Court File and Parties

COURT FILE NO.: CRIMJ(P) 1386/21 DATE: 2023 03 13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING B. McGuire and D. Allison, for the Crown

– and –

HENRY MORALES D. Embry and K. Symes, for Mr. Morales

HEARD: February 17, 2023

REASONS FOR SENTENCE

J.M. Woollcombe J.

Overview

[1] On December 16, 2022, a jury found Mr. Morales guilty of having committed the second degree murder of his wife, Malena Morales on July 11, 2006. He is before me to be sentenced. The sentence that must be imposed for the offence of second degree murder is life imprisonment and that is what I shall impose. The issue to be decided is the parole ineligibility period for Mr. Morales.

[2] Section 745 (c) of the Criminal Code provides that a person convicted of second degree murder is to be sentenced to life imprisonment without eligibility for parole until the person has served at least 10 years of the sentence, or such greater number of years as has been substituted under s. 745.4, to a maximum of 25 years. The factors to consider are: (1) the character of the offender; (2) the nature of the offence and the circumstances surrounding its commission; and (3) any recommendation respecting parole ineligibility made by the jury.

[3] In assessing the statutory considerations set out in s. 745.4 and determining whether parole ineligibility should be increased, all of the objectives of sentencing are relevant: R. v. McKnight, [1999] O.J. No. 1321 (C.A.), at para. 9. In other words, there must be consideration of the purpose of sentencing set out in s. 718 and of the fundamental principle of proportionality set out in s. 718.1 of the Criminal Code. Consideration must also be given to the other sentencing principles set out in s. 718.2 of the Code: R. v. Lacasse, 2015 SCC 64; R. v. Friesen, 2020 SCC 9, at para. 30.

[4] Determining an appropriate period of parole ineligibility is a fact sensitive process: R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 18. The primary purpose of setting parole ineligibility is to give effect to the principles of denunciation and deterrence. Rehabilitation, while not a factor that is excluded from consideration, plays a less significant role than in other sentencing situations: McKnight, at para. 39.

The Nature and Circumstances of the Offence

[5] Henry and Malena Morales met as high school students and were married in 1993. They had two sons, Henry Orlando Morales Franco, (known sometimes as “Henry Junior”) born in 1995 and Joshua, born in 1998.

[6] By the fall of 2005, there were problems in the marriage and episodes of violence. They had opened a salon and spa business in 2004, but it had failed, causing financial tensions between them. I accept as proven beyond a reasonable doubt the evidence adduced at trial that around this time, there was an incident of Mr. Morales grabbing Malena and punching the wall beside her head. I reject Mr. Morales’ denial of this incident and accept the evidence of those witnesses who, at trial, described Malena having recounted it to them.

[7] In January 2006, Malena left Canada and went with the children to stay with her brother in Ecuador. Mr. Morales followed her. By that time, their marriage was in some trouble. In Ecuador, the evidence is clear that there was an argument between them. She told others that he tried to choke her. He agreed that he had taken her by the shoulders and shaken her, scaring her, and possibly putting his hand on her neck. I need not make any specific finding respecting the details of this assault. There can be no doubt that while he was angry, Mr. Morales assaulted his wife. She was scared and upset and made a police report.

[8] In the spring of 2006, the family returned to Canada and in May they moved to an apartment together with the children. While the evidence was not consistent about the state of the marriage, I am satisfied beyond a reasonable doubt that there continued to be significant issues between them, with Malena continuing to consider divorce up to the point of being killed.

[9] There was a period of separation during which time Mr. Morales moved out from the apartment. On May 23, 2006, Malena called the police and reported that he had forced his way back in. Mr. Morales agreed that he had refused to leave the apartment, knowing that they were separated and that Malena did not want him there. Again, his behaviour was controlling.

[10] I also accept the evidence that in the period before she was killed, there was an incident in which Malena and Mr. Morales argued in their bedroom and she ran from it into her sons’ bedroom, asking her son Henry to protect her. She was crouched down, shaking. While there was a dispute at trial as to when precisely this occurred, I need not resolve that. Suffice it to say that it is evidence of a pattern of Mr. Morales’ behaviour and further evidence that he used fear to try to control his wife.

[11] Against this backdrop, I turn to the events of July 11, 2006. Malena Morales returned to the apartment after work. Her boys waved to her from the balcony. She came in and there was some brief family time. Malena then went to the bedroom to change and Mr. Morales followed her. They argued. It became heated. In that bedroom, Mr. Morales strangled and killed his wife.

