ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-0646
DATE: 20120221

B E T W E E N:

HER MAJESTY THE QUEEN

Peter Hageraats, for the Crown

• and -

DUGALD BARR JAMIESON

Richard Morris, for the Defendant

Defendant

HEARD: February 13, 14, and 21, 2012 at Pembroke.

REASONS FOR SENTENCE

T.D. RAY J.

1. Overview :

[ 1 ] Mr. Jamieson pleaded guilty January 9, 2012 to the included offence of manslaughter, after being charged with second degree murder following the killing of his long time companion, Carol-Ann Brunet at her home in Renfrew. She died May 31, 2010 as a result of a knife wound caused by Mr. Jamieson on May 29, 2010 during an argument and altercation. Mr. Jamieson took no steps to seek medical attention. The Crown seeks the imposition of a penitentiary term of 12 to 15 years. The defence position is that a term of 7 years is the appropriate sentence. Mr. Jamieson also pleaded guilty to one count of breach of probation – breach of the term that he not associate with Ms. Brunet. The Crown seeks a consecutive sentence of two years while the defence says that 6 months to a year, concurrent, is the appropriate penalty.

2. The Facts:

(a) Circumstances of the offence

[ 2 ] While drinking alcohol contrary to the terms of a probation order, and while living with Ms. Brunet, contrary to the term of his probation order, Mr. Jamieson stabbed Ms. Brunet with a kitchen knife, told her to clean up the blood, and over the next twenty-four hours failed to call an ambulance or seek medical help for Ms. Brunet while her condition deteriorated. She finally succumbed to the injury and died. The evidence shows that Mr. Jamieson was motivated more by concern with the consequences of being found in breach of his probation orders than he was in getting medical help for Ms. Brunet.

[ 3 ] The facts are as contained in an Agreed Statement that was filed as an exhibit. In addition, Dr. Milroy, the pathologist gave evidence as to the cause of death, the likely symptoms exhibited by the victim between the stabbing and the time of her death. Various photographs were filed. They included post mortem photos as well as photos of the crime scene. A transcript of the evidence of Mr. Howard, a friend of Mr. Jamieson, at the preliminary hearing was also filed, as was a police video statement given by Mr. Jamieson after his arrest.

[ 4 ] Mr. Jamieson’s explanation was that shortly after 10 pm on Saturday, May 29, 2010, he and Ms. Brunet were in the kitchen engaged in an argument. He claimed that she was holding a kitchen knife, and during the course of the argument, she threatened to take the knife to his pregnant daughter. The daughter did not live with them and was not present. He said he became enraged and tried to grab her. She turned away. He then overpowered Ms. Brunet from behind, taking control of her hands and the knife. The knife blade was towards Ms. Brunet. By force it entered into her left abdominal area. She cried “OW” and the knife fell to the floor. Mr. Jamieson then released Ms. Brunet, and told her to “clean this fucking mess up” as there was blood on the floor. Following this, Mr. Jamieson and Ms. Brunet had sexual intercourse in bed, while Ms. Brunet lay on her left side (injured side) and Mr. Jamieson was behind her in the usual position. Slightly different versions of the stabbing and its immediate aftermath were given by Mr. Jamieson during police questioning. A slightly different version was related by a friend who spoke to Ms. Brunet after the stabbing. She told him that Mr. Jamieson had threatened to kill her so she handed him a kitchen knife and said ‘go ahead then’ – or words to that effect.

[ 5 ] The following morning (Sunday, May 30), the bed was stained with blood and bile. Mr. Jamieson told her to change the bed so her daughter would not see it. He then went out to visit friends, leaving her there alone. Mr. Jamieson told a friend that he ‘thought’ he had stabbed Ms. Brunet, and they went to a drugstore to purchase some Elastoplast butterfly bandages. They returned to the apartment and the friend saw Ms. Brunet wrapped in a blanket lying on the couch. She showed the friend her wound and said –“look what he did to me”. The friend described the wound as like “a knife had missed her side”. The friend saw blood on her shirt. Mr. Jamieson said “I don’t want to get into any more shit than I am in right now”. The friend described Ms. Brunet as moving slowly as if she were under the influence of sleeping pills. He asked her if she wanted to go to the hospital and she said no she was fine.

