Case Name:

 

R. v. [REDACTED], [2016] O.J. No. [REDACTED]

 

Ontario Superior Court of Justice

 

Heard: February 19, 2016.

 

Oral judgment: February 19, 2016.

 

[2016] O.J. No. [REDACTED]

 

Between Her Majesty the Queen, and [REDACTED] , Accused

 

(66 paras.)

 

Counsel:

 

[REDACTED], for the Crown.

 

[REDACTED], for [REDACTED]

.

REASONS FOR SENTENCE

 

[REDACTED] (orally)

 

1 This is a tragic case of another domestic homicide where a woman, [REDACTED], lost her life at the hands of her domestic partner, [REDACTED]. [REDACTED]was initially charged with second degree murder. The Crown Attorney put a new indictment before the Court with a one count of manslaughter. With the consent of the Crown, [REDACTED] re-elected to proceed judge alone.

 

2 Further, the evidence was presented, with the consent of [REDACTED], by a witness summaries read by the Crown Attorney, as well as exhibits filed, including the postmortem report and the accused's statement to the police.

 

3 The manner in which this trial was conducted was agreed to by [REDACTED] counsel and [REDACTED] himself. As an abundance of precaution, I had reviewed the procedure directly with [REDACTED].

 

4 I further advised him that based on what had been disclosed at the pre-trial, there was a very strong likelihood that I would be convicting him of manslaughter based on this trial. I am satisfied that [REDACTED] fully appreciated and consented to the procedure to be followed in this judge alone trial. He also recognized the consequences of proceeding to a trial in such fashion that in all likelihood would result in his conviction for manslaughter.

5 The trial proceeded in this fashion. Though [REDACTED] does not dispute that he unlawfully caused the death of his partner, he has no memory whatsoever of the events due to his ingestion of a significant amount of drugs at the time. I also recognize that the victim's family strongly believed that this matter should have proceeded to trial on a charge of second degree murder.

 

6 After carefully reviewing all of the evidence, including the objective evidence of the independent witnesses and the police officers, it is obvious that, at the time of the killing, [REDACTED] was intoxicated by the self ingestion of the prescribed medication, in particular, Clorazepam.

 

7 Further, based upon the objective evidence, [REDACTED] could not have formed the specific intent necessary for second degree murder under the laws of Canada. The Crown Attorney's decision to proceed only on the charge of manslaughter is not only appropriate but is both fair and just based upon the law, as I know it, and the objective evidence that was put forward in this case.

 

8 The trial proceeded in the fashion it did because [REDACTED] had no recollection of the events of November 2, 2012, due to his ingestion of a vast quantity of Clorazepam. At the end of the trial, through his counsel, he conceded that the Crown had proven beyond a reasonable doubt that he had caused the death of [REDACTED] and had caused it unlawfully, and as such I registered a conviction.

 

9 The facts in this case as are follows: [REDACTED] was the girlfriend or domestic partner of [REDACTED]. The two lived together in [REDACTED] apartment at [REDACTED]. Both [REDACTED]and [REDACTED]are First Nations persons. Sadly, both struggled with addictions. [REDACTED] struggled with alcohol, medically prescribed narcotics such as Ativan, as well as crack cocaine. [REDACTED]  is a recovered alcoholic but gained the additional addiction to Clorazepam, a medically prescribed drug.

 

10 On the facts, as I found, the relationship between [REDACTED] and [REDACTED] was a rocky one, with aggressive fights, usually under the influence of alcohol and/or drugs. In the days leading up to November 2, 2012, [REDACTED] was telling neighbours that she wanted to end her relationship with [REDACTED]. She was encouraged to ask [REDACTED] to leave the apartment since it was her apartment.

 

11 On the day of the killing, numerous witnesses saw [REDACTED] in an extremely intoxicated state from the ingestion of both alcohol and crack cocaine. In fact, early in the afternoon, she was passed out in the hallway of her apartment building, lying in the corridor. Equally, [REDACTED] was seen to also have been in an intoxicated state by his ingestion of Clorazepam. Witnesses described him as being spaced out, zombie like, and having no idea what floor he was on.

 

12 Witnesses observed [REDACTED], who was clearly intoxicated, on their evidence, drag [REDACTED] into their apartment some time in the late afternoon when she was unconscious. Apparently, this was not an uncommon occurrence where [REDACTED]would pass out and [REDACTED] would help her back to her apartment.