[12] The pathology evidence unequivocally established that the cause of death was manual strangulation. In the fight, Malena sustained at least four impact injuries to her head, including multiple areas of bruising and a laceration, all from blunt force trauma. There were also blunt force injuries to her chest and she sustained five rib fractures.

[13] During the argument and struggle between Malena and Mr. Morales, she called out to her son, Henry, “Junior come help me, Junior come help me, Junior come help me”. There was no dispute at trial that Malena called out three times for help. After this, there was silence from her. This was, as the Crown puts it, a killing that was up close and personal. Mr. Morales inflicted gratuitous violence on his wife before using his hands to strangle her to death as she called in desperation for her young son to help. This must have been terrifying for her.

[14] Mr. Morales did respond to Malena calling her son for help. He chose to instruct his son not to come in and that everything was OK. Henry obeyed the father whom he loved and trusted, having no idea what had just happened in that room.

[15] Immediately after killing his wife, Mr. Morales took many steps to try to ensure that no one knew that Malena was dead so that he could flee the country. On the evening of July 11, he told his boys that their mother was sleeping and took them out to mini-golf and Boston Pizza. He staged their bedroom in which he had killed her by changing Malena into her pyjamas and moving her body under the covers to make it appear to anyone who looked in the room that she was sleeping. He cleaned up blood and tried to hide some of the bloody clothes.

[16] The following day, his deception continued. He told a number of people, including Malena’s co-worker and mother, that she been in a car accident and was at the hospital. He again took the boys out to mini-golf and dropped them at his brother’s home, repeating to his sister-in-law the lie about Malena having been in a car accident. He withdrew cash and drove to the airport, abandoning his car and boarding a flight to Mexico City. It was only later that night, after he was safely in Mexico, that he acknowledged to his brother that he had killed Malena and had left his children for his brother to raise. It was that confession that set into motion the chain of events that led to the discovery of Malena’s dead body.

Victim Impact

[17] Victim impact statements were provided from Henry, the deceased’s older son, Diana Franco and Lissette Franco (the deceased’s sisters) and Shelley Squires (the deceased’s friend).

[18] There can be no question of the permanent effects that this homicide has had on the two Morales boys, who were 7 and 10 at the time their mother was killed by their father. Both are now young men. In his Victim Impact Statement, Henry eloquently described his feelings of abandonment, loss and responsibility as the older brother who not only had lost his parents, but who also had to navigate the difficult divide between the families of his mother and father. The boys had a challenging upbringing as their extended family members dealt with their own grief and loss and struggled with parenting the boys. It sounds like it was extremely difficult for these two children.

[19] To Henry’s credit, he seems to have been able to navigate his extraordinarily challenging situation admirably, with maturity and grace. He spoke about the hugely significant impact of his faith on his recovery. He has benefitted enormously from the considerable support and counselling he has received. He has been able to heal his relationship with his brother Joshua and his grandmother. Perhaps most significantly and admirably, with the help of his faith, he has been able to feel and to express genuine forgiveness of his father for what he did.

[20] While no Victim Impact Statement was provided by Joshua, there is no doubt that this homicide also impacted him and his life in a dramatic and indelible way. How could it be otherwise when he lost both parents at the age of 7?

[21] Malena’s sisters were, as I expect all of Malena’s family members were, also profoundly affected by the loss of Malena and these circumstances. Their family was destroyed, and will never fully recover from this loss. They are still haunted by this traumatic killing and remain left with many questions. They will never understand how or why Mr. Morales could have taken the life of such a beautiful person.

[22] Finally, Shelly Squires, Malena’s best friend, describes her life having changed in July 2006. It is clear that she and Malena shared a very close bond of friendship and that Malena’s loss continues to create a huge hole in Ms. Squires’ life. She described her feelings of betrayal, deep loss and responsibility for not having prevented the murder. She experiences an inability to trust others. She has gone through nightmares, anxiety and depression.

[23] The evidence before me revealed Malena to have been a loving and caring mother, sister, daughter and friend. The loss of her life, and warm presence, has deeply affected all those who knew and loved her. The profound impact of this murder on her two young sons cannot be put into words.

[24] There is nothing the court can say or do to bring Malena back. No sentence can ever change what has happened. I express to Malena’s family and friends my sincere condolences for your loss. It is my hope that with the imposition of sentence today, those of you who have been so profoundly affected by this horrific offence for so long ago will finally have some of the closure that I have no doubt you have wanted since 2006.