[ 6 ] The friend returned to the apartment later that day at around 4.30 pm and saw Ms. Brunet again looking very tired and sounding very sleepy. Meanwhile, Mr. Jameson had left the apartment at about noon by taxi for a friend’s apartment with two six packs of beer. Then about an hour later he went to another friend’s house where he drank beer and watched car racing on TV with several friends. Mr. Jamieson mentioned to one of the friends that he had had a fight with Ms. Brunet, and to another friend “I fucked up real bad, it’s done, I can’t change that” – he made no reference to Ms. Brunet. Later in the afternoon, Mr. Jameson made several phone calls to his daughter to get a ride to pick up a cheque for work that he had done- which he did- and then was dropped off and returned to the apartment between 8 pm and 9 pm.

[ 7 ] According to Mr. Jamieson, at about 11.30 pm, Ms. Brunet was sitting on the couch. “Her voice changed. She became very cold and incoherent”. Mr. Jameson called another friend who walked the fifteen minutes from his house to the apartment. The friend said “Carol-Anne wasn’t in good shape... she was sitting up”. It looked like she was asleep... I lifted her shirt and I seen the wound (at) the side of her stomach... it seemed to be a 2 or 3 inch gash... it looked like there was some kind of liquid type coming out of the hole where the wound was .... a clear liquid and very much of an odour I told him I was going to have to call 911, cause she looked injured... he mentioned he was on probation, he wasn’t supposed to be there, “well I don’t need this kinda stuff I gotta get the fuck outta here..so I said, I would do it, and I’ll take care of it and Dugald thought it would be better if he left.” Then “I told him to hurry, if you’re going to go, go. I have to call 911 and I picked up the phone and he took off.”

[ 8 ] The Emergency Services arrived at 00:48 Monday May 31, 2010 and noted vital signs absent. They identified a slash penetrating wound on her abdomen about 2 inches long with fatty tissue exposed, and clear brownish fluid oozing out.

[ 9 ] The pathologist, Dr. Milroy, who conducted the autopsy, is highly qualified as a pathologist. He gave advice to the Goudge Inquiry. I am confident that he is well aware of the permissible limits on opinion evidence. He said that he found the knife wound in Ms. Brunet’s left lower quadrant. The width of the incision was 4 cm- roughly the width of the kitchen knives that were found. The depth of the wound was 15 cm or 6 in. His evidence was that the knife penetrated the skin, soft tissue, muscle, right through the bowel, through the abdominal cavity at the back and up to but not through her skin at the back. It missed her aorta and spine. Dr. Milroy said moderate to moderate-severe force (on a scale of mild-moderate-severe) would have been required for the knife to penetrate as he described. He said that she died from peritonitis following the incision of her bowel and the consequent flooding of her abdomen with the bowel contents. His opinion was that death would be expected within 24 to 48 hours after such an injury. Ms. Brunet’s death after 24 hours was in his opinion consistent. He said that she would have been expected to have become lethargic and protective of her abdomen as the infection took hold. He described the staining evident on the bedding, living room couch, towelling, her T-shirt and pajama bottoms as a combination of bodily fluids, including bowel contents, and blood. However because the aorta was not injured, there was not the bleeding that he would have expected from an abdominal stab wound. Dr. Milroy agreed that the autopsy photo of the wound showed an oval wound with what looked like lips and that it did not in and of itself portray a serious injury. He further agreed that often people are seriously injured but are unaware of their injury until pointed out to them. Finally, Dr. Milroy gave the opinion that if medical attention had been obtained shortly after the stabbing that Ms. Brunet’s life might have been saved.

