Her Majesty the Queen v. Dewald

[Indexed as: R. v. Dewald]

54 O.R. (3d) 1

[2001] O.J. No. 1716

Docket No. C33987

Court of Appeal for Ontario

McMurtry C.J.O., Carthy and Laskin JJ.A.

May 9, 2001

Criminal law--Sentence--Joint submission--Accused pleaded guilty to two counts of second-degree murder after drowning his two children--Trial judge rejected joint submission for 12-year parole ineligibility period on grounds that it would bring administration of justice into disrepute and would not be in public interest--Trial judge sentenced accused to life imprisonment without eligibility for parole for 23 years --Record supported trial judge's inferences that offence was planned and that accused murdered his children to rid himself of perceived impediment to romantic fulfillment--Aggravating features of crime, general deterrence and denunciation justified rejection of joint submission--Parole ineligibility period too lengthy--Accused not worst offender--Accused suffered from severe depression at time of offence and was remorseful--Parole ineligibility period reduced to 17 years.

The accused pleaded guilty to two counts of second-degree murder. He took his two children, aged 10 and 12, for a swim at his father's unoccupied lakefront cottage. He held their heads under water until they drowned. He then moved their bodies further out into the lake, pretended to be asleep, and later reported that they had drowned accidentally. His former girlfriend believed that the children had not died accidentally. The accused was obsessive about renewing their relationship, and she had attempted to convince the accused that their relationship was over by telling him that she did not get along with his daughter. She agreed to allow the police to intercept discussions between her and the accused. The accused admitted killing his children. When she asked him why, he answered: "Because I love you more than anything in the world." He later told the police, "I just wanted a nice life to live." At the sentencing hearing, the Crown and defence counsel recommended a parole ineligibility period of 12 years in a joint submission. The Crown was satisfied that the accused acted spontaneously and was driven by a long-standing clinical depression and a belief that the children would be better off dead so that they did not have to experience life as he saw it. The trial judge rejected the joint submission, holding that a 12-year parole ineligibility period would bring the administration of justice into disrepute and would not be in the public interest. The trial judge rejected the version of events contained in the joint submission and found that the accused did not act spontaneously and that he killed his children to improve his love life by removing those apparent impediments. The trial judge found that this was one of the worst offences and that the accused was one of the worst offenders. The accused was sentenced to life imprisonment without eligibility for parole for 23 years. He appealed.

Held, the appeal should be allowed.

Per Laskin J.A. (McMurtry C.J.O. concurring): Trial judges should seriously consider joint sentencing submissions, but they are not required to accept them. They may reject a joint submission if accepting it would be contrary to the public interest or would otherwise bring the administration of justice into disrepute. The trial judge's conclusion that that test was met in this case was reasonable for three reasons: denunciation; general deterrence; and the aggravating features of the crime. The trial judge did not err in rejecting the underlying basis of the joint submission without a hearing. This was not a case where the underlying facts were disputed. Rather, it was a case of competing inferences from undisputed facts. The aggravating features of the crime relied on by the trial judge were amply supported by the evidence. As for the question whether the accused had a fair opportunity to meet the trial judge's concerns, both the Crown and the accused knew that the trial judge was not bound by the joint submission. Both, therefore, ought to have put before the court a full record justifying the proposed sentence. Counsel ought especially to have done so in a case like this where the joint submission on its face seemed unduly lenient and would cause many judges to question whether it should be accepted.

The trial judge erred in principle in imposing a parole ineligibility period of 23 years. While the murder of one's children is one of the worst offences, the accused was not one of the worst offenders. He had no previous criminal record, had good prospects for rehabilitation, was severely depressed when he committed the murders and was remorseful. The appropriate parole ineligibility period was 17 years.

