Court File and Parties
COURT FILE NO.: CJ8844 DATE: 20 July 2017
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Cynthia Jennison, for the Crown Applicant
- and -
CLARK ERIC SAUVE James Marentette, for Clark Eric Sauve Respondent
HEARD: July 20, 2017 The Honourable Mr. Justice H.S. Arrell
REASONS FOR SENTENCE
INTRODUCTION
[1] Clark Eric Sauve was charged that on the 29th day of December 2014 in the City of Cambridge did commit second degree murder on the person of Linda Sauve contrary to Section 235(1) of the Criminal Code of Canada.
[2] Linda Sauve was the wife of Clark Eric Sauve. Mr. Sauve pleaded not guilty to this charge and elected to be tried by judge alone with the consent of the Crown. He has been found guilty as charged and is before me for sentencing.
THE FACTS
[3] The police received a 911 call on the 29th of December 2014 at 2:45 a.m. The caller, who was Mr. Sauve, requested the police and an ambulance. He stated that he had been beaten and he thought his wife had been shot by intruders.
[4] The police found Mr. Sauve on the floor of his bedroom, in his underwear, leaning on his elbow. His wheelchair was at the foot of the bed. Linda Sauve was in the adjacent bedroom with the door closed. She was found lying on the bed on her back. One arm was folded across her chest and one hanging down the side of the bed. The covers were neatly folded back. There was blood covering her face and blood splatters on the wall above her head and on the floor. There was a shell casing on the floor. She had an injury to her right cheek and forehead consistent with gunshot wounds. She had been shot twice by a semi-automatic Mauser hand gun which was found under Mr. Sauve’s bed.
[5] Mr. Sauve has maintained throughout the investigation and this trial that he did not shoot his wife. He has consistently stated that unknown female persons, for no apparent reason, came into his house that night and beat him and shot his wife. His explanation was rejected by this court as not believable.
[6] The court found as facts that there was no visible signs of any break-in to the home; the home alarm was on that night and turned off when it sounded momentarily at around 2:20 am by someone who knew the code; there was no evidence to suggest any struggle in the home and nothing was missing from the home; gunshot residue was found on Mr. Sauve’s hand; his DNA was found on the murder weapon and the 2 bullets unfired in the gun; his various statements to the police were inconsistent, lacked credibility, and in certain areas were blatant lies.
[7] The court found that the Crown had proven its case beyond any reasonable doubt.
THE PRESENTENCE REPORT
[8] Mr. Sauve has no criminal record. He is currently 62 years of age and in very poor health confined to a wheelchair and an oxygen tank as a result of an injury to his head in 2011. The court was provided with a great deal of evidence throughout the trial as to this injury, subsequent treatment and health deterioration over time.
[9] Mrs. Sauve was employed and in relatively good health although there is mention in the presentence report of a bout of breast cancer in 2012/2013. This was a first marriage for the parties with a duration of 40 years. The evidence would indicate a happy union which produced two children who are now adults and estranged from their father as a result of this incident.
[10] Mr. Sauve eventually had to give up work after his 2011 injury. He was always gainfully employed up to that point. The couple has recently lived on his modest pension and the wages earned by Mrs. Sauve. There is no evidence before me of any serious financial issues although clearly there was somewhat less funds available once Mr. Sauve stopped work.
[11] Mr. Sauve appears to have had a happy childhood in a very stable household. He attained grade 11 before entering the workforce. There appear to be no issues with substance abuse. The presentence report is generally positive. I acknowledge that he has been and is currently on suicide watch in custody.
VICTIM IMPACT STATEMENTS
[12] I have reviewed the victim impact statements of Cliff Sauve and his wife, and Sheri Green, the two children of the offender. They both gave evidence during the trial and I accept how difficult that must have been.
[13] Mrs. Sauve’s daughter’s statement sets out the terrible loss she has suffered in losing her mother who was like a security blanket for her, an ear she could always count on, someone who was always available to help, console, provide cheering up and offer support. I accept how much the two children of Ms. Green miss their grandmother, all the activities they will no longer do with her or the wisdom and guidance she would have provided in the future as they grew up. I acknowledge as well the anxiety and fear this murder has caused Mrs. Sauve’s daughter and that she has required professional help and will continue to seek such help into the foreseeable future.
