COURT FILE NO.:10946

DATE: 2013-07-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

L. Tuttle, for the Crown

• and -

GENEVIEVE REED

M. Brennan & W. Harris-Bentley, for the accused

HEARD: April 29, 2013

Delivered Orally: July 24, 2013

REASONS FOR SENTENCE

A.J. GOODMAN J.:

1On October 16, 2012, Ms. Reed plead guilty to the offence of manslaughter, contrary to s. 236 of the Criminal Code. The charge stems from the brutal beating and stabbing of the accused’s mother, Mrs. Karen Reed, which had occurred in the victim’s own home.

2The parties agree to a range of sentence between 12 and 15 years’ incarceration. The Crown seeks a jail sentence at the higher end of the range, while the defence submits that a sentence of 12 years is entirely appropriate.

3The issues before me are the appropriate quantum of the period of incarceration, whether Ms. Reed is entitled to any enhanced pre-plea/sentence credit and, if so, how much credit. Both parties concur that an order be made pursuant to s. 743.6 with respect to one-half delayed parole eligibility. There is no dispute with respect to the ancillary orders requested by the Crown.

Circumstances of the offence:

4The details of the offence are outlined in the agreed statement of fact filed with the Court.

On April 20, 2010 the victim Karen Reed, who was 53 years old, resided at 23 Country Lane in London, Ontario. This is a townhouse complex. At the time of the killing, Genevieve Reed, who was 31 years old, was residing with her mother, Karen Reed, at that address. Karen Reed was, at that time, a nurse. She had attempted, throughout Genevieve’s life, to provide her with support and a home when she needed it. She had a son and another daughter and grandchildren.

At that time, Genevieve Reed was involved in a relationship with Brian Edwards. Brian Edwards was 65 years old at the time and suffers from bipolar disorder. The relationship was a sexual one, but according to Genevieve Reed, was, for her purposes, a relationship of convenience whereby Mr. Edwards provided money to her which she used to feed her drug habit. Mr. Edwards was not a drug user at the time. Genevieve Reed was a heavy drug user at the time and had been for a number of years, despite several attempts by family and the authorities to intervene and assist her in “beating the drug habit”.

On April 20, 2010, Brian Edwards and Genevieve Reed attended at 23 Country Lane in the early evening, after having been out together earlier in the day. Mr. Edwards did not see Genevieve use drugs that day. However, Ms. Reed purchased methamphetamine earlier in the day that she took intravenously in the afternoon. There was an incident earlier in that afternoon where the London Police were in the company of Brian and Genevieve and describe Genevieve as “jonesing” for drugs, but appeared sober to the officers. They also noted that Brian Edwards was sober at the time. Brian Edwards also had some abrasions on his face at the time, which were later noted by the police investigating the killing of Karen Reed.

Upon arriving at the home of the victim, Genevieve Reed spent some time on the second floor of the house while Edwards and her mother were on the main floor in the living room watching television. At approximately 9:30 p.m., Genevieve Reed came downstairs after taking a telephone call. Mr. Edwards describes that she seemed different at that point. She demanded that her mother leave the house for the evening and when she refused, became angry. She continued to ask her mother to leave and continued to be upset and angry when she refused. At one point, she grabbed the urn containing her deceased sister’s ashes, and argued with her mother over the ashes. Her mother got up from the couch and took the ashes from her and Genevieve continued to demand that her mother leave the house for the evening. At this point, Mr. Edwards describes, in his statement to the police, Genevieve grabbed her mother in a choke hold. Karen struggled and asked Genevieve to let her go. Genevieve continued to choke her mother and threw her to the floor and struggled with her in the living room. Karen tried to free herself but was unable to do so. Mr. Edwards thought the physical altercation would eventually wear itself out. Furniture was knocked around as the victim struggled. A television fell to the floor. Mr. Edwards saw the accused hit her mother with an object. Edwards went outside and a neighbour complained about the noise. Edwards came in and told the accused to quiet down. Edwards saw Genevieve Reed go to the curtains on the living room window and close them. By this time, Karen was on the floor and not moving and Edwards believed she was unconscious.

It was at this point that Edwards saw Genevieve go to the kitchen and return with a steak knife and stab her mother in the head and neck a number of times.

The forensic evidence establishes that the victim was hit with at least two objects, one being a candle holder and the other, a ceramic ornament. The ornament was in pieces when the police arrived and was covered in the victim’s blood. The candle holder was also found to be covered in the victim’s blood. Paint, which was determined by the Center of Forensic Sciences to have come from the candle holder, was found by the pathologist in the victim’s skull.