[ 10 ] Dr. Milroy gave the opinion that a responsible adult would know there was a wound, would have seen the bleeding, and would have known that she required medical attention. It was further Dr. Milroy’s opinion that a responsible adult would have seen the victim becoming ill over a number of hours, would have seen fluid leaking (from her bowel and bodily fluids) from the wound, and would have known that medical attention was necessary. No objection was made to Dr. Milroy’s qualifications to give that opinion but I have some concerns about the foundation that was laid to enable him to give an opinion about what a “responsible adult might be expected to know”. While I accept his opinion I do so with care.

[ 11 ] Mr. Jamieson and Ms. Brunet had been in a common law relationship for the previous four years, during which the police had intervened on at least six occasions between May of 2006 and December 2008. Two of these interventions saw criminal court convictions registered against Mr. Jamieson with sentences of jail and probation ordered. At the time of Ms. Brunet’s death, Mr. Jamieson was bound by his latest Probation Order of April 6. 2009 “Not to associate, communicate or have any contact directly or indirectly with her.” No exception was permitted. The terms of the probation order included provisions that he not have weapons, and further that he abstain from alcohol. He was in breach of these terms as well since he had used the knife to stab Ms. Brunet, and had been drinking over the weekend.

(b) Circumstances of the offender

[ 12 ] A conviction was entered January 9, 2012 following Mr. Jamieson’s guilty plea to manslaughter.

[ 13 ] He is 49 years of age, and has been employed from time to time as a painter. He has struggled with alcohol issues for many years although there is no evidence that he was intoxicated at the time of the offence. He had been sober for some 18 months prior to May 29, 2010 but had been drinking beer over the weekend and up to the time of Ms. Brunet’s death. A letter from Ms. McLeod of the Renfrew County Alcohol Drug and Gambling Assessment Service confirmed that as required by a term of his probation he attended for assessment and treatment which he completed by April 13, 2010. However he elected to continue and attended his first group support session Friday, May 28, 2010 – the day before he stabbed Ms. Brunet after drinking and partying.

[ 14 ] Mr. Jamieson has a lengthy record which includes a previous conviction for assaulting Ms. Brunet, and a previous conviction for assaulting a former domestic partner with a weapon. He was sentenced to jail for 142 days including 112 days pre-sentence custody on the conviction for assaulting a previous partner, and 92 days including 62 days pre-sentence custody plus 18 months probation for assaulting Ms. Brunet. The assault on Ms. Brunet consisted of a punch to her mouth causing bleeding. The assault on the previous partner included threatening to kill her, pointing a shotgun, and threatening her with a knife. His record begins in 1982 with a five year gap after 1982, a five year gap after 1994, and a six year gap after 2000. It includes 23 convictions for driving over .08, mischief, theft, break and enter, trafficking, assault with a weapon, uttering threats, and four breaches of probation, recognizance, and failure to appear.

[ 15 ] Mr. Jamieson was invited to address the court and said to the family that he was very sorry. He said he wished he could do something to bring her back.

(c) Impact on the Victim and/or Community

[ 16 ] Victim impact statements of Stephanie Brunet (Ms. Brunet’s sister), Tyler Brunet (Ms. Brunet’s son), and Debbie Davidson (Ms. Brunet’s daughter) were filed, and were read into the record. Ms. Brunet is described as a loving and caring person. She was clearly loved by her family. They were important to her. It is also noted that as a result of her association with Mr. Jamieson, that the relationship with Ms. Brunet was strained. I give no weight to their uncomplimentary remarks concerning Mr. Jamieson. Those remarks are beyond the scope of victim impact statements.

3. Legal Parameters:

[ 17 ] The penalty for manslaughter is prescribed by s. 236 (b) CCC as life imprisonment. The authorities establish a wide range of sentences that may be imposed depending upon the circumstances of the offence and the circumstances of the offender.

