Court File and Parties
Court File No.: CR-16-00000415 Date: 2018-09-26 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Stephen Douglas Shier, Defendant
Counsel: Frank Schwalm, for the Crown Jeffrey D. Ayotte and Michael W. Gunsolus, for the Defendant
Heard: July 25, 2018
Reasons for Sentence
DI LUCA J. :
[1] Following the acrimonious end of a long-term domestic relationship with his ex-partner, the accused Doug Shier was saddled with hurt feelings and a monthly support payment of $6,000. Unwilling or perhaps unable to move on, Mr. Shier felt that the only way out of his predicament was to hire a hit man to murder his ex-partner. Mr. Shier met with the hit man and agreed upon a fee of $15,000.
[2] The catch, of course, was that the hit man turned out to be a police officer. Instead of receiving the “good news” that his ex-partner had been killed, Mr. Shier was arrested and charged with counselling the commission of murder not committed.
[3] Mr. Shier entered a guilty plea and brought an application to stay the proceedings on the basis of entrapment. In a Ruling reported at 2018 ONSC 2425, I gave reasons dismissing the application. A sentencing hearing followed and I received further evidence, including a Victim Impact Statement, a large number of letters in support as well as a report and viva voce testimony from Dr. Julian Gojer, a forensic psychiatrist. I also received helpful submissions from counsel.
[4] Sentencing Mr. Shier is a very difficult task. He is a very successful pharmacist and business man with extensive family and community support. He has led an essentially blemish-free life. Yet he has committed an extremely serious offence that is both is cold and calculated. In committing this offence, Mr. Shier had the complete intent for first degree murder. Had Cst. Harloff actually been a hit man who completed the job as intended, my task in sentencing Mr. Shier would have been a much easier. I would have had no option but to sentence him to life imprisonment without a chance of parole for 25 years.
Circumstances of the Offence
[5] During the guilty plea proceedings, an Agreed Statement of Fact was tendered in evidence. By way of brief summary, the agreed facts are as follows:
a. In late January 2016, the Peterborough Police Service received a tip from a confidential informant that a pharmacist who owned a pharmacy in the East City neighbourhood of Peterborough, was looking to have his ex-partner killed. Police confirmed that Mr. Shier was a pharmacist who owned a pharmacy in East City, and had been in relationship with a man named Giles Dagenais.
b. The police decided to conduct an undercover investigation, and obtained an authorization to record the interactions between the undercover officers and Mr. Shier.
c. On February 11, 2016, Constable Marie-Eve Simard, acting in an undercover capacity, entered Sullivan’s Pharmacy and approached Mr. Shier indicating that she had heard he was having a problem with Giles. She gave Mr. Shier a piece of paper with a number written on it. She told Mr. Shier that “Shane” was expecting his call.
d. Mr. Shier did not call the number, and as a result the police decided that further contact was required. On February 17, 2016, Cst. Ian Harloff, posing as “Shane”, went to Sullivan’s Pharmacy shortly after 7:00 p.m. as Mr. Shier was leaving work for the day. Cst. Harloff met Mr. Shier in the back parking lot. He asked Mr. Shier if he got his message and asked whether he was still having a problem, indicating that they should meet if that was the case. Mr. Shier indicated that he still had the paper with the number written on it. A meeting was arranged for February 19, 2016.
e. On February 19, 2016, Mr. Shier met with Cst. Harloff, posing as Shane. The meeting took place inside Cst. Harloff’s truck in the parking lot of the Boston Pizza on Chemong Road. In response to a question about what he wanted done, Mr. Shier indicated that he wanted Mr. Dagenais killed. A price of $15,000, with a deposit of $1,500, was agreed upon.
f. On February 23, 2016, Mr. Shier met with Cst. Harloff again and provided a $1,500 deposit in cash. Mr. Shier was provided an opportunity to back out of the agreement and he declined. Cst. Harloff indicated that Mr. Dagenais would be dead within a couple of days.
g. On February 25, 2016, Mr. Shier was arrested and charged accordingly.
