Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 02 24 COURT FILE No.: Chatham 18-294

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Kourtny Lynn Audette

Before: Justice Paul J.S. Kowalyshyn

Heard on: August 6, November 5 and 19, 2021 Reasons for Sentence released on: February 24, 2022

Counsel: Robert H. MacDonald, counsel for the Crown Laura L. Joy, counsel for the accused Kourtny Lynn Audette

Kowalyshyn J.:

The Offence

[1] On April 18, 2018, at approximately 5:29 pm, Nicholas Laprise attended the residence of Kourtny Audette on Book Street in Wallaceburg for what can best be described as a pre-arranged “sex-for-hire” get-together. Ms. Audette was providing sexual services as an escort at the time in addition to her other sources of income. Mr. Laprise had been a prior client of hers.

[2] Approximately one hour later at 6:30 pm, officers of the CKPS were dispatched to that address in response to a 911 call reporting a stabbing. A male victim (Mr. Laprise) was believed to be deceased. The call came from Ms. Audette’s father. He and his wife had been called to that address by Ms. Audette and were both present when the police arrived.

[3] Officers arrived at the residence and found Mr. Laprise lying naked on the bedroom floor, partially covered in blood. He was surrounded by blood. He had a single stab wound to his upper chest. What appeared to be blood stains were all over the bedsheets.

[4] Ms. Audette was found unclothed, bloodied and sitting on the floor of a room directly off the kitchen. She was extremely upset and was crying hysterically. Her speech was bordering on coherent.

[5] Ms. Audette’s stepmother informed the police that Ms. Audette repeatedly told her that Mr. Laprise wouldn’t stop, that she didn’t want to do it and that she hurt him. Ms. Audette confirmed to her that she and Mr. Laprise had not had sex and that she had not been raped.

[6] Ms. Audette told the police that she thought Mr. Laprise was dead. She admitted to stabbing him. She said that Mr. Laprise made her do it.

[7] EMS soon arrived at the residence. Resuscitative efforts were not successful. Mr. Laprise was pronounced dead at the scene.

[8] The post-mortem confirmed that Mr. Laprise was killed by a single stab wound to his chest. The knife penetrated his lung, cut through a pulmonary artery and resulted in death by blood loss. EMS could not have prevented his death.

[9] There were no signs of any defensive wounds found on Mr. Laprise.

[10] Ms. Audette had stabbed Mr. Laprise with a large hunting-style knife which appeared to be affixed to a set of brass knuckles which formed the handle of the knife. The blade was approximately 5-6 inches in length.

[11] The knife had previously been given to Ms. Audette by her father for protection given that she was engaged in providing escort services.

[12] Ms. Audette had consumed a large quantity of alcohol prior to meeting with Mr. Laprise that day.

[13] A toxicology report indicated there was no evidence of alcohol, drugs or other intoxicants in Mr. Laprise.

[14] Ms. Audette was charged with first degree murder. With the consent of the crown she entered a plea to the offence of manslaughter on August 6, 2021.

[15] Ms. Audette has been in custody at the South West Detention Center since the time of her arrest on April 18, 2018.

The Offender

[16] Ms. Audette is 29 years of age.

[17] She has no prior adult criminal record.

[18] The following information was gleaned from her pre-sentence report.

[19] Ms. Audette comes from a broken family.

[20] Her parents were divorced when she was three. She experienced a dysfunctional childhood. She was resistant to authority and had a strained relationship with her parents.

[21] She has struggled with anger management. She engaged in her first fist fight with her mother at age 14.

[22] She became involved with Children’s Services as a young person when she arrived at school with bruises.

[23] She spent a brief period of time in a group home at age 14.

[24] She was exposed to sexuality at an early age and experienced a number of toxic romantic relationships where she was reportedly abused both physically and sexually.

[25] Ms. Audette began a pattern of excessive drug and alcohol use when she was 15.

[26] The author of the pre-sentence report offered that the offence appeared to be “an impulsive act triggered by her intoxication, her history of past victimization, her fear for her safety and her lack of anger control.”

