DATE: 20040625

DOCKET: C38360

COURT OF APPEAL FOR ONTARIO

MACPHERSON, SIMMONS AND CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Scott C. Hutchison for the appellant

Appellant

• and -

ROLAND BOUCHER

Jeanine E. LeRoy for the respondent

Respondent

Heard: February 26, 2004

On appeal from the sentence imposed by Justice John G. Kerr of the Superior Court of Justice on May 15, 2002.

SIMMONS J.A.:

[1] Following a three-day trial, Kerr J. convicted the respondent of attempting to murder his estranged wife and of two counts of uttering threats to kill her[^1]. On the attempted murder charge, in addition to twenty-eight months credit for time served, the trial judge sentenced the respondent to two years less a day imprisonment plus two years of probation, recommended that the respondent receive counselling while incarcerated and ordered that the respondent accept and continue counselling while on probation. On the uttering death threats charges, the trial judge sentenced the respondent to 30 days imprisonment on each count, to be served concurrently.

[2] The Crown appeals against the sentence imposed for attempted murder.

[3] The main issue on appeal is whether the sentence imposed is unfit because it is below the range of sentences established by this court for a planned and deliberate attempted murder committed in a domestic context.

I. Background

i) the offence

[4] On March 20, 2001, the respondent telephoned his estranged wife (the “complainant”), who was then living in London, Ontario, from his home in St. Thomas. The telephone call lasted about five minutes and ended when the complainant hung up. The respondent tried to call her again but she would not answer the phone. The complainant testified that she did not want to speak to the respondent because they had argued in the past on the telephone over the fact that she left him. She also testified that the respondent had previously threatened her and her son David.

[5] Following the telephone call, the respondent went to his kitchen and got out a knife with a blade about eight inches long. The respondent testified that he got the knife in order to cut some meat. However, the respondent's son Terrence was present. He either took the knife from the respondent, or took charge of the knife when the respondent put it down. At one point the respondent said that he couldn't take it anymore and that he no longer wished to live. The trial judge found that Terrence may have felt that the respondent was going to harm himself.

[6] The respondent told Terrence that his wife “was either going to come home or she was going to go to her grave”. After Terrence took the knife, the respondent put on his shoes and his coat and drove away in the direction of London.

[7] Both Terrence and the respondent testified that, before he left for London, the respondent had been drinking. The trial judge found that there was some question about the respondent's state of intoxication, but noted that the respondent was sufficiently sober to be able to drive to London and locate his wife's apartment. At some point after the respondent arrived in the vicinity of her apartment, the complainant left her apartment and spotted the respondent near a fence with a metal bar in his hand. The respondent did not see the complainant immediately so she walked quickly to her car. As she was getting into the car, the respondent ran towards her from behind a hedge, reached out for the car and raised the metal bar he was holding to just below his shoulder.

[8] The complainant managed to get into her car and drive away. However she noticed the respondent following her in his Cadillac. At one point, she stopped for a traffic light. The respondent pulled in behind her. After she made a left-hand turn, the respondent drove his car into her blind spot and then struck her vehicle, causing it to spin. However, once she came to a stop, she was able to drive away uninjured. She did not see her husband again that evening. She testified at trial that she was going about 70 kilometres an hour prior to the collision. Although she thought her vehicle spun about three times, an accident reconstruction specialist testified that, in his opinion, it only rotated once.

[9] After hitting the complainant’s car with his vehicle, the respondent swerved off the east shoulder of the road and into a ditch. He got out of the ditch and later telephoned his daughter-in-law. In a rambling conversation, he told her that he had been in an accident with his car. However, he also said that he ran the complainant off the road, that he tried to kill her, and that he intended to go back to her place and finish the job. He said that he had nothing to live for and threatened to kill himself.

[10] The respondent testified that he simply wanted to talk to the complainant about their pending divorce and that he did not know where she lived. The trial judge found his evidence incredible and not worthy of belief.

[11] Based on the evidence adduced at trial, the trial judge was satisfied that the respondent formed the specific intent to murder the complainant. He said:

Under all of these circumstances, I am satisfied beyond a reasonable doubt that he hit her motor vehicle that evening with an ill-advised and futile but specific attempt to murder her.

Clearly, as I have mentioned, there was the element of alcohol in the events of that day. But I am not satisfied that his level of intoxication was such that he was incapable of forming the specific intent to kill his wife.

