Court File and Parties

COURT FILE NO.: 07-48 DATE: 2016/07/26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Sebastien Bouchard Defendant

Counsel: Elaine Evans and Jason Pilon, counsel for the Crown Lorne Goldstein, counsel for the Defendant

HEARD: May 30, 2016

PAROLE INELIGIBILITY RULING Leroy, J.

I. Introduction

[1] Following jury re-trial, Sebastien Bouchard was found guilty of the second-degree murder of Robert Nicholson. Mr. Bouchard raised issues of intoxication and provocation in seeking a verdict of manslaughter. This ruling determines the period of parole ineligibility within the mandatory sentence of imprisonment for life.

II. Process, context and governing principles

[2] The minimum period of parole ineligibility for this conviction is ten years. The sentencing judge may substitute a number more than ten, but not more than twenty-five as she/he deems fit in the circumstances. Section 745.4 of the Criminal Code mandates the factors for consideration as follows:

i. the character of the offender; ii. the nature of the offence and the circumstances surrounding its commission; and iii. the recommendations, if any, made by the jury.

[3] The objectives and purposes of sentencing in s. 718 of the Criminal Code factor into and inform this determination.

[4] The sentencing judge is directed in s. 718 to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of just sanctions that reflect the array of sentencing objectives set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.

[5] Section 718.1, directs that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[6] Proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. This principle serves a limiting or restraining function. The rights-based, protective angle of proportionality is counter-balanced by its alignment with the just desserts philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused. Sentencing is a form of judicial and social censure. The degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his moral culpability, and not greater than it. The two perspectives on proportionality converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[7] The determination of a fit sentence is an individualized process that requires the judge to weigh the objectives of sentencing in a manner that reflects the circumstances of the case. No one sentencing objective trumps the others. The relative importance of any mitigating or aggravating factors will push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

[8] Although it falls on the sentencing judge to determine which objectives merit the greatest weight in the circumstances of each case, the principles of deterrence and denunciation are prominent in the determination of the period of parole ineligibility.

[9] The broad range in time open to the Court recognizes the broad range of seriousness reflecting degrees of moral culpability. Unusual circumstances are not pre-requisite for moving away from the ten-year minimum.

III. Deference to Mr. Justice Pelletier’s determination

[10] This is the second time through. Mr. Bouchard was found guilty of second-degree murder after a trial by judge and jury on June 11, 2009. On September 11, 2009, Mr. Justice Pelletier determined that the fit and proper period of parole ineligibility for this offender in all the circumstances at the time was fifteen years.

[11] Issues include the measure of influence that ruling bears on today’s determination and the effect, if any, of:

• the elimination of manual strangulation as a factor in the cause of death in the second trial;
• the fact that Mr. Bouchard spent significant portions of the last ten years in provincial detention centres rather than penitentiary, and
• the evidence of pro-social rehabilitation on Mr. Bouchard’s part during incarceration.

[12] The conviction was set aside on appeal and a new trial ordered for reasons unrelated to Justice Pelletier’s parole ineligibility ruling and reasons. His ruling was approved by Justice of Appeal Rouleau, in minority on the charge-misdirection component, but not on this point.

[13] The parties agree that Mr. Justice Pelletier’s ruling and reasons in respect to the fifteen-year parole ineligibility determination were fit and just, having regard to the facts before him.

Crown Position

[14] Today, the Crown seeks an order for fifteen years of parole ineligibility. The Crown position is that the validity of Mr. Justice Pelletier’s reasons and ruling is unaffected by events in Mr. Bouchard’s life since September 11, 2009, by the length of time in the provincial institution or the apparent rehabilitative progress. The offence is unchanged and Mr. Bouchard’s conduct awaiting sentence and the conditions at the jail are to be properly considered by the Parole Board and not by this Court.

[15] The Crown argues that the elimination of manual strangling as a factor in the cause of death is not a mitigating factor, rather it is the absence of an aggravating factor previously before Mr. Justice Pelletier.

[16] The ruling by the British Columbia Court of Appeal in R. v. Leslie, [2016] B.C.J. No. 1013 is posited by the Crown to inhibit re-trial sentencing judges from factoring post-sentence events into the analysis on an application of this kind.

[17] The Crown directed the Court to paragraphs 13 and 14 of the Leslie ruling which state:

“[13] I begin by observing that sentence appeals should not routinely be decided on the basis of post-sentence events: R. v. Sipos, 2014 SCC 47. In Sipos at para. 30, the Court described the competing values on an application of that kind:

Fresh evidence addressing events that have occurred between the time of sentencing and the time of the appeal may raise difficult issues which bring competing values into sharp relief. On one hand, we must recognize … that “[a]ppeals take time. Lives go on. Things change. These human realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.” However, we must equally pay attention to the institutional limitations of appellate courts and the important value of finality. Routinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review. [Emphasis added; citations omitted.]