The autopsy report establishes that the cause of death to Karen Reed was “multiple stab wounds”. The report discloses further details about the trauma suffered by the victim. In total, there were approximately 20 stab wounds, at least 7 of which were to the head and neck. There were also multiple incised and blunt force wounds to the hands which indicate attempts by Karen Reed to escape or ward off injury. There were approximately 18 blunt force injuries to the head and neck and nine to the torso, as well as several to the hands and arms. These did not cause death. Two of Karen reed’s ribs were fractured. One of the stab wounds was through the upper lip and then penetrated the skull base and brain causing death. One of the stab wounds entered Karen Reed’s face just below her left eye and the pathologist found the tip of the knife broken off and embedded internally in the wound.

The knives were found at the scene covered in the victim’s blood. Three knives were used. The ends of two of the knives broke off during the attack by Genevieve Reed on her mother and two of the knives were also bent during the attack. The knives came from the victim’s kitchen. They were steak knives from a set that was in a knife block in a kitchen cupboard. The police found the other knives still in the block and undamaged. As well, there were bloody footprints leading back and forth from the living room where the victim was killed to the kitchen cupboard where the knives were located. The victim’s blood was transferred onto the cupboard door handle and the accused’s hands and feet were covered in the victim’s blood upon arrest.

The neighbour who had complained about the noise indeed called the police. London Police arrived at the townhouse at 10:27 p.m. on April 20, 2010. Upon arrival, they located Brian Edwards and Genevieve Reed outside the front door of 23 Country Lane. They observed a significant amount of blood on the accused. When asked about the blood by the police, the accused first said it was her own. One of the officers asked her again after determining that she had no injury and she stated that it was her mom’s blood, that her mom had cut herself but that she was fine and was in bed. When the police stated that they were going to check on her mother, Genevieve Reed told them that it was her house and they could not enter. The police entered the house and found Karen Reed dead on the living room floor. One of the police officers described Genevieve as being in an almost catatonic-like state. She became increasingly erratic over the next several minutes and hours. She asked, at various times, where her mother was and said she needed her mother to get her salt water for a toothache. Her speech was mumbling and difficult to understand. She was described by various officers who came into contact with her over the next several hours, as incoherent. She was taken to the hospital after she was arrested because of her apparent altered state. She had to be restrained at the hospital by medical staff because of her erratic behaviour. Toxicology tests administered at the hospital determined that she had amphetamines and cocaine in her system. She told medical staff that she had used crystal meth the previous day. (Karen reed’s toxicology showed no drugs or alcohol in her system). Genevieve was diagnosed during that hospital stay with rhabdomyolysis which is a tearing of the muscles often due to drug abuse.

She was assessed by a psychiatrist at the instance of her counsel and that report has been disclosed. Dr. Pierce reviewed the hospital records from the period of her arrest as well as other records and was of the view that it would be difficult, if not impossible for her to feign the symptoms she displayed. It was certainly the view of the police that she was not faking her symptoms. In fact, one of the officers assigned to assist with Reed at the hospital shortly after her arrest, noted that she was thrashing around on the stretcher, clenching her jaw, sweating profusely and that her eyes were rolling back in her head. He further described her as extremely combative and obviously under the influence of some controlled substance.

Dr. Pierce further concluded that Genevieve Reed was and is not suffering from a major mental illness and does not support a conclusion that she was not criminally responsible for her actions on April 20, 2010. However, his assessment does support the position that she may not have had the ability to form the specific intent to kill because of the ingestion of drugs.

The victim’s blood was found in the crotch and inside legs of the pants the accused was wearing upon her arrest. Blood spatter analysis establishes that she was straddling Karen Reed during at least one stabbing impact. Further, the blood spatter analysis establishes that Brian Edwards was not in close proximity to the victim during the stabbing event and therefore did not participate in her killing.

Victim Impact Statements:

5Ms. Quinta Hurst, the defendant sister, read her Victim Impact Statement to the court. In a powerful and highly emotional recitation, she described the impact of the significant loss of her mother and the effect of her sister’s actions on her and the entire family.

6Ms. Taylor Bragg had her statement read-in by Crown counsel. She described the harm felt by her and her entire family as a result of Ms. Reed’s actions. I have considered both Victim Impact statements.

Circumstances of the offender:

7Dr. Mark Pearce completed a very extensive psychiatric assessment of Ms. Reed. While the entire 33-page report has been taken into account, only select, brief excerpts are referenced herein:

Ms. Reed described her mother’s personality as “perfect”. She was a “very good” mother. Ms. Reed informed that she maintained a good relationship with Karen, “We never argued, ever”. Ms. Reed added that she misses her mother a great deal.

Ms. Reed described her childhood as “great”. She was not subject to physical or sexual abuse… She described her self-esteem as “pretty good”. Her future plans include, “Hopefully getting back to my sister and working”. She wished to work in “masonry, brickwork”. …

Educational History - Ms. Reed completed grade 9, at which juncture she quit school and left the family home… She was also diagnosed with attention deficit hyperactivity disorder (ADHD) at age seven; she was restless and distractible. …Ms. Reed was first suspended from school at the age of 14, for fighting. She was not otherwise disciplined…. Ms. Reed denied weapons use or carriage.

