Her Majesty the Queen – and – Elaine Biddersingh, 2016 ONSC 5663

DATE: 20160919 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ELAINE BIDDERSINGH

COUNSEL: Mary Humphrey and Anna Tenhouse, for the Crown Alana Page and Jennifer Myers, for Elaine Biddersingh

HEARD: September 6, 2016

Reasons for Sentence

MacDonnell, J.

[1] On April 28, 2016, Elaine Biddersingh appeared before this court and was arraigned on an indictment charging that between June 15, 1992 and September 1, 1994 she committed the first degree murder of her step-daughter, Melonie Biddersingh. On June 20, 2016 the jury found her not guilty of first degree murder but guilty of second degree murder. She is before the court today for sentencing.

[2] By virtue of ss. 235(1) and s. 745 (c) of the Criminal Code, the sentence to be pronounced on a person convicted of second degree murder is a term of imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence. Pursuant to s. 745.4, however, the sentencing judge may increase the period of parole ineligibility from 10 years up to a maximum of 25 years having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, of the jury.

A. The Relevant Considerations

(i) the character of the offender

[3] Elaine[^1] has no prior criminal record. She was born in Jamaica and came to Canada with her mother around 1974, when she was 13. When she was 14 she became pregnant. After the child was born, Elaine returned to school briefly before dropping out permanently at age 15. In the time period encompassed by the indictment she was between 30 and 33 years of age. She is now 55. Notwithstanding her limited formal education, there is nothing to suggest that she is not at least of average intelligence.

[4] Elaine met Everton Biddersingh when she was 18 and they married shortly thereafter. The marriage may initially have been one of convenience, something meant to assist Everton in relation to his immigration status, but it became a permanent union that continued until after Elaine and Everton were charged with the murder of Melonie, in 2012.

[5] Elaine and Everton have had three children together – Kenroy (born in 1985), O’Neil (born in 1986) and Charmaine (born in 1991). Prior to marrying Elaine, Everton had children with several different women. He had two children with Opal Austin – Melonie, who was born on August 5, 1977, and Dwayne, who was born 14 months later in October 1978. He had another son with Beverley Scott – Cleon Biddersingh, born in 1974 – and another daughter with Yvonne Hamilton – Suan Biddersingh, born in 1991. Suan was born and raised in Toronto. Melonie, Dwayne and Cleon were born in Jamaica and they were raised there in single parent households until they came to Canada in 1991.

[6] After Elaine dropped out of school, she began working at factory jobs and she continued to do so, after marrying Everton, until Charmaine was born. There is no evidence that Everton ever had regular employment apart from drug dealing. Both Yvonne Hamilton and Suan Biddersingh testified that it appeared to them that Elaine was the one controlling the family’s money and that she would dole it out to Everton upon request. After Charmaine’s birth in 1991, Elaine never worked outside of the home until May 2014 when she began working as a cashier at a café operated by a social service agency. In the course of her submissions, Ms Page said that this was the first time Elaine had been allowed to work in the more than 20 years since Charmaine was born. The implication was that Everton had not let her outside of the home to work. I do not accept that submission. Elaine did not testify at either the trial or the sentencing hearing and there is no evidence from any other source as to why she was not employed between 1991 and 2014.

[7] Elaine was arrested on March 5, 2012 and was released on bail seven months later, on October 31. Between February and December 2013 she completed an educational upgrading program. In January 2014, she began a 12-week pre-employment program offered by an organization called Working For Change, which she successfully completed. After completing the program she began working at the café that I mentioned a moment ago.

[8] Ms Page stated that she has been advised by a psychiatrist that Elaine suffers from post traumatic stress disorder (PTSD). No report from the psychiatrist has been provided and the psychiatrist has not testified. There is nothing to indicate what information the psychiatrist relied on, what the source of his or her information was, what trauma the stress related to, when the disorder began, what its impact has been, and whether it had anything at all to do with what happened to Melonie between 1991 and 1994. In the circumstances, I disregard the assertion by counsel that Elaine suffers from PTSD.

[9] Elaine and Everton’s older son, Kenroy, who is now 31, suffers from schizophrenia. He has been involuntarily committed to hospital about 20 times in the past four years. He is resistant to therapy and attempting to care for him has been a very difficult burden for Elaine. I accept that the prospect of being imprisoned and being unable to care for Kenroy is very painful for Elaine to contemplate.

[10] When given the opportunity to address the court at the conclusion of the sentencing proceedings, Mrs. Biddersingh stated:

All I want to say is Jesus knows everything, and Jesus has provided the lawyers to present the case, and so I’ll leave it at that.

(ii) the nature of the offence and the circumstances surrounding it

[11] I turn now to a consideration of the nature of the offence and the circumstances surrounding its commission.

[12] As I have said, Melonie was born into a single-parent household in Jamaica on August 5, 1977. Melonie’s mother, Opal Austin, testified that Melonie was a quiet girl who liked to read and draw. She loved children and she took care of her younger siblings. She would give up things if they needed them. She also did household chores for her mother. She did not have health problems in Jamaica, apart from normal ailments like a cold or the flu. She was slim, but she had a good appetite, and Opal never had problems getting her to eat She was attending school and had ambitions of being a nurse when she grew up.

[13] In 1989 or 1990, while he and Elaine were on a trip to Jamaica with their two young boys, Everton raised with Opal Austin and Beverley Scott the prospect of having his Jamaican children – Melonie, Dwayne and Cleon – come to Canada to live with him and Elaine. The Jamaican children were living in what would be regarded in Canada as impoverished circumstances. For example, Opal’s home had dirt floors and a roof that leaked when it rained. The proposal to have Melonie, Dwayne and Cleon come to Canada was presented as an opportunity for them to have a better future than they could have hoped for in Jamaica and after considering the matter Opal and Beverley Scott agreed to let the children go. And so it was that on January 25, 1991 Melonie, Dwayne and Cleon flew from Jamaica to Toronto to begin a new life.

[14] Melonie was not quite 13½ years of age when she boarded that flight. One can only imagine the hopes and dreams that she carried with her. What the jury heard in this case, in heartbreaking detail, was how, day by day by day, relentlessly, Everton and Elaine Biddersingh crushed those hopes and dreams.

