Delay in sentencing for Earl Clapp's killer

Looking around the packed courtroom, Pelham Mayor Marvin Junkin told the gallery that Earl Clapp would be embarrassed by the turnout, an outpouring of support for his family by friends in the community.

“That’s the kind of humble guy he was,” said Junkin, fighting back tears.

The Mayor was but one of many who delivered emotion-laden victim impact statements before Justice Joseph DeFilippis in a St. Catharines courtroom last Tuesday, as the Jason Lusted case moved closer to completion. A total of 76 victim impact statements from family and friends have been filed with the court.

Lusted, 50, and co-accused Mathew MacInnes, 40, were both initially charged with second-degree murder in the October 2, 2020 death of Pelham resident Earl Clapp, 74. He was killed after interrupting Lusted and MacInnes in the early morning, as they attempted to steal a trailer from his rural property in Fenwick. As they fled the scene, Lusted’s SUV made a deliberate right turn toward Clapp, colliding with him and trapping him under the vehicle. Lusted, whose license was suspended at the time of the crime, did not stop the vehicle, and continued to drive almost two kilometres at a high speed with Clapp pinned underneath. Clapp’s body was discovered by a passing motorist on Highway 20 just before 3 AM.

MacInnes, of West Lincoln, had his second-degree murder charge withdrawn in March after he pleaded guilty to several less-serious charges, and agreed to provide testimony for the prosecution against Lusted. He was sentenced to time served, having been behind bars 515 days since his arrest, and was released from custody.

Lusted eventually pleaded guilty to manslaughter, giving up his right to a trial, and to challenge evidence in the case. His criminal record includes involvement in another murder case, when in 2006 he was implicated in the death of a Hamilton resident, for which he pleaded guilty to accessory after the fact in connection with that fatal execution-style shooting, by helping to burn the victim’s body. Lusted was sentenced to ten years in penitentiary, and was granted day parole in 2015.

Between 1989 and 2016, Lusted had accumulated 59 separate charges and 40 convictions, including assault, theft, impersonation, and driving and parole violations. In his own words at a previous trial, he declared, “I’m not sitting up here telling you that I’m a choir boy. I’m a career criminal.”

On the day of Earl Clapp’s burial — a funeral service could not be held due to Covid-19 restrictions in place at the time — a procession of several hundred vehicles passed by his family home on Centre Street in Fenwick, a final tribute to the well-loved community member and businessman.

Toronto attorneys Andrew Furgiele and Cara Barbisan were present in court defending Lusted. Assistant Crown Attorney Robert Mahler was the prosecutor.

Lusted sat in the prisoner’s box, head bowed and eyes downcast, for the duration of the court proceedings.

Mike Smrek, of Welland, Clapp’s best friend, provided a heart-felt address to the court. He was impossible to miss standing at the podium. The seven-foot tall Smrek, who had a ten year career in the NBA, told the court that he first met Clapp 30 years ago.

We would talk about all kinds of things, from construction to music, his Harley-Davidson motorcycle, to gardening and landscaping projects

“I immediately knew Earl was a good man,” he said. “I liked him, and knew he could be trusted. We became close friends, and worked on many construction projects together. He had such an honest and generous spirit. Earl always embraced life with so much optimism, hard work, honesty, and integrity. We would talk about all kinds of things, from construction to music, his Harley-Davidson motorcycle, to gardening and landscaping projects. And of course, our families.”

Smrek said that his friend Earl was the kind of man that great communities are built around, and that his death has had a severe impact on his sense of trust in others.

“For nearly 85 years, my family has lived at the property where I still live,” said Smrek. “We didn't lock doors and windows. But since Earl's horrific death, I have installed a security system. I have guard dogs on the property, and am suspicious of anyone coming up the driveway. In everyday life, my sense of trust is a shadow of what it once was. The news of Earl’s death tore a hole in my life which has left me empty, a shell of who I was.”

Ryan Huxley told the court that many years ago, when he was an inexperienced 21-year-old, Clapp employed him at his farm metal products business.

“I had never picked up a tool, and had a fear of heights. I'm sure I don't need to tell you that having a fear of heights and working in a sheet metal roofing business don't mix. Earl didn’t care, he hired me on regardless. He was so incredibly patient and kind. Instead of firing me, he gave me jobs working at ground level. That decision cost him money, but he did it anyway.”

Huxley said that Clapp eventually hooked him up with another contractor, and he went on to build a career working in the trades as a certified carpenter, before becoming a construction technology teacher at E. L. Crossley.

“Earl’s act of compassion set me on a career path to be able to give back to my community,” said Huxley. “I am so grateful to Earl for being the kind, caring, and humble person he was. His one small act of kindness was a pebble in the pond, which is still creating positive ripples of change 24 years later. I treat all my students with the same patience and kindness that Earl showed me those many years ago. He has left many wonderful legacies.”

Three construction business colleagues offered their own perspectives on the man, having known him for decades.

Neil Gennings described a variety of charitable causes that Clapp supported, including building roofs on Habitat for Humanity homes.

“He was a mentor for me, as well as many other young workers who now own their own businesses,” said Gennings. “Earl was never aggressive or confrontational. He was a truly gentle soul, always patient and understanding, especially with beginners just learning the ropes. He was a special friend that I would sometimes vacation with during our slow times. We loved taking our motorcycles for rides in the warmer weather. Those times are gone forever. I still feel extremely sad just driving past his home.”