13 Later in the early evening, witnesses saw the accused in the apartment with the victim who was passed out and snoring. At that time, there were no visible injuries. Left in the locked apartment, however, were both just the deceased and the accused. It was not until someone looked in on the victim that 9-1-1 was called at 11:46 at night. It is obvious from their evidence that [REDACTED] had died at least a few hours before 11:46.

 

14 When the police arrived, [REDACTED] admitted being with the victim all day and, on the evidence of the officers, he seemed confused and incoherent, obviously still suffering from the ingestion of drugs several hours later. He indicated that he thought [REDACTED] had fallen out of bed. At no time did he deny that he was the only person with [REDACTED].

 

15 By the time the EMS were on the scene, rigor mortis had already set in, and with no scientific certainty, it's clear [REDACTED] succumbed to her injuries at least a couple of hours before 11:46 in the evening.

 

16 The forensic pathologist concluded [REDACTED] died as a result of blunt force trauma to her head, neck and torso. The force of the blows had to be of such a degree of force that it fractured some of her ribs and fractured part of her spine. It could have been caused by extreme kicking, punching or stomping. The forensic pathologist opined that it would be like dropping a bowling ball from some distance on to a person's chest.

 

17 Along with the blunt force trauma, there was patterned injuries which were consistent with a broken extension cord that was found near [REDACTED] body. It is clear to me, beyond a reasonable doubt, that [REDACTED], in an intoxicated state, repeatedly struck her with the extension cord as well on the arms, torso, right breast and upper back.

 

18 It is based upon these facts I must sentence [REDACTED]. It is the position of the Crown Attorney, [REDACTED], that this is an aggravated manslaughter and a fair and fit sentence is eight to ten years in the federal penitentiary, less credit for pre-trial custody.

 

19 It is the position of the defence that in light of the remorse exhibited, the fact that he was intoxicated at the time and has no memory, and the manner in which the trial was conducted, a fair and fit sentence on top of the pre-trial custody already served, I should sentence him to up to two years less a day, followed by three years probation with terms, no contact with the victim's family and treatment for drug dependency.

 

20 In reaching a fair and fit sentence, I am mindful of the sentencing provisions of s.718 and following of the Criminal Code. I must, of course, examine both the aggravating and mitigating factors. There are several aggravating factors:

 

1)     This killing took place in a domestic relationship. Domestic partners are at risk, and women need to be protected from violent outbursts of their spouses and domestic partners. The paramount concern in such killings must be general deterrence and denunciation. The message of this Court must be clear that those who abuse and kill their spouses in domestic situations must receive lengthy penitentiary sentences.

 

2)     The Nature of the Injuries. Though [REDACTED] was intoxicated, she did not die a quick or painless death. The nature of the injuries sustained can only be described as brutal. The force required to break several of her ribs and part of her spine had to be significant. It is further aggravated that not only did [REDACTED] use blunt force, he used it repeatedly.

 

3)     The Use of a Weapon.

 

21 It is also aggravating that the accused also repeatedly struck the unconscious victim with a weapon of opportunity, in all likelihood, the extension cord.

 

4)     After causing such significant injuries, the accused did nothing to seek help for the victim who had expired some time before the police even became involved.

 

5)     The accused failed to initially take responsibility for his actions and suggested that [REDACTED] simply fell off the bed. Such an explanation, though maybe an attempt to deflect responsibility, clearly was not a sophisticated plan of concealment. Nevertheless, it was an attempt.

 

6)     The sixth aggravating factor is the impact this tragic death has had on the victim's family. The victim's family has been devastated by the loss of their mother, their sister, their daughter and their friend. Their loss and heartbreak will continue for the rest of their lives. There is nothing this Court can do to compensate them for the loss of their loved one. I do not think I can summarize the loss of the victim's family as well as [REDACTED] daughter [REDACTED] did in her victim impact statement where she wrote the following:

 

"I suffer from depression and anxiety as a result of this tragic loss. There are many days when I isolate myself from friends and family and often don't feel like communicating with anyone. I am withdrawn from people and my family and often don't show up for get-togethers. Most of the time I spend alone."

 

22 The significant impact not only on [REDACTED] daughter [REDACTED] but her mother and family and friends I find to be extremely aggravating.

 

23 I must, of course, balance these aggravating factors against the mitigating factors, and there are several:

 

1)     The manner in which this trial was conducted.