[15] In the early morning hours of September 1, 1994, 3½ years after Melonie landed in Toronto, flames were noticed coming from the rear of a building in a commercial/industrial area of the City of Vaughn. An intense fire, with flames reaching as high as eight feet in the air, was burning beside a dumpster. After the fire department extinguished the blaze, a human body was discovered in the debris, resting inside the metal frame of a suitcase. The body was that of Melonie Biddersingh.

[16] A post-mortem examination of Melonie’s remains was conducted that same day by Dr. Chiasson. Prior to the commencement of the examination the remains were weighed and the weight was recorded as 50 lbs. Dr. Chiasson was of the view that about 10 per cent of Melonie’s body had been consumed in the fire, and based on that he estimated that she had weighed about 55 lbs at the time of her death. Dr. Zlotkin, an internationally recognized expert in pediatric nutrition, testified that a weight of 55 lbs was the weight of an eight-year-old child. Melonie had just turned 17. For a female of Melonie’s height and age, the bottom of the normal range was about 100 lbs. Based on the estimate of Melonie’s weight provided by Dr. Chiasson and an estimate of her height provided by Dr. Gruspier (a forensic anthropologist), Dr. Zlotkin calculated Melonie’s Body Mass Index (BMI) to have been 9.0. According to the World Health Organization, the normal BMI for a person who had reached her adult height, as Melonie had, is in the range of 18.5 to 25. Anyone with a BMI under 16 is considered to be “severely underweight”.

[17] The accuracy of the estimates of Melonie’s weight and height were challenged at trial. I am satisfied that the estimates were substantially accurate but in any event the variations suggested by the defence would not have had any significant impact on the calculations made by Dr. Zlotkin. With or without those variations, the bottom line to Dr. Zlotkin’s opinion would remain that Melonie’s weight at the time of her death was grossly abnormal and that her BMI was “virtually off the chart”. The photographs of Melonie’s remains at the time of the autopsy amply support Dr. Zlotkin’s characterization of her as having ‘stick figure limbs’.

[18] Dr. Chiasson testified that at the time of the autopsy he did not attempt to determine whether any of Melonie’s bones had been fractured. The remains were x-rayed but the x-ray technology available in 1994 was not adequate to reveal what was ultimately found, ten years later, when Dr. Gruspier skeletonized Melonie’s remains. Dr. Gruspier did that as part of a combined effort by the Centre of Forensic Sciences and the Ontario Provincial Police to identify bodies, like Melonie’s, that had gone unidentified. After Melonie’s bones were stripped of their flesh, Dr. Gruspier discovered 21 fractures – to Melonie’s spine, ribs, pelvic girdle, kneecap and ankle. The fractures were all healing, which indicated that they had occurred between 3 weeks and six months prior to Melonie’s death. Dr. Gruspier testified that injuries as extensive as this would have resulted in considerable pain and, most likely, immobility.

[19] At the conclusion of the post mortem examination, Dr. Chiasson’s opinion was that Melonie was dead before she was set on fire but that the specific cause of her death could not be determined. Dr. Chiasson remained of that opinion for about a year. Two findings that were made at the time of the post mortem examination turned out to be pivotal in changing his mind. The first was the presence of frothy fluid within Melonie’s bronchial tubes. The second and ultimately more significant was the presence of watery fluid in Melonie’s right maxillary sinus.

[20] The fluid from the maxillary sinus was sent to Dr. Pollanen for analysis. Dr. Pollanen is currently the Chief Forensic Pathologist for Ontario, but at the time he was a Ph.D. student working with the Centre of Forensic Sciences. What Dr. Pollanen found in the fluid surprised him, namely diatom frustules. A diatom, as Dr. Pollanen explained, is a single cell aquatic plant that is found in naturally occurring bodies of water, such as lakes, rivers and streams. Finding diatoms in the maxillary sinus indicated to Dr. Pollanen that Melonie had inhaled water prior to her death. The discovery of evidence of the inhalation of water in a sinus cavity of a body found in a burning suitcase far from any body of water was an unexpected finding. Dr. Pollanen decided to do further testing. The nature of that further testing was reviewed in some detail in my instructions to the jury. Suffice it to say that at the conclusion of the testing Dr. Pollanen’s firm opinion was that the cause of Melonie’s death was drowning. He forwarded his report in that respect to Dr. Chiasson, and after reviewing the report Dr. Chiasson revised his initial opinion and, like Dr. Pollanen, came to the conclusion that the cause of Melonie’s death was drowning.

[21] How it was that the healthy, happy 13½-year-old who was placed in the charge of Everton and Elaine Biddersingh on January 25, 1991 was reduced to the emaciated, broken and partly incinerated remains that were found inside a burning suitcase on September 1, 1994 was explained largely in the evidence of Melonie’s older brother, Cleon. Insofar as his testimony concerned the abuse that Melonie had suffered at the hands of Everton, the credibility and reliability of his account was largely uncontested. Insofar as he attributed responsibility for the abuse to Elaine, however, his testimony was strenuously challenged.

[22] The jury was warned that there were reasons to be careful in deciding whether to believe Cleon’s evidence concerning Elaine. Cleon was initially charged along with Everton and Elaine with a number of offences arising out of Melonie’s death. His status as an accused person changed to that of a witness largely as a result of a statement that he gave to the investigators in which he pointed the finger of guilt at Elaine and Everton. I have reminded myself of the need for caution in making findings of fact for the purpose of sentencing based on Cleon’s evidence. In the end, it was up to the jury whether to believe Cleon about the role played by Elaine. The jury obviously did so. So do I.

[23] Cleon testified that when the children arrived in Toronto, Elaine and Everton and their two boys met them at the airport and took them to their new home, a one-bedroom apartment on the 22nd floor of a high-rise building at 22 Close Avenue, in the Parkdale area of Toronto. A one-bedroom apartment for two adults and five children was obviously a cramped living arrangement, but in comparison to the conditions in which Cleon, Dwayne and Melonie had been raised in Jamaica, the accommodations seemed luxurious.