Occupational History - Ms. Reed has worked as a bricklayer, in several factories, and in “pizza stores”. She reported that she was a responsible employee. She denied that alcohol or illicit drug use interfered with her occupational performance.

Ms. Reed has primarily resided with her mother, albeit she has cohabited with various partners. In January 2010 she returned to her mother’s home….Ms. Reed has maintained four serious relationships.

Psychiatric History – Ms. Reed has had lots of admissions to psychiatric hospitals… When asked what precipitated these admissions, she indicated that substances of abuse were involved on the majority of occasions. Ms. Reed was often brought to hospital by police.

Ms. Reed reported that she has been diagnosed with “multiple personalities… High and low moods. Ms. Reed has attempted suicide on “lots” of occasions. She has stabbed herself, has overdosed on medication and/or substances of abuse, and has attempted to hang herself. She estimated having attempted suicide on approximately 25 occasions.

During the early 2000s, she was in fairly regular contact with Dr. Fernando, psychiatrist in Woodstock. She reported that he diagnosed her with “schizophrenia”, and she was prescribed various medications as a result.

Family Psychiatric History - There is no family history of major mental illness or suicide. Ms. Reed was unable to articulate her prescribed medications. She was aware that she is prescribed Methadone, dosed at 85 mg per day.

Substance Use History - Ms. Reed consumed alcohol at the age of 11. … Ms. Reed reported that she had used alcohol on a daily basis “all my life”… She agreed that she struggled academically given alcohol use. …She agreed that prior criminal involvement occurred while she was intoxicated….She experienced withdrawal symptoms associated with alcohol discontinuation. She reported attending at a detoxification facility on three occasions. She also attended Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings. …

Ms. Reed first consumed cannabis at the age of 13. She began regular use at that time. When asked about the effects of cannabis use on her, Ms. Reed replied, “It did what Ritalin did… It kept me sane, calm”. She denied social or occupational difficulties attributable to her cannabis use. …Ms. Reed had no plans to avoid marijuana use should she be released from custody.

At age 14, Ms. Reed began using crack cocaine on a daily basis. She spent approximately $50 per day on this substance. She attended a rehabilitation facility on one occasion at the age of 22 to assist in treating her addiction to crack cocaine. She reported only occasional use since that time. She planned on avoiding this substance should she be released from custody.

In 2008, Ms. Reed began smoking crystal methamphetamine. She used approximately one gram of this substance per day. When asked whether use of this substance caused her any difficulty, she replied, “Yes, memory loss”. She agreed that she was addicted to this substance. …Ms. Reed detailed daily use of ecstasy for three years beginning at her age of 18. … Ms. Reed denied otherwise abusing prescribed medication. With respect to intravenous drug use, Ms. Reed informed that she used opioids and crystal methamphetamine intravenously.

Anxiety Symptoms - Ms. Reed denied symptoms consistent with obsessive-compulsive disorder, social phobia, or post-traumatic stress disorder (PTSD). …

Psychotic Symptoms - Ms. Reed reported that she has historically experienced auditory hallucinations. … Ms. Reed made several comments of a paranoid nature. However, when these were explored with her, it became apparent that she was endorsing paranoid ideation; there was no clear evidence of paranoid delusions. Ms. Reed denied grandiose delusions.

Anger Management History - Ms. Reed acknowledged that she has a temper.

Mental Status Examination - Ms. Reed presented as a female who appeared her stated age… Ms. Reed did not present as angry albeit her affect changed quite rapidly during the interview. Her thought form was largely organized and goal-directed. Ms. Reed’s self-report - Surrounding the time of the alleged offense, Ms. Reed reported that she was residing primarily with her mother. Her relationship with her at that juncture was “great”.

Ms. Reed informed that she did not consume any alcohol or illicit substances on April 19th, 2010. She saw her mother briefly that day. She slept at Mr. Edwards’ residence that night. … When asked if she consumed alcohol or drugs on April 20th 2010, Ms. Reed replied, “I was coming down from a big binge… On the date of her arrest, Ms. Reed had breakfast in the morning with her mother. She went to retrieve her methadone from the “285” Clinic.

Review of Medical Records - Woodstock General Hospital - Ms. Reed was admitted to the Woodstock General Hospital (WGH) for ten days in November 1999. … in October 2000 for eleven days as she was suicidal and had been brought to hospital by police after being found intoxicated and laying on railway tracks. …Ms. Reed was admitted once again to Woodstock General Hospital in April 2002 for fifteen days. She was at that juncture pregnant and was abusing substances. It was not clear if she was psychotic or not. … Ms. Reed was admitted to Woodstock General Hospital for two days in October 2004. She was described as “suicidal and aggressive”. …

Ms. Reed presented to the emergency department of WGH in February 2004…Ms. Reed was admitted to WGH from September 3 to September 5, 2006. She presented to the ER on September 2nd, feeling suicidal and having overdosed on her partner’s antidepressant medication and methadone along with alcohol and “bathroom cleaner”. …The discharge diagnosis was “personality disorder, likely psychopath”… Ms. Reed was admitted to WGH on September 12th, 2006 after overdosing on her methadone. She had been assessed at this hospital four days prior for “narcotic withdrawal”.… Ms. Reed was admitted to WGH from September 28th to October 2nd, 2006.