[14] In my view, Mr. Leslie’s conduct while incarcerated after the sentence was imposed is a relevant consideration for the parole board and corrections authorities; it is not relevant to the fitness of the sentence imposed in this case.”

Defence Position

[18] The defence seeks a period of parole ineligibility of ten years. Although the fifteen-year imposition by Mr. Justice Pelletier was fit and proper based on the evidence he had at the time and is worthy of deference, there are material changes in both the character of the offender and the circumstances surrounding the commission of the offence, namely

i. the aggravating evidence of manual strangulation prominent in the first trial was removed from evidence by the Crown pathologist, Dr. Milroy; ii. over the last ten and one-half years, Mr. Bouchard has been a model prisoner to the point that those features of Mr. Bouchard’s character viewed as aggravating have significantly ameliorated. Post offence misconduct will factor against an offender and post offence rehabilitation will factor in his favour; and iii. as the result of time to get to trial, time involved in the appellate process and time awaiting the second trial, Mr. Bouchard has been housed in a provincial detention centre rather than a federal penitentiary

and they are new facts that ought to be factored into the determination today.

[19] The defence position is that the Appellate Court’s concerns for finality and institutional limitations of Appellate Courts are not in play. This Court is not sitting in appeal of Mr. Justice Pelletier’s determination. Once the conviction was overturned, the matter proceeded anew.

[20] On this issue, I agree that the Appellate Courts’ concerns for compromising their institutional limitations and jeopardizing the integrity of the criminal process by undermining the value of finality and surpassing the appropriate bounds of appellate review are not in play in the process at bar and the line of reasoning is not applicable to re-trial sentencing.

Governing Principles

[21] In terms of optics, our Courts are careful to avoid the imposition of a re-trial sentence that suggests the impression the offender was penalized for the successful appeal.

[22] For example, in R. v. L.B., [1997] O.J. No. 3042, the Court explained that where a person has been convicted a second time after re-trial, the sentencing judge should first consider the fitness of the original sentence. If he considers it to have been fit, he might re-impose it. If, on the other hand, the judge does not accept the fitness of the original sentence, either because it was too low or because new facts emerged, he should avoid imposing a sentence which is so much longer than the first as to cause the average person to think that the accused was penalized for his successful appeal.

[23] In R. v. Harriot, [2002] 58 O.R. (3D) 1 ONCA, a case similar to this where the parties did not appeal the parole ineligibility period, the Court concluded that the imposition of a sentence imposed after a re-trial should not be regarded as a matter entirely de novo. If the second trial judge decides to impose a greater sentence than the original sentence, he or she must first determine that the original sentence was unfit or that new facts emerged and then consider all the relevant factors before imposing the new sentence.

[24] For the Court to impose a lesser sentence than the original sentence, I must determine that the original sentence was unfit or that new facts emerged and then consider all the relevant factors before imposing the new sentence.

[25] For comparison, in R. v. Kitaitchik, [2002] O.J. No. 2476, the parole ineligibility determination was appealed because the first sentencing judge erred in factoring pre-trial custody into the analysis. The Court of Appeal concluded that while the sentence imposed at the first trial remained a relevant consideration for the second sentencing judge, it carried less weight than a first round determination accepted as fit and just by the parties and court as in Harriot.

IV. Section 745.4 Factors

The character of the offender

[26] Mr. Bouchard was thirty years of age when he killed Bob Nicholson. He was forty-one on May 26, 2016.

[27] He was sexually and physically abused through his formative years. His father was an abusive violent alcoholic. Mr. Bouchard was sexually assaulted more than one time by a sitter when he was ten years of age. He left home at seventeen to escape his father.

[28] Mr. Bouchard’s mother remains steadfastly loyal to her son. He has one older sister from whom he was estranged in 2009, but since reconciled. In 2009, she said she was fearful of her brother. Now she supports the minimum parole ineligibility period.

[29] Mr. Justice Pelletier alluded to the possibility that Mr. Bouchard might complete high school in prison and that in fact did happen.

[30] Debbie Howes and Nadia Vilme depicted the sober Mr. Bouchard as gentle, compassionate and sensitive with a good sense of humour – a fine gentleman. Unfortunately, Mr. Bouchard emulated his father and resorted to substance dependency. He tended to violence when intoxicated. Those proclivities cost Mr. Bouchard opportunity for meaningful relationship with his and Ms. Vilme’s son.