[24] In the course of his testimony, Cleon described a course of mistreatment on the part of Everton and Elaine that began with Cleon, expanded to include the other Jamaican children, and, especially insofar as Melonie was concerned, became worse over time. Precisely when in the overall time period many of the incidents described by Cleon occurred was not always clear. Cleon testified that the mistreatment was initially directed at him but that by the fall of 1991 Melonie was also being abused. Once the abuse started, it continued unabated for the next three years until it reached its inevitable conclusion with Melonie’s death.

[25] It is difficult to understand why the two persons who had agreed to bring these three children to Canada, ostensibly to provide them with a better life, in essence to adopt them, would so quickly and so cruelly turn against them. But turn against them they did. I have no doubt that at least as early as late 1991, and probably sooner, both Everton and Elaine had developed a deep antipathy toward the Jamaican children. It is not clear what the source of Everton’s hostility was, apart from his generally malevolent and violent personality. The animus of Elaine may have sprung from several sources. She told Dr. Nagy that she had not been consulted about the plan to bring the children to Canada. The fact that she was the only one working at the time and that the arrival of the Jamaican children meant three more mouths to feed may have been one reason for her resentment. The evidence of Cleon was that after the children arrived Elaine became convinced that he was not actually Everton’s biological son, and she made it clear that she did not want to be supporting someone else’s child. For some reason, she also became obsessed with the belief that the Jamaican children were dirty, that they had germs, and that they were, quite literally, possessed by the Devil.

[26] While Everton and Elaine may have had different reasons for their hostility toward the Jamaican children, their antipathies came together in a combination that led directly to the shocking mistreatment of Melonie. I will briefly summarize some of that mistreatment.

[27] One of the main reasons why Opal Austin and Beverly Scott entrusted their children to Elaine and Everton was so that they could go to school in Canada. That was to be part of the hoped-for route to a better life. Yet, at no point during Melonie’s 3½ years in Canada did Everton or Elaine make any effort to enrol her in school. Further, apart from one visit to Dr. Nagy in the summer of 1992, two years before she died, Melonie was never taken to a doctor. For at least the last two years of her life, Melonie was never allowed to be outside of the building at 22 Close Avenue, for any purpose, and apart from one time when she tried to escape and was found by Cleon in the stairwell, crying, she was never out of the apartment itself. As far as the medical, educational and social service networks in this city were concerned, Melonie did not exist. She may as well have been a ghost.

[28] Melonie’s life inside the Biddersingh apartment can only be described as a living hell. For the entire 3½ years of her life in Canada, she was required to sleep on the floor, on a piece of cardboard. Throughout those years she was routinely deprived of food. The Jamaican children were not allowed to use the same dishes as the rest of the family. Cleon testified that Elaine claimed that they were evil, that they were dirty, that they had germs. Repeatedly in his testimony, he stated that the Jamaican children were treated like slaves. They were used as ‘human vacuums’, picking up every piece of dirt from the floors. At some point, Cleon was given the responsibility of doing the cooking for the whole household. After Charmaine was born, the entire responsibility for caring for her, feeding her, changing her, comforting her and washing her clothes was assigned to Melonie. Elaine never took care of Charmaine, but rather retreated into the bedroom to watch religious programming from morning to night.

[29] Cleon testified that Everton would drag Melonie into the bathroom by the hair and flush her head in the toilet as a punishment. In the summer, Melonie and Cleon were not allowed to shower inside the apartment. A curtain was rigged up in a corner of the balcony to afford a degree of privacy. They were provided with a pail, which they filled with water from the bathtub. They would soap themselves up on the balcony and then pour the pail over themselves to rinse. Over time, Melonie’s urine developed a strong smell – perhaps because of the slow process of starvation to which she was being subjected – and Elaine did not want her using the bathroom anymore. Everton put a pail out on the balcony with a plastic bag inside, and in the summertime Melonie was required to use it as a toilet. On occasion, Everton would punish Melonie by locking her outside on the balcony. Another form of punishment was to confine her inside a barrel. As still another form of punishment, Melonie would be ordered to squat down in a tiny broom closet. Melonie particularly hated being in the broom closet.

[30] After Everton learned that Melonie had tried to leave the apartment and that she had been found in the stairwell, he obtained a chain and handcuffs. The handcuffs were connected to the chain and were secured around Melonie’s ankle. The chain was then attached to a wall unit. Cleon said that Melonie would be beaten before going to sleep, and then the chain would be attached. It would be taken off in the morning.

[31] Underlying all of this abuse was a constant barrage of physical assaults. Cleon testified that Melonie was beaten almost every day. The assaults included punching, kicking and stomping as she lay curled up in a ball on the floor. Cleon said that Melonie constantly had bruises all over her body and that anyone who looked at her would know that she was suffering. With perhaps three exceptions, all of the assaults were inflicted by Everton. One of the exceptions was an occasion when Elaine spit on Melonie. A second was when Elaine hit Melonie on the side of the head with a tea or coffee cup and it broke, causing Melonie to cry. In that context, Elaine said that Melonie and Cleon had brought a curse from Jamaica, that they were Satan, and that they were not supposed to be there. A third exception involved occasions when Elaine would take Melonie by the head and say ‘I am going to take the devil out of you, I know how to take the devil out of you’. She would do this when she thought that Melonie had misbehaved – she would take Melonie by the head and pray to Jesus to help these children. Cleon said that these incidents occurred many times, that he could not count how many. He said that Melonie was always crying when they occurred.

[32] At some point between the time when Cleon went to bed on the evening of August 31, 1994 and about 3:00 a.m. on the morning of September 1, Melonie died. Based on the evidence adduced at trial, the jury was left with two possible causes of death: the course of severe neglect, malnutrition and abuse to which Melonie had been subjected for close to three years; and drowning. The jury’s verdict does not reveal whether the jury was able to come to a unanimous conclusion as to which it was. Based on the evidence of Dr. Pollanen, with which Dr. Chiasson agreed, I am satisfied beyond a reasonable doubt that Melonie was drowned. And based on the pattern within which the vast majority of the assaults on Melonie occurred, I am satisfied that the person who physically carried out the act of drowning was Everton. However, I have no doubt that the drowning occurred at the end of the torturous course of physical, emotional and psychological abuse and neglect to which Melonie had been subjected. In the circumstances, whether the immediate cause of death was drowning or the lengthy course of abuse is largely beside the point. Regardless of which it was, the evidence is overwhelming that for almost all of the 3½ years that Melonie was in the charge of Everton and Elaine she suffered through a horror of an existence that was inevitably going to kill her.

