THUNDER BAY - A judge will determine if a man who pleaded guilty to kidnapping and accessory after the fact to murder in connection to the 2019 death of Lee Chiodo will serve time in custody.
Marshall Hardy-Fox appeared before Justice Bonnie Warkentin in a Thunder Bay Courtroom on Tuesday where the Crown and defense counsel presented sentencing submissions.
The Crown is calling for six to eight years, while defense counsel argued no further time in custody is warranted and is asking for three-years probation.
In June 2021, Hardy-Fox pleaded guilty to kidnapping and accessory after the fact to murder for his involvement in the 2019 death of 40-year-old Lee Chiodo, whose body was found in the Mission Marsh area on Feb. 24, 2019.
Hardy-Fox was initially charged with first-degree murder and kidnapping along with David Hui and Musab Saboon.
Following the guilty pleas on the charges of kidnapping and accessory after the fact to murder, the first-degree murder charge against Hardy-Fox was withdrawn at the request of the Crown on Tuesday.
According to the agreed statement of facts read into the court record, Hardy-Fox was the driver of a vehicle when Chiodo was confronted at a local bowling alley regarding an outstanding drug debt and forced into the vehicle by two men.
A gun was pointed at Chiodo by one of the men and the plan was to take Chiodo to a distant location to force him to walk back to town in the cold.
Hardy-Fox drove to the Mission Island Marsh area, but there were too many people around, so he then went down an empty road near the Ontario Power Generation site.
Chiodo was forced out of the vehicle by the two men and Hardy-Fox turned the vehicle around. He told police he saw Chiodo on the ground on his side and the two men standing near the back of the vehicle. After he got back into the car, he heard a gunshot and he and the two other men returned to the city.
Chiodo died as a result of a gunshot wound to the back of his head and he also sustained trauma to his head, neck, and torso.
In two victim impact statements shared with the court, family members of Chiodo recalled him as being gentle and caring and that his death has left many with a profound sense of loss.
Sandra Hay, Chiodo’s mother, said she has been in shock and denial since his death and is unable to face reality.
“I am left constantly wondering how people can do such things to a human being,” her statement read. “Taking a life and not feeling any shame for it.”
She also expressed fear for the safety of herself and her family and the physical toll her son’s loss has taken on her.
“You don’t know what pain is until you know the light has gone out of the eyes of someone you love,” she said.
Lee Chiodo’s brother, Peter, told the court that his brother’s violent passing has damaged the family and others.
“I can’t begin to explain the hole left by the loss of my brother Lee,” Peter Chiodo told the court.
He added that he and his brother Lee had the odds stacked against them from an early age and that Lee was struggling with addiction.
“With all these hardships brought on Lee, he was a gentle soul,” Peter Chiodo said. “He would never resort to violence. He loved animals, his family, his friends, nature.”
Assistant Crown attorney, Andrew Sadler, is calling for a custodial sentence of six to eight years, with four to six years on the count on kidnapping and two years to be served consecutively on the count of accessory after the fact.
Pre-sentence custody of 284 days enhanced to 426 days or 14 months would also be credited.
Hardy-Fox was released on bail on December 2019 under the condition of house arrest but Sadler said bail is not the same as time in custody and no credit should be given for the time served under bail conditions.
Sadler added that the kidnapping charge is the more serious offence in this incident and when a gun is produced by one of the other accused, Hardy-Fox continued his involvement in the kidnapping.
“Kidnapping is something that is inherently violent,” Sadler said. “Mr. Hardy-Fox continued to be involved in his kidnapping throughout. There was no gap.”
Hardy-Fox was also participating in drug related activities with individuals involved in drug trafficking, Sadler said, adding that it is a dangerous path to start down.
“When we look at Mr. Hardy-Fox’s involvement, he knew from a very early stage that he was involved with drug dealers looking to collect a debt and violence was the likely outcome of those events,” Sadler said. “He’s not just the driver, he is also sent to watch the back door to make sure Mr. Chiodo can’t escape out the back when the others go in the front to get him.”
Defense counsel Michael Hargadon took several issues with the Crown’s submission, arguing that Hardy-Fox did not enter a plea to first-degree murder and should not be sentenced as such.
“The position of the Crown is irrational,” he said. “You are supposed to impose a sentence on the offences he has pleaded guilty to.”
“If Mr. Hardy-Fox’s level involvement in the kidnapping is continuous, he is guilty of murder. But that’s not the plea that was taken. So something else has to intervene to deprive him of liability of murder.”
Hargadon said that Hardy-Fox was acting under duress as soon as a gun was produced by one of the others in the vehicle, but added that he is not suggesting Hardy-Fox is a true victim in this incident.
According to a pre-sentence report and Gladue report, Hardy-Fox had a stable upbringing and opportunities to excel in school and hockey. He has no criminal record, but became involved in drugs and alcohol while in high school.
“It would be a different situation if we were sentencing a habitual criminal, hardened by life,” Hargadon said. “But it’s not. We are sentencing an individual who didn’t act with the resolution he should have, acted short sighted because of addiction.”
Hargadon also argued that the Crown is seeking to deny the time Hardy-Fox spent while out on bail, which he said included pages of conditions and still represents a form of pre-trial punishment.
“In these circumstances, with this particular offender, no further term of custody is required,” Hargadon told the court.
Hargadon is asking the court to sentence Hardy-Fox to three years probation with credit of 14 months and two days of pre-sentence custody and six months and 20 days credit for bail conditions, for a total of 20 months and 22 days credit.
The matter has been adjourned to March 28 to set a date for Justice Warkentin to hand down her sentence.
David Hui and Musab Saboon are to stand trial on the charges of first-degree murder and kidnapping on Feb. 28.