[6] Mr. Shier did not testify during the entrapment application, nor did he testify at the sentencing hearing. He also declined the opportunity to address the court at the end of counsel’s submissions. However, some limited insight in the commission of the offence is found in his self-report conveyed to Dr. Gojer during interviews conducted in anticipation of the sentencing hearing. I am cognizant of the need to treat these statements with some caution as they have not been tested before the court. That said, they do serve to provide context to the offence that was committed and fall within the realm of information that is commonly provided to the court by way of counsel’s submissions.
[7] According to this self-report, Mr. Shier found himself at the end of a very difficult and emotionally draining relationship with his long-term partner. He felt like he had been abused and taken advantage of by Mr. Dagenais. He was paying Mr. Dagenais significant monthly support and felt like the court system had wrongly sided with Mr. Dagenais. His financial issues with Mr. Dagenais also resulted in significant tax difficulties with Revenue Canada.
[8] Mr. Shier spent much of his life being passive and non-assertive, particularly with respect to Mr. Dagenais. He finally decided to do something about his predicament as nothing else had worked. When he decided to hire the hit man, he acted out of desperation and felt as though he had no other choice.
Circumstances of the Offender
[9] Mr. Shier is currently 58 years of age. He had a healthy and uneventful upbringing in a supportive family. He maintains positive relationships with his parents.
[10] Mr. Shier has a strong educational background, having won awards for academic achievements. He has devoted his entire professional career to being a pharmacist. By all accounts, he was very successful. He was awarded the “Pharmacist of the Year” award in Peterborough on more than one occasion. He was co-owner of a historic and successful pharmacy called Sullivan’s.
[11] These proceedings have caused Mr. Shier to sell his share in the pharmacy. He will also likely suffer further professional implications as a result of his conviction and sentence.
[12] A book of reference letters was filed in support of Mr. Shier. These letters demonstrate a wonderful depth of genuine support within the community. They reveal that Mr. Shier was a pillar of the community. He had a loyal following of customers, co-workers and employees, who looked up to him and sought out his advice and support. He volunteered his time freely and regularly. He is described as kind, respectful, caring and compassionate. One letter relates an incident that occurred in the courtroom wherein Mr. Shier shook hands with the arresting officer in a gesture of respect and cooperation. The letters paint the picture of a person that is shockingly inconsistent with the person heard on the recordings, who can best be described as coldly placing an order for the execution of his ex-partner.
The Evidence of Dr. Julian Gojer
[13] Dr. Gojer was qualified an expert witness in forensic psychiatry. He provided a lengthy report as well as viva voce testimony. In his view, Mr. Shier has a diagnosis of chronic anxiety and depression. At times, he has used alcohol to cope with issues but he does not have a dependency. Mr. Shier has characterological features of non-assertiveness and passivity. He is neither anti-social nor psychopathic.
[14] According to Dr. Gojer, Mr. Shier was in a relationship where he felt dominated, controlled, manipulated and taken advantage of. Mr. Shier reported a long history of abuse, both physical and emotional. In support of his findings in this regard, Dr. Gojer relayed collateral information provided by Dr. Burger, a psychologist who had seen Mr. Shier between 2010 and 2015. Dr. Burger reports that Mr. Shier experienced significant distress over the dysfunctional nature of the relationship and the contentious nature of the legal proceedings that followed. Mr. Shier felt victimized both by Mr. Dagenais and also by the court system, through which he was ordered to pay significant support. He felt further victimized as a result of tax trouble with Revenue Canada, resulting from the improper tax treatment of his support payments to Mr. Dagenais.
[15] Throughout the relationship and indeed through the termination of the relationship, Mr. Shier remained passive and non-assertive, though his upset and frustration built up. According to Dr. Burger:
Doug became increasingly obsessed by this notion of being a victim and he felt trapped by what he perceived as unrelenting injustice…It would appear to me that, in the face of unrelenting emotional and financial stress and an escalating sense of being victimized, Doug evolved a plan to eliminate his ex-spouse and that, in the context of his thinking at the time, he felt justified in doing so. I would suggest that in the face of the trauma he was experiencing, his underlying values and judgment were severely compromised.
[16] In terms of risk, according to Dr. Gojer, Mr. Shier no longer poses any risk towards Mr. Dagenais as their financial matters have now been finally addressed and are no longer a monthly source of stress and anxiety. Dr. Gojer also opines that Mr. Shier poses no risk to others because he has insight into what happened and is neither anti-social nor psychopathic.