[31] The pre-sentence report expressed concern over Mr. Bouchard’s insight into his drug and alcohol dependencies and the effect of substance abuse on his anger management and tendencies to physical confrontation. The conclusion was that Mr. Bouchard suffers from alcohol abuse and substance abuse disorder, adult Attention Deficit-Hyperactivity Disorder and complex post-traumatic stress in connection with childhood abuse requiring a full treatment plan over the long term.

[32] The PSR identified the advisability of long-term psycho-therapy to address the psychiatric disorders resulting from the abusive experiences of his childhood. I did not discern evidence of initiatives intended to address this recommendation.

[33] Mr. Justice Pelletier at paragraphs 22 and 24 of his reasons concluded that Mr. Bouchard presents as a young man who was unfortunately molded from an early age to use alcohol and drugs as a means of coping with significant personal challenges and whose response to conflict has often been the use of confrontation and occasionally physical outbursts.

[34] Mr. Justice Pelletier adverted to prospects for rehabilitation in paragraph 24 when he stated that despite the offender’s character and lack of introspection, his age and personal circumstances compel the Court to bear in mind to some extent the prospects of rehabilitation. He hastened to add that rehabilitation as a sentencing objective was secondary to the principle objectives of deterrence and denunciation given the circumstances of this case.

[35] Mr. Bouchard amassed a criminal record between August 1995 and June 2010. Convictions for break enter and theft, theft, impaired driving, uttering threats, five breaches and assaults were entered. He was on probation for an offence of violence when he killed Bob Nicholson. Before this conviction, his most significant jail sentence had been four months for property-related offences.

[36] Mr. Bouchard maintained a fairly regular work history through his adult life.

[37] Mr. Bouchard is a good inmate. Incidents of discipline have been nominal. He completed a 33-session substance abuse program in prison in January 2011. He was noted to be hard working – one of the best workers, motivated, polite and abstinent. The program counselled with respect to anger management, balanced decision making and social interaction. Notwithstanding the counselor’s recommendation that he participate in refresher counseling, he has not.

[38] He completed high school in March 2013 as well as a number of workplace safety programs.

[39] It is also the case that the exigencies of the first trial, the appeal process to the Supreme Court of Canada and the re-trial required that Mr. Bouchard reside in provincial detention for lengthy stretches over the last ten years.

[40] Mr. Bouchard offered letters of support from his mother, sister, brother-in-law and acquaintances met after imprisonment. The authors are well-intentioned.

The nature of the offence and the circumstances surrounding its commission

[41] The protagonists were friends. They shared the same car pool for a period. Alcohol, drugs and music were prominent in their society. Mr. Bouchard visited the Nicholson residence one or two times to listen to music and drink.

[42] The evidence suggested that Mr. Nicholson was interested in a sexual relationship with Mr. Bouchard. His overtures were forcefully rejected, once with a punch to the face; however, their common interests of intoxicants and music prevailed. Debbie Howes reported that Mr. Bouchard told her he was okay with Mr. Nicholson’s sexual orientation but would kill Mr. Nicholson were Mr. Nicholson to reprise such overtures, making a kicking motion as he said it.

[43] Mr. Nicholson was small in stature – five foot two inches tall and 107 pounds. Although not a big man, Mr. Bouchard was taller, weighed more and was considerably stronger than Mr. Nicholson.

[44] Mr. Nicholson invited Mr. Bouchard to attend a concert in Montreal on December 4, 2005 and Mr. Bouchard accepted. Mr. Nicholson paid for everything – transportation, tickets and alcohol. They left home early afternoon. By the time they returned to the area in the early morning of December 5th, Mr. Nicholson was extremely intoxicated. Toxicology reports established Mr. Nicholson’s blood alcohol concentration at 386 milligrams of alcohol in 100 millilitres of blood. Mr. Bouchard testified to similar intake over the evening.

[45] Somehow, Mr. Bouchard drove the 100 or so kilometers back to Lancaster. Mr. Bouchard said they made a wrong turn down a side road. He lost control of the vehicle when Mr. Nicholson grabbed Mr. Bouchard’s crotch. He tried unsuccessfully to extricate the truck from the ditch.

