COURT OF APPEAL FOR ONTARIO

DATE: 20020306 DOCKET: C36047

ROSENBERG, GOUDGE and FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

David M. Humphrey for the appellant

Respondent

• and -

Kenneth L. Campbell

for the respondent

BONNIE SUSAN SIMCOE

Appellant

HEARD: January 11, 2002

On appeal from the sentence imposed by Justice D. J. Halikowski on February 27, 2001.

FELDMAN J.A.:

[1] The appellant pled guilty to manslaughter in the death of her father. She was sentenced to 4 years in prison in addition to 8 months of pretrial custody. The appellant appeals her sentence.

[2] For the reasons which follow, I would allow the appeal and reduce the sentence.

FACTS

[3] The plea was accepted based on an agreed statement of facts. On June 26, 2000, the appellant, who was 41 years old, was visiting her father at his townhouse, together with an old school friend of the family, David Keleman. They were watching T.V. and drinking. Mr. Keleman left to go to his home for an antenna. When he returned, he found the appellant’s father naked on top of his daughter. He had her top up and her pants down and he was tying to nuzzle and penetrate her. Mr. Keleman became angry, began to yell at Mr. Simcoe, then struck him. The appellant woke up and was yelling and hysterical. Mr. Keleman took the appellant upstairs to calm her down. Mr. Simcoe was shouting obscenities and taunting the appellant. She went back downstairs in a rage and began throwing things around the room. At that point, Mr. Keleman left. After that, the appellant, who was highly intoxicated, used a large kitchen knife to stab her father repeatedly on the arms. During this time she called 9-1-1 and told them she was stabbing her father and that if they did not get there quickly, he would be dead. When the police arrived, the appellant was screaming that she hoped her father was dead as he was a monster. When she learned later that he was dead, she first said: “Good, he deserved it if he is”, then “Please tell me he isn’t”, then “I won’t have to suck his cock anymore or kiss him.”

BACKGROUND OF THE APPELLANT AND POSITIONS ON SENTENCE

[4] The Crown’s position was that the appropriate sentence was 5 to 7 years in prison. The defence asked for a suspended sentence with 3 years’ probation, or in the alternative, a conditional sentence. The appellant recognized that she needed treatment for her drug and alcohol abuse as well as her depression and low self-esteem. She even asked to go to the penitentiary if she had to go to jail because she understood that she would receive better treatment there.

[5] On sentence, the trial judge had an extensive pre-sentence report, the viva voce evidence of a psychologist called by the defence, the report of a psychiatrist who examined the appellant on the issue of her fitness to stand trial, and victim impact statements from two of the appellant’s siblings and from a grandchild of her father as well as a letter from the appellant’s maternal grandmother.

[6] The appellant had no criminal record. Her life experience was described by the author of the pre-sentence report as “very tragic.” She was born out of wedlock at a home for unwed mothers, although her parents subsequently married and had three more children. Her parents moved many times to accommodate her father’s job. Her father sexually abused her and was verbally and emotionally abusive to herself and her mother. She left home at age 14, but returned after her parents separated. Her parents then reconciled and separated several times, and the appellant was further abused. The appellant was significantly affected by the death of her boyfriend when she was 18. She then began to abuse drugs and alcohol and was unable to hold a job. In 1995 she returned to Oshawa to look after her mother who was dying. Thereafter she squandered her inheritance. She began to see her father sporadically but he continued to emotionally and verbally abuse her, and also attempted to sexually abuse her, resulting on one occasion in him urinating on her in rage. At the time of the offence the appellant had a history of depression, including 5 attempts at suicide and was on methadone treatment. She had had many failed relationships and was unable to have children.