Character of the Offender

[25] Character of the offender pursuant to s. 745.4 is more than simply an examination of Mr. Morales’ personal circumstances and personality traits. It involves a consideration of his character as revealed through his actions: R. v. Singh, 2015 BCCA 123, at para. 28; aff’d 2015 BCCA 123.

[26] Mr. Morales was 30 years old at the time of the murder. He is now 47. Born in El Salvador in 1975, he came to Canada as a child with his family. At the age of 17, while in high school, he fell in love with Malena and they married. At the time of the homicide, he was working at Canadian Tire.

[27] After the homicide, Mr. Morales fled to Mexico, where he remained until he was arrested and extradited back to Canada in 2020. He had no contact with any members of his family while he lived in Mexico.

[28] The material filed by Mr. Morales on sentencing indicates that while in Mexico, he married and had more children. He did not tell them anything about his past. While in Mexico, at least as of 2011, he taught English at a primary school. The letters of support filed on sentencing suggest that he was a kind and committed teacher and that he had a lasting, positive effect on his students.

[29] Mr. Morales was arrested in Mexico on the strength of a Canadian warrant on February 20, 2020. He remained in jail there until September 15, 2020, when he was returned to Canada.

[30] His unchallenged affidavit evidence is that despite having consented to his extradition, he was advised that the delays in him being returned to Canada were because of the COVID-19 pandemic. He describes deplorable conditions of incarceration in which there were 20 men incarcerated in a small cell space, with no bed or stools, no pillow or blankets, and little temperature control causing extremes of both heat and cold. He did not receive appropriate medical care, his meals were not nutritious and he lacked hygiene products.

[31] Upon his return to Canada, Mr. Morales was incarcerated at Maplehurst Detention Centre. He has described the challenging conditions of incarceration there during the pandemic.

[32] In his letter to the court, which he read at his sentencing hearing, Mr. Morales expressed remorse for what he has done. He apologized to Malena’s family, to his own family, particularly his brother with whom he left his boys, and to his sons, whom he abandoned.

[33] I accept that Mr. Morales now accepts responsibility for the profound effects of his choices on everyone in his life, and that he regrets what he did.

Recommendations of the Jury

[34] The members of the jury made the following recommendations respecting an appropriate period of parole ineligibility:

No recommendation 1 10 years 1 12 years 1 13 years 1 15 years 4 16 years 1 20 years 1 25 years 2

[35] The recommendations of the jury members represent their wisdom and experience as members of the community. They heard the evidence and know the gravity of the offence. That said, they are not particularly well informed and their recommendations are made without relevant facts and context. Their recommendations are a factor to consider: R. v. Chalmers, 2009 ONCA 268, at para. 115; R. v. Pierre, 2019 ONSC 1660, at paras. 43-45, but it is important to note that they are given no guidance as to the appropriate range.

[36] Often, the recommendations of the jurors do not really tell us much. In this case, four of them recommended 15 years, three below that and four above. I view the three highest recommendations as well outside the appropriate range. I also think there are compelling reasons for the parole ineligibility to be set above the 10 years recommended by one juror.

Positions of the Parties

[37] The Crown seeks a parole ineligibility period of 16 to 18 years. The Crown has provided a casebook of authorities in support of this range.

[38] The defence submits that the parole ineligibility period ought to be 12 years. The defence says that the appropriate number is 13 years but that this should be reduced to 12 years on account of the mitigating circumstances including the onerous and punitive pre-sentence custody. The defence has also provided a casebook of authorities in support of this range.

Analysis

The commencement of the period of parole ineligibility

[39] The defence submits that the period of parole ineligibility ought to begin on the date that Mr. Morales was arrested and taken into custody in Mexico.

[40] Section 746 (a) of the Criminal Code sets out that for a murder sentence, the period of imprisonment served begins on “the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to life imprisonment”. The parties agree that this date was February 20, 2020 and that I should so order.

[41] I agree and direct that parole ineligibility runs from February 20, 2020, regardless of the fact that Mr. Morales did not come under the custody of Canadian authorities until later in 2020.