Per Carthy J.A. (dissenting): The trial judge should not have rejected the fundamental premise of the joint submission as he did. If the accused's version of events was to be rejected, it should only have been so after a hearing with findings on a beyond reasonable doubt basis. The trial judge did more than draw inferences from admitted facts. He found the presence of a motive and an element of planning in the murder, contrary to the views of the investigators, a psychiatrist, the Crown and the position taken by the accused. The trial judge disbelieved the accused without providing him with his right to be heard in his testimony.

The offence in this case was not the act of a brutal sadist, a potential repeat offender or a man with previous convictions. It was the tragic act of a man who was overwhelmed by the weight of his problems and in a state of clinical depression. The public interest and the administration of justice were properly served by a life sentence without eligibility for parole for 12 years.

APPEAL from a sentence for second-degree murder.

R. v. Olsen (1999), 131 C.C.C. (3d) 355, 22 C.R. (5th) 80 (Ont. C.A.), consd Other cases referred to R. v. Boulet (1990), 85 Sask. R. 93, 58 C.C.C. (3d) 178, 78 C.R. (3d) 309 (C.A.); R. v. Gardiner, [1982] 2 S.C.R. 368, 140 D.L.R. (3d) 612, 43 N.R. 361, 68 C.C.C. (2d) 477, 30 C.R. (3d) 289; R. v. M. (C.A.), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 73 B.C.A.C. 81, 120 W.A.C. 81; R. v. Phillips (1999), 138 C.C.C. (3d) 297, 26 C.R. (5th) 390 (Ont. C.A.); R. v. Poorman (1991), 93 Sask. R. 1, 66 C.C.C. (3d) 82, 6 C.R. (4th) 364 (C.A.); R. v. W.B.C., [2000] O.J. No. 397; R. v. Winn (1998), 38 O.R. (3d) 159 (C.A.), affg (1995), 25 O.R. (3d) 750, 43 C.R. (4th) 71 (Prov. Div.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 745.4 Authorities referred to Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (The Martin Report) (Toronto: Queen's Printer, 1993)

David E. Harris, for appellant. W. Graeme Cameron, for respondent.

[1] CARTHY J.A.: (dissenting):-- The appellant Thomas Dewald pleaded guilty to two counts of second-degree murder and was sentenced to life imprisonment without parole eligibility for 23 years. He seeks a reduction in the parole eligibility to 12 years as recommended at the sentencing hearing in a joint submission.

[2] The crime was shocking to anyone's sensibilities. The appellant took his two children aged 10 and 12 for a cottage swim. While the youngsters were happily playing in the water, the appellant held their heads underwater until they drowned.

[3] One reason Crown counsel supported a modest ineligibility period of twelve years was the Crown's expressed satisfaction that the appellant acted spontaneously, and was driven by a long-standing clinical depression and a belief that the children would be better off dead so that they need not experience life as he saw it. The trial judge appears not to have accepted this interpretation of events and to have concluded that the motive was a selfish desire to improve his love life by removing these apparent impediments.

[4] The appellant argues that the trial judge should not have rejected this fundamental feature of the joint submission. Further, he argues that the judge's reasons for sentence reveal additional errors of principle which justify interference by this court and a sentence in accordance with the joint submission.

[5] I find that it was not open to the trial judge to have rejected the version of events contained in the joint submission in the absence of a hearing to test this version of events on a criminal burden of proof. The joint submission was not unreasonable and contrary to the public interest, and in rejecting it the trial judge committed an error in principle.

[6] I will commence with a summary of the Crown's presentation of the evidence in the sentencing hearing and will then deal with the points of appeal as they arise in the reasons for sentence.

[7] At the opening of trial, a voir dire was held as to the admissibility of a statement made by the appellant to the police. It was declared admissible and the appellant thereupon pleaded guilty to the two counts of second-degree murder. At the first sentence hearing date, the Crown laid out the factual background, a summary of which follows.