[7] Dr. Chiarot, a consulting psychologist with the Ministry of Correctional Services, interviewed the appellant and testified about the effect of incest based on the sexual abuse the appellant described to him. The sexual abuse included oral sex, and on the occasions when her father would drink and be physically abusive and give her wet kisses in the day, he would sexually abuse her at night. She would wake in the morning to find semen present and to find that her underwear had been removed. The final incident before she left home involved her father inserting a chicken baster into her, causing injury and bleeding. There was no sexual abuse when the appellant was in her twenties and thirties, but, as is often the case in incest relationships, the appellant still wanted her father’s love and attention. She spent time with him and even allowed him to stay with her on occasion when he had no other place to stay.

[8] Dr. Chiarot identified trigger factors that led up to the stabbing including that this was the first occasion the sexual abuse had been witnessed by someone else, and the fact that she had just spent a nice Father’s Day with her father one week earlier. The other factors he identified were alcohol and anger.

[9] The appellant’s siblings were angry at the appellant for what she did and did not believe that she had been sexually abused by their father.

DISPOSITION BY THE TRIAL JUDGE

[10] The trial judge imposed a sentence of 4 years in penitentiary following 8 months pretrial custody, which he determined to be a sentence at the low end of what he expressed to be the applicable range of 5 to 10 years for a homicide of this nature. He discussed the applicability of the range in the following way:

The crime of homicide always attracts a lengthy penitentiary term, ranging, at least in the case law, from between five and ten years imprisonment, subject to any extenuating circumstances. Cases falling within this range are characterized by the accused being impaired by alcohol at the time of the incident. Weapons are sometimes sought and used in the crime. The victim is often in a defenceless position, either impaired himself or wounded or unconscious when the final blow is applied. Even minor provocation by the victim is not enough to reduce this type of sentence. Other factors include the lapse of time between a provoking event and the action of the accused.

[11] The trial judge discounted the legal effect of provocation on the sentence. He was also influenced by his understanding that a significant amount of time had passed between the sexual assault by the father and his death at the hand of his daughter as a result of the interruption and intervention of the friend, Mr. Keleman.

ANALYSIS

[12] The appellant’s principal position on this appeal is that the sentence imposed by the trial judge was manifestly unfit for this appellant in all the circumstances. However, I prefer to approach the case by determining whether the trial judge made an error in principle or misapprehended the evidence, leading him to overemphasize a particular factor.

[13] In my view, the trial judge erred in principle in three respects: (1) he misapprehended the correct range of sentence available in the circumstances; (2) he erred in holding that provocation is not a factor to be taken into account in sentencing for manslaughter; and (3) he misapprehended the evidence on the issue of the timing of the events, thus overemphasizing the fact that time had passed between the sexual assault and the homicide as an aggravating factor.

(1) The Appropriate Range of Sentence

[14] The trial judge stated that the range of sentence for a homicide is 5 to 10 years, particularly for cases where the accused is impaired by alcohol at the time, weapons are used, and the victim is defenceless either because of impairment or having already been wounded. This statement of the range is in error. In R. v. Turcotte (2000), 2000 14721 (ON CA), 48 O.R. (3d) 97 at 101, 144 C.C.C. (3d) 139, this court recently made a clear statement about the range of sentence available in a manslaughter case:

While many, if not most, sentences for manslaughter are in the penitentiary range, maximum reformatory sentences are not unknown and are clearly within the acceptable range: Clewley & McDermott, Sentencing: The Practitioner’s Guide (Aurora, Ont.: Canada Law Book Inc., 1999), at sec. 8.150. Conditional sentences of that duration and, indeed, of shorter duration, have been passed against persons found guilty of manslaughter both in this province and elsewhere: R. v. Ferguson, [1997] O.J. No. 2488 (Gen. Div.); R. v. Mananghaya, 1997 23083 (MB CA), [1997] M.J. No. 267, 118 Man. R. (2d) 30 (C.A.); R. v. Emard, [1999] B.C.J. No. 463 (S.C.); R. v. Oster, [1997] B.C.J. No. 3099 (Prov. Ct.); R. v. Hariczuk, [1999] O.J. No. 3110 (C.J.). The Supreme Court of Canada has recently rejected the suggestion that conditional sentences are inappropriate for serious offences, including manslaughter: R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at paras. 80-81. The imposition of a conditional sentence upon a person convicted of manslaughter is not, in and of itself, an error in principle.