Relevant case law

[42] While Laskin J.A. stated for the majority in the R. v. McKnight, [1999] O.J. No. 1321 (C.A.), at para. 48 that the usual range of parole ineligibility for a brutal second degree murder of an unarmed domestic partner is 12 to 15 years, subsequent cases have increased that range. It is now 12 to 17 years, especially where there are no mitigating factors or remorse: R. v. Tayongtong, 2021 ONCA 281; leave to appeal refused [2021] SCCA No 260; R. v. French, 2017 ONCA 460, at para. 31; R. v. Czibulka, 2011 ONCA 82; application for leave dismissed, [2004] SCCA 502; R. v. Wristen; [1999], O.J. No. 4589 (C.A.); application for leave dismissed, [2000] SCCA 419.

[43] While sentencing is an individualized process, ranges of sentence can provide useful guidance, though not mandated sentences. While I have reviewed all of the cases provided, those I found most helpful include:

• French: The offender, who strangled his common law partner, was convicted by a jury of second degree murder. He had confessed to the killing and then recanted that confession, claiming to have confessed so that the death would not be ruled a suicide and result in her son being denied insurance proceeds. The trial judge found that the murder involved some planning, and imposed 17 years parole ineligibility, observing that there were no mitigating factors or remorse. This was upheld on appeal.
• R. v. Borbely, 2021 ONCA 17: The offender killed his common law spouse, dismembered her remains with a saw and concealed them in paint pails wrapped in garbage bags. They were not discovered for three years after her disappearance, while he perpetuated a falsehood that she had disappeared. He also used her bank account for his own benefit. The Court of Appeal upheld the 17 year parole ineligibility determination.
• R. v. Thomas, 2018 ONCA 694: After a relationship marked by repeated acts of violence on the deceased, the offender killed her and disposed of her body in a river. It was not found for three and one half months after her disappearance. The offender had hidden evidence and attempted to clean up from the killing. Noting that there was little mitigating, parole ineligibility was set at 16 years, which was affirmed on appeal.
• R. v. Gale, 2019 ONCA 519: The offender shot and killed his domestic partner in the home they shared. He dragged her to the yard and buried her in a shallow grave to conceal her body. He insisted that the deceased had committed suicide. He had a positive pre-sentence report. The 15 year parole ineligibility order was upheld by the Court of Appeal;
• R. v. Praljak, 2019 ONCA 394: The offender was convicted of the second degree murder of his wife. While he had no criminal record and no history of violence, there were a number of aggravating features present warranting an increase of parole ineligibility: the brutality of the killing (the victim had 9 knife wounds to her body as well as defensive wounds), gratuitous violence and the fact that the deceased lived for several hours after the attack and endured tremendous pain. The 15 year parole ineligibility imposed by the trial judge was affirmed on appeal.
• R. v. Czibulka: Convicted of the second degree murder of his wife by a severe beating, the trial judge imposed on the offender a 15 year parole ineligibility order, which was upheld on appeal. Aggravating factors included savage cruelty and the infliction of terrible injuries on the defenceless victim, whose death would have taken several hours after the beating, during which she would have been in excruciating pain.
• R. v. Kailayapillai, 2009 ONSC 1500: The offender killed his wife in their home in an unprovoked, brutal and sustained attack. There was gratuitous violence and the deceased would have suffered a terrifying experience as her husband attacked her with a tire iron. The offender permitted his children to discover their mother’s body in the garage, in what was described by the trial judge as “almost unimaginable callousness”. The offender had no criminal or violent history and was not without rehabilitative prospects. He received a 14 year parole ineligibility order.
• R. v. Jimenez-Acosta, 2013 ONSC 5524: The offender killed his wife on the day she intended to tell him she was leaving him. The assault on her was vicious and he tried to contaminate the scene. She was found dead in the basement from sharp and blunt force wounds and massive blood loss. The trial judge found that this was a frenzied and emotional attack and was completely out of character for the offender. He had no record, there was no history of violence in the relationship and he had good character letters. The trial judge set the parole ineligibility at 13 years.