[27] While in custody Ms. Audette was examined by Dr. Komer, psychiatrist and by Dr. Ross, a psychologist. Their reports were filed as exhibits at the time the plea was entered.

[28] Dr. Komer met with Ms. Audette several times. In his report dated September 3, 2019, he summarized his findings in this way:

[29] Dr. Komer had noted that the Release from Custody worker of the CMHA in Chatham had met with Ms. Audette on October 1, 2018. The referral note stated that she suffered from PTSD and depression.

[30] Dr. Ross completed a psychological assessment of Ms. Audette. He found that Ms. Audette had been exposed to verbal, emotional, physical, and sexual abuse.

[31] She had a lengthy history of substance abuse.

[32] She was raised in a home environment where there did not appear to be positive role models.

[33] She has a history of suicidal ideation and intent predating this incident.

[34] Dr. Ross offered the following diagnoses, all of which pre-dated the incident involving Mr. Laprise: substance abuse disorder, persistent depressive disorder, social anxiety disorder, post-traumatic stress disorder, a parent-child relationship problem and sexual abuse of childhood.

[35] He concluded unequivocally that Ms. Audette suffered from a mental disorder that was a contributing factor in her commission of the offence.

[36] Notwithstanding the foregoing, Dr. Ross noted that Ms. Audette informed him that when she decided that she didn’t want to follow through with a sexual act with Mr. Laprise and asked that he leave her home, that Mr. Laprise continued to touch her in a sexual way. When he continued to refuse to leave, she grabbed the knife hidden behind the curtains beside her bed, straddled him and stabbed him in the shoulder in an attempt to “scare him off.”

[37] She went on to say that he would not leave, was supposed to leave and that she worried that if he did not leave it could have led to rape. She said he was not supposed to die.

Victim Impact

[38] A Victim impact statement was submitted by Nathalie Laprise, the mother of Nicholas Laprise.

[39] To say that her life has been shattered, that her world has been turned upside down by the death of her son would be an incredible understatement. The pain she has suffered and will continue to suffer is immense.

[40] Mrs. Laprise described her son as kind, gentle and loving. He loved making people laugh and was always helpful and willing to help anyone in any way. He was a brother, nephew, grandfather and friend to many others. He loved all animals and many sports. He had a passion for puzzles and Legos and was an ardent collector of shot glasses.

[41] In short, she said that her son was her “everything.”

[42] Mr. Laprise is clearly missed by many family members and friends. The loss is immeasurable.

Sentencing Principles

[43] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." (See s. 718)

[44] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (See s. 718(a) – (f))

[45] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (See s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to Ms. Audette’s circumstances, and the circumstances of the offence she committed.

[46] The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089).

[47] In determining an appropriate sentence, s. 718(2)(a) directs the court to consider any relevant aggravating or mitigating circumstances that are present. I will now address those.

Mitigating circumstances/factors

[48] As previously noted, Ms. Audette has no prior adult criminal record.

[49] She is a 29 year-old single mother.

[50] She suffers from a mental disorder which according to Dr. Ross was a contributing factor at the time of the commission of the offence.

[51] She was under the influence of alcohol at the time.

[52] Ms. Audette has the support of her parents and many others who know her.

[53] Ms. Audette has participated in many, many programs while incarcerated. These will serve to assist her in her ultimate rehabilitation.

[54] Ms. Audette entered a plea of guilty. This saved considerable court time, a commodity which is much more valued during the current pandemic.

[55] More importantly, the family has been spared the grief which would naturally accompany a lengthy trial.

[56] Ms. Audette has demonstrated some remorse by entering her guilty plea.

Aggravating circumstances/factors

[57] The crime itself is aggravating. Ms. Audette inflicted a single stab wound to the chest of Mr. Laprise which penetrated his lung and cut through a pulmonary artery. It resulted in his immediate death.

[58] Ms. Audette did not offer assistance to Mr. Laprise after she stabbed him or even call for assistance for him. Rather, she phoned for her father. He is the one who dialled 911.

[59] Mr. Laprise had no opportunity to defend himself. He was not being physically aggressive according to Ms. Audette’s statement to Dr. Ross.