Dave Vanderwier said that “with Earl, it was always a handshake, not a signed piece of paper, that sealed the deal.” Vanderwier’s sons now operate Clapp’s Niagara Farm Metal Products business, continuing his legacy.

Mark Young told that court that “you could feel Earl’s integrity in his handshake.”

Clapp’s sister, Vanessa Grenier-Clapp, said that her Sudbury-raised brother always put family first.

“He was not your typical 74-year-old,” she told the court. “He was a big, strong guy, with huge energy, who was health-conscious, sensitive, compassionate.”

She said she will forever miss their tradition of early morning coffee and conversation.

Standing beside a large photograph of her husband, Earl’s widow, Tillie Clapp, told the court that she remembered first meeting her husband in 1962, on a Sudbury school bus.

“He was handsome, but shy and humble,” she said, “and I came to learn that his best parts were deep within his character.”

They were together 58 years.

“Earl had a spontaneity, and a sense of joie de vivre,” said Tillie. “He made me feel cherished and appreciated.”

She said that her first few months after that fateful day in October 2020, when two detectives arrived at her doorstep, were a blur, despite the comfort offered by friends. Tillie noted that even complete strangers dropped off food at her house, such that she didn’t have to cook a meal for months.

Tillie vividly remembered meeting with the coroner, and seeing Earl’s body wrapped in thick plastic. Only his calloused right hand — “the only part of him deemed suitable for viewing” — protruded from the shroud.

Her disdain for Lusted and MacInnes was palpable.

My husband was run over like a stray animal, and dragged like a discarded piece of garbage that had no value

“My husband was run over like a stray animal, and dragged like a discarded piece of garbage that had no value,” she said. “Was his life irrelevant to these thieves? Do these criminals get orders for stolen trailers, the way others order pizza?”

“Jason Lusted’s sentence will eventually end. My grief will not,” she said.

Elisha Clapp told the court that she is haunted by images of her father’s mutilated body, and has post-traumatic stress symptoms that she deals with on a daily basis. Her children, now age six and nine, have been similarly affected psychologically.

“My children have had their grandfather stolen from them, and Jason Lusted is to blame for that,” she told Justice DeFilippis. “My son told me, ‘Papa didn’t have a chance to say goodbye.’ Consider this, Your Honour, when you deliver Lusted’s sentence. Please don’t let him do this to another grandchild, another wife, another daughter, another friend.”

Jody Clapp, Earl’s younger daughter, told the court that, “It is nearly impossible to describe the hole in my world.” She said that she idolized her father, and “can’t imagine a better moral compass,” adding that during difficult periods in her life, her father never gave up on her.

“I live now with a sense of impending doom,” she said. “Existing, not living. Going through the motions. I struggle to understand the world. I felt my heart was ripped from my chest the moment I heard the news of my father’s death.”

At the conclusion of the victim impact statements, Justice DeFilippis told the speakers that they “painted a clear picture of a remarkable man.”

Assistant Crown Attorney Mahler, in addressing DeFilippis, said that the overarching sentencing principles were to protect society, and mete out a judgment proportional to the gravity of the offence.

He said that the mitigating circumstances include Lusted’s professed remorse, and his guilty plea, which eliminated the need for a lengthy trial by judge and jury.

Aggravating circumstances include the seriousness of the offence, Lusted’s long criminal record, his ongoing use of drugs and alcohol, and the profound negative impact of his actions on Clapp’s family and the community.

Any culpable homicide, in which a person causes the death of another human being by means of an unlawful act or criminal negligence that does not meet the definition of murder, is said to be manslaughter. Practically speaking, manslaughter is when the offender did not intend to kill, or cause significant bodily harm that he knew may result in death.

Unlike murder charges, manslaughter does not carry an automatic sentence of life imprisonment. It remains, however, an option for the court. If life imprisonment is ordered, there is no minimum time that is automatically required to be served before parole eligibility. Those sentenced to life imprisonment for manslaughter would be eligible for parole after serving seven years. It may be possible for the court to delay parole eligibility for a life sentence for manslaughter up to ten years under section 743.6 of the criminal code.

It is also common for manslaughter convictions to result in sentences other than life imprisonment. A nine-year sentence, which is not uncommon, would allow the offender to be paroled after serving three years of his sentence.

Mahler introduced a confounding factor into the proceedings, stating that the Aboriginal Legal Services of Toronto was having difficulty ascertaining the defendant’s ancestry. Efforts would continue, such that a report should be available within five weeks, he said.

DeFilippis cannot deliver a sentence until this report is made available to the court.

What is now clear is that Lusted’s defense counsel are invoking Gladue principles, created after a 1999 Supreme Court decision in which an accused with Indigenous roots argued successfully that courts should consider issues such as the trauma of residential schools, and forced resettlement. This consideration is now enshrined in the Criminal Code of Canada.

Gladue principles require courts to take into account Indigenous background, and the impact and history of discrimination against Indigenous people by Canada and the criminal justice system, often referred to as systemic discrimination.

At sentencing hearings, Gladue principles require that all alternatives to incarceration must be considered before a jail sentence is given, and when a jail sentence is necessitated, the court must apply Gladue principles to the length of the sentence.

The next court proceeding in the case is scheduled for August 5, at which time a sentence may be rendered.