[14] Mrs. Sauve’s son and daughter-in-law have also provided me with a victim impact statement. They echo much of what Ms. Green has said about this tragic and senseless loss. I accept that Mrs. Sauve was the linchpin of the family and of tremendous help to her son and daughter both emotionally and physically. I accept as well that they will never get over this loss and it will haunt the family, and especially the grandchildren, forever. I also acknowledge and accept the struggle it has been for both of Mrs. Sauve’s children and their spouses to deal with the stress and anxiety of the last 2 1/2 years which will surely continue into the future. I understand that their loss is tragic, poignant, deeply personal, all encompassing, and will never be fully appreciated by me or others.
LETTERS OF SUPPORT FOR THE OFFENDER
[15] I have reviewed the letters from Mr. Sauve’s neighbour, Brenda Clements, and a friend Dave Walden, who have known him for a number of years. They of course speak very highly of Mrs. Sauve but also of the offender. He is known to them as a kind, honest, caring and nice person. He was helpful to them and others. It was clear to them that he had a deep love for his family and especially his grandchildren. They are also well aware of his head injury in 2011 and that he was never the same person thereafter as his health deteriorated steadily.
POSITION OF THE PARTIES
[16] The Crown submits that there are aggravating features in Mr. Sauve’s case such as his attempts to deflect culpability and redirect the police investigation; his lack of remorse; the presence of some elements of planning and deliberation; the use of a gun; and a domestic homicide. There is no evidence of provocation and clearly the victim was shot in a most vulnerable state when likely asleep. A firearm was used with all identification filed off. All of these facts, argues the Crown, leads to increased moral culpability and justifies a sentence of parole ineligibility of 14 years.
[17] The Defence submits that the period of parole ineligibility for Mr. Sauve should be left at ten years. The only material aggravating factor is the existence of the domestic relationship, but that relationship was, according to the evidence, characterized by deep, lasting love, respect and commitment and no history of violence or abuse, says the Defence. There are also a number of mitigating factors such as the fact that Mr. Sauve is sixty-two years of age; he has an unblemished history as a hardworking, contributing member of society; he was generous to others with his time and energy; he was a good husband, father and grandfather until the moment of this offence. It is argued that Mr. Sauve could only have fallen into this criminal conduct due to overwhelming depression and despondency about his future. He had undergone tremendous hardship over the three years prior to this event with no encouraging signs of improvement, with no clear prognosis, and his depression is readily understandable.
THE LAW
[18] Section 745(c) of the Criminal Code of Canada specifies that:
“In respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefore pursuant to section 745.4.”
Section 745.4 provides, in turn, that the trial judge:
“... may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation if any, made [by the jury] pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.”
[19] The sole issue before me is therefore whether parole ineligibility should be increased beyond the minimum ten year period. In exercising my discretion I must take into account;
- The character of the offender;
- The nature of the offence; and
- The circumstances surrounding the commission of the offence
See S. 745.4 C.C.C.
[20] In R v. Shropshire, (1995), 102 C.C.C. (3d) 193, the Supreme Court identified the objective of S. 745.4 and outlined the approach a trial judge should take in determining parole ineligibility in paragraphs 27 and 33 as follows:
[27] In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner:
“as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744 [now745.4], the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.”
[33] “If the objective of s. 744 [now s. 745.4] is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness" being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.”
ANALYSIS
[21] It is trite law to indicate that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. See: S. 718.1 C.C.C.
[22] In R. v. Shropshire, supra. the Supreme Court of Canada re-instated the trial judges sentence of 12 years of parole ineligibility on a 23 year old who shot the deceased 3 times during a drug transaction where there appeared to be no motive. He gave himself up 2 days later and pleaded guilty and professed remorse.
[23] The Ontario Court of Appeal, in R. v. McKnight, [1999] O.J. No. 1321, set out the appropriate range for parole ineligibility in a “brutal” domestic homicide of an “unarmed” spouse as between 12-15 years.