[8] The murders occurred on August 13, 1998 when the appellant was age 35. He was married in 1987 and was employed in Windsor at a parts manufacturing plant until his arrest. In 1992, his wife died of cancer and, under the care of his family physician, he began to take days off work complaining of depression. He continued fighting with bouts of depression, struggling to cope with the loss of his wife and experiencing difficulty raising his two children. He was not good with the children and there was a complaint in 1997 that he had punched his son. In late 1996, he began dating Tina Marlatt and the relationship became intimate. In November 1997, Ms. Marlatt broke off the relationship. The appellant became severely depressed and went on a six-month disability leave.

[9] From this point on, the appellant became obsessed with Ms. Marlatt. He continually called her, followed her, and showed up unannounced at her residence, seeking to rekindle the relationship. On one occasion, she called the police to say that he had passed out in a fetal position in her backyard. He had overdosed with drugs and was admitted to hospital. Soon afterward, the appellant put himself in the care of a psychiatrist. In the first months of 1998, Ms. Marlatt became very concerned for the mental health of the appellant and for the care of the children who appeared dirty and unkempt. During this time, the Children's Aid Society became involved. On March 11, 1998, the appellant was admitted to hospital for ten days under the care of his psychiatrist. The diagnosis was major depression with suicidal tendencies. The appellant expressed anger relating to his break up with Ms. Marlatt and stress with raising the children. He also expressed concern that he might repeat the abuse he had suffered at the hands of his father.

[10] On March 20, 1998, the appellant was released from hospital on prescription medication. He returned to work on April 27, was laid off on June 30 and decided to file for bankruptcy. At about this time, he apparently stopped taking his medication. On July 12, he spoke with Ms. Marlatt. In an effort to convince him the relationship would not work, she said she did not enjoy being around his daughter, that she was too emotionally immature. On August 4, the appellant returned to work but began taking days off. On August 11, his son phoned the employer to say his father would not be in for the week because he "was all stressed out" and that he, the son, was caring for him. On August 12, the appellant met with Ms. Marlatt. He told her he could not stand being around his children, could not handle them and was "losing it" with them.

[11] On August 13, the appellant took the children to his father's lakeside residence, knowing his father would not be there. The purpose was to have a swim. Curiously, the appellant took an alarm clock and a Walkman with him along with towels and beach toys. The details of how the murders occurred are found in statements made at a later date by the appellant. Apparently, in the early afternoon the children went down the embankment to the water and played happily in the waves. The appellant joined them in water up to his knees. He simultaneously held each of them under the water until they drowned. He said he panicked and tried to save them, but realizing they were dead, [he] directed their bodies out into the lake. He then retreated up some stairs to sit in a lawn chair about 60 feet from the water. He put on his Walkman and pretended to sleep. An hour later he got up, looked for the bodies, saw only his daughter, and in an emotional state went to a nearby residence to seek help, saying he thought his children had drowned.

[12] When the bodies were found the police were called. The appellant claimed that they had drowned when he fell asleep listening to his Walkman. The appellant maintained his innocence throughout the bulk of the investigation. On August 14, Ms. Marlatt spoke to the police and related her concerns, which included what she had said to the appellant about not getting along with his daughter, his obsession with renewing a relationship and his stress over caring for the children. She believed the children had not died accidentally and she agreed to allow the police to intercept discussions between her and the appellant. The interceptions included one conversation where the appellant denied killing his children to be with her, and another where he admitted to the killings. During the latter conversation when she asked "You did it for me?", he nodded yes and began to cry. He told her he had done a lot of damage and wished he could take it back. He explained that he had done it "because I love you more than anything in the world". He said he did not plan to drown his children. Rather, he intended to drown himself but was unable to do so.

[13] The appellant was then arrested and, after consulting a lawyer, made a statement in which he admitted to the killings but claimed that he thought that his children would be better off. He told them that "life sucked", that his children would end up having to go through the "same shit kind of life" as him. He claimed that he thought about killing them for the first time when he was in the water, and then just lost it. He claimed that when he found he could not save them, he panicked and went back to the house and passed out in the chair.