4. Positions of Crown and Defence :

[ 18 ] It is the Crown’s position that a custodial sentence of 12 to 15 years is the appropriate range based on Mr. Jamieson’s extensive record including a previous conviction for assaulting a previous partner, a previous conviction for assaulting Ms. Brunet, his callous behaviour in not arranging medical attention after he stabbed her, his breach of court orders including the probation he was governed by at the time of the stabbing, and the aggravated nature of the manslaughter. The Crown also seeks two years consecutive for the breach charge.

[ 19 ] The defence position is that the stabbing has the hallmarks of an accident, and that combined with Ms. Brunet’s professed refusal of medical attention, the offence is below the lower end of the range of 8 to 12 years for manslaughter. He contends that while it was apparent to Mr. Jamieson that he had stabbed her with the knife, he was not aware of the seriousness of the injury and her need for medical attention. The defence position is that 6 months concurrent on the breach charge is the appropriate penalty.

5. Case Law :

[ 20 ] The Crown reviewed a number of authorities with me, some of which I reference below, and others which were not helpful because of the differing circumstances.

[ 21 ] The defence also submitted a number of authorities for consideration. I reviewed them all. Many were not helpful because of the unique circumstances they addressed other than to illustrate that different circumstances require different sentences.

6. Mitigating and Aggravating Factors :

[ 22 ] A sentence should be increased or reduced to account for any relevant aggravating and/or mitigating circumstances relating to the offence and to the offender. Mitigating factors are to be considered after a finding on a balance of probabilities whilst aggravating factors are to be considered after a finding beyond a reasonable doubt.

[ 23 ] It is an aggravating factor that this offence arose out of spousal violence. (s. 718.2(a)(ii) CCC.) Perpetrators of spousal violence are consistently condemned by the courts for having violated one of the core principles of our society. ( R v Kimpe , [2010] O.J. No. 5119 , 2010 ONCA 812 @ para 19, (ONCA), R v Jeffries , 2010 CarswellOnt 10656 @ paras 15 & 17(Ont. S.CJ.)). Denunciation and deterrence remain at the heart of sentencing for cases of domestic violence.

[ 24 ] The use of a weapon is an aggravating circumstance. While the evidence shows that Mr. Jamieson was not carrying the kitchen knife around with him, it was his use of the knife that killed Ms. Brunet when he “overpowered Ms. Brunet from behind, taking control of her hands and the knife”.

[ 25 ] Commission of this most serious offence while being in breach of a probation order which required that he not associate with Ms. Brunet, not consume alcohol, and not be in possession of a weapon is an aggravating circumstance.

[ 26 ] It is a mitigating factor that Mr. Jamieson pleaded guilty and thereby brought closure for the family at an earlier stage and avoided putting the family through the pain and anguish of a trial.

7. Principles of Sentencing :

[ 27 ] The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender.

[ 28 ] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender.

[ 29 ] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances.

[ 30 ] The process of analysis requires that the offence(s) first be placed in a category. Secondly, a range of sentences is identified for that category through reference to texts and decisions. Lastly, the sentence is placed at the appropriate point having regard to all of the circumstances.

[ 31 ] Consecutive sentences should not be ordered unless there is a clear distinction between the circumstances of the offences in question.

8. Reasons :

[ 32 ] This is a difficult case because of the implications of the evidence, and the competing inferences that may be drawn. While there is no doubt that the offence occurred within a spousal relationship, either it was an accidental “cut” caused by Mr. Jamieson and made worse by Ms. Brunet’s disinclination to seek medical assistance; or it was a brutal stabbing followed by a callous refusal to get medical attention for Ms. Brunet – which would likely have saved her life.