[17] In cross-examination, Dr. Gojer was asked about the three year gap in time between the dissolution of the relationship and the commission of the offence. Dr. Gojer agreed that the financial issues between Mr. Shier and Mr. Dagenais appeared to be the main feature motivating Mr. Shier’s anger, along with perhaps a bruised ego as a result of Mr. Dagenais new found lifestyle. Nonetheless, Dr. Gojer did not see this as a crime of revenge. Rather, he saw it as the product of significant cognitive distortions that culminated in Mr. Shier feeling like he had no option but to do what he did.
Victim Impact Statement
[18] There was no Victim Impact Statement initially filed despite the Crown’s efforts to obtain it. On today’s date, I was provided with one and it was admitted on consent. I paused the delivery of these reasons so that I could review the statement and reflect on it.
[19] In the Victim Impact Statement, Mr. Dagenais expresses that he has lived in absolute fear for his life since this matter occurred. Mr. Shier’s crime has had a painful and long lasting impact on him. This impact builds on the various difficulties and stresses that resulted from the bitter breakup of their relationship and the related financial matters that followed. Mr. Dagenais’ physical and mental health has suffered and he has had to re-locate his residence out of a concern that Mr. Shier will learn where he is living. In short, Mr. Dagenais has been traumatized by the incident and he continues to fear for his life.
[20] Thankfully, apart from the Victim Impact Statement, I understand that all financial matters between Mr. Dagenais and Mr. Shier have been resolved and they no longer have reason to be in contact or have any further dealings.
The Principles of Sentencing
[21] The objectives of sentencing long recognized at common law have been codified in section 718 of the Criminal Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
[22] Section 718.1 provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.
[23] It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.
[24] Appellate courts across the country have repeatedly recognized that the paramount sentencing considerations in cases of domestic violence are denunciation and deterrence. Indeed, sentences for even minor domestic assault can in certain circumstances warrant a jail sentence. The simple fact that an assault occurs within a domestic context is recognized as an aggravating feature in both the Criminal Code and in the case law, see for example R. v. Inwood, (1989), 48 C.C.C. (3d) 173 (Ont. C.A.), R. v. Edwards and Levo, (1996), 28 OR (3d) 54 (Ont.C.A.) and R. v. Boucher, (2004), 186 C.C. C. (3d) 479 (Ont. C.A.).
[25] The range of sentence for the offence of counselling murder not committed is broad; see R. v. Devitt, 2016 ONCA 871 at para. 17. Counsel have provided helpful summaries and casebooks which assist in discerning a range. In my view, the range of sentence for this offence, committed in the domestic context in roughly similar circumstances, is between three and eight years. I acknowledge that there are cases where sentences in the double digits have been imposed for this offence, but those tend to be cases which were accompanied by either additional serious offences, lengthy prior criminal records and/or other significantly aggravating factors, see for example R. v. Lalumiere, 2011 ONCA 826, R. v. Renzi, 2003 CarswellOnt 2703 (Ont. C.A.) and R. v. Gregson, 2017 ONCA 88.
[26] The range of three to eight years is supported by the following cases: R. v. Tokhi, 2014 ONSC 3142 at para. 38, R. v. Cozzi, [2001] O.J. No. 1967 (Ont. C.J.), R. v. Bonello, [1992] O.J. No. 2142 (Ont.C.A.), R. v. DosSantos, [1998] O.J. No. 6290 (Ont.Ct. (Gen.Div.)) and R. v. Terpstra, [2011] O.J. No. 3206 (C.A.).
[27] The majority of the sentences in these cases fall between five and six years. The cases that fall between three and four years tend to be cases where there are significant issues relating to domestic abuse, psychological or psychiatric issues, a lack of financial motivation or other significant mitigating factors.
The Position of the Parties
[28] The Crown’s position is that Mr. Shier should be sentenced to a period of incarceration of eight years. The Crown notes that the principles of denunciation and deterrence are paramount given the domestic context within which this crime occurred. The Crown highlights the fact that the offence occurred some three years after the Mr. Shier and Mr. Dagenais had ended their relationship. In this regard, the Crown argues that even assuming the relationship with Mr. Dagenais was dysfunctional and perhaps abusive, it was long over by the time Mr. Shier met with Cst. Harloff to arrange for the hit on Mr. Dagenais. The real motivation, argues the Crown, was that Mr. Shier could not stomach paying $6,000 hard-earned dollars every month to Mr. Dagenais who had obviously moved on from the relationship and was “living large” on the monthly support.
