Court File and Parties

Court File No.: 15-M7871 Date: 2018-06-27 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: John McRae, Defendant

Counsel: Marie Dufort/John Ramsay, for the Crown Joseph Addelman/Mash Frouhar, for the Defendant

Heard: June 20, 2018

Reasons for Sentence

Beaudoin J.

[1] On June 14, 2018, a jury found John McRae guilty of the second degree murder of his son, Michael McRae.

[2] Given the conviction for second degree murder, section 745(c) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) applies:

(c) 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 therefor pursuant to section 745.4…

[3] I must determine John McRae’s eligibility for parole. Section 745.2 requires me to seek a recommendation by the jury with respect to the issue parole ineligibility. In this case, three of the jurors make no recommendation and nine jurors recommend the minimum of 10 years. In deciding ineligibility for parole, section 745.4 provides further direction:

Ineligibility for parole

745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court 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 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.

[4] In addition to the jurors’ recommendation, I must consider the character of the offender, the nature of the offence and the circumstances surrounding its commission.

[5] In R. v. Shropshire, [1995] 4 S.C.R. 227, the Supreme Court of Canada had to consider the appropriate factors for a sentencing judge to consider in determining whether a period of parole ineligibility of longer than 10 years should be awarded for an individual convicted of second degree murder.

[6] The Supreme Court said this at paras. 27-29

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, 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.

28 I am supported in this conclusion by a review of the legislative history, academic commentary, and judicial interpretation of s. 744, and the sentencing scheme for second degree murder.

29 Section 742(b) of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole “until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 744.” In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is “unusual.”

[7] The decision makes it clear that sentencing, in these circumstances, is a very fact-sensitive process. I am also required to consider the purpose and principles of sentencing that are set out in section 718 of the Code, in particular, those found in section 718.2 of the Code and specifically in section 718.2(a)(iii):

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

Character of the Offender

[8] John McRae was born in Montreal in 1944. He started drinking at age 15 and got married when he was about 18. There were 3 children. Michael was born in 1963. His marriage broke up in 1974. Michael ended up in a group home. John started drinking heavily and moved to Alberta. He came back to Montreal and took Michael from the group home and Michael had been with him ever since. Soon after moving in with John, Michael started drinking and John introduced him to cocaine and heroin. They both got involved in criminal activity. While John McRae has an extensive criminal record, it is dated, save and except for an assault conviction in 2004.

[9] John moved back to Ottawa in or around 1997 to be with his daughter, Terri, and Michael moved to Ottawa a year later. Terri tried to help them out at times. Things were pretty good at first, but John and Michaels’ behaviour deteriorated again in or around 2004. They were both drinking heavily. There were verbal insults and there were fights. John called the police in 2005 but would not lay charges against his son.

[10] John and Michael moved to an apartment on Tenth Line Rd. in 2008. There were more arguments; both men were drinking heavily. John went into treatment sometime in 2008 and it appears that his sobriety was pretty good after that. Michael met Heather Gaffney who moved in with John and Michael in 2010. She described a lot of verbal arguments between Michael and John. She got pregnant in 2011 and their daughter, Maddison (Maddie), was born in 2012. According to Heather, matters between Michael and John calmed down a bit during her pregnancy and while Maddie was a baby.

[11] The situation worsened again; Heather Gaffney described this as “just words; a lot of curses and profanity and threats back and forth.” Heather Gaffney moved out in 2014. Sometime later that year, Michael and John ended up in an apartment on Notre Dame Street. A mutual friend, Alain Chaput, moved in later.

[12] John called the police in 2013, and again in 2015; audiotapes of the 911 calls show that both men had violent tempers. No charges were laid as John was unwilling to lay charges against his son. John started drinking heavily again before the stabbing.

[13] John suffers from multiple chronic illnesses. He is now 73 years of age. He continues to enjoy a good relationship with his daughter Terri, Heather Gaffney, his granddaughter Maddie, and other family members.

The Nature of the Offence and the Circumstances Surrounding its Commission

[14] These factors are interrelated. John McRae is guilty of second degree murder and the Code provides for a sentence of life imprisonment; the only difference in terms of punishment between first degree and second degree murder is the period of parole ineligibility.

[15] Because there was a finding of guilt by a jury, section 724(2) of the Code comes into play. I am required “to accept as proven, all facts express or implied that are central to the jury’s verdict of guilty.”

[16] The facts as I find them are these. John and Michael had a long relationship and they shared a difficult history of crime and alcohol abuse. On July 7, 2015, John and Michael had both consumed alcohol. There had been an argument around 3:30 PM when John had attempted to assault Michael and Michael pushed him back. This happened twice. There were threats exchanged at that time and various witnesses gave different versions of exactly what was said. These included mutual death threats, but in the end, John made it clear he was not afraid of his son and that he would prevail.

[17] At some point later that afternoon, John McRae and Alain Chaput went to a bar to drink some more. Sometime after 6 PM, John McRae and Alain Chaput went to their respective bedrooms. Alain then went to the kitchen to make his supper and he observed Michael McRae sleeping on the couch. He returned to his room to watch television, and at 6:40 PM, John McRae went into Alain Chaput’s room and told him to call 911 because he had just stabbed his son. John McRae then went into his bedroom and lay on his bed to wait for the police.

