Ontario Court of Justice

Date: 2021 02 10 Court File No.: Region of Niagara 998 19 S5831

Between:

HER MAJESTY THE QUEEN

— AND —

Tamara Bernard and Paulette Villamil

Before: Justice J. De Filippis

Heard on: December 14, 2020 and January 29, 2021 Reasons for Sentence released on: February 10, 2021

Counsel: Mr. Sokolski......................................................................................... counsel for the Crown Mr. Root........................................................................................... counsel for Ms. Bernard Mr. Raimondo.................................................................................. counsel for Ms. Villamil

De Filippis, J.:

The Offence

[1] The defendants pleaded guilty to the offence set out in section 182 (a) of the Criminal Code;

Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes with reference to the burial of a dead human body or human remains.

[2] The deceased is Jason Bernard. He was once married to Tamara Bernard. He later entered into a common-law relationship with Paulette Villamil. The three individuals lived together in one house in the City of Thorold. On November 24, 2019 the police conducted a wellness check at the home. They had received information that Jason Bernard had been in ill health and suffering from a heart condition.

[3] The police were met at the door by Ms. Villamil. On being advised of the reason for the police visit, the defendant told the officers that Mr. Bernard had died while sitting on the toilet in 2015. She further reported that she and Ms. Bernard were planning a resurrection ceremony the following week to bring him back to life. Ms. Villamil led the officers to the bathroom. On opening the door, they saw a lifeless body sitting on the toilet and slumped over to the left onto the bathtub. The body was covered with blankets and towels and in a state of mummification.

[4] The police found prophetic writings about resurrection in the home. The Crown cannot say how Mr. Bernard died and acknowledges there is no evidence he did so by violence. I proceed to sentencing on the basis that he died of natural causes.

[5] It was later discovered that Mr. Bernard had been in receipt of $95,000 in disability payments during the four years that he was dead. Efforts to trace this money have been unsuccessful and no charges are expected. It is agreed by the Crown and Defence that I am not entitled to conclude that the defendants took this money. As such, it does not form part of this sentence analysis.

The Offenders

[6] I have the benefit of presentence reports and victim impact statements in this matter. However, consideration of this material is complicated by the fact that some statements are in conflict. That is, some assertions made by the offenders are rejected by the victims. For example, Ms. Bernard describes herself as “caring, objective, and non-judgmental” but several victims characterize the offender as “controlling and someone who enjoyed ‘playing head games’”. Similarly, while Ms. Villamil offers explanations for her misconduct, her sister, Ms. Quesnel declares that the offender “has been a liar throughout her entire life”. I expressed my concern about these conflicting accounts with counsel. It was agreed that in the absence of an evidentiary hearing it is prudent for me to focus on the information about which there is little debate.

[7] Ms. Bernard is a 47-year-old first offender. She reports that her parents struggled with alcoholism and financial instability. She has not had contact with her parents and siblings for over 20 years. She also disclosed extensive sexual abuse during her formative years. She has not worked since a failed business ten years ago. For the past year she has been supported by social assistance.

[8] The offender met the deceased when she was 16 years old when both worked at a restaurant. They married and had a daughter, Sydney Bernard. At some point, Ms. Bernard and the deceased “stopped being intimate” and Ms. Villamil moved into the home and developed such a relationship with him.

[9] Ms. Bernard claims the deceased passed away from an aortic aneurysm while in the bathroom in 2015. She did not disclose this fact to others because she hoped for a miracle – a resurrection. She believed this because of two “enlightening experiences”. The resurrection would show that there was a “future without pain”, “something bigger that would help people live joyful lives”. Notwithstanding the passage of time, and her failure, years earlier to give birth to “five children by immaculate conception”, her faith remained strong; “the miracle would happen”.

[10] Four people lived in the household; the two offenders and the two children of Ms. Villamil. The deceased remained in the bathroom for four years. Towels were used to seal it. Since it was the only bathroom, a toilet was installed in the basement and the occupants resorted to taking “sponge baths”.

[11] Sydney Bernard had had a difficult relationship with her father and moved out at the age of 15. Unaware of his death, she attributed his absence to his abandonment of the family. Her mother said nothing to correct this impression. When other family members of the deceased inquired about him, Ms. Bernard told them he no longer resided in the household.

[12] Ms. Villamil is a 48-year-old first offender. She has five children from several partners. The offender was trained in Holistic Wellness but has a limited employment history. She currently relies on social assistance.