St. Joseph’s Health Centre, London - Ms. Reed presented to the ER of St. Joseph’s Health Centre on June 19th, 2009. She opined that she could read others minds, albeit only when using drugs. She endorsed visual hallucinations. Ms. Reed presented to the ER at the St. Joseph’s Centre on September 10th, 2009. She requested Valium and it was said that she had injected speed three days prior. …

London Health Sciences Centre - …On various dates over a span of several years, Ms. Reed attended at the emergency department and endorsed suicidal ideation. She often complained of “hearing demons” and of experiencing auditory and visual hallucinations. …She had received various diagnoses, including schizophrenia, “multiple personalities”, substance abuse, and personality disorder. She had on one occasion injected methadone into her left knee to get high. A history of numerous suicide attempts was noted. …Ms. Reed was admitted to the London Health Sciences Centre from August 23rd to September 6th, 2007.

Elgin Middlesex Detention Centre - …Upon admission to this facility on April 23, 2010, Ms. Reed was described as “upset and not suicidal”. She wished to be placed on an antipsychotic medication. She was described as a “poor historian”. She was referred for psychiatric assessment. …

Records Proximate to the Alleged Offense - Ms. Reed presented to the ER of the London Health Sciences Centre at 23:50 hours on April 20th, 2010. She was accompanied by police as she had been found outside of her mother’s home, “a crime scene”. … Nursing notes indicate that she became very agitated at 23:55 hours on the date of admission. According to an internal medicine consult authored on April 21st, 2010, Ms. Reed was abusing alcohol, cocaine, cannabis, and crystal methamphetamine. She had used cocaine and crystal methamphetamine 48 hours prior to the assessment. She was described as “shaking, agitated, confused”. She was also noted to be a poor historian; it was not clear whether this was as a result of intoxication/withdrawal or whether this was her baseline. The attending physician was “unable to ascertain much history secondary to patient [being] uncooperative/agitation”. …

Diagnosis - Based on the substantial collateral information reviewed, as well as my interview with Ms. Reed, it is not my opinion that she suffers from a major mental illness, such as schizophrenia or bipolar affective disorder. While she endorsed symptoms suggestive of a psychotic disorder, in my opinion her history of substance misuse, set against a backdrop of maladaptive personality attributes and vulnerability, have likely been responsible for same. Of note, I cannot completely exclude the presence of a primary mood or psychotic disorder but on balance I do not believe that Ms. Reed suffers from such a condition.

Ms. Reed has clearly abused various substances. She has likely been dependent on alcohol and several illicit drugs. She has misused cocaine, crystal methamphetamine, marijuana, alcohol, and opioids. She has possibly abused prescribed medication (stimulants and/or sedatives). Her substance use disorder is best classified as severe, as it has led to recurrent legal involvement, medical sequelae (including what may have been transient psychotic symptoms), and social and occupational dysfunction. Notwithstanding participation in numerous substance abuse treatment programs, Ms. Reed has not been able to maintain sobriety for any significant period of time. It is thus most likely that Ms. Reed meets criteria for polysubstance dependence .…Substance dependence disorders are more serious diagnoses and indicate that the individual has suffered from symptoms of withdrawal or has demonstrated habituation to the effects of the substance, in conjunction with other symptoms.

Given the aforenoted considerations, I believe that Ms. Reed suffers from a severe mixed personality disorder. She harbours antisocial and borderline personality attributes. Borderline personality traits include recurrent, intense outburst of anger, instability of mood, relationships, and self-image, and a vulnerability to distorted thought and perception when under stress. Ms. Reed has evidenced criminal versatility. She has great difficulty accepting responsibility for her prior behaviour. She also presents with numerous traits of borderline personality disorder, as she has evidenced affective instability, inappropriate anger, dissociative phenomena, and recurrent suicidal ideation and self-harm. These maladaptive personality attributes, in conjunction with her substance use disorder, have led to profound social, occupational, and legal difficulties.

In conclusion, it is not my opinion that Ms. Reed suffers from a major mental illness. She has historically presented with substance-induced psychotic symptoms or quasi-psychotic symptoms related to her fractured personality structure. She has clearly abused and been dependent upon numerous psychoactive substances. Finally, she meets criteria for a severe mixed personality disorder.

Ms. Reed may benefit from pharmacotherapy, albeit I would not support her medication regimen as it was at the time of the interview; … Medication is however only of limited utility in this case. I would strongly recommend that Ms. Reed participate in dialectical behaviour therapy (DBT), and that she be provided with vocational assistance.