[18] Michael McRae was laying on the couch. John McRae knew this, waited some time, and then went into the kitchen where he retrieved a butcher knife with a blade nearly 20 cm in length. He approached his son and stabbed him twice in the abdomen plunging the full length of the butcher knife up to the hilt of the handle each time. Michael looked at his father and asked him why he had done that and John replied with words to the effect that he was “putting an end to the arguments” and then John slit Michael’s throat. There is no question that this was a brutal and horrific murder.

[19] The aggravating circumstance is the fact that Michael was John’s son, and although Michael was an adult, there is no question that Michael was very dependent on his father and that John was in a position of trust. I find that section 718.2(iii) applies. Michael was described at trial as John’s “shadow” because he would follow John around wherever he went. Heather Gaffney described them as being like brothers and said they were “the same person”. There was evidence at trial that John had tried to move away from Michael but decided it would be of no use because Michael would only follow him; nobody else was willing to look after Michael. Michael was in an extremely vulnerable position at the moment of stabbing; he was lying down on the couch in what was effectively his own room. There was no warning, and when he asked his father why he was doing this to him, John replied that he was “putting an end to the arguments” and underlined that point by gratuitously slitting Michael’s throat.

[20] John did not administer any first-aid or seek any intervention for his son and left it to his roommate to call 911. There is no clear explanation for John McRae’s actions other than he thought that he had to “put an end to the arguments” and that somehow Michael would now be “better off” dead.

[21] The principles of deterrence and denunciation, which are paramount in circumstances such as these, require the court to denounce in the clearest terms what appears to be an act of revenge and “vigilante” justice.

In Terms of Mitigating Factors

[22] I note the support that John continues to have from some family members.

[23] I also consider John McRae’s age and his poor state of health, and I am mindful of what was said in R. v Hong, 2016 ONSC 2654 where the court held at para. 138:

138 Obviously this is not a case where the Crown is seeking a sentence that greatly exceeds Mr. Cain’s expected remaining life span. But the notion that the court should consider the age of the offender in the context of his or her life expectancy has general application when fashioning a fit and just sentence. A sentencing judge is required to fashion a sentence that is appropriate to the particular circumstances of the offence and of the offender. Those particular circumstances will always include the personal characteristics of the offender, including his or her age and, in certain circumstances, his or her life expectancy. The principle of parity requires similar, not identical sentences. It requires that there be a rational basis for imposing a sentence that is dissimilar from what other similar offenders have received in similar circumstances. A reduced life expectancy may, in certain circumstances, provide such a rational basis.

[24] But later, the court went on to say:

That said, the court must not lose sight of the fact that the gravity of the offences here is high, as is Mr. Cain’s moral culpability. Moreover, he knew of his health difficulties and his reduced life expectancy when he made the decision to engage in serious, not to mention risky, criminal behaviour. In R. v. Nasogaluak, 2010 SCC 6, Justice LeBel observed that sentences imposed by trial judges express, to some extent, society’s legitimate shared values and concerns. The compassion and concern that society may have for Mr. Cain’s health condition and his reduced life expectancy tends to take a back seat in cases of premeditated, serious criminal conduct: see R. v. Mercer, [1993] N.J. No. 198 (N.L.C.A). I do not suggest that the death of Mr. Kennedy was premeditated, but certainly the home invasion/robbery was.

While I am prepared to take Mr. Cain’s reduced life expectancy into account in mitigation of his sentence, its impact is, in my view, modest in the circumstances of this case.

[25] I do not know John McRae’s life expectancy, and given the range and the positions of counsel, namely the minimum 10 years on the part of the defence and a range of 12 to 13 years on the part of the Crown, either sentence could exceed John McRae’s expected remaining lifespan.

[26] It is difficult to find a clear expression of remorse on John McRae’s part. He certainly seems to acknowledge the harm done to his family and recognizes the impact that this conviction will have on his remaining years. He testified how thoughts of this event continue to haunt him at night, and his daughter Terri testified to that same effect. Throughout this trial, John McRae sought to characterize himself as the victim of Michael’s abuse. The jury did not accept that nor did the jury accept that he lacked the necessary state of mind to commit murder. If Michael McRae was a monster, he was a monster of John McRae’s own creation.

[27] I am also mindful of the recommendations of the jurors. No sentence that I can impose can repair the damage that has been done. John McRae may have killed Michael McRae, but he did not kill Michael’s shadow. That shadow will follow John McRae for the rest of his life.

[28] In the end, I am required to apply the principles of sentencing, the statutory criteria and exercise my discretion in determining John McRae’s period of parole ineligibility in accordance with the guidance of the case law that I have been referred to.

[29] In this case, having regard to the aggravating factors and the high degree of moral culpability, I conclude that John McRae will be sentenced to life imprisonment with a period of parole ineligibility of 12 years. I further make the ancillary orders sought by the Crown which orders are not opposed.

Mr. Justice Robert N. Beaudoin Released: June 27, 2018