[33] While Cleon often said that “they”, meaning Everton and Elaine, were responsible for the physical abuse of Melonie, he agreed that he never heard Elaine direct Everton to beat Melonie. He agreed that Elaine did not stand there and supervise Everton when the beatings occurred. Further, he agreed that by the time they moved from a one-bedroom apartment to a two-bedroom apartment on the same floor of 22 Close Avenue, in 1992, Elaine was spending most of her time in her bedroom, watching religious programmes on television with the door closed. Sometimes she would take her meals in that room. Cleon agreed that most of the conversations between Everton and Elaine occurred behind the closed door of the bedroom. His belief that Elaine was the one who was effectively directing the violence was an inference that he drew from the circumstances. First of all, he repeatedly pointed out that both of the apartments that the Biddersinghs lived in at 22 Close Avenue were very small. Everyone knew what was going on within those small spaces. Second, he said that there was a general pattern within which the beatings occurred: Elaine would come out of her room, notice that something was wrong, such as that Charmaine had not been cleaned properly, become angry, perhaps call the offending child the Devil, go back into her room, she and Everton would shout at each other, and then Everton would come out and lay a beating on whomever it was that Elaine was angry with. As Cleon put it, the children came to know that when Elaine got “that look” on her face, someone was going to get a beating. He said that Elaine was “the mind” behind the beatings, and that Everton was “the fist.”

[34] This may be a convenient point at which to address the position taken by the defence at trial. Based on the state of her remains it could hardly be argued that Melonie had not been subjected to terrible abuse. The defence position was that it was Everton, and Everton alone, who had an animus toward Melonie, and that it was Everton alone who was responsible for the abuse of Melonie. The defence argued that everyone in the Biddersingh apartment, including Elaine, lived in fear of Everton. For everyone, including Elaine, the apartment was a prison. The defence pointed to the evidence – from Cleon, from Charmaine and from Pastor Cruz – that Elaine too was a victim of Everton’s physical violence, and to the largely undisputed evidence that during the period when most of the abuse of Melonie was occurring Elaine spent a considerable amount of her time in the bedroom watching religious programming on television.

[35] I accept that Elaine too was the victim of Everton’s violence from time to time. But I do not accept that she was under Everton’s control to the extent suggested by the defence. Cleon agreed that there were times when Elaine would emerge from the bedroom with a black eye or a swollen lip after an argument, but he said that this only occurred on two or three occasions in the 3½ years during which Melonie was living in the apartment. He also testified, of course, that Elaine was far from a passive observer to Everton’s mistreatment of the Jamaican children, that it was her hostility that was behind much of what Everton did. Yvonne Hamilton, who knew Elaine and Everton for many years, was asked to describe the relationship between them and she said that it was a close one, like “where you finish the other person’s sentences”. She said it was one where Everton would ask Elaine for confirmation when it came to anything. He would say “isn’t that so, Elaine”, and she would respond. Ms Hamilton testified: “I believe that Elaine had as strong a role in the relationship as Everton. As I said, Everton don’t do anything without seeking Elaine’s confirmation, without asking Elaine’s permission.” Ms Hamilton said that she never noticed any change in the relationship over the entire time that she knew Everton and Elaine. She never saw signs of injury on Elaine.

[36] Suan Biddersingh, Everton and Yvonne Hamilton’s daughter, testified that when she was growing up Elaine would often be present with Everton on his parental visits. She testified that it was Elaine who was in possession of the money. She saw bundles of cash in Elaine’s purse. When they went shopping, for food or anything else, or were contemplating a purchase, Elaine and Everton would discuss the matter together, and then Elaine would give Everton cash. In this regard, “they discussed things with each other all the time…” Suan, too, never saw any sign of injury to Elaine. Clifton Allison testified that he visited the Biddersingh apartment about 8 times between 1992 and 1997. His perception was that it was mostly Elaine who was in charge of the home. She would tell Everton what to do, and sometimes he would and sometimes he would not. If Everton did not agree with Elaine, they would argue and it would be left at that.

[37] With respect to the dynamics of the relationship between Elaine and Everton concerning the treatment of the Jamaican children, one particular incident described by Suan Biddersingh is telling. This incident occurred sometime in the latter part of 1992 or the first half of 1993. Elaine and Everton were in their bedroom with Charmaine. Elaine was angry at Melonie, “really frantic”, yelling at her because Charmaine’s diaper was dirty. Elaine told Everton to call Melonie to come to take care of it. Suan saw Elaine giving Melonie instructions about Charmaine on other occasions as well.

[38] In relation to Elaine’s autonomy, there is also the evidence that at one point in 1991, prior to the birth of Charmaine, Elaine left Everton. She took Kenroy, O’Neil and Melonie and went to live with her mother. Everton employed various stratagems to persuade her to come back, including faking a heart attack, and eventually she agreed to return. There is nothing to suggest that her decision to return was anything but voluntary.

[39] Until Charmaine was born, in October 1991, Elaine worked outside of the home. After Charmaine was born, she never returned to work. She seems never to have left the apartment and, as I have said, she began spending most of her time in the bedroom. There is no evidence that Everton or anyone else prevented her from returning to the work force, or that anyone prevented her from leaving the apartment, or that anyone confined her to the bedroom. The inference I would draw, rather, is that she had become consumed by her religious beliefs and that it was her decision to withdraw into the bedroom, where a television was located, so that she could spend her time watching religious programming.

