CITATION: R. v. Boukhalfa, 2013 ONSC 1255
COURT FILE NO.: 11-10000474-0000
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JOHN BOUKHALFA
John Cisorio and Jennifer Armstrong for the Crown
Christine Roth, for John Boukhalfa
HEARD: March 26, 2013
M. Forestell J.
REASONS FOR SENTENCING
Background
[1] John Boukhalfa was found guilty of second degree murder of his mother, Antonia Zammit. Mr. Boukhalfa is before this Court to be formally sentenced to life imprisonment and for the pronouncement of the period of time before which he will be eligible to be considered for parole. The minimum period is 10 years and the maximum is 25 years.
[2] In order to sentence Mr. Boukhalfa, I must, to some extent, determine the facts of the offence. As stated by McLachlin C.J. in [R. v. Ferguson][^1] I need not arrive at a complete theory of the facts but need only make those factual determinations necessary to decide the appropriate sentence. In so doing I am “bound by the express or implied factual implications of the jury’s verdict.” To rely on an aggravating fact, I must be satisfied of that fact beyond a reasonable doubt and to rely on any other fact I must be satisfied on a balance of probabilities.
[3] In determining the period of parole ineligibility for Mr. Boukhalfa, I have determined the necessary facts underlying the guilty verdict. I have also considered the circumstances of the offender based on the evidence at trial and the evidence presented at the sentencing hearing. I have considered the recommendations of the jurors and the positions of counsel. I will set out these considerations before explaining my analysis and stating my conclusion.
The circumstances surrounding the commission of the murder
[4] Mr. Boukhalfa stabbed his mother to death. There were over thirty sharp force wounds to Ms. Zammit’s body. At least 25 of those wounds were to Ms. Zammit’s neck area. Mr. Boukhalfa, in addition to stabbing his mother, hit her with a baseball bat. I am satisfied beyond a reasonable doubt that Mr. Boukhalfa used the baseball bat at some point in the attack based on the blood found on the bat and based on Mr. Boukhalfa’s admission during his testimony that he did so.
[5] After stabbing his mother to death, Mr. Boukhalfa made an ineffectual attempt to clean the apartment and then took a large sum of cash and left the apartment. He was found and arrested by the police after walking a considerable distance.
[6] Mr. Boukhalfa testified at trial and described an argument between him and his mother before the murder. He said that he believed that he required more anti-psychotic medication and that his mother refused to give him any more. She had given him his medication earlier that day. The argument over the medication progressed into an argument over other grievances that Mr. Boukhalfa had about the way that he and his mother lived.
[7] Mr. Boukhalfa also testified that he stabbed his mother because it was ‘kill or be killed’ situation. He also said that his mother threatened to kill his younger brothers and struck him with a knife that she had in her hand.
[8] In finding the facts necessary to sentence Mr. Boukhalfa, I am bound by the express and implied factual implications of the jury’s verdict. The jury, by its verdict rejected provocation.
[9] I accept that Mr. Boukhalfa and his mother argued before Mr. Boukhalfa killed her. I do not accept that she struck out at him with a knife before he stabbed her. Mr. Boukhalfa had injuries to his hand that were consistent with defensive wounds. Ms. Zammit also had wounds to her hands that were consistent with defensive wounds. It is not necessary for me to be satisfied of the details of the attack. I am satisfied beyond a reasonable doubt that Mr. Boukhalfa used at least one knife and a baseball bat in killing his mother. I am satisfied that his mother did not attack him with a knife but did attempt to fend him off. I am satisfied that even after Ms. Zammit was lying on the floor having been stabbed numerous times, Mr. Boukhalfa continued to stab her.
[10] Ms. Zammit was older, smaller and weaker than Mr. Boukhalfa. The disparity in size and strength between Ms. Zammit and Mr. Boukhalfa left Ms. Zammit vulnerable to her son.
[11] The murder of Ms. Zammit occurred in the context of a domestic relationship. While this was a parent/child relationship rather than a spousal relationship, the relationship is one where the victim lived with the offender and was vulnerable to him. The offender abused a position of trust in relation to the victim and this is an aggravating factor.
Circumstances of the Offender
[12] Mr. Boukhalfa was 26 years old at the time of the offence. He was attending Humber College and studying Radio Broadcasting.
[13] Mr. Boukhalfa has a criminal record which includes Youth Court findings of guilt for uttering threats and adult convictions for trafficking in a schedule 2 substance, possession of a schedule 2 substance for the purpose of trafficking, possession of a schedule 3 substance for the purpose of trafficking, possession of a schedule 3 substance, carrying a concealed weapon and assault causing bodily harm.
[14] Mr. Boukhalfa was serving a conditional sentence at the time that he committed this murder. He was also subject to a weapons prohibition at the time. The conviction for assault causing bodily harm in 2006 involved what the sentencing judge in that case described as a vicious assault on a woman upon meeting her person for the first time.
[15] Mr. Boukhalfa has had the support of his mother through his previous difficulties with the law. The reasons for sentence for the 2006 assault causing bodily harm refer to the support from his mother as a mitigating factor. At the time of the murder and while on the conditional sentence, he was living with his mother.