[ 33 ] In assessing the evidence of Mr. Jamieson in the context of the credibility to be attributed to his statements and evidence, even though the defence called no evidence, I am required to apply the principles in R v W(D). ( R v Sutherland , [2005] M.J. No. 35 , 2005 MBQB 29 , @para13 for a review of the authorities). I do not agree with the defence submission that in assessing the different versions of Mr. Jamieson’s evidence that I am required to adopt the version most favourable to him. It is for the sentencing judge to make his or her own determination of the facts where the evidence is unclear, and no such rule requires that I adopt the most favourable version. ( R v Roncaioli, [2011] O.J. No. 2167 , 2011 ONCA 378 @ para 59.). In applying R v W(D) I am not required to consider Mr. Jamieson’s evidence in isolation or to consider it without regard to all of the evidence. It means that I must not treat the process as a contest between Mr. Jamieson’s evidence and other conflicting evidence as to the most likely. That would ignore the reasonable doubt test to which Mr. Jamieson is entitled. In assessing the credibility of Mr. Jamieson’s evidence – one version being that he cut her- I cannot pretend that the knife wound was not 15 cm deep. I cannot pretend that there is no evidence that the knife blade was not at least 15 cm long. I cannot ignore the obvious inference that while he was holding her from behind when the knife blade entered her body that the handle of the knife which he held was 15 cm away from her abdomen, 30 cm away from her back – and if he was against her back then 30 cm away from the front of his abdomen. After the knife blade had fully penetrated her body Mr. Jamieson’s hand on the knife would have been 15 cm away from his front (the back of her abdomen). Similarly I cannot ignore Dr. Milroy’s evidence that the knife thrust would have required moderate or moderate-severe force. On the other hand if the issue to be resolved requires determination on a balance of probabilities, then R v W(D) has no application. The analysis of how Mr. Jamieson stabbed Ms. Brunet requires a finding beyond a reasonable doubt.

[ 34 ] Three possibilities emerge from the various versions of the stabbing. All versions begin with Mr. Jamieson being enraged or very angry, that he reached to grab Ms. Brunet while she was holding a kitchen knife, then she turned away from him and he grabbed her and the knife from behind. Then either he pushed her against the wall causing the knife penetration, or he pulled the knife towards himself to cause the knife penetration. She didn’t stab herself, and there is no suggestion that she fell on the knife. I do not accept the versions that it was an accident or that Mr. Jamieson was only trying to get the knife out of her hand. The depth of the wound – the full length of the knife – is inconsistent with an accident. After considering the evidence of all the different versions, I am satisfied beyond a reasonable doubt that Mr. Jamieson was in a rage and that he used moderate or moderate-severe force by pushing her against the wall and pulling the knife from behind and into her abdomen so that the knife passed virtually right through her.

[ 35 ] The only report we have as to Ms. Brunet’s response – that she said “OW” and the knife dropped to the floor - is from Mr. Jamieson. It is reasonable, as noted by Dr. Milroy during his cross-examination, that while Ms. Brunet would have been aware she had been stabbed, she might have been unaware of the seriousness of the injury. One of the friends, Mr. Howard, said as much in cross-examination at the preliminary hearing. He agreed with a defence suggestion that Ms. Brunet had told him she wasn’t aware of the stabbing until she saw blood on her shirt. The bleeding was not profuse. She would have known that if she called for medical help, it would inevitably implicate Mr. Jamieson. She knew he was living with her in contravention of the court order, and she would have known he had been drinking in contravention of the court order. It is not unreasonable under these circumstances that she declined medical help when asked. Two of his friends in passing through the apartment said that she needed medical attention – the last one called 911. The fact the two friends believed she needed medical attention supports Dr. Milroy’s opinion as to what he would have expected a “competent adult” to do in the circumstances. The two friends only saw the wound. They did not know the depth of the wound. Only Mr. Jamieson must be taken to have known that the knife blade passed almost right through her body. I find beyond a reasonable doubt that he knew she needed medical attention. I find beyond a reasonable doubt that Mr. Jamieson knew the seriousness of the stab wound and chose not to get medical attention.