[14] Those were the facts presented to the trial judge on March 17, 1999. The hearing was remanded for submissions and sentence to June 21. In the meantime, the trial judge had the opportunity to consider the evidence and the inferences to be drawn from it which would bear on sentence.

[15] On June 21, a psychiatric report was filed. It read in part:

Although it is my opinion that Mr. Dewald is criminally responsible for his actions as it relates to mental disorder, his state of depression at the time would be significant mitigating and precipitating factors related to his actions. He has experienced a significant amount of emotional turmoil, was facing significant psychosocial stresses and difficulty coping with his problems which affected his perception of his children's needs and his ability to meet them. He appears to be genuinely remorseful for his actions. I would recommend that while Mr. Dewald is in custody, that he receive psychiatric treatment and counselling regarding his underlying emotional problems, psychosocial stressors and interpersonal relations. Academic and vocational pursuits ought to be encouraged.

[16] Counsel then made submissions in support of a joint submission for 12 years ineligibility. Very experienced Crown counsel assured the court that the agreement was not arrived at in a vacuum, that there had been speculation about first-degree murder that had been carefully investigated, that counsel had consulted with all concerned and had ultimately reached the view that this was the proper disposition. He mentioned that counsel have access to facts not presented to the court that lead to such decisions. When asked what those facts might be, he offered as an example the history of the Walkman. Possession of the Walkman was a suspicious feature until the Crown learned that the appellant always took his Walkman to the beach. The Crown emphasized the fact that the appellant was indicted for second-degree murder because there was no evidence of first- degree murder. He states:

That confession I have to take as a whole. It is very difficult for me to say to the Court, "I want you to believe 90 percent of this confession, but for the other ten percent I want you to reject it as a lie and speculate that something different happened without evidence." Can't do that. This case is a second-degree murder and there are many facts that led me to that conclusion which don't form part of the record. So that is one example.

[17] Crown counsel then emphasized that the timing of the guilty plea was a significant indicator of remorse, as confirmed by the psychiatrist. He continued:

The evidence upon which the Crown relied and the only evidence to support a murder conviction is that the accused committed these murders on impulse. That he didn't want his children to have a crumby life like he had. Those aren't his words, but that he was so disappointed in life he didn't want to put them through it. That is the evidence and the only evidence with respect to his motive for murder at the time the murder was committed, at the time he made the decision. It's easy to speculate in this case and to try and impute a motive beyond that, but there is no evidence to support it Sir, and believe me, I looked long and hard at that issue.

[18] The appellant addressed the court at some length indicating by his words that he fully appreciated the enormity of his conduct, that he was prepared to face his punishment and that he wished to address his mental difficulties.

[19] After a short recess, the trial judge delivered his reasons. In his recital of facts, he refers to the appellant staying overnight with the children at Bruce Peninsula a short time before August 13, despite his financial difficulties. He stated: "This activity was extremely suspicious in light of what happened to the children a few days later." Later he said:

He alleged they died as a result of an accident. This was a deliberate attempt to throw off or deceive the police who were investigating. It was a planned cover up. Again, this is suspiciously like a well thought out plan in advance. However, I must stress he was not on trial for first-degree murder.

And then later in his reasons:

Again the same people had to deal with the death of the two little children again. This time they had to come to terms with the fact that you had murdered the two children in order to remove an impediment to your love life which if removed, would allow you to selfishly have what, in you [sic] mind, would have been a happy life. But you did not look or take that into consideration.

And further:

Your two children are victims who cannot tell us what went through their minds as you satisfied your selfish desire to gratify yourself.

[20] In making these observations, the trial judge made it clear that he was aware that the charge was second-degree murder, but that under s. 745.4 of the Code he was permitted to consider aspects of planning and deliberation as relevant evidence of "the nature of the offence and the circumstances surrounding its commission".

