R. v. Grandine, 2020 ONSC 110

Court File and Parties

COURT FILE NO.: CR-18-30000425-0000 DATE: 20200107 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Philip Grandine Defendant

Counsel: Donna Kellway and Patrick Woods, for the Crown Amit Thakore, for the Defendant

HEARD: November 21, 2019

McWatt J.

SENTENCING – DISPOSITION

INTRODUCTION

1This judgment is the second part of the sentencing of Philip Grandine. The first part of these reasons was released on October 25, 2019 and entitled, “Finding of Fact for Sentencing”.

2In that ruling, I found that Mr. Grandine administered lorazepam to his wife before she drowned in a bathtub in their home.

3These courts will never know exactly what happened in the bathroom of the defendant’s home on Monday, October 17, 2011 that precipitated Karissa Grandine’s drowning. Initially, Mr. Grandine was charged with first-degree murder. The Crown’s theory was that the defendant caused the death of his wife; that he caused the death intentionally; that he had the state of mind required for murder; and that the murder was both planned and deliberate.

4The Crown’s theory at the first trial was that Mr. Grandine killed his wife to get out of their marriage. He was having an affair with another woman at the time. His wife found out about it and was trying to stop it in order to repair their marriage. Unbeknownst to her, however, Mr. Grandine continued the affair.

5The jury found Mr. Grandine not guilty of first-degree murder but guilty of manslaughter. He appealed. The matter was returned for a second trial on manslaughter.

6At this second trial, the Crown could not and did not assert that Mr. Grandine intended to kill his wife. This time, the Crown maintained that Mr. Grandine administered lorazepam to his wife, knowing she was going to take a bath, in order to incapacitate her so that he could be with his girlfriend. The Crown also maintained that Mr. Grandine wanted his freedom in order to use pornography. Indeed, that night, Mr. Grandine was out of the house speaking to his girlfriend on the phone before returning to find his dead wife in the bathtub. And, around the same time, he took the pornography web filter off his home computer and began using pornography again.

7In my ruling of October 25, 2019, I found that the defendant, a registered nurse, searched online for how to acquire the lorazepam and its effects. He also had access to the lorazepam at his employment – a nursing home. I found that he acquired the drug from the nursing home and administered it to his wife twice and to himself once to test the effects the drug would have on his wife. His wife died in that bathtub with the drug in her system. She was 20 weeks pregnant at the time.

POSITION OF THE PARTIES

8The Crown asks that Mr. Grandine be incarcerated for a period of between 13 to 15 years.

9The defense submits that this case does not involve extreme violence, as the Crown’s cases depict. The case is different, and Mr. Grandine should be sentenced to a custodial period of between 5 and 7 years.

10The defense takes no issue with the imposition of a s. 109 order for 10 years pursuant to the Criminal Code and an Order that a sample of Mr. Grandine’s DNA be taken and stored pursuant to section 487.051 of the Code as a Primary Designated Offence.

CIRCUMSTANCES OF THE DEFENDANT

11Mr. Grandine was 25 years old at the time of the offence in 2011 and 26 years old at the time of his arrest. Today, he is 33 years old. He has no criminal record. Mr. Grandine had two successful careers. He was a nurse\manager at the O’Neil Centre for elderly patients and he was a pastor at a Baptiste church in Toronto. He lost both of those positions. He resigned as a pastor because of the affair. He lost his nursing job because of the charge. Since his release from custody, the defendant has lived with his parents in Brantford. He has found work with his father doing construction, with his mother at a greenhouse and working in a call centre. He lost the call centre employment in 2013 once he disclosed to the employer that he was facing the first-degree murder charge. He also worked from home reviewing essays and academic work for students. Mr. Grandine also applied for other jobs but got none of them. He has gone on to get a truck driver’s license in April 2019.

12Mr. Grandine has the support of his family and the church members in the community he now lives. Some have accepted the conviction and the actions he has been found responsible for and still welcome him into their congregation.