[ 36 ] What is clear is that Mr. Jamieson’s main preoccupation after he stabbed her – quite aside from visiting friends- was that he didn’t want to get into trouble. His action in getting bandages for her wound was nothing more than a gesture. He minimized the stab wound to the friend that accompanied him to the drugstore by saying that he “thought” he had stabbed Ms. Brunet. When they returned to the apartment with the bandages, and the friend saw the blood on Ms. Brunet’s shirt, Mr. Jamieson’s response was “I don’t want to get into any more shit than I’m in right now”. Later while out partying he said “I fucked up real bad, it’s done, I can’t change that” – with no reference to Ms. Brunet. Finally when another friend came over late Sunday evening and insisted Ms. Brunet needed medical attention, Mr. Jamieson’s response was “well I don’t need this kinda stuff. I gotta get the fuck outta here”—and he left. The evidence makes it clear that Mr. Jamieson was motivated more by concern with the consequences of being found in breach of his probation orders than he was in getting medical help.

[ 37 ] For the purpose of determining the context of this offence, the defence contends that I should consider that Mr. Jamieson was not on the lease and that they had separate bank accounts as important indicators. The question of who was on the lease is irrelevant. As for the separate bank accounts, the argument that triggered the altercation and the stabbing was precipitated by Mr. Jamieson taking money from his own bank account and giving it to his daughter. They clearly considered that they had something to say about each other’s finances. The fact they had separate bank accounts is irrelevant. I accept that Ms. Brunet and Mr. Jamieson were in a common law relationship, and that it had been a relationship of long standing.

[ 38 ] Domestic violence will not be tolerated by our society. The courts are expected to deal severely with offenders who repeatedly breach court orders, and those who persist in perpetrating domestic violence. Mr. Jamieson falls squarely into both categories. The unlawful taking of another life, as Mr. Jamieson did, is the most serious of crimes. Spousal and family relationships are intended to be a safe place because implicit in the spousal relationship is an obligation for each to protect the other from harm. That is why spousal violence is so abhorrent. Violence is the antithesis of the duty of the parties to each other. It represents a breach of this most sacred trust. That is why the courts treat spousal violence differently. Additionally, there is an implicit duty on each party that in the event either one suffers harm, there is a duty to protect the other against further harm, and an affirmative duty to ameliorate whatever harm has been caused. Those are the characteristics of a family which we as a society hold dear and why the courts treat violence in a family so seriously.

[ 39 ] The range of sentences for aggravated manslaughter is in the 8 to 12 year range ( R v. Clarke , 2003 ONCA 28199 , [2003] O.J. No. 1966 (C.A.) ). In domestic cases, the range is generally higher in the 9 to 15 year range. (See for example R. v.Bridle, [2007] BCSC 1302. R v Warwick , [2006] ONCJ 518, 2. R v. Anablak, 2008 NUCJ 9 ). However, each case is dependent on the circumstances of the offender and the circumstances of the offence in each case. There are cases above and below these ranges depending on the circumstances.( see R v Jeffries, 2010 CarswellOnt 10656 – 8 years joint submission, R. v. Obermeier, 2008 CarswellOnt 6563 , 2008 ONCJ 569 , -10 years, R. v. Gaeler, 2006 CarswellOnt 5123 – 7.5 years). Each of these cases is different. Neither provocation nor intoxication is a factor here.

[ 40 ] For breach of probation the range of sentences is fact dependant with an upper limit of 24 months. A breach of probation is a separate and distinct crime, and as such is deserving of a consecutive sentence. However, in this case, I have given weight to the offence as an aggravating factor in assessing the proper sentence for manslaughter. It would not be right to impose a consecutive sentence since it would amount to double counting. The totality principle would potentially be offended.

9. Ancillary Orders

[ 41 ] A DNA order and a lifetime weapons ban are ordered.

10. Final Decision

[ 42 ] I sentence Mr. Jamieson to 12 years on the manslaughter count with credit for pre-sentence custody of 632 days.

[ 43 ] I sentence Mr. Jamieson on Count #2 to 12 months for breach of probation concurrent to the sentence above.

Honourable Justice Timothy Ray

Released: February 21, 2012