I am satisfied beyond reasonable doubt that he did have that capacity. And I am satisfied, as I have mentioned, beyond a reasonable doubt, that he did in fact form the specific intent to kill her. The effect of the alcohol probably did reduce his inhibitions in this respect, but that's all it did. ...

ii) the offender

[12] At the time of the sentence hearing, the respondent was fifty-three years of age. He had previously led what defence counsel described as a “pro-social life” and did not have a criminal record. He was described as a very good employee who worked extremely long hours for over twenty years at Ford Motor Company.

[13] The respondent and his wife were married for approximately twenty-seven years. During the course of the marriage the respondent suffered from an alcohol addiction, but was able to abstain for many years after his wife confronted him about the issue. As a result of the events forming the subject matter of the charges, the respondent's sons terminated all contact with him.

[14] A pre-sentence report was prepared for the sentence hearing. The author noted that the respondent "speaks of having given up his obsession with [the complainant], and feels he can now move on in life". However, the author also said,

Although he appears to be able to manage his thought processes better under medication, it appears that he is still in need of extensive counselling, in order to become emotionally balanced again.

[15] In addition to the pre-sentence report, the defence filed a psychiatric report addressing the respondent's psychological status and, in particular, his attitude to his wife and the termination of their relationship. The psychiatrist opined that the respondent likely falls within the category of a rejected stalker subtype. He said that while the duration of stalking tends to be relatively long for this subtype"it is also one of the subtypes that comprises a group of individuals who often respond to the threat or imposition of judicial sanctions" and that "therapeutic interventions can play a role in preventing relapse". The psychiatrist concluded"At the time of this examination, [the respondent] appears to be accepting of the fact that his relationship with his wife is permanently finished."

[16] The respondent spent almost fourteen months in pre-sentence custody. Eight weeks of the fourteen months was served during a labour disruption. On one occasion, the respondent was assaulted in his cell while awaiting a court appearance.

iii) the trial judge's reasons for sentence

[17] The trial judge rejected the defence psychiatrist's conclusion that the respondent "has reached the stage of acknowledgment that his marriage relationship is completely finished". He noted the importance of protecting the respondent's wife, but said "there is no guarantee that incarceration alone, even for a lengthy period, will be effective to achieve permanent protection". The trial judge expressed a concern that "without some form of treatment, [the respondent] ... will persist with his delusion that by force he can compel his wife to reconcile with him". He concluded:

I am further concerned that even if I were to accede to the Crown’s submission and I sentenced the accused to a period of incarceration of eight years say, but with time off for good behaviour, an early parole, and so forth, [the respondent] would be released from custody well in advance of such a sentence and without having received any treatment for his delusion, and with no strings on him, free to pursue his assaultive behaviour.

For that reason it is my view that it would be more suitable to have a shorter period of incarceration, but to have a string on him for a more lengthy period. And that can be accomplished by a period of incarceration, in addition to the time he has already served, of two years less a day followed by a probationary period of two years. Such a sentence would equate to a period of incarceration of something in excess of four years, and would permit me to impose the two-year probationary period following that custodial sentence. That will enable the Provincial authorities to keep control and to monitor [the respondent] for period of four years from the present day.

The offence for which he has been convicted, while very serious ... was the first time he has actually offered any serious violence to her, although he has threatened her. He has now gone on to carry that threat into action. I am, however, hopeful in that the offence itself did not involve the use of a weapon, apart from the motor vehicle, such as a knife or a gun as do so many of the cases cited by counsel. And notwithstanding the gravity of the offence, it did not result in any injury to [the complainant], although she is terrified by his behaviour... .

So I am of the view that the case before me on its particular facts does not call for the type of custodial sentence, not only because of the facts of the case but also for the reasons of control over the accused that I have mentioned ... that have been outlined in the cases cited by the Crown.

II. Analysis

[18] In the result, on the attempted murder conviction, the trial judge sentenced the respondent to two years less a day imprisonment, in addition to credit for time served of twenty-eight months, plus two years probation. The trial judge also recommended that the respondent receive counselling while incarcerated and ordered that the respondent accept and continue counselling while on probation.

[19] The Crown submits that this court has established a range of sentence extending from approximately eight-and-one-half years imprisonment to life imprisonment for a planned and deliberate attempted murder committed in the context of a domestic relationship. Accordingly, the sentence imposed in this case is manifestly unfit. Further, the trial judge did not give sufficient weight to the need to denounce the respondent’s conduct in attempting to force the complainant to return to a relationship that she was trying to escape.