8Regarding the offence for which Ms. Reed is now before the court, she stated that she is sorry for her behaviour.

Enhanced credit for pre-trial custody

9Before I turn to the issue of the appropriate sentence in this case, counsel were asked to address whether Ms. Reed, (who chose not to have a bail hearing), was entitled to any enhanced credit as a matter of application of the amended statutory provisions found in the Code.

Position of the Defence:

10Ms. Harris-Bentley submits that there is no bar to enhanced credit under s. 719(3.1). Ms. Reed did not have a bail hearing, was not detained and no order was made. Ms. Harris-Bentley submits that s. 515(9.1) would only apply if Ms. Reed had a bail hearing, and if a justice ordered that she be detained because of a previous conviction. She argues that the authorities provided by the Crown are either distinguishable or fail to assist this Court with this specific query.

11Ms. Harris-Bentley submits that a court cannot assume that an accused who chooses not to run a bail hearing is doing so only because they are attempting to avoid a ruling under 515(9.1). A person may choose not to run a bail hearing for a number of valid reasons. She submits that in this case, the secondary and tertiary grounds would have been relevant and Ms. Reid may have decided not to run a hearing because she could not have met the onus or provide a suitable plan for release.

12Ms. Harris-Bentley submits that if the new provisions were interpreted as Ms. Tuttle suggests, the practical effect would likely be that where the Crown does not consent to release, an offender with a prior criminal conviction would be inclined to run a judicial interim release hearing in order to avoid the presumed denial of any enhanced credit. Ms. Harris-Bentley argues that this could have a significant impact on the administration of justice as dockets would clog up and the limited court resources would be taxed beyond capacity. She submits that had Parliament wished to exclude offenders consenting to their detention from consideration for enhanced credit, the legislation would have so specified.

Position of the Crown:

13Ms. Tuttle submits that Ms. Reed’s failure to seek judicial interim release is not an absolute bar to her receiving enhanced credit, but that upon a review of the case law and section 719(3.1), it is clear that it is a factor that should militate against her receiving enhanced credit. Ms. Tuttle submits that this Court ought to conclude that Ms. Reed would have been detained primarily because of her previous convictions.

14Ms. Tuttle submits that there should be a rebuttable presumption that an accused who consents to his or her detention is disentitled to credit beyond 1:1, because in all likelihood they have done so “in recognition of the determinative effect of their criminal records on their judicial release status”. Ms. Tuttle argues that the wording of the legislation as set out in s. 719(3.1) provides a strong basis to deny Ms. Reed’s request for enhanced credit.

Discussion:

15The leading appellate authority on the issue of enhanced credit for pre-plea or pre-trial custody is found in the case of R v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068, a recent decision of the Court of Appeal. In Summers, Cronk J.A. thoroughly considered the legislative scheme found in Part XVI of the Code and outlined the criteria upon which a judge must address in granting enhanced credit. Justice Cronk also interpreted the scope and effect of the enhanced credit provisions pursuant to s. 719 (3.1) of the Code and its interplay with ss. 718, 719(3), 515 and 524. While addressing these provisions and their recent amendments, the Court did not appear to specifically address the questions raised in this case.

1. Is an accused person compelled to have his/her bail determined by a justice?

16Under s. 503 of the Criminal Code, where a person is arrested with or without a warrant, he/she must be taken before a justice without reasonable delay, and in any event within 24 hours where possible. Upon being brought before the justice, the accused has the right to a bail hearing under s. 515. The courts in Ontario have held that, where the accused and Crown are prepared to proceed with a contested bail hearing on the accused’s first appearance, a hearing should be held immediately¹ or “forthwith…whenever possible”: “An arrested person should not face the prospect of having to, in effect, make an appointment for his or her bail hearing”: R. v. J.V., 2002 CanLII 49650 (ON SC), [2002] O.J. No. 1027 (S.C.) at para. 66. The justice may only order an adjournment of no more than three clear days except with the consent of the accused.

17In R. v. Hudson (2011), 2011 ONSC 5176, 107 O.R. (3d) 568 (S.C.), Trotter J. considered the implication of the bail process for an accused person who is unprepared, or simply does not desire, to seek judicial interim release. Justice Trotter’s comments were made within the context of the bail hearing process as it has developed in Toronto. Justice Trotter noted that the bail provisions of the Criminal Code were designed for the benefit of the accused, and are not intended to be manipulated to facilitate court scheduling or Crown convenience. Under the Code provisions, “there is no corresponding right of the Crown to obtain a detention order if the accused person does not wish to immediately exercise his or her rights under s. 11(e)”.

