Court File and Parties
Court File No.: 14557/17 Date: 2019-05-02 Ontario Superior Court of Justice
Between: Her Majesty The Queen – and – Nicholas Baig, Defendant
Counsel: G. Hendry and J. O’Connor, for the Crown M. MacGregor, for the Defendant
Heard: March 28 and 29, 2019
J. Speyer J.
Introduction
[1] Nicholas Baig and Arianna Goberdhan were married on November 6, 2016. Arianna was pregnant, and due to deliver their baby girl on April 27, 2017. Arianna, her family, and Nicholas Baig’s family were eagerly awaiting the birth of the baby when suddenly, on April 7, 2017, her life ended. Nicholas Baig stabbed Arianna Goberdhan to death.
[2] Nicholas Baig pleaded guilty to second degree murder. The punishment when a person is convicted of second degree murder is imprisonment for life. That is the sentence that I must and will impose in this case. Part of that sentence prescribes a period of time during which Nicholas Baig is ineligible to apply for parole. The period of parole ineligibility, which begins to run from the date on which Nicholas Baig was arrested, must be between a minimum of ten (10) years and a maximum of twenty-five (25) years. These reasons say what that period of parole ineligibility will be, and why.
The Principles Governing the Parole Ineligibility Determination
[3] Section 745(c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years. Section 745.4 requires the sentencing judge to fix the parole ineligibility period, from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years.
[4] I am directed, by s. 745.4 of the Criminal Code, that in exercising my discretion I must have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any.
[5] As Mr. Baig pleaded guilty, there is no jury recommendation to be considered in this case.
[6] The determination of the parole ineligibility period is “a very fact sensitive process”. See: R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 18. The sliding scale of parole ineligibility reflects the fact that “within second degree murder there is both a range of seriousness and varying degrees of moral culpability”. See: Shropshire, at para. 31.
[7] As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by the sentencing judge’s determination that according to the criteria set out in s. 745.4, the offender should wait a longer period before having his suitability for release assessed. An increased parole ineligibility period does not require unusual circumstances: see Shropshire, at paras. 26 to 27.
[8] In R. v. McKnight (1999), 44 O.R. (3d) 263 (C.A.), the Court of Appeal for Ontario held that in assessing the s. 745.4 criteria and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives, as set out in s. 718 of the Criminal Code, are denunciation of unlawful conduct and the harm caused to victims or to the community; deterrence both general and specific; the separation of offenders from society where necessary; rehabilitation; reparation for harm done to victims or to the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community. The court, however, observed in McKnight that the statutory 10 year minimum ineligibility period limits the weight that can be accorded to the offender’s prospects of rehabilitation.
[9] The period of parole ineligibility to be imposed must reflect the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code, which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender".
[10] Regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled but merely the period he must serve before parole can even be considered.
The Nature of the Offence and the Circumstances Surrounding its Commission
[11] Nicholas Baig and Arianna Goberdhan dated for several years. In 2016, Arianna became pregnant. She and Nicholas Baig were married, in a large wedding, three months later. They never established an independent marital home. Rather, Arianna stayed with Nicholas at his parents’ home in Pickering.
[12] In January, 2017, then six months pregnant, Arianna returned to her parents’ home in Ajax, as she and the defendant were not getting along. Thereafter, she would stay with the defendant from time to time.
[13] The extent to which their relationship deteriorated is captured in vile text messages sent by Mr. Baig to his wife sometime after they married. She sent them to her father as screen captures. Nicholas Baig called his pregnant wife a “skank”, a “lying bitch”, and a “dumb fucking slut”. He said “You’re dead to me, you won’t rise from no ashes. You were a groupie ass slut and a whore … and you’ll never change”. He went on to write: “You’re a lying whore and I hope you die delivering. I’ve never wished death on anyone before I hope to God you stop breathing while you drive. I really don’t want to be married to you.”
[14] One week before the murder, Nicholas Baig came to the Goberdhan residence to see Arianna. She was home, with her sister and her sister’s boyfriend. They would not let him into the house. He broke the door from the garage to the house in an attempt to get into the house during an argument with Arianna. He later agreed to fix the damaged door.
[15] On April 7, 2017, Arianna went to visit the defendant at his home. She arrived at 6:30 p.m. She drove her father’s car, so that she would have an excuse to leave. At 9:42 p.m., the police received a 911 call from her phone. It appears that she placed the call surreptitiously as she did not speak, and she is heard to say “You have to let me go. You have to let me go home. I need to go home. Look, this is getting ridiculous, I have to go home. You can’t keep me here like this in the state that you are in Nick.” The call then ended. The 911 operator immediately called back. Arianna answered the phone and said hello. She confirmed that she needed the police to come right away. She then screamed, said “he’s on the phone”, and the call ended. Her voice, at the end of this call, demonstrates that she was terrified. The home’s security video cameras recorded the defendant leaving the house, in Arianna’s father’s car, at 9:44 p.m. No one else attended at the house until the police arrived. Nicholas Baig stabbed Arianna to death after the call with the 911 operator ended.
