeeded in killing her.

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 25 years.

In addition to killing Ms. Muir, had Mr. Adamson succeeded, he would also have killed Ms. Muir's unborn baby. That child would not be alive, as it is today, and would not be a source of joy to Ms. Muir and her family [paras 52-55].

Before applying any credit to time spent in pre-trial custody Gray J determined that a 15-year sentence would be entirely appropriate but given Adamson’s youth and prospects for rehabilitation a 13-year sentence would be imposed.

Turning to the credit that should be accorded for time spent in custody prior to sentencing Gray J noted the following.

First, counsel were in agreement that pursuant to the Court of Appeal’s decision in Summer, 2013 ONCA 147 Adamson was entitled to 1.5:1 credit for the time spent in custody following his arrest and prior to his release on bail (24 days) and from the day he was found guilty to the date of sentencing (99 days).

Second, counsel for Adamson argued that the 82 days spent in custody following Adamson’s arrest for breach of recognizance should be credited at 1.5 because Adamson was acquitted of the breach. Crown counsel on the other hand argued that the time should not be credited at all since the detention related to the breach and not the substantive offences.

Gray J concluded that Adamson should receive credit for the 82 days at 1.5.

Lastly, Adamson argued that he should receive credit for the time spent on release. Gray J rejected this submission finding that:

Mr. Adamson was able to spend all of his pre-trial time in the comfort of his own home, with his family, with the exception of the time he spent in custody on the breach of recognizance charge. During part of his time on bail, he was able 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 a result of his bail terms [para 92].

Ultimately, Gray J imposed a sentence of 12 years and 57 days.