[21] I would not argue with the appropriateness of considering all surrounding facts and, in normal circumstances, drawing appropriate inferences from them. See R. v. Phillips (1999), 138 C.C.C. (3d) 297 at p. 302, 26 C.R. (5th) 390 (Ont. C.A.). However, in doing so here, the trial judge has rejected the fundamental premise of the joint submission -- that the murders were driven by depression and the act was spontaneous. The Crown's submission mirrored the position of the accused, as reflected in his confession. If the accused's version was to be rejected, it should only have been so after a hearing with findings on a beyond reasonable doubt basis. See R. v. Gardiner, [1982] 2 S.C.R. 368, 140 D.L.R. (3d) 612; R. v. Boulet (1990), 58 C.C.C. (3d) 178, 78 C.R. (3d) 309 (Sask. C.A.); R. v. Poorman (1991), 66 C.C.C. (3d) 82, 6 C.R. (4th) 364 (Sask. C.A.).

[22] The trial judge did more here than draw inferences from admitted facts. He found the presence of a motive and an element of planning in the murder, contrary to the views of the investigators, the psychiatrist, the Crown and the position taken by the accused. This finding set the tone for the balance of his reasons. Without a hearing directed to that issue, this finding effectively added 11 years to the sentence without parole. The trial judge disbelieved the appellant without providing him with his right to be heard in testimony.

[23] The appellant raised a number of other grounds of appeal, including the trial judge's overemphasis on deterrence, his failure to consider rehabilitation, his failure to give credit for remorse, his references to the publicity surrounding the case, and his categorization of this offender and this crime as among the worst. He did the latter by equating the facts of this case to those in R. v. Olsen (1999), 131 C.C.C. (3d) 355, 22 C.R. (5th) 80 (Ont. C.A.). In Olsen, a 25-year period of parole ineligibility was upheld for a father who murdered his daughter by repeated beatings over a period of time, and then watched her die of pneumonia. He was convicted of beating another child on an earlier occasion.

[24] There is merit to each of these concerns, but mostly they may be characterized as flowing from the fundamental assumption that the appellant's crime was a callous, planned act designed to reunite him with his former lover. By contrast, if we accept the Crown's assumption that this was a spontaneous act driven by a severe mental condition, the trial judge's considerations going to sentence must be revised. General deterrence becomes a modest concern because parents in this state of depression do not think rationally about the consequences of their actions. Rehabilitation becomes a more prominent concern than individual deterrence once the cause of the crime is identified as a mental problem, and the appellant expresses a desire for treatment. If on the trial judge's view of the facts they could be compared to those in Olsen, and I don't agree that they do, they retreat measurably if the Crown's position is accepted.

[25] As horrific as the murder of two children by drowning may be, the ultimate question on sentencing is, why did this crime happen and what should be done to prevent recurrence by this offender or others? It was not the act of a brutal sadist, a potential repeat offender or a man with previous convictions. It was the tragic act of a man who was overwhelmed by the weight of his problems and in a state of clinical depression. The law rightly does not excuse that conduct, and the appellant deserved a life sentence. Indeed, this life sentence is not being disturbed here no matter when parole eligibility begins.

[26] In R. v. Winn (1995), 25 O.R. (3d) 750, 43 C.R. (4th) 71 (Prov. Div.), affd (1998), 38 O.R. (3d) 159 (C.A.), this court approved the test for departure from a joint submission as to sentence. Departure is allowed where the proposal is so unreasonable or contrary to the public interest that its acceptance would bring the administration of justice into disrepute. On a proper view of the evidence and the manner in which it was presented, my view is that the test in Winn is not met. The public interest and the administration of justice are properly served by a life sentence and the opportunity for rehabilitation and parole in 12 years.

[27] I would set aside the sentence and in its place impose a life sentence without parole for 12 years.