[15] Furthermore, the courts have been faced with a number of manslaughter cases arising out of abusive relationships where some or all of the features referred to by the trial judge (alcohol, a weapon, and an impaired or otherwise incapacitated victim) have been present. But, recognizing the effect of the abusive relationship, the courts have imposed non-custodial or minimal custody sentences, including suspended sentence with probation: R. v. Millar (1994), 1994 7558 (ON SC), 31 C.R. (4th) 315 (Ont. Gen. Div.), R. v. Bennett, [1993] O.J. No. 1011 (Prov. Div.), R. v. Whitten (1992), 1992 14978 (NS SC), 110 N.S.R. (2d) 148 (N.S.S.C.), R. v. Fors (1987), 3 W.C.B. (2d) 31(Ont. H.C.); twelve months plus probation: R. v. Tran, [1991] O.J. No. 2052; conditional sentence of two years less a day: R. v. Getkate, [1998] O.J. No. 6329 (Gen. Div.); R. v. Ferguson, [1997] O.J. No. 2488 (Gen. Div.); seven months imprisonment with three years probation: R. v. Cowley, [1995] O.J. No. 592 (Gen. Div.).

(2) The Effect of Provocation on Sentence

[16] The trial judge stated that: “Even minor provocation by the victim is not enough to reduce this type of sentence.” This statement represents an error in principle. The issue was discussed and resolved by the Supreme Court of Canada in R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290. In that case, the defence of provocation had been used to reduce a homicide from murder to manslaughter. The question was whether the effect or use of the provocation was thereby spent, and therefore not available for consideration a second time on the issue of the appropriate sentence to be imposed. At p. 405, Bastarache J. referred to the principle that “punishment must be meted out with regard to the moral culpability or blameworthiness of an offender”. He concluded at p. 407 that:

In cases involving provocation, s. 232 permits a verdict of murder to be reduced to one of manslaughter, for which there is no minimum penalty unless a firearm was used in the commission of the offence (s. 236) This in turn allows for the consideration of provocation in the assessment of the offender’s moral culpability and hence in the determination of an appropriate sentence. It is Parliament that has chosen to accord special attention to provocation.

[17] In his factum, appellant’s counsel fairly points out that the manslaughter plea in this case may not have been based on the defence of provocation but rather on lack of intent to kill. However, it was clear that defence counsel at trial did rely on the deceased’s historical abuse of the appellant as well as the sexual assault on her that evening, as a mitigating factor on sentence. In my view, whether or not provocation was the basis of the acceptance of the plea to manslaughter, where the existence of clearly provocative conduct affects the moral culpability of the appellant, that conduct can and should be taken into account when considering the appropriate sentence.

(3) Misapprehension of the Evidence

[18] In his reasons for sentence the trial judge made the following statement which was not founded on the agreed statement of facts that formed the basis of the plea. He referred to the independent evidence of the deceased’s sexual assault of the appellant that evening:

David Keleman had been with the two parties that night. Everybody had been drinking. David Keleman left the residence at one point. On his return he witnessed the deceased naked on top of his daughter and Ms. Simcoe essentially passed out and partially naked beneath him. Mr. Keleman shouted at the deceased to leave Ms. Simcoe alone and then after some time had passed he left the building, believing that the incident was effectively over. (Emphasis added).

[19] The following is the description of the role of Mr. Keleman in the facts read in by Crown counsel on the guilty plea:

The night of the incident, he had been at Ken’s [the deceased’s] townhouse with Ken and Bonnie Simcoe. They were watching T.V. and drinking. He left to return to his own home to get an antennae. When he returned, he states, "Ken was nude on top of Bonnie. He had her top up and bottoms down. He was trying to nuzzle her, trying to penetrate her.” Mr. Keleman stated that he got mad and began to yell at Ken Simcoe, and that he struck Ken Simcoe.