Aggravating and mitigating circumstances

[44] I find that the following factors are aggravating here:

• Mr. Morales killed his intimate partner, a statutorily aggravating factor under s. 718.2(a)(ii). Sentences for domestic homicides, particularly those committed in the context of marital breakdown, must reflect that this is a significant aggravating factor that cries out for a denunciatory sentence: R. v. Ranhota, 2022 ONCA 548, at para. 77; Singh, at paras. 61-63. A message must be conveyed that resorting to violence toward a vulnerable partner is not the way to deal with an unhappy domestic situation: Gale, at para. 83.
• This was a relationship in which there was a history of violence which I have already set out;
• In killing his wife in their home, Mr. Morales abused Malena’s trust of him, a further statutorily aggravating factor under s. 718.2(a)(iii). The murder of a defenceless partner in their shared bedroom, a place where Malena would have believed she was safe from violence, is brutal and represents an egregious breach of trust; Thomas, at para. 21.
• Mr. Morales murdered Malena in the apartment where their sons were in the next room, and heard her terrified screams for help. This experience would have aggravated the traumatic impact of their mother’s killing on the boys and reveals a callousness on Mr. Morales’ part;
• While the killing did not involve as much gratuitous or protracted violence as was evident in some of the cases relied upon by the Crown (including Borbely, Czibulka and French), it certainly had elements of violence prior to the strangulation. There was significant blunt force to Malena’s head and chest before she was strangled. She suffered 5 broken ribs and both bruising and an open wound to her head. While Mr. Morales purports to have no memory of what he did, there can be no dispute that before strangling her to death, he inflicted significant violence on Malena. This would have been terrifying;
• Mr. Morales’ conduct after the homicide is aggravating in two respects:
  • First, he attempted to stage the scene to create the impression to his boys that their mother was sleeping. He cleaned up blood and lied to others about her being in hospital. This was all to conceal her homicide and to facilitate his escape from Canada and from responsibility. This callous and disrespectful manner of treating Malena and her family was cruel and demonstrated the absence of any love or compassion for any of them. Rather, it was a calculated and cold-blooded attempt to conceal that he had killed her and to avoid detection. He put his self-preservation ahead of anything. This is an aggravating factor that speaks to Mr. Morales’ character: Singh, at para 86.
  • Second, Mr. Morales’ flight from Canada and decision to remain in Mexico, making no contact with anyone in Canada, increased the anguish that Malena’s death caused for her family and friends. They were left in a state of uncertainty as to where he was and whether he would ever be held to account for this murder. They were denied closure and justice for a very long period: Singh, at paras. 5; 39-40; Thomas, at paras. 25, 44.
• This murder has had a devastating effect on many people. Mr. Morales denied his children the opportunity to grow up knowing their mother’s love or the love and support of their father. Parentless, their lives were shaken and irreparably damaged. Malena’s family lost a beautiful, caring, loving daughter and sister. Her friends lost a kind and generous soul. Countless people have been and forever will be deeply emotionally scarred: Kailayapillai, at para. 37.
• It is aggravating that both of the boys had to testify at the preliminary inquiry and that one had to testify for a second time at trial, re-living the terrible events of 2006 over and over and causing emotional distress. This was certainly evident when Henry testified, despite the remarkable composure that he managed to demonstrate in court: Kailayapillai, at paras. 37.

[45] There are also some mitigating features present:

• Mr. Morales has no history of any criminal convictions, although there was certainly a history of violence and controlling behaviour in his relationship with Malena;
• Mr. Morales has apologized and expressed regret and remorse for what he has done. I accept that this was genuine;
• Mr. Morales appears to have been pro-social and law abiding in the time between 2006 and his arrest in February 2020. The Crown submits that this should not recognized as a mitigating factor when he was wanted for murder in Canada as his obedience to the law was merely part of his effort to avoid his detection by the authorities. Hence, says the Crown, it does not genuinely reflect a change in character: Singh, at paras. 34-37; 67. I agree that it was in Mr. Morales’ self-interest to comply with the law in Mexico, and to avoid any interest by the police. The evidence goes further than simply showing that he abided by the law. There are a number of letters supporting Mr. Morales that suggest he was a good teacher and kind and caring person while he was teaching in Mexico. I think this is some positive evidence supporting his capacity for social reintegration. That said, the letters, written by people who had no idea about what Mr. Morales had done when they knew him, certainly do not reveal a complete change in character; R. v. Jean, 2017 QCCS 5851, at para. 33;
• Mr. Morales has, while in custody, availed himself of the opportunity to take programming and courses intended to improve himself, including in substance abuse, anger management, use of leisure time, understanding feelings, looking for work, supportive relationships and recognizing healthy relationships. A letter of support from a correctional officer at Maplehurst indicates that he has been a positive inmate who was hired as a full-time outside cleaner, a trusted position offered to those who can work with little supervision. This evidence all demonstrates that Mr. Morales has some prospects for rehabilitation.