[40] I appreciate that the evidence of Charmaine Biddersingh is supportive of the defence characterization of the relationship between Everton and Elaine. However, Charmaine was not born until nine months after the Jamaican children arrived in Canada, she was not quite three years old when Melonie died, and she has no recollection at all of Melonie, the way Melonie was mistreated, or whether Elaine was or was not involved in that mistreatment. Apart from confirming that Everton was a violent abuser, Charmaine’s testimony is of little assistance in relation to the dynamics of the relationship between Everton and Elaine between 1991 and 1994.

[41] In light of the evidence as a whole, I have no doubt that Elaine was not Everton’s prisoner. With respect to the parenting of the children, she was his partner, albeit a partner whom he tried to control and whom he physically abused from time to time.

[42] Elaine was under a legal duty to provide Melonie with the necessaries of life, both before and after Melonie turned 16. That duty included an obligation to protect Melonie from harm. I reject the suggestion that spending the majority of her time in the bedroom might have shielded Elaine from awareness of what was happening to Melonie. As Cleon pointed out, both of the apartments in which the Biddersinghs lived during Melonie’s life in Canada were small – the first was 459 square feet and the second was 786 square feet – and the suggestion that anyone could have been within those apartments on a continuous basis for the three years that the horrific abuse of Melonie was occurring and not have been fully aware of it beggars belief.

[43] I reject the submission that Elaine’s failure to protect Melonie is mitigated by the abuse that Elaine too suffered. For the reasons I have stated, I do not accept that Everton’s physical abuse of Elaine, while obviously reprehensible, had a significant impact on her autonomy. The relationship between Elaine and Everton was no doubt toxic, and Everton was an abusive husband, but with respect to the three Jamaican children, and in particular with respect to Melonie, Everton and Elaine shared something in common, namely malevolence. I am satisfied beyond a reasonable doubt that Cleon’s perception of Elaine as the mind behind Everton’s fists accurately captures the dynamics of the situation that existed within the Biddersingh apartment. Elaine not only failed to protect Melonie from a course of conduct that she knew would eventually and inevitably kill her, she encouraged that course of conduct.

[44] In any event, a suggestion that Everton’s abuse of Elaine makes her failure to protect Melonie less egregious cannot survive the jury’s unanimous finding that Elaine is guilty of murder. Assuming, as the defence submits, that the basis for the finding of culpable homicide was that Elaine failed in her duty to protect Melonie from harm, the verdict of murder necessarily means that the jury was satisfied beyond a reasonable doubt that Elaine not only failed to intervene but that she did so because she meant for Melonie to die or to suffer harm that she knew was likely to kill her. Whatever role Everton’s abuse of Elaine may have played in this wretched affair, it cannot reasonably be characterized as the reason why Elaine formed the intention for murder.

[45] I return now to the narrative of events surrounding Melonie’s death.

[46] Cleon testified that in the last months of her life Melonie was very weak, she was “pining away”, and her condition was getting worse. She was not able to hold down her food. When she walked she limped. She complained about pain in her foot, her stomach and her hip, which was hardly surprising bearing in mind that she was labouring with 21 fractures. Up until the end, however, she was able to do her chores. Because of her weakened condition, Cleon had been cleaning her when she soiled herself, and he could see her bones. The last time he saw his sister was on the night she died. He said that she was weak and she was crying when she held baby Charmaine. He testified that when he went to bed, she was lying on her cardboard in the living room, facing toward the balcony, curled up. He said that she looked like someone who was dying, but he did not think she was going to die.

[47] The defence placed a considerable amount of weight on those last ten words. I do not. Bearing in mind what the post-mortem examinations of Melonie’s remains have revealed – that she weighed 55 lbs, that her limbs were like those of a stick figure, and that she had 21 fractures to her spine, pelvic girdle and leg – it would have been transparently obvious to anyone that she was in dire circumstances and that she was in urgent need of life-saving medical assistance. Elaine’s statement to Charmaine, 17 years after the fact, that Melonie looked like one of the African children on television fundraisers, makes it clear that she knew full well that Melonie’s life was in danger. She did nothing to help Melonie because, as the jury concluded, she meant for Melonie to die or to suffer harm that she knew was likely to kill her. Elaine’s words to Pastor Cruz in 2012 reveal much about Elaine’s attitude toward Melonie: Melonie died, she told Pastor Cruz, “like a dog”.

[48] The manner in which Melonie’s body was disposed of is an aggravating feature in relation to sentencing. [^2] She was stuffed into a suitcase and the suitcase was transported to an isolated location in the City of Vaughn where it was placed on some tires, doused with gasoline, and set on fire. The position of the defence is that this was all the doing of Everton and Cleon. I reject that submission. Cleon testified that he had nothing to do with it and I believe him. Elaine admitted to both Pastor Cruz and to Charmaine that it was her suggestion that Melonie’s body be put into a suitcase. That admission was very telling: why would she have thought that the best thing to do with Opal Austin’s daughter, who had been entrusted to her care, and who had died in her apartment, was to stuff the body into a suitcase? The obvious answer is that she was fully aware of her own role in causing Melonie’s death. She told Charmaine that she had wanted to call the police but that Everton told her that the authorities would take her children away from her if she did. However, she told Pastor Cruz something different – that she did not phone the police because they did not have a phone. Both explanations were false. Neither makes sense in light of the fact that Elaine not only suggested putting the body in a suitcase but she then accompanied Everton when he took the body to Vaughn to set it ablaze. She was a full partner in the attempt to cover up what had happened to Melonie just as she had been a full partner in the horror that Melonie had endured for the preceding three years.

[49] After all of the abuse that Melonie had suffered, and after the callous way that Everton and Elaine attempted to erase any trace of her existence, Melonie was subjected to one final indignity: not only did both Everton and Elaine propagate the lie that she had run away – which left Melonie’s mother, Opal Austin, clinging to the hope that she would someday see her daughter again – which is by itself an aggravating circumstance in relation to sentencing [^3] – Everton compounded the cruelty of that lie with the utterly baseless allegation that this poor young girl was a thief who had stolen Elaine’s jewellery.