[28] LASKIN J.A. (MCMURTRY C.J.O. concurring):--I have read the reasons of my colleague Carthy J.A. and I do not agree with his proposed result. In my view, the trial judge did not err in concluding that the joint submission for 12 years parole ineligibility was so contrary to the public interest that accepting it would bring the administration of justice into disrepute. The trial judge did, however, err in equating this case to R. v. Olsen. Although killing one's own children is one of the worst offences, Mr. Dewald was not one of the worst offenders. I would allow the appeal and reduce the period of parole ineligibility from 23 years to 17 years.

1. Did the trial judge err in rejecting the joint submission?

[29] A joint submission on sentence is important to the administration of the criminal justice system. This has been recognized for many years. Trial judges should therefore seriously consider a joint submission but they are not required to accept it. Unquestioning acceptance would remove their sentencing discretion. Trial judges may reject a joint submission if accepting it would be contrary to the public interest or would otherwise bring the administration of justice into disrepute. These principles are also well established.

[30] The trial judge in this case applied these principles in rejecting the joint submission of 12 years parole ineligibility for Mr. Dewald. The trial judge's rejection of the joint submission is therefore entitled to deference on appeal. In my view, the trial judge's conclusion that a parole ineligibility period of 12 years "will bring the administration of justice into disrepute and clearly would not be in the public interest" was reasonable.

[31] I think it was reasonable for three reasons: first, denunciation; second, aggravating features of the crime; and third, general deterrence. The appellant was convicted of not one, but two counts of second-degree murder. The enormity of his crime -- deliberately drowning his two young children -- would shock the sensibilities of any right-thinking person. The trial judge cannot be faulted for concluding a severe denunciatory sentence was called for, a sentence that would reflect society's abhorrence of this kind of crime. As he justly said:

Children such as Jennifer and Christopher place in their parents the ultimate trust. A parent comforts, consoles, sustains and protects. They rely on their parents for shelter, safety and survival. So, when a parent breaches that trust it is a breach of the worst kind. Children most often cannot fight back and cannot survive on their own. I have no doubt that a parent murdering their child is the worst possible breach of trust. . . .

The public interest requires that there be confidence in the court system and the administration of justice. The public must know the concept of denunciation and they must also know that courts will not tolerate a breach of trust of this magnitude.

[32] Carthy J.A. concludes the trial judge erred in rejecting, without a hearing, the underlying basis of the joint submission, that Mr. Dewald acted spontaneously and that his depression precipitated his horrendous crime. My colleague says that the trial judge should not have found the aggravating elements of planning and motive without giving Mr. Dewald a chance to be heard. My colleague's reasons are compelling. I would agree with him if I were of the view that the underlying facts were disputed. But I take a different view of the evidence. I see this not as a case of disputed facts but as a case of competing inferences from undisputed facts. The underlying facts were not contested. In exercising his discretion under s. 745.4 of the Criminal Code, the trial judge was not obliged to accept counsels' view of the appropriate inferences to be drawn. He was entitled to draw his own inferences as long as he had a reasonable evidentiary basis for doing so. See R. v. W.B.C., [2000] O.J. No. 397.

[33] In my view, the aggravating features of the crime relied on by the trial judge were amply supported by the uncontested record. The trial judge was at the very least "extremely suspicious" whether Mr. Dewald acted spontaneously. His suspicion was well-grounded. On August 11, 1998, two days before the murders, Mr. Dewald's son told his father's employer that his father would be away for the rest of the week. The next day, Mr. Dewald told Ms. Marlatt that he was not enjoying his children and could not stand to be around them. On August 13, the day he murdered his children, he took them to his father's house by Lake Erie, knowing that the house would be empty.

[34] In addition to his suspicion about the spontaneity of the murders, the trial judge concluded that Mr. Dewald had a motive for the murders -- to better his own life and to try to get back together with Ms. Marlatt. In the trial judge's words:

You made a conscious decision to rob your children of their precious lives in an effort to enhance your own life. You sacrificed your own flesh and blood to obtain some sort of personal gratification so you could have a better life.