Pre-sentencing conditions of incarceration

[46] A contentious issue between the Crown and defence is that of whether the very difficult conditions that Mr. Morales has faced while in custody since February 2020 should be considered a mitigating circumstance when determining his parole ineligibility. The Crown position is that there is no jurisdiction to do so. The defence urges me to find that this is an important mitigating circumstance to consider in deciding parole ineligibility.

[47] In opposing any consideration of Mr. Morales’ difficult pre-sentence custodial conditions as a mitigating factor relevant to deciding his parole ineligibility, the Crown relies, among other authorities, on the decision of Christie J. in R. v. Daley, 2021 ONSC 7678. In that case, the offender was convicted of two counts of second degree murder. At the sentencing hearing, both the Crown and defence agreed that the court could consider the circumstances of the offender’s pre-trial custody as a mitigating factor in determining his parole ineligibility. Her Honour disagreed, holding at paras. 77 and 81:

77 The only discretion this court has is in setting the period of parole ineligibility. In setting parole ineligibility, the only considerations a court has are those codified in s. 745.4, which specifically include the character of the offender, the nature of the offence and the circumstances surrounding the commission, and the recommendations, if any, of the jury. It is the view of this court that consideration of any other circumstance requires a Charter application…

81 In the absence of a Charter application, this court does not agree that having been subjected to pre-sentence custody during the COVID-19 pandemic is a relevant consideration on setting parole ineligibility. This conclusion is based on a plain reading of the Criminal Code. It is the view of this court that s. 745.4 does not permit this court to consider the conditions of remand time at all, absent a Charter application.

[48] I recognize the direction of the Supreme Court of Canada respecting horizontal stare decisis that was set out in R. v. Sullivan, 2022 SCC 19, at paras. 73-79. Prior decisions of the same level of court should be followed. Trial courts should depart from binding authority issued by a court of coordinate jurisdiction in three narrow circumstances:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
2. The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or
3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

[49] None of these criteria apply to the decision in Daley. However, I cannot conclude that the principles of Sullivan require me to follow the Daley decision.

[50] My review of the jurisprudence reveals that Ontario Superior Court decisions have been inconsistent as to whether conditions of pre-sentence incarceration can be a relevant mitigating factor when determining the appropriate period of parole ineligibility for an offender convicted of second degree murder. While Christie J. found that this was impermissible in Daley, she reached that view without addressing the earlier decisions of the Ontario Superior Court of Justice that had concluded harsh pre-sentencing conditions could be a mitigating factor relevant to the period of parole ineligibility: R. v. Hong, 2016 ONSC 2654, at para. 60; R. v. Corner, 2018 ONSC 1529, at para. 50; R. v. Hayles-Wilson, 2018 ONSC 4337, at para. 12.

[51] No reported Ontario parole ineligibility decisions in second degree murder cases since Daley have considered or applied its reasoning on this issue. In the period since Daley was released, there are Superior Court of Justice decisions in which courts have held that onerous pre-sentencing conditions are not a mitigating factor that may be considered in determining parole ineligibility on second degree murder cases (including R. v. Champagne, 2023 ONSC 908, at paras. 162-165; R. v. Dumpfrey, 2022 ONSC 2187). There are also decisions in which courts have concluded that this is a mitigating factors that can be considered in determining the appropriate parole ineligibility period (including R. v. Shire, 2023 ONSC 1282, at paras. 64-66; R. v. Le, 2022 ONSC 4810, at para. 31; R. v. Handule, 2022 ONSC 4704, at paras. 18-20; R. v. Chang, 2021 ONSC 7954, at para. 49).

[52] The Ontario Court of Appeal has not addressed this issue directly, although both Dumfrey and Champagne rely on the Court of Appeal decision in R. v. Kitaichik, [2002] O.J. No. 2476. In Kitaichik, the Court considered the defence submission that the judge following the re-trial had erred in imposing a longer period of parole ineligibility than had been imposed following the first trial. In rejecting this argument, Doherty J.A. held, at paras. 54:

54 In sentencing the appellant at his first trial, German J. gave considerable weight to the length of time the appellant spent in pre-trial custody and the difficult nature of some of that pre-trial custody. Since the period of parole ineligibility runs from the date that an accused is incarcerated on a murder charge, the length of pre-trial custody is irrelevant to the determination of the appropriate period of parole ineligibility. The sentence imposed by German J. was tainted by her failure to recognize that fact.