[50] Opal Austin and three of Melonie’s siblings – Racquel Ellis, Suan Biddersingh and Cleon Biddersingh – provided victim impact statements. As one might expect, the murder of Melonie has had a profound impact on each of them. Opal Austin’s statement included the following:

I am thankful for this chance to have my say today, but it is the most difficult thing I have ever had to do – to express how I am feeling into words that fully express the impact of this horrific crime against my precious daughter Melonie. There is nothing – I mean absolutely nothing – Melonie would ever have done that could have led to the dreadful outcome of her murder. So I am left wondering why for the rest of my life.

Melonie was my angel, full of love and care for others. She had dreams to be a nurse and she loved to sing. Her dreams were possible to achieve because she was smart, caring and people loved her. She loved her family and I could not have loved her more. I missed her very much when she immigrated to Canada but I believed deep in my heart that it was for the best. As it turned out, it was for the worst; for the very person I expected to keep her safe and support her dreams turned out to be the cruelest nightmare she will never wake up from.

So now I am left to relive images of the nightmare she went through, over and over. I no longer sleep in peace. My nerves are on edge. My body is weak and I feel sick all over. I cannot stop thinking of how much she suffered …

(iii) the recommendations of the jury

[51] The third matter that a sentencing judge is required to take into account in determining whether to increase the parole ineligibility period is any recommendation made by the jury. Four jurors made no recommendation, two recommended that the period be left at ten years, two jurors recommended that it be increased to fifteen years, one recommended seventeen years and one recommended twenty years. [^4]

[52] Recommendations of the jury are simply that: recommendations. However, seeking the input of the jury is not a mere exercise in public relations. As the members of the community selected to sit in judgment in this case, their recommendations are a valuable insight into their assessment of the degree of Elaine Biddersingh’s moral culpability, and I am statutorily bound to take those recommendations into account.

B. The Position of the Parties

[53] On behalf of the Crown, Ms Tenhouse and Ms Humphrey submitted that the period of ineligibility for parole should be in the range of 18 to 22 years.

[54] On behalf of Mrs. Biddersingh, Ms Page and Ms Myers submitted that the appropriate ineligibility period would be between 11 and 12 years but for three circumstances. Those three circumstances are: (i) the 22 years that have elapsed since the murder have demonstrated that Elaine is not a danger to anyone; (ii) since her release on bail in 2012 Elaine has lived a pro-social life style; (iii) Elaine played an important role in bringing what happened to Melonie to light and in securing Everton Biddersingh’s conviction for first degree murder. In light of those circumstances, the defence submitted, the ineligibility period should be left at 10 years.

C. Discussion

[55] When approaching the issue of parole ineligibility after a conviction for second degree murder, and in particular when considering the nature of the offence and the circumstances surrounding its commission, one must be careful not to confuse the very circumstances that made the offence murder with circumstances that aggravated that murder. In every case in which the issue of parole ineligibility is considered under s. 745.4, the offender will be a person who without lawful justification has not only killed someone but has done so having meant to kill or to cause harm known to be likely to kill. A conviction for murder will always be founded on inherently serious conduct deserving of the significant sanction of imprisonment for life.

[56] A period of parole ineligibility is a "sentence" within s. 673 of the Criminal Code and thus the sentencing principles set forth in Part XXIII of the Code must be taken into account. One of those principles is that the fundamental purpose of sentencing “is to contribute… to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of [six] objectives.” [^5] Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Further, the Code provides that whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [^6] The reference to the degree of responsibility of the offender “enables distinctions to be drawn between principals, on the one hand, and those who aid or abet or are party to a common unlawful purpose, on the other. So too for those who fall within the same legal mode of participation, but who are less active participants than others. And so it is that there is a sliding scale reflective of an offender's moral culpability”: R. v. E.B., supra , fn. 3, at paragraph 77.

[57] A sentencing court must also take into consideration the principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [^7] In the context of the present proceedings, this principle requires the court to consider decisions made in relation to parole ineligibility by other judges in other second degree murder cases. To assist in that regard, the parties have referred to a number of such decisions. While all of the cases counsel have referenced are helpful, I will limit my discussion to those in which the facts are most similar to those of the case at bar.

[58] In R. v. Rowe-Booth, 2014 ONSC 3391, the victim was the male offender’s ten-year-old son from a previous relationship. Like Melonie Biddersingh, the child was raised in Jamaica by his mother and then brought to Canada to live with his biological father and his wife (Nichelle Rowe-Booth) for a better life. The child was initially treated properly, but when a new baby was born he began to suffer abuse and neglect. He died about two years after his arrival in Canada. Toward the end of his life he was kept chained to a bed and regularly whipped by his father with sufficient force to draw blood. He had been withdrawn from school to hide his injuries. The proximate cause of death was a beating administered by his father. There was very little evidence that Nichelle ever struck the child, and there was evidence that the she too was physically abused by her husband. Both parents were convicted of second degree murder. The jury’s parole ineligibility recommendations were somewhat higher than those in the case at bar. The sentencing judge, Justice Dawson, imposed a period of parole ineligibility of 18 years on the father and 13 years on Nichelle.

[59] Counsel for Elaine submitted that there are close parallels between the circumstances of Nichelle in Rowe-Booth and those of Elaine in the case at bar. I agree that there are similarities but there are also important differences. Nichelle Rowe-Booth acknowledged that she had committed culpable homicide and that she was at least guilty of manslaughter. There has been no such acknowledgment by Elaine. Further, Justice Dawson stated:

Nichelle has expressed her remorse concerning Shakeil's death. She made a prolonged and apparently sincere apology to Shakeil's mother and family in open court on the day sentencing submissions were heard. There is also some indication of remorse in her text messages and statements to police soon after Shakeil died. I also observe that Nichelle voluntarily returned to Canada after she spoke with the police by telephone following her flight. While incarcerated she has taken many courses and programs to better herself and to aid in her rehabilitation. [^8]

[60] There has been no similar expression of remorse on the part of Elaine. When given the opportunity to speak at the conclusion of the sentencing submissions, she made no reference of any kind to Melonie or to what had happened to Melonie. Further, the core of Nichelle Rowe-Booth’s liability for murder was her failure to intervene to protect the child. While a failure to protect Melonie was an important part of the unlawful conduct that caused Melonie’s death, Elaine’s involvement went much further than a failure to intervene. In addition, the kind of after the fact conduct that Elaine engaged in, which is a significant aggravating circumstance, was not present in Rowe-Booth.

