COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lalumiere, 2011 ONCA 826
DATE: 2011-12-23
DOCKET: C53389

Feldman, Simmons and Watt JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

Danny Lalumiere
Appellant

Counsel:
Brian Snell, for the appellant
Randy Schwartz, for the respondent

Heard: November 15, 2011

On appeal from the sentences imposed by Justice Peter Hambly of the Superior Court of Justice on August 27, 2010.

Simmons J.A.:

[1] The appellant appeals from the concurrent sentences of life imprisonment imposed in relation to two convictions for counselling to commit murder. The appellant’s primary argument is that a life sentence is disproportionate and outside the range of sentences imposed on similar offenders for similar offences.

[2] For the reasons that follow, I would accept this submission.

Background

[3] Following a jury trial, the appellant was convicted of two counts of counselling to commit murder. The intended victims were the appellant’s ex-wife and her boyfriend.

[4] The appellant and his ex-wife married in 1970, separated in 1990 and divorced in 1992. Between 1990 and 1999, the police were called on several occasions to investigate complaints about the appellant’s behaviour towards his ex-wife and their children. Charges were laid on one occasion but they were withdrawn when the appellant entered into a peace bond for one year.

[5] In September 2002, the appellant’s ex-wife began a new relationship. Soon after, the appellant undertook a campaign of stalking and harassing his ex-wife and her new partner. Between late 2002 and early 2007, the appellant accumulated some 23 convictions for offences involving his ex-wife and her boyfriend ranging from breach of probation and breach of recognizance to assault, uttering threats and criminal harassment.

[6] In 2003, Detective Sergeant Steve Smedhurst of the Threat Assessment Unit of the Ontario Provincial Police completed an assessment of the appellant’s risk of violence towards his ex-wife. He placed the appellant in the worst 1% of domestic violent offenders and concluded that the appellant had a 70% likelihood of assaulting his ex-wife at least once in the next five years. A second risk assessment completed in 2006 concluded that the threat level remained the same as in the earlier report.

[7] On April 30, 2007, a confidential informant told police that the appellant wanted to hire someone to kill his ex-wife and her boyfriend. The appellant was in jail at the time, serving a sentence for offences involving his ex-wife. On June 14, 2007 a police officer posing as a member of the Hells Angels met the appellant in the visitor’s area of the institution where the appellant was incarcerated and told the appellant he understood the appellant wanted two people to disappear. The appellant agreed but said he could not pay until after his release in December. The undercover officer gave the appellant his telephone number and told him to call.

[8] When the appellant did not call during the ensuing two weeks, the undercover officer returned to the institution on June 27, 2007 and again raised the subject of having two people killed. The appellant agreed to pay the undercover officer $5000 and telephoned him that evening to provide details about the habits, vehicles and locations of the victims. The undercover officer cautioned the appellant that once he agreed to proceed, there would be no turning back. The appellant agreed to proceed.

[9] At trial, the appellant testified and claimed that he knew the undercover officer was not genuine. He said it was impossible someone would kill in the hope of later payment. According to the appellant, he was leading the undercover officer on and planned to report him to the authorities. Based on the jury’s verdicts, it is apparent the appellant’s explanation failed to raise a reasonable doubt.

The Crown’s Position on Sentence at Trial

[10] At trial, the Crown sought the maximum sentence available for these offences, a sentence of life imprisonment. In the alternative, the Crown requested a long-term offender designation, seeking a substantial penitentiary sentence to be followed by a long-term supervision order.

[11] On the sentencing hearing, the Crown called Dr. Pallandi, a psychiatrist, to give evidence concerning the appellant’s psychiatric profile, his risk of reoffending, and his prognosis for change.

[12] Evidence on the sentencing hearing indicated that the appellant had a longstanding and significant problem with alcohol that marred both his relationship with his wife and children during marriage and his subsequent dealings with his ex-wife.

[13] Dr. Pallandi diagnosed the appellant as suffering from alcohol abuse/dependence. Although in remission while the appellant is incarcerated, Dr. Pallandi described this as a lifelong condition with a strong potential for relapses and remissions.

[14] In his meetings with Dr. Pallandi, “other than perhaps obliquely on one or two occasions”, the appellant did not acknowledge any of the criminal conduct that had led to his past convictions. Rather, he “engage[d] in discussions about how he has been the target of his vengeful ex-spouse or the target of unnecessary attention and policing”. Further, the appellant “portrayed a reality in which there had been a conscious effort on the part of his family, police and the judiciary to separate him from his wife with whom he described a generally benign and friendly relationship.”