VICTIM IMPACT

1333 Victim Impact Statements were filed at the sentencing hearing outlining the clear loss felt by the deceased’s family, work mates, friends and church members. Some witnesses read their statements during the hearing. All the Victim Impact Statements filed on sentencing were compelling, but one, from one of the parishioners at the church the defendant ministered to, was a poignant summation of the impact Mr. Grandine’s activities had on his friends and church community.

[14] Robert Steeves wrote: Since I was one of the Deacons who interviewed and recommended Philip to be Pastor, I am ashamed that I was fooled and betrayed by the clean cut persona he wanted everyone to believe. He seemed like such a clean cut guy who had the trust of everyone, but all along he was fooling and lying to me by not only doing the despicable things he did but committing this crime. As well, his betrayal has caused me to doubt my gut and the opinions I have made of the people I know and those I’ll meet in the future. His betrayal has also stolen the trust and faith in people I had.

THE LAW

Administering Substances

15Cases with similar facts are not plentiful in this country, but there are some. The following are cases submitted by the Crown to support its position on sentencing.

16In 1946, the Ontario Court of Appeal dealt with the case of Rex v. Hilborn, [1946] O.J. No. 612. The appellant was originally charged with murder but was found guilty of manslaughter at the trial. Mr. Hilborn was sentenced to 18 years in prison after being found guilty of planning his, his wife’s and their three young children’s deaths by administering the sedative phenol-barbital to himself and the family. Everyone survived save for one of the children, an 8-year-old boy.

17In acquitting of murder and finding guilt on manslaughter, the jury accepted the appellant’s testimony at trial that he changed his intention from murdering everyone to sedating his children sufficiently to dull their terror and grief once they awoke to find him dead.

18There was elaborate evidence of planning by the appellant prior to the death, including his updating the insurance coverage on the children, creating a will for himself and sending letters before the offence to his brother and a clergyman with instructions and wishes for them to follow after his death.

19In recognizing that the appellant’s intended suicide and drugging of the children was unlawful behavior, the Court declined to interfere with the 18-year sentence.

20In R. v. Roncaioli, 2011 ONCA 378, [2011] O.J. No. 2167, the Court of Appeal upheld a 7-year jail sentence where the appellant, a doctor, was found guilty of manslaughter after injecting his wife with toxic amounts of anesthetics, which, in conjunction with and despite her consumption of alcohol, were a significant cause of her death. The Crown did not appeal the sentence. There was a finding that the doctor had planned the injections. He and his wife had been married for 30 years and were living separate lives. She had recently depleted their financial resources.

21This case, although, within the range the defense asks for, can be distinguished from Mr. Grandine’s. First, the accused was 67 years old when the offence was committed. He was 72 years old at the time of trial and 75 years old at the time of the appeal. The delay in the proceedings, however, was not attributed to the state, but was predominantly the fault of the appellant. Second, the court also considered the doctor’s long and successful career prior to his wife’s death. Third, the deceased had been using alcohol and drugs before her death. She was not pregnant.

Domestic Circumstances

22In R. v. Boutilier, [2003] O.J. No. 4515 (S.C.J.), after a guilty plea to manslaughter, the defendant was sentenced to 12 years in jail, less pre-trial custody. The court determined that the appropriate range of sentence was between 10 and 15 years in jail.

23Mr. Boutilier, “a drunk”, as he labelled himself, stabbed his wife once, killing her instantly after a verbal exchange between them. He called 911 and took responsibility for his actions. The court found that the domestic relationship, the use of a weapon and the lack of provocation were aggravating factors justifying the sentence. The court also found that there was nothing planned or premeditated about the incident and that the defendant acted on the sudden. The defendant had a dated criminal record for minor assault and alcohol related driving offences.

24In R. v. Loppie, [2006] O.J. No. 1025, the defendant pleaded guilty to the manslaughter death of his common-law spouse by using a homemade firearm as she ran from him after an argument between them. He was sentenced to 15 years in jail. Mr. Loppie claimed that the firearm went off by accident after he had pointed it at his wife. The court found the aggravating factors, including their domestic relationship and his use of a firearm, justified the sentence.