[13] The offender explained that the body was left in the bathroom to await the resurrection. When asked about the significant passage of time she replied, “once you’re in, you’re in it”. I interpret this statement to mean that Ms. Villamil was prepared to ‘wait it out’.

[14] Two of Ms. Villamil’s children lived with her in the home where the deceased was found. The father of one of them says that on occasions when he picked up his son at the residence he noted the “uncleanliness and foul stench” but could not identify the smell. The boy, now 11 years old, is in the custody of his father. A victim impact statement dictated by the child to his father reveals that at some point the toilet installed in the basement broke down and the occupants of the house defecated in bags and urinated in jars. It is also reported that the smell from the corpse attached itself to the boy’s clothing, with the result that he was known as “stinky” at school. School officials confirm that the boy “emotionally broke down on a couple of occasions” in class. As a result of this crime, he is anxious, grinds his teeth, bites his fingernails and suffers from “strange and scary dreams”. He is in counselling.

[15] In addition to the statement dictated by Ms. Villamil’s son to his father, I have victim impact statements from Judy and John Bernard, parents of the deceased, and Jenny-Lynn Vandermeulen, his sister. All three describe their trauma at what happened to the deceased. I need not elaborate on these painful accounts. They are part of the court record. Ms. Vandermeulen speaks for all in expressing her “immense guilt” for not trying to contact the deceased, explaining that the family had had a “falling out” with him. She added, “I will forever be tormented by the thoughts and visions of my brother in his final days and in his state after he died”.

Submissions

[16] There is no dispute among the parties about the applicable legal principles. I will discuss this below. For now, it will suffice to say that the primary sentencing consideration is denunciation and deterrence. The Crown and Defence part company as to how this purpose is to be achieved in the present circumstances. The Crown submits that jail is required; the Defence argues that such incarceration should be served in the community by means of a conditional sentence order (CSO). Both offenders have been approved for the electronic supervision program to monitor any order with respect to house arrest.

[17] The Defence position is informed by several factors; the guilty plea, lack of prior criminal record, strict bail conditions, and the impact of COVID 19. Counsel for Ms. Bernard also points to her difficult childhood. These are important, but what anchors the Defence submission is that this offence was not committed to cover up a crime and occurred because of a bizarre, but genuine, belief that the offenders could facilitate the resurrection of the deceased.

[18] The Crown advocates for a prison term of six to twelve months, to be followed by probation to address the need for counselling. Counsel acknowledges many of the mitigating factors relied upon by the Defence, but asserts that a CSO does not adequately denounce and deter or express society’s revulsion at this offence.

Principles of Sentencing

[19] The maximum penalty for this offence is five years in jail. In imposing sentence, I am guided by Part XXIII of the Criminal Code. The following provisions are particularly important:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender

[20] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a CSO: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[21] The Ontario Court of Appeal has ruled that the impact of the COVID-19 pandemic represents a collateral consequence which may be considered at sentencing, although not to the point of reducing a sentence beyond what would otherwise be fit in the circumstances: See R v Morgan, 2020 ONCA 279. Like many of my colleagues, I have taken the pandemic into account in sentencing not only to account for the offender’s increased risk of infection in jail, but because the worry inherent in this risk means the sentence is harder to endure.

Precedent

[22] In R v Valliere [2005] B.C.J. No. 185, the offender pleaded guilty to offering an indignity to a dead body. This occurred after the defendant’s girlfriend died following a confrontation between them. The defendant attempted to conceal her death in order to avoid facing a police investigation and folded her body into a backpack. He disposed of it near the Penticton Indian Reserve and it was not found for several years. It was then impossible to determine the cause of death. The defendant was 28 years old and had no prior criminal record. In imposing a sentence of 18 months’ imprisonment, the court noted that a conditional sentence would not adequately communicate society's condemnation of the crime, especially since the cause of death could no longer be determined and an extensive police search had to be conducted. The court balanced the principles of denunciation and deterrence with the defendant’s young age and the prospect of rehabilitation.