 

24 [REDACTED] elected to forego a jury trial. Although he did not plead guilty, based on the fact that he had no memory, he was unable to do so. Nevertheless, he elected to streamline this trial, which lasted less than an hour, by admitting how the evidence could go in. I find the manner in which he conducted the trial, albeit not a guilty plea, was some evidence of an exhibition of remorse. It provided a certainty of result for both the Crown and this Court.

 

25 More importantly, the victim's family did not have to relive the nightmare of what happened to their mother, sister and daughter in a lengthy public trial with a jury. As we all know, the uncertainties of a jury trial may have led to any number of results, so that I find this to be a significant mitigating factor.

 

2)     [REDACTED] is 53 years of age, and he has no prior criminal record. He has no prior record for abuse of [REDACTED] or no issue other than that there had been mutual fights in the past, usually verbal.

 

26 Further, it would appear in his report to [REDACTED] that, apparently, he had a non-related conviction some 19 years before. The Crown is not relying on such conviction, which is completely reasonable since it is extremely dated and not in any way related to any type of violence. As such, I am treating [REDACTED] as a first-time offender who is 53 years of age.

 

3)     The third mitigating factor is that [REDACTED] has suffered from his own mental health challenges in the past. In fact, there's objective evidence he has been suffering from paranoid delusions in a subsequent custody. Dr. [REDACTED]report that has been filed clearly indicates that he has mental health issues. The accused in the past has overcome an alcohol addiction and successfully receiving counselling for it. Unfortunately, he now faces the addiction to Clorazepam. The fact that he's been able to deal with one addiction in the past is a positive step when looking at potential rehabilitation and eventual reintegration into the community.

 

4)     The fourth mitigating factor is family support. Both Dr. [REDACTED] report and the Gladue report, [1999] 1 S.C.R. 688 say that [REDACTED] has a supportive family. Family support and the support of the community are important factors when assessing rehabilitation and reintegration into the community.

 

5)     The accused's aboriginal heritage. I am mindful of considering [REDACTED] aboriginal heritage and the Gladue report filed, as I am required to do so not only by the Criminal Code but by the direction of the Supreme Court of Canada as well. I am mindful that it is important to take into consideration [REDACTED] First Nations heritage. I am directed as to the test by the Supreme Court of Canada in R. v. Ipeelee, [2012] 1 S.C.R. 433.

 

27 Based upon the Gladue report, [REDACTED] father was an alcoholic, and the report of his brother [REDACTED], his mother was intoxicated when she gave birth to him and referred to him as being "a blue baby".

 

28 Further, on the evidence before me, [REDACTED]  upbringing as a child was difficult. He was sexually raped or sexually abused by a neighbour when he was six years of age, and his father left his mother after. The difficult upbringing of the accused and the challenges he faced, based upon the Gladue report, are an extremely mitigating factor I must consider.

 

6)     Pre-trial custody.

29 The accused has been in custody since November 2, 2012. He has already served approximately three years, three months and five days. Per the direction of the Supreme Court of Canada in Her Majesty v. Summers, [2014] 1 S.C.R. 575 he will receive credit 1.5-to-1 for the pre-trial custody. As a result, [REDACTED] has already served a sentence comparable to four years and eleven months in a federal penitentiary.

 

7)     The conditions while serving pre-trial custody.

 

30 I recognize the maximum credit is 1.5-to-1 for pretrial custody, which I respect. I am also aware that because of his mental health issues and his delusions, at his request he was put in segregation for most of that period of time. The conditions he has served because of his mental health challenges have been difficult. I am not prepared to enhance his credit past 1.5-to-1, but it is a factor that I consider in relation to arriving at a fair and fit global sentence.

 

31 Along with balancing these aggravating and mitigating factors, I must also consider the various case law provided by counsel. The range of sentence for manslaughter cases ranges from a reformatory time up to fifteen to eighteen years. The wide disparity in sentence simply reflects that each case must be decided on its own particular facts, the antecedents of the particular accused, and the particular accused's likelihood for rehabilitation and reintegration into the community.

 

32 I also agree that if the case meets the definition of aggravated manslaughter, that the general rule is the range is usually eight to twelve years. There are cases above and below that range because even in cases dealing with aggravated manslaughter, the particulars of the accused, the nature of the offence and degree of culpability must be reflected.

 

33 In reaching a fair and fit sentence, the most important concern must be general deterrence and denunciation. Domestic partners and women in particular must be protected from the violent aggression of their spouse or partner. I cannot, however, ignore the importance of rehabilitation, reintegration into the community and the accused's aboriginal heritage.