25The R. v. Jamieson, 2012 ONSC 1114, [2012] O.J. No. 766 case involved a guilty plea to manslaughter. The defendant stabbed his long-time girlfriend. The offence took place while the defendant had been drinking. A 12-year prison sentence was imposed based on the need for denunciation and deterrence for spousal violence, the use of a knife and the fact that the defendant had breached a court order by being with the deceased, drinking alcohol and having possession of the weapon.

26In R. v. Kimpe, 2010 ONCA 812, [2010] O.J. No. 5119, the Ontario Court of Appeal acknowledged a range of 7 to 12 years for manslaughter with aggravating circumstances as existed in that case. The court upheld the 10-year sentence imposed by the trial judge. The appellant strangled his common-law wife after an argument between them until she became unconscious and died. The entire incident took about 5 minutes. The appellant then panicked and set the house on fire. He discarded his wife’s body as he set the fire.

27In upholding the sentence, the court found the aggravating features of the case to be the domestic violence and the need for denunciation and deterrence in those types of cases; the extreme violence; and the vulnerability of the deceased who was small in stature.

28I distinguish Kimpe from the facts before me in this case in this way. Mr. Kimpe was a devoted partner. He expressed remorse for part of what he had done in his guilty plea to the arson charge. He also attempted to plead guilty to the manslaughter charge, but his offer was rejected by the Crown. The trial judge found that the appellant was a gentle man, extremely hard-working and had a dated criminal record.

29In R. v. Devaney, [2006] O.J. No. 3996, the Crown appealed a sentence of 12 years for a conviction of manslaughter where the respondent had stabbed his landlady 107 times while he was intoxicated. The appellant had no criminal record. The Court of Appeal upheld the sentence despite finding that the trial judge was under a misapprehension that he was constrained by a range of sentencing between 8 and 12 years based on the case of R. v. Clarke, [2001] O.J. No. 6294. The Court also commented that a proper consideration of all the relevant factors would have called for a sentence in excess of 12 years. On the appeal, the Crown submitted that a range of 18 to 20 years was appropriate for such an “aggravated manslaughter”, based on the many extreme features of the case, including, but not limited to, the violent nature of the killing and the vulnerability of the aged female victim.

30The important feature of this case in relation to Mr. Grandine’s sentencing and the submissions of his counsel at this hearing that physically violent manslaughter cases cannot be compared to what Mr. Grandine did, is set out at paragraphs 33 and 34 of the decision. The court found (at paragraph 33) that, for the purposes of sentencing in manslaughter cases, “it is not useful to attach a label to a subcategory of the offence, then try to pigeonhole the facts of any case into the label.”

31The Court went on to state that,

34The exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and particular offender. Part of that exercise is to impose similar sentences for similar offences and offenders. However, I would reject the concept of naming subcategories of manslaughter for the purpose of comparing cases and imposing similar sentences, and instead compare the circumstances of each situation on a case-by-case basis.

32It is the defense position that this Court cannot rely on the manslaughter cases involving physical violence in these proceedings. Devaney suggests otherwise. The defense submits that those cases the Crown relies on cannot support the position it has taken on the range appropriate in this case. That is why a 5 to 7-year sentence range is more justifiable. I will come back to this submission, which I find I cannot accept.

Defense Cases

33Mr. Thakore submitted the following cases, no doubt, to show that even in brutally violent assaults resulting in manslaughter convictions, sentences can be passed in the range that he suggests is appropriate for Mr. Grandine.

34In the case of R. v. Tabbara, [2009] O.J. No. 8829, Blishen, J. commented that, because the sentences available for manslaughter convictions are so broad, attention must be paid to the circumstances of the offence and of the offender. At paragraph 5, she said, “The objectives and principles of sentencing outlined in the Criminal Code may call for a very substantial period of incarceration from 15 to 20 years at the one extreme and, at the other end, where there are strong mitigating factors or where the act was close to being an accident, a conditional sentence…or even a suspended sentence may be imposed.”

35At paragraph 53 of the judgment, Her Honor quoted from the case of R. v. Henry, 2002 NSCA 33, [2002] N.S.J. No. 113 (C.A.) at para 19, repeating the principle that a judge in these types of cases must assess the extent of moral culpability in a particular case and consider where on the continuum from almost accident to almost murder the offence falls.