[16] Police traced the call to Arianna’s phone number, and the associated address, which was the defendant’s address. When they arrived, there were no cars in the driveway. The defendant’s brother arrived, and entered the house with the police. The brother ran upstairs, and discovered Arianna’s body in the defendant’s bedroom. There was a large kitchen knife beside her. She was naked from the waist down.
[17] Emergency medical services personnel attended, and were unable to locate any vital signs for Arianna, or for the unborn child.
[18] Nicholas Baig stabbed Arianna 17 times: seven times in the torso, seven times in the head and neck, and 3 times in the arm. The wounds to her torso are clustered on her left front chest, and appear to have been targeted to strike vital organs. There were no injuries to the baby girl that Arianna was carrying.
[19] Nicholas Baig told the author of the pre-sentence report that “She was planning on leaving the night of the offence and I did not want her to leave.”
The Victim Impact Statements
[20] It is impossible to capture with words the pain, grief, and misery that the family and friends of Arianna Goberdhan have experienced, and will continue to experience. Their victim impact statements, many of which were read in court, are eloquent and heart-wrenching. The emotions they could not contain as they read their statements helped me to understand the depth of their suffering. The impact of Mr. Baig’s senseless act of cruelty is profound and crushing.
[21] Arianna was 26 years old when she died. She worked at a bank, and volunteered in her community. Her family and friends described her as loving, kind, caring, compassionate, intelligent, genuine, vibrant, energetic, positive and trusting. They described how she lit up a room when she walked in. She had named her soon to be born daughter Assara, and the baby would have been a first grandchild for Arianna’s parents. The entire family was very excited to welcome her into the world.
[22] The Goberdhan family is a large and close-knit family, and they have been traumatized by Arianna’s murder. They are overwhelmed by grief and sadness. Her father’s life is empty, and he is afraid of his anger. Her mother feels loss, sorrow, darkness, emptiness, anger and pain. A part of her is gone. She has been diagnosed with post-traumatic stress disorder, and takes medication to function. She has been unable to return to work. Arianna’s parents feel they have lost their daughter and also their first grandchild. They also feel guilt for not protecting their daughter. Arianna’s younger sister misses her terribly, and described her pain and emotional anguish. Her large extended family and many friends are heartbroken, sad, angry, and hurt. They described their terrible grief, their feelings of guilt, and their realization that these feelings will never end. They told me that their lives have been devastated and destroyed. Their faith and trust in others has been undermined. They will never be able to erase from their memories the image of Arianna in her coffin, holding her baby girl in her arms.
[23] A Community Victim Impact Statement was read by a representative of the Violence Prevention Coordinating Council of Durham. It describes the impact of Nicholas Baig’s crime on the larger community. Women experiencing domestic violence are at an increased risk of death when they attempt to leave or separate from their partners. When a woman in that situation is murdered, it reminds other women who live in a violent home of what could happen. A crime like this “strikes fear and devastation in both the service providers and their clients”. Staff at shelters and counselling agencies become hypervigilant. The statement describes how “the sobering loss is felt by those who have never met the victim before, but who understand the cycle of violence and the dynamics of woman abuse in society”.
[24] Nicholas Baig’s family has also been profoundly impacted by his actions. They too mourn the loss of Arianna and the grandchild whose birth they looked forward to.
The Character of the Offender
[25] Nicholas Baig is 27 years old, and has no prior criminal record. However, his behaviour towards others has resulted in police involvement a number of times. His mother reports, in the pre-sentence report, an incident where he locked her in a closet, and secured the door so that she could not get out. Police were called, but no charges were laid.
[26] The relationship between Nicholas Baig and Arianna Goberdhan was marred by Mr. Baig’s abusive and controlling behaviour towards her. Between June, 2014 and October 28, 2016 the couple was involved with the police and courts. Arianna’s family have characterized his behaviour towards her as controlling and obsessive. He appeared to them to be “manipulative”, “calculating” and “out of control”. Mr. Baig denies that he ever engaged in physically abusive behaviour towards Arianna before he killed her. He acknowledges that the night that he killed Arianna, she was planning on leaving and he did not want her to leave.