Ms. Simcoe woke up. She was yelling and was hysterical. Mr. Keleman took Ms. Simcoe upstairs to calm her down. He indicates that Mr. Simcoe was shouting obscenities and taunting her. She returned downstairs in a rage and began to throw items around the room. Mr. Keleman states that he then left the apartment.

[20] Based on this description, there was no basis for the trial judge to conclude that Mr. Keleman left thinking the incident was over. Although one might wonder how he could have left during the yelling and throwing, and perhaps infer that he only did so when he thought the incident was over, that was not the evidence before the court.

[21] The trial judge also concluded from the above description, including that Mr. Keleman took the appellant upstairs to calm her down, that some time passed between the sexual assault and the homicide, and that the appellant had in fact calmed down. He said: “True, he had behaved abominably towards his daughter, but his actions had been interrupted by a concerned friend of both the accused and the deceased. Some time had passed because of this interruption. Ms. Simcoe could have left the scene completely. She chose not to do so.” However, the brief recitation of the circumstances of the offence suggest that only a very short time had passed and that the appellant did not have the opportunity to calm down as her father was shouting obscenities and continuing the incident. The trial judge mentioned the lapse of time as a factor in sentencing, and one which weighed against the appellant.

[22] I conclude that the trial judge made three significant errors in determining sentence. He began by using a range of sentence with a lower limit that was far above the correct range, which range can, in appropriate circumstances, include a suspended sentence. He was in error in concluding that he could not consider the provocative actions of the deceased in mitigation of sentence. Third, he placed emphasis on his misunderstanding that when the friend, Mr. Keleman, left the appellant and the victim, the incident appeared to be over, and that a period of time passed between the assault by the victim and the manslaughter, so that the appellant’s actions were in effect unprovoked. This was a misapprehension of the evidence as disclosed in the statement of facts read in by the Crown.

[23] As a result of these errors, this court may set aside the sentence imposed by the trial judge and impose the proper sentence.

THE PROPER SENTENCE

[24] The taking of a life is always a terrible tragedy and a most serious offence no matter the circumstances. It is therefore difficult to consider how a prison sentence of a term of years can be viewed as disproportionate to the offence. Rather, courts have viewed the offence of manslaughter in the context in which it occurred, including the relationship between the victim and the accused, together with the personal characteristics of the accused, in order to determine the appropriate sentence.

[25] In this case there are several mitigating factors that militate in favour of a more lenient sentence:

(1) The moral culpability of the appellant is significantly reduced by several key factors: first, she did not intend to kill her father due to her consumption of alcohol; second, the extreme provocation of the sexual assault in front of a friend, followed by the taunting and obscenities; third, the assault capped the long history of abuse by her father.

(2) No criminal record.

(3) No history of conduct that would suggest she would be a threat to the community.

(4) The appellant is remorseful for what she did and pled guilty.

(5) The appellant has a tragic history marked by sexual abuse, the loss of her boyfriend in a car accident, drug and alcohol abuse and suicide attempts.

(6) The appellant wished treatment whether in the community or in custody.

[26] In my view, the mitigating factors in this case suggest that a sentence in the upper reformatory range would have been appropriate. I am also of the view that the trial judge could have imposed a conditional sentence to be served in the community. In this case and for this appellant, such a sentence, including strict terms of house arrest together with treatment for substance abuse and community service would well have served the sentencing objectives set out in the Code.

[27] However, the appellant has now served one year in custody following sentencing as well as 8 months of pretrial custody which is credited as 16 months. As a result, the appropriate sentence at this time, is time served. The appellant should also be on probation for 2 years on the statutory conditions and on terms that she take treatment as required and perform 100 hours of community service.

DISPOSITION

[28] I would therefore allow the appeal, set aside the sentence and substitute a sentence of time served together with probation on the conditions described.

Signed: “ K. Feldman J.A.”

“I agree Marc Rosenberg J.A.”

“ I agree S.T. Goudge J.A.”

RELEASED: MARCH 6, 2002 “M.R.”