[15] Although Dr. Pallandi did not diagnose the appellant as having an “active mental disorder”, he opined that the appellant was “pathologically jealous” and possessed “inadequate internal defense and coping mechanisms to resolve the end of a marital relationship.” He concluded that the offence of counselling to commit murder arose from the pathological process of obsessive following/stalking and that the appellant’s inability to deal with the end of his marriage likely fuelled the offence.

[16] Dr. Pallandi indicated there is no pharmacological way to address the appellant’s problem and psychotherapies do not seem to work. Moreover, the longer a person engages in following/stalking behaviour, the more difficult it becomes to change that behaviour.

[17] Dr. Pallandi described the appellant’s ongoing risk to his ex-wife and those romantically involved with her as “persistently high.” Although he described the ongoing management of the appellant as a formidable task, he opined that, given available resources, the appellant’s risk could eventually be controlled in the community, if subject to highly specific and intrusive conditions.

[18] In the light of this opinion, the Crown conceded during oral argument that it could not have succeeded with a dangerous offender application.

The Trial Judge’s Reasons

[19] The trial judge gave lengthy reasons for sentence in which he reviewed: the history of complaints about the appellant’s pattern of abusive behaviour towards his ex-wife and children between 1990 and 1999; the appellant’s criminal convictions between 2002 and 2007; the facts of the offences; the appellant’s background; Dr. Pallandi’s evidence; and the legal principles relevant to sentencing for these offences – including whether a life sentence is available based on dangerousness where the Crown does not bring a dangerous offender application.

[20] In his review of the law, the trial judge adverted to a number of decisions that have held that a life sentence should not be imposed on the grounds of dangerousness where the Crown has not brought a dangerous offender application. However, the trial judge highlighted the decision in R. v. Edwards (2001), 54 O.R. (3d) 737 (C.A.), which he described as holding that “a life sentence could still be imposed [even though the Crown has not brought a dangerous offender application], where it would not offend the proportionality principle and there was expert evidence that the accused would commit further serious violent offences.”

[21] The analysis section of the trial judge’s reasons consisted of five paragraphs. He summarized the history of the appellant’s convictions, the appellant’s obsession with his ex-wife, the futility of previous sentences in their efforts to control the appellant’s behaviour, and the expert evidence concerning risk.

[22] The trial judge noted that the authorities presented to him disclosed sentences of up to 12 years’ imprisonment for the offence of counselling to commit murder. However, he distinguished those authorities on their facts: some involved guilty pleas; none involved continuing risk, and none involved an attempt to hire someone to kill a spouse while in custody.

[23] After stating that the fact of the attempt to hire someone to kill a spouse while in custody was “the most frightening aspect of this case”, the trial judge found that a life sentence was proportionate to the gravity of the offences. He said:

If this is not the worst case of its kind with the worst offender it is very close to it. In all the circumstances, in my view, a life sentence is proportionate to the gravity of the offence. The sentencing principles that must have priority in this case are general and specific deterrence, denunciation and most importantly separation from society for the protection as Dr. Pallandi euphemistically expressed it in his oral evidence “the victim pool”. As Southey J. stated in Chase … “There is no more despicable act, and nothing more dangerous to the fabric of our society, than killing for hire”. [The appellant] has lost his right to live in a civilized society.

Discussion

[24] In R. v. Goyette, 2003 CarswellOnt 1824 (C.A.), this court reduced an effective sentence of 20.5 years’ imprisonment to 16 years’ imprisonment less credit for pre-sentence custody for two counts of counselling to commit murder involving circumstances markedly similar to the circumstances of this case.

[25] Although I acknowledge that no two cases are identical, in my view, Goyette demonstrates that a sentence of life imprisonment for this offender and these offences is disproportionate to the gravity of the offences and the moral culpability of the appellant and outside the range of sentences imposed on similar offenders for similar offences. In fairness to the trial judge, it does not appear that Goyette was brought to his attention.

[26] As I have said, the circumstances of the offences in Goyette are markedly similar to the circumstances of the offences in this case. While in custody for assault and uttering threats against his ex-wife, Goyette enlisted a fellow inmate to put out a contract to kill her and her boyfriend. Fortunately, the contract killer was an undercover police officer. Moreover, like the appellant, Goyette had a long history of assaults, criminal harassment and uttering threats against his ex-wife along with numerous breaches of probation and recognizance.

[27] In reducing the 20.5 year effective sentence imposed at trial, this court held that that sentence was simply outside the range:

The offences were extremely serious and given the appellant's background and history, the trial judge was on solid ground in concluding that a very substantial penitentiary sentence was called for. We are, however, of the view that the sentence imposed (effectively one of 20.5 years) was outside the range of sentences imposed for like offenders in like circumstances. In our view, the appellant deserved a sentence of 16 years imprisonment less time served (2.5 years). That, we believe, constitutes a fit and just sentence in the circumstances.