18Section 11(e) of the Charter confers a personal right on an accused and only he or she can decide if and when to show cause. In Hudson at paras. 18-19 Trotter J. confirmed that the relevant sections were not intended to restrict the rights of the accused person to determine his or her readiness for seeking bail:

Part XVI was never designed to force an accused person into a hearing on such an important issue at an ill-advised or inopportune time. Section 516 places strict, constitutionally guarded limitations on how long the Crown may seek to delay or postpone a bail hearing. But there is no corresponding limitation on how long an accused person may delay exercising his or her right to apply for bail. This was recognized over 30 years ago in R. v. Adams (1978), 1978 CanLII 2403 (BC CA), 45 C.C.C. (2d) 459 (B.C.C.A.), in which Seaton J.A. said at p. 464: "[T]he key to the adjourning provisions is that the accused is put in control. Only he can consent to a long adjournment. The Crown cannot prevent such an adjournment ..." I agree with this statement.

For various reasons, an accused person may not wish to seek bail immediately, or even in the near future. And there is nothing wrong with this. There is no competing constitutional principle that requires the accused to seek release within a time frame set by the Crown.

19Despite the nature and purpose of the right to bail, Trotter J. acknowledged that in Toronto accused persons are often forced into consenting to detention in order to proceed with the trial process.

[a]s things presently stand in Toronto, subject to routine requests for short adjournments under s. 516 of the Criminal Code, an accused person is expected to either have a bail hearing under s. 515 or consent to his or her detention. Unless it is for a short period of time, an accused is generally not permitted to adjourn the bail hearing indefinitely, until he or she is ready to exercise that right. Hence the requirement for accused persons to consent to their detention if they do not wish to move forward at that point.

20In light of this reality, Trotter J. concluded his remarks by suggesting an approach that would allow the presiding justice to adjourn the bail hearing sine die until such time as the accused chooses to bring an application for judicial interim release. This approach would preserve the right to seek bail in the hands of the accused while simultaneously permitting the courts to be free from repeated attendances by persons seeking adjournments.

21The right to reasonable bail under the Charter confers a constitutional entitlement to an accused person. Thus, an accused is not required in law to immediately pursue any or all of his or her rights at the behest of the Crown or for the general efficiency of the administration of justice. An accused is entitled to every reasonable opportunity to have a show cause hearing pursuant to Part XVI of the Code. I agree with Trotter J. and find that there is no legal or statutory compulsion upon the accused to either “run” a show cause hearing, waive bail or consent to detention if he or she does not wish to do so.

2. What are the consequences where bail is left undetermined? Is an accused person considered to be “in custody” prior to his/her bail being determined for the purposes of setting an in-custody trial date?

22Since the early days of the Bail Reform Act, the Code was re-designed to provide accused persons with speedy access to the court process for the purposes of a bail determination: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241. Although there does not appear to be any appellate authority dealing specifically with this point, the general thrust of the jurisprudence suggests that a person held by the authorities prior to having his/her bail determined is considered to be ‘in custody’: R. v. Precourt (1976), 1976 CanLII 692 (ON CA), 18 O.R. (2d) 714 (C.A.) at para 12.

23As Ms. Harris-Bentley submits, there are host of reasons why an accused person may not wish to avail him or herself of the right to show cause for release. It may take some time to formulate a release plan that will address the primary, secondary or tertiary grounds, as the case may be. It is conceivable that an accused, after some reflection, may decide that he or she is not likely to meet the release conditions for bail. For various legitimate reasons, an accused may not wish to seek bail immediately, or at all.

24Turning again to Hudson, Trotter J. expressed the opinion that, where an accused elects to adjourn a bail hearing for an extended period of time – perhaps indefinitely –, that individual should not be disentitled to the setting of an ‘in-custody’ trial date by reason of not having formally consented to detention under s. 515. Justice Trotter acknowledged the Crown’s concerns about the risk of abuse inherent in such a practice:

Setting timely trial dates, for a court as busy as the Ontario Court of Justice, is a complicated matter. Quite rightly, accused persons detained in custody are given priority when it comes to setting trial or preliminary inquiry dates. This is based on the goal of mitigating the hardship of pre-trial custody. As the Crown submits, before a so-called "in custody" trial date is set, the system needs to know whether the accused will be in custody by the time of trial or whether he or she will be on release. As with disclosure, for scheduling purposes, the system is confounded by someone who is in "bail limbo." The system does not know what stream to put such a person into: custody or out of custody. The Crown submits that, if an accused person waives his or her bail hearing and gets an in custody date, only to successfully apply for bail later, he or she wreaks havoc with the "in custody" trial date allotment. As the argument goes, that person unfairly benefits from an earlier trial date, one that should be assigned to someone who is in pre-trial custody at the time of trial. For this reason, in Toronto at least, there is pressure on an accused person who is not ready for a bail hearing to consent to his or her detention so that effective court scheduling may proceed.