 

34 The position of the Crown Attorney of eight to ten years is not an unreasonable position. I do not think, however, the proposed sentence of the Crown gives sufficient weight to the manner in which this trial was conducted and the accused's aboriginal heritage.

 

35 Further, by providing a reformatory sentence, this Court can provide the benefit of a lengthy period of probation for three years to ensure the public is protected and the accused gets the treatment he desperately needs for the drug addiction that he faces.

 

36 In balancing all of these factors, I am satisfied that a sentence in the general range of around seven years would be appropriate to address these issues. The accused has already served a sentence comparable to four years and eleven months.

 

37 [REDACTED], sir, would you please stand up.

 

38 [REDACTED], sir, on top of credit for a sentence already served of four years and eleven months, I am sentencing you to a further two years less one day in a provincial institution. Due to your mental health challenges and your drug addiction to Clorazepam, I am strongly recommending that you serve that sentence at the St. Lawrence Valley Correctional and Treatment Centre. I am directing that, while there, you attend for such drug counselling therapy as is available in the institution, as well as any therapy for anger management.

 

39 Further, I am directing that you be seen for treatment for the mental health issues that you have been suffering while in custody.

 

40 Along with the two years less a day sentence, I am sentencing you to a further three years probation. During the period of probation, you will report forthwith to a probation officer and thereafter once a month. You will attend for such drug counselling and anger management as is directed by your probation officer.

 

41 Further, you will provide signed consents to your probation officer to ensure compliance with any counselling or treatment program.

 

42 Further, you will attend for such anger management and counselling as is directed by your probation officer.

 

43 You will not possess any weapons as defined by the Criminal Code.

 

44 Further, during your sentences, pursuant to section 743.21 of the Criminal Code, and for the three years of probation, you will have no contact with [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], and [REDACTED].

 

45 Further, sir, pursuant to the provisions of s. 109 of the Criminal Code, I am banning you from the possession of firearms, ammunition or explosives for life.

 

46 Sir, manslaughter is what is defined in the Criminal Code as a primary designated offence and as such, sir, this morning I am ordering you to provide a suitable sample of your DNA for the purpose of analysis and entry into the DNA databank.

 

47 That is the decision of the Court, subject to any comments people have about if the math is correct.

 

48 MS. [REDACTED]: In terms of the pre-trial custody, Your Honour has quite accurately noted the additional two weeks as well, so we're ad idem. There's no issue from the Crown's perspective.

 

49 MR. [REDACTED]: Just the murder indictment needs to be withdrawn.

 

50 THE COURT: Yes.

 

51 MS. [REDACTED]: Yes.

 

52 THE COURT: Yes, absolutely. In the circumstances, the murder indictment is withdrawn. [REDACTED], as I indicated in my Reasons for Judgment, because I think it is important to do that, I appreciate the manner in which you exercised your discretion. It was based on the law and where we're at. The trial proceeded on the charge that, based on the objective evidence, was fair, and I appreciate your exercising your discretion in the highest traditions of the Crown Attorney's Office.

 

53 MS. [REDACTED]: Thank you, Your Honour.

 

54 THE COURT: So thank you.

 

55 MR. [REDACTED]: Thank you, Your Honour.

 

56 THE COURT: Okay. Thank you as well, [REDACTED], for very helpful sentencing submissions.

 

57 MR. [REDACTED]: Thank you, Your Honour.

 

58 THE COURT: Good luck, [REDACTED].

 

59 MR. [REDACTED]: Thank you, Your Honour.

 

60 THE COURT: And the indictment on the other matter is withdrawn at the request of the Crown in light of the other conviction that's been registered, and the DNA order has already been signed for the court officers.

 

61 MR. [REDACTED]: One final housekeeping.

 

62 THE COURT: Yes.

 

63 MR. [REDACTED]: [REDACTED] was wondering, the police have all his identification and some mementos, aboriginal medicine box, clothing. Does my friend know how he can obtain all that material?

 

64 THE COURT: I'm sure through Homicide the things that aren't evidence can be sorted out. I'm also ordering a copy of my reasons, and all of the exhibits, including the victim impact reports and the Pre-Sentence Report, the Gladue report, all the exhibits will be filed -- will be sent to the institution so that they'll have a complete record of everything.

 

65 Mr.[REDACTED]: Thank you, and I'll follow up with [REDACTED] regarding the property.

 

66 THE COURT: Thank you very much, everybody.

 

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