[24] McKnight was convicted by a jury of the second-degree murder of his wife. McKnight murdered his wife in their bedroom with a 10-inch serrated bread knife. He was 52 years old and had been married to his wife for 20 years. He had both a law degree and a medical degree and no previous criminal record. He suffered from depression and medical evidence was heard at the Trial. The Court of Appeal found that the appropriate period of parole ineligibility was 14 years (reduced from 17 years).
[25] The decision in McKnight also confirmed that both denunciation and rehabilitation are relevant factors in fixing the period of parole ineligibility. The Court also acknowledged in the dissent, at paragraphs 99-101, that evidence of planning and deliberation can be considered as an aggravating circumstance of second degree murder which adds to the gravity of the offence. I acknowledge that the facts of McKnight are more aggravating than the case at bar.
[26] In R. v. Parsons, [2007] N.J. No 198, the accused, aged 61, and his wife were married for 30 years. Parsons was unable to work in the previous five years due to a series of heart attacks. He shot and killed his wife after an argument. He expressed remorse, co-operated, and pleaded guilty. He had no previous convictions and had limited physical capacity due to his heart condition. Parsons parole ineligibility was set at 12 years. Denunciation and deterrence were paramount considerations.
[27] This court has taken into account the principle of totality of sentence, the need to protect society from the offender, denunciation of this horrific crime, and deterrence to Mr. Sauve and others that this court will not sanction such terrible and despicable acts of violence being inflicted on anyone, no matter what their background.
[28] I am of the view that the predominant principles that must govern the sentence in this case are denunciation, and general deterrence. Rehabilitation of Mr. Sauve must occupy a secondary place given his age and the circumstances of this crime. I am, however, persuaded by the unique facts of this case, as horrible and violent as they are, that this offender does not pose a potential risk to the community in the future.
[29] I have reviewed the cases counsel have submitted. I have concluded that the range of sentence for this type of crime is between 12 and 15 years as stated in McKnight.
[30] I have considered Mr. Sauve’s unblemished record up to this terrible tragedy; that he was a productive member of society loved by his family and appreciated by his friends and associates; that there is no evidence of domestic abuse; and that he had serious health issues and significant depression at the time of this crime.
[31] I have also considered the grief, anguish and life-long hurt he has caused his family, as told to me by his children. I have also taken into account that some planning was involved in this crime given the unidentified gun that was used, the vulnerable position of Mrs. Sauve, and the late hour of the murder. As well, I accept that that there has been no remorse shown, although it is difficult to express remorse after a plea of not guilty as pointed out in R. v. Valentini, [1999] O.J. No. 251 (O.C.A.) at page 22. I acknowledge that Mr. Sauve shot a totally innocent person, in a completely vulnerable position, for no apparent reason, that has been disclosed to this court, other than the unproven theory of the Crown. I further confirm the overwhelming evidence of the offender attempting to cover up the crime by blaming others. This conduct can be considered an aggravating factor as stated in R v. Teske (2005), 202 O.A.C. 239 at para. 100. There the court set 13 years as appropriate for parole ineligibility on a 41 year old offender with no criminal record.
[32] I have concluded that 12 years of parole ineligibility reflects the appropriate governing principles and is within the range of sentence imposed in similar offences committed by similar offenders in similar circumstances, as the criminal code requires.
[33] No sentence that I impose can restore Linda Sauve to where she should be as a living, breathing, contributor to society and her family. It should be remembered that a period of parole ineligibility is no guarantee of parole thereafter, especially in these circumstances.
[34] Clark Eric Sauve, I sentence you to imprisonment for life without eligibility for consideration for release on parole until you have served at least twelve years of your sentence. By statute that period commences on the date of your arrest. The date on which you are first eligible to apply for release on parole, which I am by statute required to advise you, is December 29, 2026.
[35] In addition there will be an order that you provide to the authorities samples of bodily substances suitable for DNA analysis and inclusion in the National DNA Data Bank.
[36] There will as well be an order under S. 109 of the Criminal Code prohibiting you from having in your possession any firearms, ammunition, explosive substances or any other items mentioned in that section for the balance of your life.
[37] A Forfeiture Order will issue on consent.
Arrell J.
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen Cynthia Jennison
- and – Clark Eric Sauve James Marentette REASONS FOR JUDGMENT HSA