While giving priority to in custody accused is obviously a very important objective of any rational approach to criminal trial scheduling, I am not persuaded that it justifies the present practice of insisting on consent detentions when an accused person is not ready for a bail hearing. The laudable goal of effective trial scheduling may be achieved without insisting on consent detention orders. In any event, the same problem (from the Crown's perspective) will occur in the case of an accused person who is detained in custody after a contested bail hearing (and who obtains an in custody trial date), only to be released down the road after a review under ss. 520, 523 or 525 of the Criminal Code. Indeed, the same problem is likely to occur in circumstances where an accused who consents to his or her detention is released after a bail "review" under s. 520 of the Criminal Code.

25I agree with these principles as espoused by my learned colleague and find that they have application to the criminal courts here in London. I find that a conscious decision by an accused not to have his or her bail formally determined, waive, consent or be subject to a detention order ought not impede his or her rights or affect the setting of available or expedited “in-custody” trial dates, subject to relevant and local scheduling considerations.

3.If an accused person does not have his/her bail determined – either by a justice, through waiver, or on consent – is he/she “in custody” and eligible to receive enhanced credit pursuant to s 719 (3.1)?

26The Crown submits that the Court of Appeal’s decision in R. v. Morris 2013 ONCA 223 is useful in addressing the questions in this case. The trial judge did not have the benefit of the Court of Appeal’s decision in Summers and the Court examined the issue in the context of ss. 524(4) and (8). There was never any order made pursuant to either of these subsections and the Court’s holding focused on the absence of an order cancelling the prior forms of release. The trial judge concluded that circumstances in Morris were analogous to ss. 524(4) and (8) and did not justify enhanced credit. The Court of Appeal noted that the “trial judge concluded that the lack of remission on pre-sentencing custody is not of itself a factor warranting enhance credit”. While this statement appears to be incongruent with the ratio in Summers, the Court of Appeal upheld the judgment and confirmed that the trial judge took all of the relevant circumstances into account. While the comments in Morris are instructive, nonetheless, I prefer to follow the discussion and holding in Summers as it has greater application and relevance to the specific issues in this case.

27In Summers, the Ontario Court of Appeal endorsed R. v. Vittrekwa, 2011 YKTC 64, ² wherein Cozens C.J. provided a detail review and history of the legislative enactments giving rise to the revisions in Part XVI of the Code. Judge Cozens also goes on to discuss the principles of sentencing and the disproportionate representation of aboriginals in Canadian prisons. The judge was careful to consider that the Yukon is an earned remissions regime. The learned judge held that the practical effect - in cases where the Crown was not consenting to release- was that every offender with any prior criminal conviction would be inclined to run a show cause hearing in order to avoid the presumed denial of enhanced credit. This would have significant impact on the administration of justice. Docket would clog up and the limited court resources would be taxed beyond their capacity.

28In R. v. Johnson, 2011 ONCJ 77, Green J. acknowledges that “…any offender at risk to detention on this basis can effectively evade the statutory 1:1 cap on pre-sentence custody credit by simply consenting to his or her detention”. Paraphrasing further, the judge found that under s. 515(9.1), if the justice at a bail hearing orders that the offender be detained because of a previous criminal conviction, the reason must be stated in writing on the record. In the absence of this written record, there is no ability to “read in” that the offender must have been detained because of his or her prior criminal conviction. Further, where an offender has consented to his remand, it would be somewhat speculative to conclude that he would have been detained after a judicial interim release hearing, and that the justice would have necessarily endorsed the record.

29In a very thorough review of this legislation, Green J. considered the circumstances in which enhanced credit should be granted to accused for sentencing on a consent remand. Although the decision has received some judicial criticism for its liberal interpretation of the new enhanced credit provisions, the learned judge stated:

where… offenders have deliberately protracted their remand detention or otherwise endeavoured to manipulate the system, trial judges may well discount the credit ratio that would otherwise obtain. Similarly, where remand offenders' records demonstrate that they are likely to remain incarcerated until their warrant expiry date or where the remand period at issue is of negligible value in light of the sentence imposed, judges may well entirely disregard credit for pre-sentence custody as the logic of compensation no longer holds.

30In R. v. Sooch, 2008 ABCA 186, [2008] A.J. No. 517 (Alta. C.A.), Martin J.A. held that:

The decision to award enhanced credit is also a matter of discretion, but it must be exercised judicially. That requires consideration of all relevant information. The reason for predisposition custody is a particularly relevant factor.

31It is clear that the granting of any enhanced credit up to 1:1.5 is a discretionary exercise. The accused need not furnish evidence of exceptional circumstance in order to justify enhanced credit: Summers at para. 81.

32As a threshold issue, my interpretation of the statutory provisions and a review of the recent jurisprudence in this area, supports the principle that an accused who chooses not to conduct a bail hearing or have his or her bail determined for whatever reason is not legally or statutorily barred from enhanced credit pursuant to s. 719 (3.1) of the Code.