[29] In addition to the custodial sentence, the Crown also seeks a section 109 order for 10 years, a DNA order, a forfeiture order relating to the $1,500 deposit paid to Cst. Harloff and a non-communication order with the intended victim, Mr. Dagenais.
[30] The defence seeks a three year custodial sentence less credit of seven months for time spent on restrictive bail conditions and less 12 days credit for pre-trial custody. The defence does not oppose the ancillary orders sought by the Crown.
Aggravating Factors
[31] I find the following aggravating factors beyond a reasonable doubt:
a. The offence was motivated in large measure by a desire to stop paying monthly support payments of $6,000. This was not an offence that arose in the midst of an abusive relationship wherein the abused spouse sought to escape the relationship by having his or her partner killed. While I accept that the relationship between Mr. Shier and Mr. Dagenais was dysfunctional, distressing and perhaps at times abusive, the relationship ended long before the offence. Indeed, Mr. Shier had not seen Mr. Dagenais or spoken to him for approximately three years prior to the offence. In short, I find that this was about money. Mr. Shier could not stomach having his ex-partner of many years indulge in a funded and carefree lifestyle. The history of dysfunction within the relationship undoubtedly was a factor that made parting with funds each month more difficult, but the monthly payments remained, in my view, the main motivation for this offence.
b. The offence was calculated and cold. One need only listen to the nature, tone and content of the recorded discussions with Cst. Harloff. They are chilling. Mr. Shier needs no persuasion. He knows what he wants and he clearly wants Mr. Dagenais killed. He also wants the body found so that he can stop paying support payments. He supplies all the required details so the hit man can get the job done quickly and effectively.
c. Mr. Shier was given an opportunity for sober second thought. A few days after the initial deal had been reached, the “hit man” gave Mr. Shier the opportunity to walk away from the deal. Mr. Shier declined the opportunity and instead maintained his commitment to having Mr. Dagenais murdered. As such, the offence was the subject of lengthy deliberation.
d. Mr. Dagenais was Mr. Shier’s long-time domestic partner. The domestic context of this offence is aggravating both under statute and in accordance with the common law.
Mitigating Factors
[32] I find the following factors to be mitigating:
a. Mr. Shier entered a plea of guilty. The guilty plea remains of some value even though Mr. Shier’s guilt was a forgone conclusion on the basis of the recorded conversations, and despite the fact that the guilty plea was followed by an entrapment application.
b. Mr. Shier has no relevant criminal record, though he does have one conviction for impaired driving dating back to 1986.
c. Mr. Shier has an otherwise stellar background both in business and within the community. He is a good friend, supporter and pharmacist to many. The offence committed stands in stark contrast to his position within the community and his personal antecedents.
d. Mr. Shier has expressed remorse and I accept that he is genuinely ashamed of himself and regrets his conduct.
e. I am prepared to find that Mr. Shier presents with a low risk of future violent offences. He has established a solid track record of counselling in advance of his sentencing. I accept that he will continue his counselling while incarcerated and once he is released. That said, I am not prepared to find that Mr. Shier presents no risk to anyone. In my view, Dr. Gojer’s opinion in this regard is perhaps overly optimistic.
[33] In terms of other findings, I am very troubled by the fact this does not appear to have been Mr. Shier’s first attempt to have Mr. Dagenais killed. In his conversation with Cst. Harloff, Mr. Shier indicates that he had earlier dealings with another hit man named “Rick” and that he had agreed to a price of $50,000 with a deposit of $25,000. The deposit was paid but the deed was never completed.
[34] The Crown asks me to consider this evidence as an aggravating factor. The defence argues that I cannot be satisfied beyond a reasonable doubt that Mr. Shier made an earlier attempt. The comments to Cst. Harloff may well have been bluster or bragging to make it seem like he knew the business and was aware of what he was dealing with.
[35] Mr. Shier did not testify at the sentencing hearing, though he advanced the above explanation to Dr. Gojer during the course of his assessment interviews. I place no weight on Mr. Shier’s self-report to Dr. Gojer on this issue. It is not under oath and was not subject to cross-examination in the courtroom.