[46] They started to walk towards their homes. There was a dusting of snow on the ground and the temperature was minus 2 Celsius. Mr. Nicholson was not dressed for the weather. Mr. Bouchard testified that Mr. Nicholson said he loved Mr. Bouchard and kissed him. Mr. Bouchard’s reaction was violent and fatal. Mr. Bouchard stomped on Mr. Nicholson’s head and neck. Mr. Nicholson was severely beaten, dying from damage inflicted by the stomping. Dr. Milroy opined that Mr. Nicholson’s breathing and body movements following the assault were involuntary.

[47] The pathologist’s evidence in the first trial suggested that in addition to the stomping, Mr. Bouchard strangled the victim. That evidence did not form part of the cause of death depicted in the second trial.

[48] Although there was evidence of significant substance consumption by both protagonists through the course of the concert and return and some evidence of unwanted advances by the victim, both juries rejected intoxication and provocation individually and cumulatively as factors going to intention and rejected provocation as defence to murder.

[49] The jury concluded that Mr. Bouchard either meant to kill Bob Nicholson or meant to cause bodily harm that he knew was so serious and dangerous that it would likely kill Bob Nicholson and proceeded just the same.

[50] Mr. Bouchard beat a defenceless man to death. Mr. Nicholson was easily overpowered. He was no match in a physical confrontation with Mr. Bouchard sober. His impairment had to have been obvious.

[51] Mr. Bouchard’s actions/inactions after the fact were aggravating. Instead of trying to assist his seriously injured friend who was in distress on the frozen ground, he abandoned him by the side of the road. Instead of calling for medical assistance when he arrived home, he washed the blood from his boots, had a cup of tea with his mother, smoked a cigarette and went to bed.

[52] Mr. Bouchard exercised his right to silence. He never did contact the authorities to report. Instead he obfuscated. He tried to sever his connection to the vehicle keys by throwing them into his neighbour’s back yard. He did nothing to alleviate the Nicholson family worries and anxieties.

[53] Mr. Bouchard elevated the stakes when he told an acquaintance that if people knew what Bob Nicholson represented, they would shake Bouchard’s hand for what he did to Nicholson. By verbalizing that context, Mr. Bouchard raised the spectre of hate crime based on sexual orientation.

[54] Mr. Bouchard denied that context at trial. He said he liked Mr. Nicholson and was indifferent to his sexual orientation, but that when Mr. Nicholson kissed him, it triggered memories of the childhood sexual abuse and he “lost it”.

The recommendations made by the jury

[55] The re-trial jury recommendations for parole ineligibility were as follows:

i. one juror declined to recommend ii. one juror recommended eleven years iii. five jurors recommended fifteen years iv. two jurors recommended seventeen years v. one juror recommended eighteen years and vi. two jurors recommended twenty years.

[56] The range is not significantly different than the recommendations made by the jury in the first trial. Of the seven who chose to declare recommendations, five chose 15 years, one chose 12 and another 18. The median for both juries is in the range of 15 years of parole ineligibility.

[57] The jury recommendation is a factor to be considered in determining parole ineligibility. It is to be considered for what it is and weighed accordingly. It is not entitled to deference. Jurors are not instructed in respect to the law of sentencing. They are not instructed about parity, proportionality, sentencing ranges and appellate precedent. The jury only hears about the events of the case before them. They hear little about the offender’s character. It is not a unanimous decision. It is their opportunity to communicate to the Court their view of the seriousness of the offence. It does not bring the jury any further into the sentencing process. Consideration is required; deference is not.

[58] Mr. Justice Pelletier’s context was that the recommendations of the jury in this case were to be given serious consideration. He observed that the evidence said much about Mr. Bouchard’s character and the entirety of the circumstances surrounding the offence. The jury had much of the information the sentencing judge is expected to apply to reasons for determining parole ineligibility. They did not have a full appreciation of Mr. Bouchard’s criminal record nor were they informed about the compelling aspects of the victim impact statements or the excluded evidence of prior discreditable conduct, specifically incidents involving violent outbursts.

[59] In terms of weight, he correctly concluded with the observation that the jury’s recommendations are but one of the considerations to be taken into account in the determination of parole ineligibility.

V. Victim Impact Statements

[60] Robert Nicholson’s murder and the post mortem intrigue that included the extended investigation and two trials had a devastating impact on his family and friends. Hearing your statements was painfully poignant. It would be a disservice to paraphrase the impact this crime has caused the family. The sense of loss that cascaded through the matrix of family and friends can only heal with time, if ever. I understand your anger towards Mr. Bouchard for this senseless brutal killing and the obfuscation. That said, whatever I do today will not revive Robert Nicholson. As Mr. Justice Pelletier said in September 2009, the issue of a fit and proper sentence becomes somewhat inconsequential to those close to Bob Nicholson.