[35] Again, the record reasonably supports this finding. Mr. Dewald could not accept that Ms. Marlatt had ended their relationship. He obsessively pursued her, desperately pleaded with her to restart the relationship. About two weeks before the murders, in an effort to convince Mr. Dewald that the relationship between them could never work, Ms. Marlatt told him that she did not enjoy being with his daughter. After the murders, when Mr. Dewald finally confessed to Ms. Marlatt, she asked him what he was thinking and he replied: "I was there, they were there. I thought of you and it happened." She then asked him why he killed his children and he answered: "Because I love you more than anything in the world." Later, he told the police: "I just wanted a nice life to live, I was searching, couldn't find it, to happiness."

[36] Finally, the trial judge took into account Mr. Dewald's attempted cover-up of the murders. That the accused tried to cover up what he had done is an inescapable finding on the evidence. After drowning his children, Mr. Dewald pushed the bodies out to the middle of the lake. He then took a circuitous route back to his father's cottage, sat down on a lawn chair, put his feet up on a bench, put on the headphones of his Walkman and pretended to sleep. After an hour, he got up, went to a nearby house and told several neighbours present that he thought his children had drowned accidentally. He repeated this lie to the police and maintained that the drownings were accidental until his admission to Ms. Marlatt in one of their telephone discussions, which the police intercepted with her consent.

[37] These aggravating features of the crime were all relevant to the appropriate period of parole ineligibility. The trial judge also considered that general deterrence was relevant. In his words:

However, of far more importance is the general deterrence to all those persons out there who may treat the lives of their children in a callous and mean spirited way. They need to know that they will not attract a period of ineligibility at the lower end of the range if they are convicted of second degree murder involving children.

[38] Mr. Dewald argues that the trial judge erred in principle in taking into account general deterrence. But the Supreme Court of Canada's decision in R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 says otherwise. In deciding whether to increase the period of parole ineligibility in cases of this kind, my view is that denunciation is ordinarily far more important than general deterrence. But both are relevant. In M. (C.A.), Lamer C.J.C. wrote at pp. 546-47 S.C.R., pp. 360-61 C.C.C.:

As Iacobucci J. recently noted in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 23, in discussing the mandatory minimum period of parole ineligibility for first degree murder: "[p]arole ineligibility is part of the 'punishment' and thereby forms an important element of sentencing policy".

While Parliament was undoubtedly animated by the full range of sentencing principles in setting such threshold periods, it appears to have been principally motivated by the sentencing goals of deterrence and denunciation. By establishing a fixed formula for a minimum period of parole ineligibility under s. 120(1) of the Corrections Act (i.e., the lesser of one-third of the sentence or seven years), Parliament seems to have concluded that a minimum period of physical confinement was necessary to advance the causes of general deterrence and denunciation even if the offender was completely rehabilitated and posed absolutely no threat to society at the time of sentence. Courts of appeal have similarly concluded that other minimum parole ineligibility periods set by the Code are principally motivated by the concerns of deterrence and denunciation. As the Manitoba Court of Appeal concluded in R. v. Ly (1992), 72 C.C.C. (3d) 57 at p. 61, in discussing the 10-year parole ineligibility for second-degree murder under s. 744 of the Code: "Parliament's purpose in adding a minimum period of parole ineligibility to a life sentence was, in my view, twofold. It was to deter and denounce the crime."

[39] Denunciation, the aggravating features of the crime and general deterrence therefore justified the trial judge's rejection of the joint submission.