[36] I have listened to the recordings on several occasions. The context in which reference is made to the earlier dealings with the hit man “Rick” supports the Crown’s position that Mr. Shier is revealing that he actually tried on an earlier occasion to hire a hit man to kill Mr. Dagenais. That said, I have no other evidence about this one way or the other. I do not know when this occurred, nor do I know any of the particulars apart from the price. Ultimately, while I am satisfied that Mr. Shier probably or likely tried to hire a hit man on an earlier occasion, I am not sure that he did and as such, I am not satisfied beyond a reasonable doubt. In view of this finding, I need not consider whether the conduct in relation to the earlier hit could be properly considered under section 725(1)(c) of the Criminal Code.
[37] Notwithstanding this finding, which might be viewed as charitable in the circumstances, the fact remains that in dealing with Cst. Harloff, Mr. Shier was content to portray himself as having knowledge about and prior dealings with other hit men. This stands in stark contrast to the image portrayed of Mr. Shier in the various letters filed before the Court.
Conclusion
[38] The offence committed in this case is chilling. Mr. Shier was angry because his ex was living a funded and carefree lifestyle on his hard-earned dime. So he ordered a hit on his ex. He wanted the body found as opposed to disposed of so that he could quickly stop paying support payments. He met with the purported hit man on more than one occasion. He even paid a deposit and declined an opportunity to call the whole thing off.
[39] Importantly, the offence occurred well after the end of the relationship and indeed occurred some three years after Mr. Shier had last seen or spoken to Mr. Dagenais. In these circumstances, the offence is deliberate and calculated. While I accept that Mr. Shier suffered from cognitive distortions that made him feel victimized by his ex and the court process, his prime motivation was to stop paying money.
[40] Against that backdrop, Mr. Shier is an otherwise accomplished and valuable member of society. He is skilled, caring and very well regarded by friends, family, customers and work colleagues.
[41] Unfortunately, this is not one of the cases where the mitigating circumstances warrant a sentence at the low end of the range. I simply do not see this case as one involving the degree of proximate emotional or physical abuse that is present in many of those cases. Similarly, I do not find that the psychiatric assessments provide a compelling reason for keeping the sentence at the low end of the range. In short, Mr. Shier felt victimized. He had cognitive distortions that justified his views. After a number of years passed, he grew tired and angry of paying money to someone who had wronged him and he felt that his only option would be to have that person murdered. These factors place this case squarely in the mid to upper end of the range.
[42] Mr. Shier, please stand. I sentence you to six years in the penitentiary. In my view, this is a sentence that adequately and properly reflects the gravity of the offence committed with due regard to the principles of denunciation and deterrence. It is also a sentence that recognizes your rehabilitative potential, your excellent background and the support you have and give in the community. In the absence of those factors, the sentence would have been higher.
[43] From that six year sentence, I deduct twelve days for pre-trial custody. This is eight days of actual pre-sentence custody credited at a rate of 1.5:1. In terms of credit for bail conditions, I note that Mr. Shier has been on bail since March 3, 2016. He has been on restrictive bail conditions, including electronic monitoring and house arrest with a condition that he only be out his house while in the company of one of his named sureties. In accordance with R. v. Downes, 2006 CarswellOnt 778 ONCA, I am satisfied that it is appropriate to award some credit for time spent on restrictive bail conditions. In the circumstances, I deduct six months. That leaves a sentence of five years, five months and eighteen days from today’s date.
[44] I also make the following ancillary orders:
a. A weapons prohibition order under section 109 for a period of 10 years.
b. A DNA order (secondary designated offence).
c. A forfeiture order in relation to the $1,500 in cash paid by Mr. Shier to Cst. Harloff.
d. A non-communication order under section 743.21 in relation to Mr. Dagenais during the custodial portion of the sentence.
e. A victim fine surcharge.
[45] Mr. Shier, I hope and trust that you will do your time and then quickly get back on your feet again. There is a lot of good in you and I doubt you will ever be before the courts again. I also hope you find some peace over the demise of your relationship with Mr. Dagenais. I wish you good luck.
Justice J. Di Luca
Released: September 26, 2018
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral decision read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.