[27] Mr. Baig’s capacity to act hatefully and hurtfully towards his wife is demonstrated in his vile text messages. He told her that he wanted her to die, and he used denigrating and misogynistic language to demean her.
[28] Mr. Baig has abused substances since he was a teenager: alcohol, marijuana and cocaine. He told the writer of the pre-sentence report that he was using substances on a daily basis. He reports that he was under the influence of alcohol and marijuana when he killed Arianna.
[29] Mr. Baig has been sporadically and inconsistently employed since leaving school. He was living with his parents when he killed Arianna in their home.
[30] The many letters of support filed by Mr. Baig’s family and friends describe him as a loving and supportive husband, respectful and kind. There is clearly another side to him that he did not reveal to them.
[31] No psychiatric assessment of Mr. Baig’s mental state at the time he murdered Arianna Goberdhan on April 7, 2017 was provided to me. A letter from his family doctor states that Mr. Baig saw his family doctor on unspecified dates an unspecified number of times in the year before the murder for the management of stress-related anxiety and depression symptoms. The position of the defence has been clearly stated: Mr. Baig did not suffer from any diminished capacity when he killed Arianna Goberdhan. While he was working hard, and under some stress, there is nothing about his mental health that diminishes his moral responsibility for what he did.
[32] Nicholas Baig lacks insight into his behaviour. He describes what he did as a mistake that he cannot explain or understand. He is devastated and tormented because he lost his best friend, wife, and a future with his daughter. He sees himself as a victim. He explains his actions in breaking the door from the Goberdhan garage to the house in an effort to get into the house during an argument with Arianna as reflecting his concern for Arianna and their unborn child. Obviously, subjecting his very pregnant wife to the stress and upset that would accompany his attempt to forcibly enter her home when she did not want to see him, reveals his lack of concern for her, and his focus solely on his desires.
[33] Mr. Baig has made some effort, while in custody, to engage in programming. He completed one anger management session on March 14, 2019, two weeks before his sentencing hearing. He also completed ten bible courses, by correspondence, most on March 1, 2019 and one on March 11, 2019. While his efforts to address his issues are commendable, it seems most likely, given that he has been in custody for over two years, that these recent efforts have been motivated by a desire to achieve a lower sentence, rather than by any genuine desire to come to terms with the reasons why he killed his wife and soon to be mother of his daughter.
[34] Nicholas Baig has pleaded guilty. He waived his preliminary inquiry. Thus, there has been no need for witnesses to testify in any court proceeding. He has admitted his responsibility for killing Arianna Goberdhan. The guilty plea was entered two years after the commission of the crime, and in the face of overwhelming evidence of guilt. Nevertheless, the guilty plea reflects his acceptance of responsibility for his actions and is an expression of remorse. It means that Arianna’s family will not have to undergo the strain of a trial.
[35] Mr. Baig has the support of his large and closely knit family. They have affirmed their willingness to support him when he returns to the community someday. They too are grieving the loss of their daughter-in-law, and the baby that she was about to bring into the world. They have provided letters of support that describe their impression that Nicholas Baig is remorseful for what he has done.
The Positions of the Crown and the Defence
[36] Crown counsel accepts that the range of parole ineligibility periods imposed in cases of domestic homicide is 12 to 17 years. The Crown submits that a sentence within that range is insufficient to reflect the abhorrent circumstances of Mr. Baig’s crime, and argues that the period of parole ineligibility should be 20 years.
[37] Counsel for Mr. Baig acknowledges that his crime was horrific, and that the impact on the victims is immeasurable. He submits that a parole ineligibility period of about 15 years would be appropriate.
Analysis
[38] Domestic homicides are committed with deplorable frequency. The words of Fuerst J. at the outset of her reasons for sentence in R. v. Guzylak, 2018 ONSC 4705, at para. 1, apply with equal force in this case: “[t]his is yet another tragic case of an obsessive, angry and jealous man taking the life of his romantic partner, when she determined that the relationship was at an end.”
[39] The range of parole ineligibility period to be imposed in cases such as this has been the subject of appellate consideration. In McKnight, Laskin J.A. stated, at para. 48: “No two cases are the same but similar cases from this province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.”
[40] Since then, the upper end of that range has been expanded to 17 years: R. v. Wristen (1999), 47 O.R. (3d) 66 (C.A.), leave to appeal refused [2000] S.C.C.A. No. 419, at paras. 76-78, R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, at paras. 66-69, R. v. French, 2017 ONCA 460, at para. 31.
[41] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57-58, Wagner J. (as he then was) described the significance of sentencing ranges.
Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentence imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must will exercise their discretion in each case.