[28] Unlike the appellant, Goyette pleaded guilty. However, he did so only after the trial had begun and the victims had testified. The sentencing judge held that the guilty pleas were worthy of minimal mitigating effect in the circumstances.

[29] Importantly, also unlike the appellant, in addition to his record of offences against the intended victims, Goyette had a serious record for robberies, weapons, other assaults and offences of dishonesty. While the appellant does have three convictions for impaired driving between 1986 and 1993, his unrelated record in no way approaches Goyette’s far more serious record.

[30] I note as well, that prior to his campaign against his ex-wife and her new boyfriend, and despite his longstanding alcohol problems, the appellant in this case had a lengthy history of gainful employment.

[31] On appeal, the Crown argues that the uncontradicted evidence concerning the appellant’s future dangerousness together with Goyette’s guilty plea distinguish this case from Goyette and justify the sentence of life imprisonment.

[32] I disagree. As I have said, Goyette involved a very late guilty plea, which the trial judge held was entitled to minimal mitigating effect. Moreover, as in this case, Goyette’s past behaviour towards his wife raised the prospect of future offences.

[33] That said, I see no indication in Goyette that expert evidence regarding the accused’s future dangerousness was adduced at the sentencing hearing. In this case, the evidence of the appellant’s future dangerousness was uncontradicted. However, while that distinction may justify a long-term offender designation, in my view, it does not rise to the level of justifying a sentence of life imprisonment.

[34] The appellant argued that a long-term offender designation is not available in this case because s. 753.1(1)(b) of the Criminal Code stipulates there must be “a substantial risk that the offender will reoffend” before a long-term offender designation can be made. The appellant says the substantial risk of re-offence criterion in s. 753.1(1)(b) does not refer to just any criminal offence; rather, it must mean a serious personal injury offence. He contends that, apart from the offences that are the subject of this appeal, there is nothing on his record that qualifies as a serious personal injury offence and that the risk of him committing such an offence in the future is therefore not substantial.

[35] I would not accept this submission. Even assuming s. 753.1 requires a substantial risk that the offender will commit a serious personal injury offence, the appellant’s convictions for criminally harassing and threatening his ex-wife fall within the definition of serious personal injury offences. Her victim impact statement filed on the sentencing hearing clearly illustrates the psychological harm she has suffered because of the appellant’s criminal conduct.[^1]

[36] In my opinion, particularly when coupled with the predicate offences, the appellant’s intractable history of offences against his ex-wife, the threat assessments, and Dr. Pallandi’s evidence amply demonstrate the need for a long-term offender designation. In the event it becomes apparent that the appellant is no longer a danger to his ex-wife and any romantic partner, the appellant can apply for an order reducing the period of long-term supervision under s. 753.2(3) of the Criminal Code.

[37] I see no reason to depart from the usual practice of granting two for one credit for pre-sentence custody that was in place when the appellant was sentenced.

[38] Accordingly, I would allow the appeal and set aside the sentence of life imprisonment. In its place, I would designate the appellant a long-term offender and impose a determinate sentence of sixteen years’ imprisonment, less credit for time served of 5 years and six months, and order that the appellant be subject to long-term supervision for 10 years.

[39] The appellant asked that we vary the terms of the ancillary order made by the trial judge under s. 743.21 of the Criminal Code prohibiting him from communicating either directly or indirectly with his children. Fresh evidence materials filed by the appellant indicate that his adult daughter, C.A., has made efforts to contact her father. The appellant asks for a variation of the ancillary order so that it permits contact between him and his adult children on their filing a written but revocable consent with the appropriate authorities.

[40] Given that there is some evidence that the appellant’s daughter may wish to be in touch with her father, I would vary the ancillary order so that it prohibits the appellant from communicating with his daughter directly or indirectly subject to the following exception: in the event the appellant’s daughter files a written consent with the appropriate authorities the appellant may respond to communications initiated by his daughter so long as her consent remains in full force and effect. I would allow the appellant’s daughter to revoke her written consent in writing at any time. I would direct that all other terms of the trial judge’s order made under s. 743.21 of the Criminal Code remain in full force and effect.

Signed: “Janet Simmons J.A.”

“I agree K. Feldman J.A.”

“I agree David Watt J.A.”

RELEASED: “KF” DECEMBER 23, 2011

[^1]: “Serious personal injury offence”, as defined by s. 752 of the Criminal Code, includes “the use or attempted use of violence against another person” or “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person”, “for which the offender may be sentenced to imprisonment for ten years or more”.