Court and Parties

Court of Appeal for Ontario Date: 2022-03-02 Docket: C69224

Before: Tulloch, Huscroft and Trotter JJ.A.

Between: Her Majesty the Queen Respondent

And: Willy Palmes Ching Appellant

Counsel: Jolene Hansell, for the appellant Benita Wassenaar, for the respondent

Heard: February 25, 2022 by video conference

On appeal from the sentence imposed on January 24, 2020 by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Following the break-up of his 30-year marriage, the appellant formed the intent and plan to kill his ex-wife, Maria Ching. Maria had moved out of the matrimonial home and into the home of her uncle, Ernesto Agsaulio.

[2] On October 24, 2009, the appellant attended at Canadian Tire and purchased a hatchet and knife. The next day, October 25, 2009, he rented a car, drove to the Agsaulio home, parked a block away, and removed the safety cover from the hatchet. On arrival at the home, the appellant was in possession of the unsheathed hatchet and the knife. He insisted on seeing his wife. Mr. Agsaulio attended at the door and indicated to the appellant that his wife did not wish to see him. The appellant then forced his way into the home and attacked Mr. Agsaulio in front of his family and children, mortally wounding him. He died subsequently from his injuries.

[3] At trial, the appellant was convicted of first-degree murder, but on appeal this court substituted a conviction for second-degree murder and remitted the matter to the sentencing judge to set the appropriate parole ineligibility period. The sentencing judge set parole ineligibility at 21 years.

[4] The appellant seeks leave to appeal his sentence. He argues, first, that the sentencing judge erred in principle by finding the appellant’s moral blameworthiness for second-degree murder was akin to that of an offender convicted of first-degree murder. Second, the appellant argues that the sentencing judge made a palpable error in finding the appellant’s mental illness played no contributing role in the murder. The appellant submits that his parole ineligibility period should be set at 15 years.

[5] We do not accept these arguments.

[6] The sentencing judge found that the appellant killed his ex-wife’s uncle in the course of carrying out his plan to kill his ex-wife. Counsel agreed that there were no similar cases dealing with parole ineligibility in these circumstances. The sentencing judge concluded that the range was 10-22 years, with 25 years available in rare or exceptional cases.

[7] The sentencing judge was required to determine the appellant’s moral blameworthiness in determining the appropriate sentence. This court’s conclusion that a second-degree murder conviction was warranted, rather than a first-degree murder conviction, did not fetter the sentencing judge’s discretion.

[8] In the absence of an error in law or in principle that affected the sentence, a sentencing judge’s decision is entitled to deference unless the appellant establishes that it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. We see no such error.

[9] The sentencing judge considered the relevant factors, including the appellant’s purchase of a hatchet and knife and the rental of a car as part of a plan to kill his ex-wife. That plan was made in the context of a history of spousal abuse. The appellant forced his way into Mr. Agsaulio’s home and assaulted him with the hatchet and knife when Mr. Agsaulio tried to keep the appellant away from his ex-wife. In these circumstances, the sentencing judge was entitled to consider that the appellant’s moral blameworthiness was at the high end in second-degree murder cases.

[10] The sentencing judge acknowledged that the appellant need only establish that mental illness caused or contributed to the murder in order for mental illness to be a mitigating factor. He considered the evidence of two defence psychiatrists who gave evidence at trial on the appellant’s capacity to form the specific intention to commit murder. In doing so, the trial judge acknowledged that the question of capacity was separate from and not determinative of whether or not there was a causal connection of mental illness to the murder.

[11] The sentencing judge found that the psychiatric evidence had several shortcomings, including reliance on the appellant’s false statement that he had gone to the Agsaulio home to commit suicide rather than to kill his ex-wife. The sentencing judge noted, further, that neither psychiatrist opined on whether the appellant’s depression caused or contributed to the killing. He reviewed Dr. Glancy’s testimony at length, ultimately finding that it was not clear on the relevant point. He criticized Dr. Gojer’s testimony on the basis that he attempted to justify his opinion rather than impartially consider the evidence and relied on incorrect and incomplete information.

[12] Ultimately, the sentencing judge concluded that the appellant had failed to establish that the murder was caused by or contributed to by his depression. That was his call to make, and we see no basis to interfere.

[13] In summary, the appellant has not established that the sentencing judge erred in law or in principle. Although the sentence is at the high end of the range, in all of the circumstances it is not demonstrably unfit.

[14] Accordingly, leave to appeal sentence is granted, but the appeal is dismissed.

“M. Tulloch J.A.” “Grant Huscroft J.A.” “Gary Trotter J.A.”