[61] In R. v. Dooley, [2002] O.J. No. 5921, the victim, Randal Dooley, was born in Jamaica. When he was six, his biological father, Tony Dooley, arranged for him to come to Canada to live with him and his wife Marcia. Randal arrived in November 1997. He died of a subdural haematoma ten months later, on September 24, 1998. For almost all of time he had been in Canada, Randall was subjected to horrific physical abuse and deprivation. The person responsible for the vast majority of the abuse was Marcia Dooley. Indeed, Tony Dooley was out of the country for the first five or six months of Randal’s time in Canada. However, Tony was present in the home on a daily basis for the three to four months leading up to death, when the worst of the abuse occurred.

[62] Both Tony and Marcia were convicted of second degree murder. With respect to Tony’s role in the murder, the trial judge, Justice Ewaschuk, stated:

As for Tony Dooley, I am satisfied that he was not present at the time that Marcia Dooley inflicted the fatal assault on poor, pitiful Randal that eventually caused his death. However, Tony Dooley knew that his wife was constantly battering his son and that his wife would inevitably kill his son unless he intervened to stop the abuse. Tony Dooley chose to be the coward and to ignore his son's plight as Marcia Dooley's whipping boy, the poor, pitiful outlet for the venting of her violent frustrations.

Tony Dooley knew that Randal was so weak and fragile from Marcia Dooley's constant beatings that Randal was a living ghost getting ready to die. Tony Dooley deliberately chose to let poor, pitiful Randal die by not removing him from his violent stepmother. In the end, I am satisfied beyond a reasonable doubt that Tony Dooley aided and abetted Marcia Dooley for the purpose that she would inevitably kill her stepson. [^9]

[63] Eight members of the jury made no recommendation as to the period of parole ineligibility for Tony. The recommendations of the other four were 25 years, 20 years, 15 years and 11 years. Justice Ewaschuk imposed periods of ineligibility of 18 years and 13 years on Marcia and Tony, respectively. Tony did not appeal against sentence. Marcia’s sentence appeal was dismissed.

[64] Once again, while there are similarities between the facts of Dooley and those of the case at bar, there are also important differences. I acknowledge that the physical abuse of Randal Dooley appears to have been even more disturbing than the abuse of Melonie. On the other hand, Elaine’s involvement in the abuse of Melonie went on for a much longer period of time than did Tony Dooley’s involvement in the abuse of Randal. Further, Tony Dooley was not involved in encouraging his wife to perpetrate the abuse in the way that Elaine encouraged Everton, and neither Tony nor Marcia Dooley engaged in the kind of after the fact conduct in relation to the child’s body that was engaged in by Elaine and Everton.

[65] In R. v. Whalen, 2014 ONSC 5481, the offender was convicted of the murder of her two year old daughter. The child had been subjected to terrible physical abuse for an extended period of time, which ultimately led to her death, although the specific cause of death could not be determined. The offender was not the person who inflicted the assaults. Rather, it was her intimate partner, with whom she was living. The offender was 23 years of age at the time the child died, she had no prior criminal record, and she was cooperative in providing information that led to where the child’s body had been buried.

[66] The sentencing judge, Justice Reid, noted that the offender’s culpability for murder lay in her failure “to perform the most basic and fundamental duty of a parent to a child, namely to protect the child from obvious physical harm.” [^10] He stated that “in her failure to act she preferred her own interests in maintaining a relationship with [her partner] over the needs of her daughter,” and that “[her] role in the…death was her omission to protect [her child] rather than the actual infliction of harm.” [^11] Notwithstanding the offender’s lesser role in the abuse of the child, all 12 jurors recommended an increase in the parole ineligibility period and six recommended the maximum of 25 years. Justice Reid imposed a period of ineligibility of 15 years.

[67] In R. v. Khan and Fatima, 2007 ONCA 779, the five-year-old victim was the son of Muhammad Khan and the stepson of his wife Kaneez Fatima. After the child was beaten to death, the body was dismembered and the body parts were buried in various parts of the Greater Toronto Area. The person who beat the child to death and dismembered the body was Khan. Fatima had suffered abuse at the hands of Khan. Her liability for murder was as an aider and abetter, based substantially on her failure to protect the child from ongoing abuse and from the fatal assault. She had not suggested dismembering the body nor had she participated in the dismemberment but she had helped to carry the body parts to where they were buried.

[68] Fatima was convicted of second degree murder. Ten of the jurors recommended that her parole ineligibility be increased: two recommended 25 years, four recommended 15 and four recommended 20. The sentencing judge, Justice Watt, imposed a period of ineligibility of 15 years. In dismissing her sentence appeal, the Court of Appeal noted: “Apart from the horrific nature of the crime, Fatima’s post-offence conduct was particularly heinous. Standing alone, it warranted a substantial increase of parole ineligibility.” [^12]

[69] In R. v. E.B., supra , the grandparents of a young child were convicted of second degree murder arising from their failure to provide the child with necessaries of life. The child was not quite 6 years of age at the time of his death. He had endured years of deprivation, locked in a room, facing “an unremitting denial of adequate nutrition and medical care”. N.K., who was not the child’s primary caregiver, acknowledged his responsibility for culpable homicide. What was in issue for him was the intent for murder. E.B. denied having any responsibility for the death.

[70] In words that could be applied equally to Elaine, the sentencing judge, Justice Watt, noted that “nothing [E.B.] has said or done is demonstrative of any genuine remorse for the inhumanity she has offered, along with N.K. Everyone else is to blame”. [^13] Periods of parole ineligibility of 22 and 20 years were imposed on E.B. and N.K., respectively. The Court of Appeal rejected the submission that the period of ineligibility of 22 years for E.B. was outside of the range for the offence and the offender. The Court stated:

We do not agree with this submission. Sentencing is a fact-sensitive process. Imposing a sentence depends very much on the facts of a particular case and the circumstances and culpability of the particular offender. That said, the sentence imposed must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [^14]

[71] The Court of Appeal considered the periods of parole ineligibility it had upheld in Dooley and Khan, supra, and in R. v. Olsen (1999), 131 C.C.C. (3d) 355, and observed that as bad as the abuse was in those cases, it was worse in this one. “What sets this case apart”, the Court stated, “is the prolonged period of starvation, abuse and cruelty – over three years – and the enormous suffering [the victim] endured during that extended period.” The periods of parole ineligibility for both offenders were affirmed.