Even when an appellate court has established a range, it may be that a fact pattern will arise, which is significantly dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a “range” is not a straitjacket to the exercise of discretion of a sentencing judge.
(R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24).
[42] Sentencing is a fact-sensitive and inherently individualized process. The unique facts of each offence and each offender demand a tailored approach. Everything depends on the gravity of the offence, the offender’s degree of responsibility, and the specific circumstances of the case: Lacasse, at para. 58. As a result, a fit sentence may fall outside a particular range: Lacasse, at para. 58; R. v. Hawley, 2016 ONCA 143, at para. 8, R. v. M.(C.A.), [1996] 1 S.C.R. 500 (S.C.C.), at para. 92; Czilbulka, at para. 67. While sentencing ranges provide helpful guidance, they are neither permanently fixed nor straitjackets on the exercise of judicial discretion: Lacasse, at paras. 57 and 60; R. v. Foster, 2018 ONCA 53. As Doherty J.A. held in R. v. Teske (2005), 202 O.A.C. 239, at para. 105, by setting an appropriate range for a certain type of offence, an appellate court is not imposing a ceiling on the sentences available.
[43] The aggravating factors in this case are numerous and significant.
(i) The killing of a domestic partner is a statutorily recognized aggravating factor. See Criminal Code, s. 718.2(ii).
(ii) The fact that the victim was to give birth 20 days after she died is aggravating for a number of reasons:
i. She was physically vulnerable and defenseless;
ii. Her death had a tragic consequence, in that it deprived her family of the promise of life of the infant they eagerly awaited, and magnified their suffering;
iii. The breach of trust inherent in the killing of a domestic partner was amplified by the fact that Mr. Baig also owed a duty to protect his unborn child.
(iii) The attack was brutal. Nicholas Baig inflicted 17 stab wounds to the neck, head, torso and arm of the victim.
(iv) Nicholas Baig tried to cover-up what he did. He fled in the victim’s father’s car. He apparently disposed of his and the victim’s cell phones, which have never been recovered.
(v) Nicholas Baig lacks insight into his behaviour. He describes what he did as a mistake that he cannot explain or understand. He is devastated and tormented because he lost his best friend, wife, and a future with his daughter. He sees himself as a victim.
(vi) The victim was left bleeding, and naked from the waist down, when Mr. Baig fled.
(vii) This was close to a first degree murder. The 911 calls evidence Arianna’s calls to the police for help, and record her statements to Mr. Baig before the murder, telling him: “You have to let me go. You have to let me go home. I need to go home. Look, this is getting ridiculous, I have to go home. You can’t keep me here like this in the state that you are in Nick.” He has acknowledged that she wanted to leave, and he did not want her to leave. Murder committed when death is caused while committing forcible confinement is first degree murder.
(viii) There is a history of police and court involvement with Nicholas Baig and Arianna Goberdhan in the two years leading up to the murder. Mr. Baig damaged her parents’ property the week before the murder in an effort to see Arianna. He had been verbally abusive to her. His behaviour towards her was controlling and manipulative.
(ix) The impact on the family and friends of Arianna Goberdhan’s death is excruciating, and enduring. The impact is felt by the wider community as well.
[44] The sentence to be imposed must also reflect the following mitigating factors:
i. Mr. Baig is relatively youthful;
ii. He pleaded guilty;
iii. He has no criminal record.
Conclusion
[45] Denunciation and general deterrence are particularly important in setting the parole ineligibility period for an offender who murders a spouse or partner. Notwithstanding many judicial pronouncements that domestic abuse cannot be tolerated and must stop, homicides of one spouse or partner by the other unfortunately persist. Courts must continue to send the message that those who murder their domestic partners will face life sentences with elevated periods of parole ineligibility.
[46] This is a most serious case of second-degree murder. Mr. Baig’s moral blameworthiness is exceedingly high. The gravity of Mr. Baig’s crime is impossible to overstate. I have considered and applied the criteria in section 745.4 of the Criminal Code, the other applicable sentencing principles, and taken into account the significant aggravating factors and the mitigating circumstances that I have described. This is an exceptional case and a parole ineligibility period at the high end of the range identified in McKnight, Wristen, Czibulka and French is warranted. But for the fact that Mr. Baig pleaded guilty, a more substantial period of parole ineligibility would have been warranted.
[47] Mr. Baig, I sentence you to life imprisonment with no eligibility for parole for 17 years.
[48] I order you to provide bodily fluid samples for DNA analysis.
[49] I impose a weapons prohibition order under section 109 of the Criminal Code for life.
[50] The warrant of committal will be endorsed to reflect that the life sentence began to run on April 8, 2017.
J. Speyer J.