[16] The support from his mother appears, from the record before me, to have been present consistently throughout Mr. Boukhalfa’s childhood and adolescence. I have had the benefit of a report summarizing the involvement of the Catholic Children’s Aid Society with Mr. Boukhalfa and his family. The CCAS became involved with the family in 1988 when Mr. Boukhalfa and his mother were living in a shelter. There had been a complaint by Mr. Boukhalfa that he was being abused. This complaint was not validated. A psychiatrist was already involved with the family at the time. Mr. Boukhalfa was described as very aggressive - physically and verbally. Mr. Boukhalfa was receiving counseling at Dellcrest Children’s Centre. Mr. Boukhalfa complained of physical abuse again in 1995. Again, the complaint was not validated. The report suggests that the parenting of Ms. Zammit and her ex-husband was inappropriate but that there was no physical abuse. The extremely difficult conduct of Mr. Boukhalfa throughout his childhood and adolescence is well–documented. The professionals who dealt with Mr. Boukhalfa during the seven years of CCAS involvement described him as egocentric, manipulative, aggressive, belligerent and intelligent.
[17] There was evidence at trial that Mr. Boukhalfa in the months before the murder was given treatment with anti-psychotic medication and referred for assessment and treatment for suspected schizophrenia. There is no evidence before me that this diagnosis was ever confirmed. There is no evidence before me that Mr. Boukhalfa currently has a mental illness of any kind nor is there any evidence that he had a mental illness at the time of the offence.
[18] On consent, counsel for Mr. Boukhalfa filed copies of e-mails from Mr. Boukhalfa’s aunts and from his father. The e-mails show that his family wants him to get psychiatric help while in custody. They also speak to the close relationship between Mr. Boukhalfa and his mother.
The Recommendation of the Jury
[19] I am required by section 745.4 of the Criminal Code to take into account the jury’s recommendation concerning parole eligibility. Three of the jurors recommended 10 years before eligibility for parole; two of the jurors recommended 15 years; one recommended 20 years and one recommended 25 years. Five jurors made no recommendation.
Positions of the Crown and Defence
The Crown submitted that the period of parole ineligibility should be 15 years. The defence submitted that I should impose the minimum parole ineligibility period of 10 years.
Analysis
[20] In determining the period of time before which Mr. Boukhalfa will be eligible for parole, I must also consider the factors set out in section 745.4 of the Criminal Code, namely, the nature of the offence of second-degree murder, the circumstances surrounding the commission of this offence, the character of Mr. Boukhalfa and the recommendation of the jury. In addition I must consider the general principles of sentencing.
[21] All sentencing objectives are relevant to the period of parole ineligibility. They include the maintenance of public safety, the separation of Mr. Boukhalfa from society, denunciation, general deterrence, specific deterrence and rehabilitation. However, in sentencing for second degree murder, rehabilitation has less weight than in sentencing for other offences[^2].
[22] With respect to the range of sentence, as observed by Dambrot J. in R. v. Praljak[^3] “it has become commonplace to increase the minimum period of parole ineligibility in domestic homicide cases beyond the ten-year level to reflect the seriousness of the breach of trust in such cases.”
[23] The range suggested by the Court of Appeal in [R. v. Czibulka][^4] for second degree murder of a spouse was 12-17 years.
[24] There is no principled reason to distinguish between a spouse and a parent in sentencing. The relevance of the relationship is that it leaves the victim vulnerable to the offender. Ms. Zammit in this case was vulnerable to attack from a loved one in her home. Mr. Boukhalfa’s murder of his mother was a profound breach of trust. The nature of the relationship brings this case in to the range suggested by the Court of Appeal for murders in the context of a domestic relationship.
[25] The use of more than one weapon and the number of injuries inflicted are aggravating factors. Mr. Boukhalfa’s criminal record and the fact that he was serving a conditional sentence and subject to a weapons prohibition are further aggravating factors. The glib and relaxed demeanour of Mr. Boukhalfa within hours of this vicious killing in his videotaped interview with the police is troubling.
[26] There are few, if any mitigating factors. Mr. Boukhalfa has led no evidence of any mental illness that is amenable to treatment. There is no explanation for the attack on Ms. Zammit and the level of rage and brutality displayed by Mr. Boukhalfa. The only mitigating factors are the relatively young age of the offender and the fact that his extended family remains supportive of him.
[27] Mr. Boukhalfa’s brutal murder of his vulnerable mother places this offence in the range of 12 to 17 years. The aggravating factors in this case take it beyond the lower end of that range. In all of the circumstances, a period of parole ineligibility of 15 years is fit.
Conclusion
[28] For these reasons I sentence Mr. Boukhalfa to imprisonment for life. I order that he not be eligible for parole until he has served 15 years of that sentence.
[29] The Crown also seeks an order pursuant to s. 109 of the Criminal Code and a DNA order. These are not opposed by the offender. I therefore make a prohibition order pursuant to s. 109 of the Criminal Code for life and a DNA order pursuant to s. 487.051.
M. Forestell J.
Released: May 27, 2013
CITATION: R. v. Boukhalfa, 2013 ONSC 1255
COURT FILE NO.: 11-10000474-0000
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
John boukhalfa
REASONS FOR SENTENCE
M. Forestell J.
Released: May 27, 2013
[^1]: R. v. Ferguson, 2008 SCC 6, [2008] S.C.J. No 6 at paras. 15-18 [^2]: R. v. McKnight, 1999 3717 (ON CA), [1999] O.J. No. 1321 at para 39 [^3]: [2013] O.J. No. 269 [^4]: 2011 ONCA 82, [2011] O.J. No. 372