[72] As I have said, the position advanced on behalf of Elaine is that the period of parole ineligibility that might otherwise have been considered appropriate for her should be reduced to the minimum of ten years because of three circumstances: the length of the time that has elapsed since the murder, the fact that Elaine has lived a pro-social lifestyle since her release on bail almost four years ago, and the contribution Elaine made to solving a 17-year-old cold case and to bringing Everton Biddersingh to justice. While those circumstances are not irrelevant, I do not agree that they have a significant impact on the determination of the appropriate period of parole ineligibility in this case.

[73] I accept that the fact that Elaine had no criminal record prior to the murder of Melonie and that she has not acquired one in the 22 years since supports an inference that she does not pose a continuing danger to the community. However, apart from that, the passage of time since the offence is not a mitigating circumstance. The reason why so much time has elapsed is because of the steps that Elaine and Everton took to cover up their crime, including their attempt to incinerate Melonie’s body. It would be passing strange to characterize their success in that respect as mitigating in relation to sentence. Further, it is well established that “an exemplary life led in the years intervening between the [offence] and the sentencing must be accompanied by expressions of genuine remorse and the acceptance of responsibility for one’s actions in order to have appropriate mitigating effect”: R. v. M. (W.W.) (2006), 205 C.C.C. (3d) 410, at paragraph 19 (Ont. C.A.). Elaine has neither accepted responsibility for her role in Melonie’s murder nor expressed remorse for the part she played.

[74] I accept that Elaine has lived a pro-social lifestyle since her release on bail. However, while her behaviour has been positive, it is not of a kind that justifies a reduction in what would otherwise be an appropriate period of parole ineligibility.

[75] I accept that some consideration must be given to Elaine’s role in solving the mystery of the identity of the girl in the burning suitcase and in securing the conviction of Everton for first-degree murder. Had Elaine not told Pastor Cruz about Melonie’s death – knowing that Cruz would pass the information on to the authorities – no one might ever have been charged with Melonie’s murder. What Elaine’s motives were in disclosing to Pastor Cruz what had happened to Melonie is unclear. What is clear is that the disclosure did not include acceptance of any personal responsibility – Elaine attempted to shift all of the blame onto Everton, who was involved in the murder, and Cleon, who was not. Thus, the disclosure was not a demonstration of genuine remorse. There is nothing before this court in relation to Elaine’s contribution to the prosecution of Everton other than the fact that she testified at Everton’s trial, presumably under the compulsion of a subpoena. I do not regard the mere fact that she testified in those proceedings to be a significant mitigating circumstance.

D. Disposition

[76] A sentence of life imprisonment is not only mandatory in this case, it is manifestly fit and appropriate. Melonie came to Canada at 13 years of age with hopes and dreams. Over a period of up to three years, the persons entrusted with her care crushed those hopes and dreams with a cruel, callous, relentless and ultimately lethal course of physical, psychological and emotional abuse. What happened to Melonie is inexpressibly sad.

[77] The issue in these proceedings is whether the time that Elaine Biddersingh must wait before being considered for parole should be increased beyond the minimum period of ten years. In making that decision, I am required to take into account Elaine’s character, the nature of the murder and the circumstances surrounding its commission, and the recommendations of the jury. The principle of parity requires that I also take into account the sentences imposed in other cases of second degree murder involving similar circumstances.

[78] Sentencing is inherently fact-specific and the unique combinations of facts presented in different cases will cause those cases to fall at different points along the ten to twenty-five year spectrum of parole ineligibility. Situating an individual case along that spectrum is an inexact science.

[79] In my opinion, a consideration of all of the circumstances of this case takes the appropriate period of parole ineligibility further along the spectrum than the period imposed on the stepmother in Rowe-Boothe (13 years), the father in Dooley (13 years), the mother in Whalen (15 years) and the stepmother in Khan and Fatima (15 years). However, I am also of the view that the period of ineligibility should not be as lengthy as those imposed in E.B., where the facts of the abuse were more egregious than those in the case at bar. After anxious consideration, I conclude that Elaine Biddersingh should be sentenced to a term of imprisonment for life, without eligibility for parole for 16 years, and that is the sentence that I now impose.

[80] Because Mrs. Biddersingh has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), I direct that she be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition and explosive substance for life.

[81] Murder is a primary designated offence within the meaning of s. 487.04 of the Criminal Code and accordingly a DNA order is mandatory unless the offender establishes, in accordance with s. 487.051(2), that the order should not be made. Mrs. Biddersingh has not sought to meet her onus in that respect, and therefore she shall provide a sample of her DNA.

MacDonnell, J.

Delivered and Released: September 19, 2016

Footnotes

[^1]: In order to more readily distinguish among the several members of the Biddersingh family who either testified or were mentioned in the evidence, the parties referred to each of them, including the defendant, by their first names. I will do the same in these reasons. [^2]: R. v. Khan, 2007 ONCA 779, at paragraph 21 [^3]: R. v. E.B., [2006] O.J. No. 2752 (Ont. Sup. Ct.) at paragraph 83 [^4]: As two jurors were discharged in the course of the trial, the verdict was rendered by ten jurors. [^5]: Section 718 of the Criminal Code [^6]: Section 718.1 of the Criminal Code [^7]: Section 718.2(b) of the Criminal Code [^8]: paragraph 97, [^9]: paragraphs 18-19 [^10]: paragraph 49 [^11]: paragraph 100 [^12]: at paragraph 21 [^13]: paragraph 105 [^14]: 2011 ONCA 194, 2011 ONCA194, at paragraph 124