[61] The Court is constrained by the rule of law. There is no room for revenge in a principled system of sentencing. Our system requires a balanced objective approach separate and detached from subjective consideration of retribution. If the tragic consequences to innocent victims became the standard by which appropriate sentences for such offences are determined, the Courts would be reduced to choosing between either imposing the maximum legal term of imprisonment in all cases or embarking on a comparative analysis of the seriousness of the consequences in individual cases. The first alternative would be an abdication of responsibility and the second is unthinkable. This process cannot place a value on Bob Nicholson’s life. All life is sacrosanct. Punishment must be determined on the basis of public values rather than private rage.

VI. Discussion and Conclusion

[62] Justice Pelletier’s ruling was just and fit. The issue is whether the new evidence since emerged is sufficient to move the needle away from fifteen years.

[63] When Mr. Bouchard killed Bob Nicholson, he was a mature offender. He was thirty years of age, an alcoholic who could not manage intake, he had a lengthy criminal record depicting violent proclivity and disregard for Court orders. Alcohol was a factor in the offence. He was on probation at the time. Mr. Bouchard was immune to the advice of friends who discerned the significant difference in his deportment directly related to alcohol. A fine man when sober. Violent and abusive when under the influence. The pre-sentence report identified the value of long-term counselling for post-traumatic stress influences.

[64] It was a brutal assault of a defenceless man underscored by a callous dearth of concern for his friend’s well-being after the event.

[65] Mr. Justice Pelletier summarized his analysis in paragraphs 58 – 60. Having regard to Mr. Bouchard’s character, the circumstances and brutality exhibited in commission of the offence, the victim impact statements and the jury’s recommendations, he concluded that a period of fifteen years parole ineligibility was fit and proper. By validating that determination, the Court of Appeal validated the balancing of purposes and objectives of sentencing in the Criminal Code applied by Mr. Justice Pelletier.

[66] I agree that the absence of a mitigating factor is not aggravating – it is neutral. Although cooperation with the investigation would have been mitigating, the exercise of Charter guaranteed rights to silence cannot be aggravating. The same applies with the omission of an aggravating factor. The omission of the strangulation aspect of the killing in the second trial does not mitigate the brutality of the assault.

[67] Most expect an offender to abide by the rules of the penal institution, to use time in prison for personal improvement and to address the issues that drove the offending behaviour. To some extent that is what Mr. Bouchard has done. I do not view his accomplishments as exceptional.

[68] The positive reports derived from the substance abuse and anger management counselling, the completion of high school and the workplace safety programs are commendable. Rehabilitation as a purpose has a place in every sentence. As alcohol was featured in this offence, it was to be expected that Mr. Bouchard would be afforded substance abuse and anger management counselling as part of re-entry preparation. Thirty-three substance abuse and anger management sessions ending in 2011 without refresher engagement leaves questions and is not encouraging. There is no indication of psychological counselling to address Mr. Bouchard’s long-standing childhood-related issues.

[69] That Mr. Bouchard has served as a model prisoner is to his credit and that will be a factor for the parole board, however; that compliance was an expectation implicit in the fifteen year determination.

[70] The defence submissions to the point of detention centre placement lack evidence. I take notice there is consensus regarding deplorable conditions at the OCDC. I accept that Mr. Bouchard has experienced inconvenience as the result of placement there while his case ran its course. What is lacking is evidence of particular experiences and the actual implications, if any, for Mr. Bouchard.

[71] Mr. Justice Pelletier was categorical in emphasizing the principles of deterrence and denunciation in his analysis. Although I am entitled to consider the additional facts that emerged during the second trial and Mr. Bouchard’s efforts at rehabilitation for pro-social re-entry over the last ten years, it is my conclusion they are not new facts such as to derogate from the reasons for the imposition of fifteen years of parole ineligibility in September 2009. Parole ineligibility is fixed at 15 years from January 26, 2006, the date of arrest.

[72] The sentence that this Court imposes is as follows: on the charge of second-degree murder of Robert Nicholson, you are sentenced to life imprisonment without parole eligibility until you have served fifteen years from the date of your arrest. You are further prohibited from possession of any firearm or weapon as described in s. 109 of the Criminal Code for life. You will submit to the taking of DNA samples as required under s. 487.05(1) of the Criminal Code. Pursuant to s. 743.21, you are prohibited from communicating directly or indirectly with any member of the Nicholson family or Crown witnesses during the custodial period of this sentence.

Justice Rick Leroy

Released: July 26, 2016