[60] Mr. Laprise was naked, possessed no weapon and therefore was in a vulnerable position relative to Ms. Audette.

[61] Ms. Audette effectively set the stage for what unfortunately happened to Mr. Laprise. She kept a dangerous weapon (the knife) hidden from view and readily available for her use and at her sole discretion. She then used the knife in the most extreme way possible. This was therefore an incident, a tragedy, waiting to happen.

[62] In making the findings that I do I have not lost site of the fact that sex-trade workers are in an extremely vulnerable position. See: R. v. Barton [2019] SCC 33. Often, they are abused by clients and pimps and are from time to time forced to defend themselves. However, on the facts before me this is not such a case.

[63] I am mindful that this decision was made for the purpose of “protection.” There is a considerable difference in having a weapon available as protection and a weapon being used in the manner which it was by Ms. Audette.

[64] Lastly, the court cannot ignore the effect that this crime has had on the family of Mr. Laprise.

Provocation/defence of self

[65] Defence counsel has raised the issue of provocation as a mitigating factor and suggests that this was “conceded” by the crown.

[66] I have been asked to consider that provocation exists in that Ms. Audette was in some way acting in defence of herself or her residence, or because of what she feared might happen.

[67] The crown disagrees that provocation was conceded beyond justifying the plea to manslaughter. It submits that beyond the facts disclosed and admitted to when the plea was entered, there was no additional evidence of provocation, self-defence or extenuating circumstances that would serve to further justify or mitigate the unlawful act.

[68] I have carefully considered the submissions and have reviewed the transcript from the date the plea was entered.

[69] The facts read in and accepted by the defence supported a finding of guilt for the offence of unlawful act manslaughter.

[70] Upon concluding the reading in of the facts, the crown stated that the legal analysis suggested by both counsel was that the stabbing was an unlawful act which caused the death of Mr. Laprise and was therefore culpable.

[71] The facts along with the reports, diagnoses and additional information disclosed by Dr. Komer and Dr. Ross negated the specific intent required to found a conviction of murder, but disclosed sufficient evidence to conclude the general intent required to support a conviction of unlawful act manslaughter pursuant to s. 222(5)(a) and s. 236 of the Criminal Code.

[72] It was on this basis the plea was entered. Defence agreed with the facts and the aforenoted submissions by the crown.

[73] As with any guilty plea, particularly one regarding a serious offence, crown and defence come together to provide the court with a body of evidence to support the plea. That evidence is what the court accepts to define the conviction. That is all. That is what I have here.

[74] Obviously, the facts and submissions do not amount to a case of self-defence of person or property as defined by the Criminal Code. Indeed, if self-defence had been made out then the act done would not be unlawful, the homicide would not be culpable, and Ms. Audette would be acquitted. See: R. v. Baker (1988), 45 C.C.C. (3d) 368 (B.C.C.A.).

[75] With respect to provocation, the facts and submissions do not support the finding of any additional provocation beyond that of reducing the initial charge of murder to one of manslaughter.

Position of the Crown

[76] The crown seeks a sentence of 10 years.

[77] It relies upon a number of cases both in relation to the range of sentences imposed and the sentencing principles enunciated therein. They are: R. v. Gordon, 2020 ONSC 7395, R. v. Brinton, 2014 ONSC 5970, R. v. Cesar, 2013 ONSC 4190, R. v. Sinclair, 2011 ABQB 653, R. v. Norman, [2005] O.J. No. 1073 (Ont. Sup. Ct.), and R. v. Kokopenace, [2008] O.J. No. 4582 (Ont. Sup. Ct.).

Position of the Defence

[78] The defence suggests that this case at most falls within the “mid-level” 5 to 7-year range prior to any consideration being given for pre-sentence custody. The defence suggests that a lower sentence is appropriate.