[20] Contrary to the Crown’s submission, the respondent contends that there is a wide disparity in the range of sentences imposed for attempted murder. In this case, the sentence imposed appropriately reflected the gravity of the offence, the absence of any physical injury to the complainant, the fact that the respondent did not have a prior criminal record, and the respondent's potential for rehabilitation. In addition, the respondent submits that the cases relied on by the Crown universally involve actual physical injuries. Here, there were no such injuries. Moreover, the trial judge was careful in crafting a sentence that he believed would afford maximum protection to the complainant by ensuring that the respondent receives appropriate treatment and the sentence imposed is entitled to deference.

[21] I agree that the authorities relied on by the Crown demonstrate that this court has upheld sentences ranging from eight-and-one-half years imprisonment to life imprisonment for attempted murders committed in a domestic context[^2]. The authorities relied on by the respondent as demonstrating a lower range of sentence do not share the characteristic of a domestic context and therefore do not reduce the range of sentence proposed by the Crown. However, the respondent is correct that, in each of the cases relied on by the Crown, the victims suffered serious physical injuries, and that the Crown’s authorities are distinguishable from this case on that basis.

[22] Nevertheless, I accept the Crown's submission that the sentence imposed in this case is below what is appropriate for this offence and this offender and that it is therefore unfit. I reach this conclusion for three reasons.

[23] First, while it is true that the complainant did not suffer any physical injuries, in the context of an attempted murder, the absence of physical injuries is a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate. As noted by Lamer C.J. in R. v. Logan, [1990] 2 S.C.R. 731, “[T]he attempted murderer is no less a killer than a murderer: he may be lucky … but he still has the same killer instinct.” The Chief Justice also remarked that, “while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe”.

[24] Further, where an attempted murder is committed in the context of a domestic relationship, the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and, where present, justifies the imposition of a substantial penalty separate and apart from the issue of protection. In this case, the complainant’s victim impact statement indicates that she has felt depressed, humiliated and vulnerable as the result of the attack. She is constantly in fear for her safety and that of her new partner and is afraid of leaving her home unlocked, going outside, and driving at night. Following the attack she felt unable to concentrate and eventually lost her fulltime job. These effects are substantial and of uncertain duration.

[25] The trial judge made a clear finding that the respondent formed the specific intent to kill the complainant. Although the trial judge described the respondent’s attempt as futile, I take his comment as referring to the actual outcome and not to the potential effects of the respondent’s actions. As noted by the trial judge, the respondent’s conduct was a “specific attempt” at killing the complainant. The respondent used his vehicle as a weapon, driving it at the complainant’s vehicle at a high rate of speed. The resulting collision caused the complainant’s vehicle to spin but, fortuitously, put the respondent’s vehicle in the ditch and ended the incident. The complainant has suffered psychological trauma as a result of these events. In the circumstances, the absence of physical injuries to the complainant did not justify an almost fifty per cent reduction in the lowest end of the range of sentence that is otherwise appropriate.

[26] Second, in addition to the aggravating feature of a domestic context, there is an additional aggravating factor present in this case that appears to have been present in some, but not all, of the authorities relied on by the Crown, namely, the planned and persistent nature of the respondent’s conduct. In that regard, I note, in particular, the respondent’s statement to his son before leaving his St. Thomas home that his wife “was either going to come home or she was going to go to her grave”, as well as his subsequent statement to his daughter-in-law that he intended to go back to the complainant’s place and finish the job. It is therefore clear that the respondent’s actions were not spontaneous and that, even with the benefit of time for after-the-fact reflection, their gravity did not diminish his resolve.

[27] Third, this court has repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence: see, for example, Edwards and Levo; Campbell; and Denkers. In Denkers, in particular, this court indicated that the sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship:

The victim, and others like her, are entitled to break off romantic relationships. When they do so they are entitled to live their lives normally and safely. They are entitled to live their lives free of harassment by and fear of their former lovers. The law must do what it can to protect persons in those circumstances. In this case its order that the appellant not have contact with the victim failed to provide that protection.

It follows that the principles of general and specific deterrence must be the overriding considerations in the determination of the sentence in this case. Those principles demand a very heavy sentence to act as a general deterrent to other persons who cannot abide their rejection by a person whom they love. The sentence must act as a specific deterrent to this appellant who was not deterred by the victim's requests that he leave her alone nor by a court order requiring him to do so.