36That case involved a brawl on a city street amongst several men who had been drinking. One man died as a result of a punch in the back of the neck from Mr. Tabbara.

37The facts of this case do not compare to that of Mr. Grandine’s. And, there is no air of reality, on the facts of his case, that what Mr. Grandine did was anything like an accident or close to it.

38I do accept, however, that I must assess Mr. Grandine’s moral culpability in the killing of his wife as part of the sentencing process.

39In R. v. Minert, a 7-year sentence on top of 13 months pre-trial custody was upheld on a manslaughter conviction where the appellant pushed his 19-year-old girlfriend and then held her head under water until she drowned in her bathtub. Mr. Minert pleaded guilty to the offence. He had a dated criminal record and a difficult family background. In that case, the pre-trial custodial credit was counted on a 2 days for 1 served basis. There was also a psychiatric report filed on behalf of the defendant to support a joint position by the parties. That position, however, was rejected by the trial judge in what ultimately amounted to be just over an 8-year sentence.

40In R. v. Watson and Humphries, 1998), two youths were transferred and convicted of manslaughter in adult court. Together, in an unprovoked attack on the male victim, they hit the man over the head with a metal pole and kicked him into a ditch where he drowned in a few feet of water. The boys had consumed alcohol before the offence. Both defendants had family support and showed sincere remorse for their actions. The court would have passed a sentence of 7 years, but because of time served totaling more than 7 years, each defendant’s sentence was suspended, and each was placed on probation. This case can be distinguished from that of Mr. Grandine not only on the facts, but also on the circumstances of the offenders.

ANALYSIS

41As I have already set out, the defense asserts that all the cases the Crown relies on to support its position that the appropriate range of sentence for this case is one of 13 to 15 years in jail are ones depicting extreme physical violence and are, therefore, distinguishable from Mr. Grandine’s actions. With only a therapeutic dose of the lorazepam found at autopsy in the Karissa Grandine’s blood, there is no equivalent in this case to a weapon or the brutality found in the cases the Crown relies on.

42And, as I have also said, cases like Mr. Grandine’s are rare. Neither counsel could provide me with other than the Hilborn case from 1946 and the Roncaioli case from 2011, which were ones where drugs were administered to the deceased which contributed to the cause of death. I have already distinguished the Roncaioli case from the circumstances of this case.

43These courts have long recognized that not only is physical violence a part of domestic abuse, but also emotional violence between partners. In R. v. Graig, 2011 ONCA 142, Doherty J.A. reduced the appellant’s sentence to time served (2 years and 5 months) from an 8-year sentence imposed by the trial judge. The appellant, a “mail order bride” from Malaysia, stabbed her husband in his drunken sleep and then called police telling them that she had killed him because “enough was enough”. The court found that there had been significant verbal and emotional abuse of the appellant by the deceased which precipitated the offence.

44The Court’s recognition of the impact of emotional, as opposed to physical, abuse in criminal cases – here on the killer rather than on the deceased – is part of the justice system’s expansion of its understanding the rigors of domestic life gone bad. The Craig case does not stand for the fact that drugging a domestic partner is the equivalent of “extreme physical violence” against that partner, but it does include emotional abuse between domestic partners as a form of violence – just not physical in nature.

45I found, in my October 2019 ruling, that the defendant bore a hostile animus toward his wife and that, by extension, he also had a motive to want her dead – even though he did not intend to kill her. At paragraphs 91 to 97, I set out the following:

91The defendant was unhappy in his marriage. He told his wife’s doctor, Dr. Gora, that, if he had it to do over again, he was not sure that the deceased would have been his first choice as a life partner.

92He was unhappy about the discovery of his affair leading to the end of his pastoral role in the church. He was forced to resign in disgrace from his position at the Ennerdale Baptist Church.

93Mr. Grandine did not admit his affair to the deceased until the deceased discovered it on her own. And, Mrs. Grandine, having discovered the affair, made it more difficult for the defendant to continue it.

94Both the deceased and Pastor Hadfield insisted that the defendant stop the affair. While pretending to have done so, the defendant continued to see Ms. Florentino. The evidence shows that the defendant was consumed with communicating with Ms. Florentino. The number of text messages, calls and other forms of contact in their relationship was substantial and showed that Mr. Grandine was consumed by it. A lot of that contact took place when the defendant was with his wife.