[79] The defence has submitted the following cases for the court’s consideration: R. v. Simcoe, [2002] O.J. No. 884 (C.A.), R. v. Hayhoe [2020] O.J. No. 5967 (SCJ), R. v. Sharma, 2020 ONCA 478, R. v. Craig 2011 ONCA 142, [2011] O.J. No. 893 (Ont. C.A.), R. v. Golar [2018] B.C.J. No. 7011 (BCSC), R. v. Steckley 2020 ONSC 3410, [2020] O.J. No.2992 (SCJ), and R. v. Abdella [2020] O.J. No. 2174 (OCJ).

[80] The defence is not seeking any enhanced credit for COVID or any lockdown periods.

Determining the Appropriate Sentence

[81] There is no minimum sentence for the offence of manslaughter. The maximum sentence is life in prison. As previously stated, central to determining a fit sentence for manslaughter is a determination of the level of moral culpability of the offender: see R. v. Stone, [1999] 2 S.C.R. 290, at para. 233.

[82] The offence captures a "well-established spectrum of culpability ranging from near accident to near murder" (R. v. E.H., 2005 BCCA 3, [2005] B.C.J. No. 4 (C.A.)). 37

[83] In an ideal situation, the court would compare sentences imposed in similar cases. The facts of this case however are unique. Accordingly, although I have reviewed the cases submitted it is not necessary to refer to them as there is no similar case on point.

[84] There are different degrees of moral culpability even for impulsive killings: those which are likely to put the victim at risk of, or cause, bodily injury and those which are likely to put the victim at risk of, or cause, life-threatening injuries. See R. v. Roberts-Stevens, [2019] O.J. No. 103 (S.C.J.), 2019 ONSC 257 at para. 110, citing R. v. Bidesi, 2017 BCSC 198, at paras. 41 and 43, which in turn cites R. v. Laberge (1995), 1995 ABCA 196, 165 A.R. 375 (Alta. C.A.). See: R. v. Kwandibens [2021] O.J. No. 6166 (SCJ) at para. 48.

[85] This case is obviously an example of the latter.

[86] Justice Quigley, in R. v. Robert-Stevens, supra, at para. 111 offered this suggestion as an appropriate range of sentence for the manslaughter case before him. I am mindful that his case involved a shooting in a residential area of Toronto:

“...sentencing in manslaughter cases is quintessentially case-specific. However, the Court of Appeal of this Province has held that in cases where the conduct of the offender was accompanied by aggravating features, the appropriate sentence will usually fall within the range of 8 to 12 years.” See R. v. Al-Rubayi [2020] O.J. No. 5960 (SCJ).

[87] I recognize and accept that Ms. Audette has no criminal record and that she has underlying mental health considerations which according to one Dr., factored into the commission of the offence.

[88] But this was a violent offence.

[89] Although a gun was not used, Ms. Audette used a large hunting style knife to inflict the fatal wound.

[90] The stabbing was carried out on a defenseless and extremely vulnerable individual and without any warning. This offence at its core was a business transaction entered into by two consenting adults for sex for hire, that one party decided they did not want to proceed with.

[91] That decision did not warrant the taking of a life.

[92] The offence therefore falls outside of the range suggested by defence counsel.

[93] It is important that a message be sent to those who choose to arm themselves with a dangerous weapon (whether intended for protection or otherwise) and then proceed to use that weapon in a manner that results in the loss of life of another.

[94] In my view aggravating factors are present to bring this offence into the 8 to 12-year level but toward the lower end having regard to Ms. Audette’s underlying mental health related issues.

[95] I conclude that the appropriate sentence is one of eight and one-half years or 3102 days.

Pre-sentence custody

[96] Ms. Audette has been in custody since the date of the offence. Not including today that is a period of 3 years, 10 months and 6 days or 1408 days. Given credit at the rate of 1.5 to 1 as per the SCC in R. v. Summers 2014 SCC 26, [2014] 1 S.C.R. 575, and s. 719(3.1) of the Code, she will be given credit for an additional 704 days for a total of 2112 days. This leaves 990 further days to serve or a little over 2 years and eight months.

[97] There will be an order that Ms. Audette provide a sample of her DNA as this is a primary offence within the meaning of the legislation.

[98] There will be a s.109 order prohibiting possession of weapons for life.

Released: February 24, 2022 Signed: Justice Paul J.S. Kowalyshyn