[23] R v Holly [1998] B.C.J. No. 357, the British Columbia Court of Appeal dismissed an appeal, by the offender, of an 18-month jail sentence for indecently interfering with or offering an indignity to human remains. The deceased died in a motel room from an overdose of drugs supplied by the defendant. Both parties were addicts. The offender pushed the body over an embankment. Over one year later, the offender confessed to the crime. He was 50 years old, with a long criminal record. At the time of sentencing he was serving a 30 month sentence imposed on him in 1986 for committing an indecent act. The trial judge observed that his life of intravenous drug abuse "has caught up to him" as his life expectancy was “very much reduced” because he suffered from Hepatitis B, Hepatitis C, and was HIV Positive. The Court of Appeal noted that the trial judge was correct to say that, “[t]he most aggravating factor in this matter I have already alluded to, that being that Mr. Holly did not do the right and proper thing in order to protect himself and his illicit drug business. He showed concern only for himself”.

[24] In R v Taylor [2011] B.C.J. No. 704, the defendant pleaded guilty to disposing of the dead body of her child in a dumpster, after giving birth to a full-term baby at her boyfriend's home. The defendant claimed the baby was not breathing when born. She was 22 years old and had no previous criminal record. The court imposed a 12-month conditional sentence order, to be followed by two years' probation.

[25] In R v Murray [2007] N.B.J. No. 356, the defendant was convicted of four counts of improperly or indecently offering an indignity to a human body by failing to keep the body in proper facilities, pending cremation or burial. He operated a funeral home and allowed four bodies to be treated improperly. The defendant was 65 years old, diagnosed with cancer and would have to undergo chemotherapy. He would not be in the funeral business again. The court imposed a one-year conditional sentence but added that it would not have been granted if not for the defendant’s ill health.

[26] Recently, in R v Waters [2020] O.J. No. 4575, the defendant was possession of a padlocked freezer that contained human remains. He and two others drove to a rural area and rolled the freezer over a cliff. It was found three days later by a man walking in the area. The defendant was 24 years of age and otherwise a productive member of our community. He suffers from mental health challenges that are connected to significant troubles with his father – the person currently charged with the murder of the person whose remains were in the freezer. It appears that the deceased went missing when the defendant was six years old. The court imposed a conditional sentence of two years, less one day.

Conclusion

[27] There is no dispute that in the present case, the first three conditions, with respect to a CSO, are met. The question is whether such a disposition is consistent with the principles of denunciation and deterrence. The Court of Appeal for Ontario has clarified that these objectives can be reflected through a conditional sentence, even in the most serious offences; see R. v. Kutsukake, 2006 ONCA 703, [2006] O.J. No. 3771.

[28] The precedents I have referenced above show that a CSO can appropriately denounce such misconduct in certain circumstances. However, such a result will be the exception. In my opinion, jail is not limited to those cases where this offence is committed after another crime, or to cover up that crime. I say this because of the nature of the offence generally as well as the particular circumstances of this case.

[29] The offence in question reflects a taboo that is primal and universal. It reinforces the cultural imperative to treat human remains with honour and respect. To abandon this moral and legal duty potentially interferes with the evidence gathering process and causes great suffering to the family and friends of the deceased. For these reasons, those who commit this crime should expect a jail sentence. In saying this, I appreciate that each case must be assessed on its facts.

[30] There is nothing in the particular circumstances of this matter to support a CSO. I do not ignore the mitigating factors relied upon by the Defence, including the submission that the genuine faith on the part of the offenders that they could achieve a resurrection makes this case unique. These factors might have justified a CSO if their neglect of duty had been of short duration – but, not after four years. Any doubt about this conclusion is erased by the harm caused to others as a result of this lengthy delay. The parents and sister of the deceased are haunted by the crime. His daughter was allowed to believe he had abandoned the family. Others were told the deceased had left the residence. An 11-year-old boy was made to live in a home with a corpse, was bullied at school because of the resulting odour on his clothes and is in mental anguish.

[31] The nature and circumstances of this crime are deeply troubling. The moral blameworthiness of the offenders is high. As such, the top of the range proposed by the Crown is fit and proper. It is a measured response to the offence and the offenders and, in my opinion, also accounts for the impact of COVID 19 on the ultimate disposition.

[32] The offenders will each serve a sentence of 12 months in jail.

[33] This will be followed by a three-year term of probation. They are not to contact or associate, directly or indirectly, with Judy Bernard, John Bernard or Jenny-Lynn Vandermeulen. I have not included a counselling term as I am unaware of any program that could treat a person with what the Defence fairly described as a “bizarre belief”.

[34] Each offender will pay a victim fine surcharge in the amount of $200 and are given 12 months to pay.

Released: February 10, 2021 Signed: Justice J. De Filippis