[28] In this case, although the trial judge alluded to the seriousness of the offence, and specifically considered the importance of protecting the complainant and of the respondent's rehabilitation, he gave no express consideration to the sentencing principles of denunciation and deterrence. Moreover, in imposing a sentence to keep control on the respondent, the trial judge did not impose the maximum period of probation of three years[^3]. In my view, the sentence imposed was not adequate to meet the objectives of denunciation and specific and general deterrence.

[29] Taking account of the foregoing factors, as well as the authorities relied on by the Crown, in my view, the appropriate sentence in this case was six years imprisonment less credit for time served.

[30] Finally, I consider that the trial judge erred in concluding that the respondent was more likely to receive treatment and remain subject to appropriate controls if sentenced to the Provincial correctional system rather than to the Federal penitentiary system without specific evidence to that effect. The trial judge said that he was “concerned” that if he sentenced the respondent in accordance with the Crown’s submissions, the respondent would be released well in advance of the completion date of the sentence “without having received any treatment” and “with no strings on him, free to pursue his assaultive behaviour”.

[31] While it is true that, in imposing probation, the trial judge ordered that the respondent have no contact with the complainant and that he accept specific counselling, there was no evidence before the trial judge concerning the relative likelihood of the respondent actually receiving counselling while incarcerated or upon his release under either correctional system, nor was there any evidence of what conditions might be imposed on the respondent if and when he was released on parole[^4].

[32] Although it may be appropriate in some cases to depart from a sentencing range to ensure that a convicted person will receive specific treatment that has been prearranged, such a departure is not appropriate where it is unclear that particular treatment will be provided and where there is no evidence concerning the treatment and supervision that would be available if a sentence in the appropriate range was imposed.

[33] Despite the foregoing conclusions, I would not interfere at this time with the sentence that was imposed by the trial judge, other than to vary the period of probation from two years to three years. Although the appeal book and transcripts in this matter were filed in November 2002, the appeal was not perfected until September 2003. The appellant was released from prison soon after the appeal was perfected and, at the time this appeal was heard, he had been out of custody for several months. On the record before us, there is no indication that the appellant has made any attempt to contact the complainant, or otherwise repeat his previous misconduct, since being released. This court has commented on other occasions about the potentially deleterious impact of re-incarceration, particularly in relation to its effect on rehabilitation: see for example, R. v. Symes (1989), 49 C.C.C. (3d) 81. In all of the circumstances, I do not consider that it would be in the interests of justice to re-incarcerate the appellant at this time.

[34] Accordingly, I would grant leave to appeal sentence, allow the appeal, and vary the sentence imposed on the conviction for attempted murder by increasing the period of probation from two years to three years, with all other terms of the sentence imposed by the trial judge to remain the same.

Released: June 25, 2004 “JCM”

“Janet Simmons J.A.”

“I agree J.C. MacPherson J.A.”

“I agree E.A. Cronk J.A.”

[^1]: In addition, the trial judge conditionally stayed a dangerous driving charge in accordance with Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524 (S.C.C.).

[^2]: See for example: R. v. Ahmed-Saidi, (2001), 140 O.A.C. 346 where the sentence upheld was eight years and six months imprisonment; R. v. Campbell (2003), 170 O.A.C. 282 where the sentence upheld was nine years imprisonment; R. v. Edwards (2001), 147 O.A.C. 363 where the sentence upheld was eight years imprisonment in addition to nine months pre-trial custody following a guilty plea; R. v. Corpus (2000), 130 O.A.C. 84 where the sentence upheld was eight years imprisonment in addition to three years credit for pre-trial custody; R. v. Edwards; R. v. Levo (1996), 88 O.A.C. 217 where sentences of nine years in addition to ten and one half months pre-trial custody and ten years in addition to twelve months pre-trial custody respectively were upheld; R. v. Spurway (1996), 94 O.A.C. 58 where the sentence imposed of fifteen years imprisonment for attempted murder was varied to eleven years imprisonment; R. v. Denkers (1994), 69 O.A.C. 376 where the sentence upheld was fifteen years imprisonment; R. v. Quance (2000), 133 O.A.C. 276 where the sentence upheld was fourteen years imprisonment in addition to eighteen months pre-trial custody; and R. v. Mesgun (1997), 105 O.A.C. 376 where the sentence upheld was life imprisonment.

[^3]: Criminal Code, R.S.C. 1985, c. C-46, s. 732.2(2).

[^4]: See Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 133 authorizing the imposition of conditions on parole or statutory release considered “reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender”.