95As part of the marriage counselling arrangement, the defendant was also forced to stop accessing online pornography, which he admitted to Mr. Hadfield had become an obsession as well. By agreeing to Pastor Hadfield's demand that she install a web filter, the deceased then also precluded Mr. Grandine from using pornography on the home computer.

96The defendant resented what he considered to be the impositions his wife had placed on him and, as a result, bore a considerable degree of animus toward her.

97The defendant was enamored with both Ms. Florentino and with pornography. On occasions in which his wife was incapacitated, the way for him to pursue both these fascinations were cleared and unimpeded.

46The state of the defendant’s hostility toward his wife and his wife’s attempts to control the affair commenced around August 2011, when she discovered the affair, and continued until her death on October of that year. The defendant did not want to be married to his wife. He sought every opportunity to be with his girlfriend. He wanted to watch pornography. He was “outed” by his wife on both fronts and, I find, was seething with anger about her conduct.

47Mr. Grandine has no history of violence and his background would suggest that he is not at all given to acts of physical violence. He is, however, clearly given to acts of deception.

48In committing this offence, he did perpetrate a form of emotional and physical violence on his wife, who perhaps should just have let him go instead of incurring a wrath that she had no idea he could inflict on her. His behavior was diabolical and violent. It was planned and premeditated and took place not just on the night of her death, but days before when he experimented with the lorazepam on her and on himself to see what the effects of the drug would be. She threw up on the night of her death after he administered the drug - as she had on the day he experimented with the drug on her. He knew the first night that she was ill and groggy as a result of the drug. He knew then that she was affected by the drug seriously enough to go to the hospital. He knew on the night Ms. Grandine’s died that her symptoms were the same as on the day he had tested the drug on her. Just before her death, he allowed her to enter the bath waters knowing she was seriously affected by the drug. He did it all to communicate with his lover and use pornography that night.

49This was an assault – and act of violence generated directly from the anger Mr. Grandine bore towards Mrs. Grandine. The assault was physically innocuous. Nonetheless, it had fatal consequences when it was combined with a tub full of water. Mrs. Grandine had no tolerance for the drug. She had no idea what was being done to her. She could not have avoided the assaults. She could not see the weapon used against her.

50The defendant’s actions after he returned to the home and found his wife dead were callous and an attempt to cover up what he had done. His unconvincing 911 call, his demeanor after the death and his lies to the police about what might have caused her to drown were a continuation of the planning that he had engaged in prior to acquiring and administering the lorazepam on the two occasions.

51This case does not have strong mitigating factors. And, in terms of moral culpability, Mr. Grandine’s behavior falls closer to almost murder than to anything on the other end of the spectrum of manslaughter cases.

52This case is also unlike other domestic homicide cases referred to by counsel where there was a momentary action that resulted in the victim’s death and immediate remorse by the offender. This was no “drugging on the sudden”. There were computer searches in preparation for this offence. The drug had to be obtained by the defendant. The drug had to be tested and administered by the defendant.

53The cases the Crown has relied on can be used to determine a fit sentence in this case.

54I find the Hilborn case to be the closest case on the facts of this case. It is highly persuasive. There was planning and premeditation in both cases. There was no intent to kill. In both cases, the defendants committed an unlawful act in giving the drug to the deceased. The amount of drug administered by Mr. Hilborn was not to kill his child, but only to dull his emotions once he woke up from the sedation. That, I find, is like the “therapeutic” dose administered in this case. Both cases involved manslaughter in a domestic situation.

55The following are the mitigating and aggravating features of this case:

Mitigating Factors

1. The defendant is a first offender and was fairly young at the time of the offence, although he could hardly be classified as youthfully naïve in the commission of this offence;
2. He has had a good career up to the point of the offence and continues to work when he can. He has gone on to acquire a trucking license. There is no doubt that he is hard working and will continue to be so;
3. He is, seemingly, a good candidate for rehabilitation and is probably not a danger to the public based on the family and community support evidence filed in the form of letters at this hearing.