[40] Before leaving this issue, I wish to address briefly the question whether Mr. Dewald had a fair opportunity to meet the trial judge's concerns. Both the Crown and Mr. Dewald knew that the trial judge was not bound by the joint submission. Both, therefore, ought to have put before the court a full record justifying the proposed sentence. See the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (The Martin Report) (Toronto: Queen's Printer, 1993) at p. 373-5. Counsel ought especially to have done so in a case like this where the joint submission on its face seemed unduly lenient and would cause many judges to question whether it should be accepted. Indeed, Justice Thomson expressed his own concerns about it during the submissions on sentence. In attempting to justify the joint submission, Crown counsel suggested that he and defence counsel knew many more facts about the case than the court. He said:

Now when I agreed to take that position it was apparent to all concerned that Your Honour would in no way be bound by that joint submission. On the other hand we expected and the law makes plain that if Your Honour is faced with such a joint submission, that you will give it due deference and will consider, among other things, that counsel are in a position to have access to many more facts surrounding the case.

The trial judge responded: "Like what?" Crown counsel answered by giving, as an example, his accepting after investigation that the murders did not involve elements of planning.

[41] Mr. Dewald now contends that the trial judge erred in assuming that he had all the information counsel were relying on in support of the joint submission. I cannot accept this contention. Crown counsel cannot expect the trial judge to act on a record known to the parties but not disclosed to the court. If other information justified the joint submission, both counsel should have disclosed this information to the court. Even on appeal, however, defence counsel did not put forward any additional information to support 12 years parole ineligibility. The trial judge was entirely justified in concluding:

All participants in the trial were fully aware of all of the facts that were submitted by Crown counsel here. There is a complete history of it. As well, all of the video statements and oral statements were exposed for scrutiny during the course of this trial. I specifically asked Crown counsel what additional facts there were and elicited only one and that was with respect to the fact that Mr. Dewald listened to his stereo radio at the cottage.

[42] For these reasons, I would not interfere with the trial judge's exercise of his discretion to reject the joint submission.

2. Did the trial judge err in imposing a parole ineligibility period of 23 years?

[43] Though justified in rejecting the joint submission, in my view, the trial judge erred in principle in imposing a parole ineligibility period of 23 years. He erred in two related ways. He equated this case with R. v. Olsen and he gave inadequate weight to Mr. Dewald's expressions of remorse, his depression and his prospects for rehabilitation.

[44] In R. v. Olsen, this court upheld the maximum period of parole ineligibility, 25 years, for the co-accused Podniewicz, who was convicted of the second-degree murder of his infant daughter. We concluded that "the nature of this offence falls within the worst group of offences and Podniewicz falls within the worst group of offenders."

[45] In the present case, the trial judge concluded that Mr. Dewald was "one of the worst kind of offenders having committed one of the worst kinds of offences". I do not agree. Murdering your own children must rank as one of the worst offences but Mr. Dewald is not one of the worst offenders, at least not compared to Mr. Podniewicz.

[46] Unlike Mr. Dewald, Mr. Podniewicz committed repeated violent acts. Mr. Podniewicz shook his infant daughter several times. He watched her die over several days and never once called for help. He had previously assaulted another child, leaving the boy severely brain damaged. He was on parole at the time he murdered his daughter and his prospects for rehabilitation were poor to non-existent. He showed no remorse and refused to accept responsibility for what he did. Nothing in his background explained or mitigated his conduct.

[47] In contrast, Mr. Dewald had no previous criminal record, had never been charged with committing a violent act before and had good prospects for rehabilitation. He was severely depressed when he committed the murders, a depression that according to his psychiatrist, contributed to what he did. Mr. Dewald also exhibited remorse by his guilty plea, in his discussions with his psychiatrist and in his closing statement to the court.

[48] The trial judge gave very little weight -- inadequate weight in my view -- to these mitigating considerations. The trial judge did not fairly balance the effect of Mr. Dewald's depression, the remorse he showed and his prospects for being rehabilitated against the horrendous nature of his crime. Although the crime itself and the circumstances surrounding it warranted a period of parole ineligibility well above the minimum, the character of the offender militated against a period at the upper end of the range. In my view, an appropriate period is 17 years.

Conclusion

[49] I would allow the appeal by reducing the period of Mr. Dewald's parole ineligibility from 23 years to 17 years.

Appeal allowed.