[53] I do not think it is fair to conclude from this passage in Kitaichik that the Court held it to be an error to consider the difficult nature of pre-sentence custody as a mitigating factor relevant to parole ineligibility. While Doherty J.A. said that the first trial judge gave considerable weight to the length of time spent in pre-trial custody and the difficult nature of some of that time, it was the length of the pre-trial custody that he said was irrelevant. He made no comment on the impact of harsh conditions. As a result, I do not see this decision as binding on the issue of considering conditions of pre-sentence custody when determining parole ineligibility. It seems to me that the case really affirms what now appears to be a well-accepted principle across Canada that because the parole ineligibility period begins from the date an accused is arrested on a murder, it is an error to reduce the period of parole ineligibility to reflect time spent in pre-sentence custody. Thus, a judge does not have the discretion to reduce a life sentence, or a period of parole ineligibility period, by giving any “credit” for the length of pre-sentence custody. That is beyond dispute and well-established across Canada: R. v. McKenna, 2020 NBCA 71, at para. 18; R. v. Tsyganov, 1998 NSCA 227; R. v. Johnston, 2016 BCCA 413; R. v. Ryan, 2015 ABCA 286, at para. 23.

[54] Many of the out of province cases upon which the Crown relies speak to courts not being able to “credit” offenders for pre-sentence custody. Most do not directly address the issue of whether harsh conditions of that incarceration can be a mitigating circumstance. That said, two appellate out of province courts have held that conditions of pre-sentencing custody are not factors listed in s. 745.4, and so may not be taken into account when determining the correct period of parole ineligibility: Ryan, at para. 206; Johnston, at para. 14.

[55] While I accept that these out of province decisions seem to accord with Daley, given the many Ontario cases before and after Daley do not. I find that there is no binding authority on the Ontario Superior Court of Justice as to whether onerous pre-sentencing custody can be a mitigating factor to be considered when imposing a period of parole ineligibility in a second degree murder case.

[56] For the reasons set out below, after carefully considering the submissions of counsel and all of the authorities before me, I conclude that particularly punitive conditions of pre-sentencing custody may be considered as a mitigating factor in determining the appropriate parole ineligibility for an offender convicted of second degree murder. I reach that conclusion for the following reasons.

[57] First, while I recognize that s. 745.4 provides the criteria that a sentencing judge is to consider in fixing parole ineligibility, the analysis is a fact-sensitive one. The section is not to be narrowly construed. So, for example, denunciation may be considered as part of the “nature of the offence” and future dangerousness can be considered as part of the “character of the offender”. Deterrence “is also a relevant criterion” justifying a s. 744 order: Shropshire, at paras. 19-23; R. v. Hawkins, 2011 NSCA 7, at para. 15.

[58] Justice Laskin, writing for the Court in McKnight, explained at paras. 9, 37 and 46-48, that in assessing the factors set out in s. 745.4, and in deciding whether to increase the parole ineligibility period, “all of the objectives are sentencing are relevant”. In assessing whether the parole ineligibility period imposed in that case was outside the acceptable range, Laskin J.A. considered, first, all of the aggravating and mitigating features of the crime and circumstances surrounding its commission and the features about the offender’s “character and his circumstances that mitigate any increase in parole ineligibility”. Second, he considered the periods of parole ineligibility that had been imposed in other similar cases.

[59] McKnight reinforces that parole ineligibility determinations must be made on the basis of the factors specifically identified in s. 745.4 and, in addition, after considering the broader factors that are relevant to the imposition of sentence as set out in the Code. These include all mitigating factors, and factors relating to the “offender’s circumstances” and the principle of parity with the period of parole ineligibility imposed in other cases.

[60] Second, ss. 718 to 718.2 are applicable to the imposition of parole ineligibility. Section 718.2 specifically provides that a court imposing sentence “shall” take into account principles including that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offence or offender…”. Again, this suggests that factors beyond those in s. 744.4 are to be considered in fixing parole ineligibility. The Court of Appeal, has expressly approved of trial judges considering and relying on “all” aggravating and mitigating factors, including those in s. 718.2, in fixing parole ineligibility: Ranhota, at paras 75-76.

[61] The Code identifies, in s. 718.2(a) a number of possible aggravating factors. These include that the offender abused an intimate partner or abused a position of trust. Both of these statutorily aggravating factors are relied upon by the Crown in this case. Just as these aggravating factors must be considered when setting a period of parole ineligibility, so, too, do I think it appropriate to consider “any mitigating circumstances”, as provided for in s. 718.2.