Aggravating Factors

1. The motivations for this crime were greed and animus. Mr. Grandine wanted the freedom to have sex with his girlfriend and watch pornography. Separation or divorce did not seem to be routes he wished to pursue at the time of the killing;
2. The offence involved domestic violence. It was an act of brutality – a deceptive and effective assault;
3. Mrs. Grandine was a vulnerable victim because she was completely unaware of the nature of the defendant’s actions and only started to question him days before her death about his “putting something” in her drink;
4. Mrs. Grandine was approximately 20 weeks pregnant with Mr. Grandine’s child when she died. Lorazepam is contraindicated for pregnant women. The defendant’s actions were callous, and a breach of the trust expected in any domestic relationship;
5. The attack was planned and premeditated. The defendant researched how to get the lorazepam and how much would kill a person. He used it on himself and the deceased to test the information he got from computer searches on the topic and, to some extent, from his experience as a nurse in an environment where the drug was routinely dispensed;
6. The defendant’s actions before and after the death in not helping his wife by disclosing that she had lorazepam in her system on the 13th and the 17th of October 2011 to hospital staff and the police was callous and in furtherance of his desire to continue with his own activities rather than taking care of his wife and the fetus she was carrying;
7. Mr. Grandine had open access to the lorazepam from his workplace and took the drug from the health care centre and the patients he was employed to serve. It was a breach of trust in that regard. The defense contends that his promotion to nurse/manager in the centre is a mitigating factor. I find, in fact, that the promotion gave him more access to the lorazepam he administered to the deceased;
8. The impact of Karissa Grandine’s death on her family, friends, co-workers and church family has been devastating to them.

56The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

57In light of the case law, all these mitigating and aggravating factors and the principles of sentencing set out in s. 718 of the Criminal Code, I find that a sentence of 15 years in the penitentiary is a fit one in this case. The 15-year term is proportional to the gravity of the offence and to Mr. Grandine’s degree of responsibility.

58The offence requires that the sentence reflect society’s abhorrence for the crime. The crime requires that both the defendant and the population at large be deterred from like crimes. The sentence that has been imposed is to promote a sense of responsibility in Mr. Grandine and an acknowledgment of the harm he has done to the deceased and to the community.

Pretrial Custody Credit

59The parties agree that Mr. Grandine should get credit for time in custody he has already served. He was arrested on the first-degree murder charge on May 2, 2012 and was released on bail on June 15, 2012. He was convicted of manslaughter after the first trial on December 4, 2014 and served a sentence on that charge until he was granted bail pending appeal on August 15, 2015. I accept, based on the Crown and defense positions on this issue, that approximately 300 days of pre-trial custody have been served. On the basis of 1.5 days credit for every day served, Mr. Grandine has served 450 days or approximately 15 months of his sentence.

60When released on bail pending appeal, Mr. Grandine was placed on a house arrest bail, which mirrored his release before the conviction. In total, he has been on this form of release for about 6 years - without incident. I am prepared to give him one third of a day credit for each day of that release based on defense submissions and the principles set out in the case of R. v. Downes, [2006] O.J. No. 555. That credit amounts to 664 days or approximately 22 months already served.

61The defense further submits that the one year from January 26, 2018 that Mr. Grandine’s release contained a curfew should count for one quarter of a day for every day of the release. The Crown opposes this submission. I agree. Mr. Grandine’s bail to the present, keeping him in his home between 11pm and 6am every day, has not prevented much of his activity in the last year. He got his trucking license and better employment as a result of the release. Prior to that, he had been severely restricted in the types of employment he could secure. His mobility has been substantially restored as a result of the new release.

62The total pretrial custody amounts to 37 months.

DISPOSITION

63The sentence is 15 years in the penitentiary. Having served 37 months of that sentence already, Mr. Grandine shall serve a further 11 years and 11 months in custody.

64There shall be orders pursuant to s. 109 of the Criminal Code for a period of 10 years and an order pursuant to s. 487.051 for the taking and storing of a sample of the defendant’s DNA. The DNA order is on the basis that the manslaughter conviction is a primary designated offence.

McWatt J.