[62] Furthermore, the Code incorporates the principle of parity in s. 718.2(b). No one disputes that parity is a factor to be considered in fixing parole ineligibility in cases of second degree murder. The Court of Appeal expressly did so in McKnight, and has continued to do so in virtually all of the other appellate cases to which I was referred. The question frequently asked by that Court is whether the sentence imposed was within the “range” of parole ineligibility periods for domestic homicides: Ranhota, at para. 77; French, at paras. 28, 30; Czibulka, at paras. 66-69. Yet, I do not know how one could read the principle of parity into s. 745.4. That this important principle must be considered confirms my view that s. 745.4 must not be narrowly construed, and that all principles of sentencing are operative when fixing parole ineligibility for offenders convicted of second degree murder: R. v. Fatima, at para. 137.

[63] Third, the principle that onerous pretrial conditions of incarceration may be a mitigating factor on sentence is now firmly established in the Ontario caselaw: R. v. Marshall, 2021 ONCA 344; R. v. Green, 2021 ONCA 932, at paras. 15-19; R. v. Bristol, 2021 ONCA 599, at paras. 10-12. This was not clear when many of the cases upon which the Crown relies were decided. In Marshall, Doherty J.A. stated at para. 52 that “particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account, along with the other mitigating and aggravating factors, in arriving at the appropriate sentence”. It is not a deduction from an otherwise appropriate sentence, but is a factor to consider in determining a fit sentence, if there have been exceptionally punitive conditions that go well beyond normal pretrial custody restrictions.

[64] Marshall makes clear that courts are not to consider harsh pre-sentencing conditions as something for which “credit” is to be given. In the context of a murder sentencing, the sentence that must be imposed is life. But Marshall requires reflection as to whether punitive conditions may be a mitigating factor to consider, along with all other factors, in imposing a just and proportionate sentence. In the case of a murder, the sentence includes the period of parole ineligibility. While punitive presentence custody cannot reduce a mandatory minimum sentence of life to something less than life, there is nothing in the Marshall analysis to suggest that punitive conditions of presentence custody could not or should not be a relevant mitigating factor when setting parole ineligibility.

[65] I conclude that it is open to me to consider Mr. Morales’ pre-sentencing harsh conditions of incarceration as a mitigating factor that is relevant to my determination of an appropriate period of parole ineligibility.

[66] Mr. Morales’ conditions in jail, especially those conditions under which he was incarcerated in Mexico (from February 20 to September 16, 2020) were unquestionably very harsh and warrant some mitigation when deciding on the period of parole ineligibility that should be imposed. Similarly, in the time he was incarcerated at Maplehurst (between September 20, 2020 and March 13, 2023, a period of about 2 ½ years), Mr. Morales was on full lock-down (meaning that he was confined to his cell for the 6.5 hours he would normally be in the dayroom) 398 times. He was on partial lockdown (confined to his cell for part of the 6.5 hours he would normally be in the dayroom) 81 times. While he was never triple bunked, I view this number of lockdowns as quite a harsh condition and as a further mitigating factor that should be considered in determining a fit period of parole ineligibility.

[67] While there is no requirement to quantify the onerous conditions of pre-sentencing incarceration to which Mr. Morales has been subjected, I consider this a mitigating factor in assessing a fair and appropriate period of parole ineligibility.

Conclusion

[68] Mr. Morales: Please stand.

[69] Bearing in mind the relevant principles for imposing parole ineligibility and all of the relevant aggravating and mitigating circumstances, I have concluded that you should be subject to a period of parole ineligibility for 15 years.

[70] Mr. Morales, you have been found guilty of second degree murder. As I am required to by law, I impose on you a sentence of life imprisonment. You are not eligible for parole until you have served at least 15 years in custody, beginning on February 20, 2020.

[71] In addition, the following ancillary orders are made, all of which are on consent:

(i) A weapons prohibition order for life pursuant to s. 109 of the Criminal Code; (ii) A DNA order pursuant to s. 487.051 of the Criminal Code; (iii) A non-communication order pursuant to s. 743.21 of the Criminal Code respecting Lissette Franco, Marianna Franco, Diana Franco and Shelley Squires; (iv) A non-communication order pursuant to s. 743.21 of the Criminal Code respecting Henry Orlando Morales Franco except with his written, revocable consent.

J.M. Woollcombe J.

Released: March 13, 2023