33However, to a limited extent, I tend to agree with Ms. Tuttle that an accused’s bail or detention status not formally determined may be a factor for a judge to consider in so far as it relates to the overall time an accused spends in custody. In the appropriate case, a judge may conclude that an accused who chose not to conduct a show cause hearing, but merely chooses to lie in “limbo” may not be entitled to enhanced credit for any period beyond which earlier trial dates would have been provided but for the accused’s inaction or decision.

34In this regard, I refer to the comments of Steel J.A. in R. v. Stonefish, 2012 MBCA 116, [2012] M.J. No. 420 (C.A.) at para 83 (cited with approval in Summers):

A trial judge has discretion to grant or not grant the enhanced credit. For example, an otherwise eligible accused who intentionally delayed proceedings by continuously discharging counsel, or an accused who created delay by not cooperating with probation officers during the preparation of pre-sentence reports, or an accused who refuses to participate in treatment programs may not receive enhanced credit despite the loss of earned remission or may not receive any credit at all, depending on the discretion of the sentencing judge. All the circumstances should be taken into account.

35I take this opportunity to add another example to this mix. Should there be a proper foundation to suggest that the accused had purposely delayed the setting of a trial date as a direct result of not addressing his or her bail status and due to such delay, a later trial date was provided despite earlier dates being available; any additional period of time between the earlier trial dates and the actual trial date may be deemed a circumstance that does not justify enhanced credit. While I do not foresee this situation arising often during the course of setting trial dates for in-custody accused, nonetheless it may be considered by a judge in the overall assessment of the constellation of factors that need be addressed for enhanced credit in the course of sentencing. ³

36As threshold issue and a matter of law, I find that it is inappropriate to deny any enhanced credit for Ms. Reed based on the fact that she chose not to have a bail hearing, consent or waive bail or that she was subject to a detention order. There is no delay attributable to Ms. Reed and there is neither a legal nor statutory bar to enhanced credit as specified in s. 719 (3.1) on this basis alone.

Application of these legal principles to this specific case:

37Various factors may justify the principled exercise of my discretion to enhance, abridge or even deny credit for pretrial, (pre-plea or sentence) remand or custody time, including evidence that earlier release would not promote rehabilitation, or be entitled to remission, because the accused failed to appear as required; the offender’s conduct while on bail, such as any breach of conditions; conduct while incarcerated awaiting remand or disposition; a significant or violence based criminal record; or that the offender would pose a danger to society, among a host of other factors.

38In this case, the consequences of s. 515(9.1) and s. 524 are not applicable. This is a circumstance where an accused chose not to have her bail or detention status formally determined by a judicial officer.

39In my overall assessment with respect to enhanced credit, I have been provided with the extensive information regarding Ms. Reed’s conduct during her pre-sentence custody period. Ms. Reed has been repeatedly cited for misconduct while incarcerated and she has faced a multitude of sanctions and other remedial action. For example, on May 26, 2010, while with another inmate in the bathroom, who was trying to vomit up methadone, Ms. Reed was accused of “muscling” an inmate. On October 30, 2010, Ms. Reed grabbed the hair and punched the face of an inmate. On November 8, 2010, Ms. Reed was smoking tobacco in the bathroom. On April 6, 2011, Ms. Reed was found in the shower trying to vomit up methadone. On April 20, 2011, Ms. Reed threatened “to get” a staff member, going to knock her out, and called her a “fucking goof”. On December 6, 2011, an inmate was taken into the washroom and searched internally for a “package” of drugs by another inmate. Ms. Reed allegedly coerced her into the bathroom and an assault took place. On February 16, 2012, Ms. Reed committed an assault on staff on two occasions. Ms. Reed had a psychotic episode at Vanier where she cut her veins and was drinking her own blood. She was non-responsive to staff and personnel were required to remove her from her cell. She was taken to the hospital at 16:30 p.m. with many restraints, including a spit hood. When the spit hood was removed, Reed attempted to bite the nurse and spit on an officer. While having the hood placed back on, an officer was hit in the eye with spit. Reed later threw a bedpan of urine at the officer, hitting her in the face and some of the urine got into the officer’s mouth. On January 3, 2013, Ms. Reed was found smoking crack in the shower and she received another sanction.

40In my opinion, Ms. Reed’s misconduct during her period of incarceration at various detention centres and hospitals do not bode well for enhanced credit. It is apparent to me that Ms. Reed’s misconduct and lack of insight are the direct causes for her various placements and sanctions. Notwithstanding the notoriety of unpalatable conditions at a certain local detention centre, I am convinced that it would be against public policy and the spirit of the legislation to justify an award of enhanced credit based on Ms. Reed’s conduct while awaiting disposition.

41It is not for this court to being to prejudge the arena of the parole board other than to acknowledge the factors as found in s. 132 of the Corrections and Conditional Release Act. Indeed, the Court of Appeal in Summers at para. 117 directs trial judges to consider this element amongst other sentencing factors. While the court cannot speculate as to what the Parole Board might conclude down the road, the evidence before me reinforces that Ms. Reed’s conduct coupled with and the nature of the offence would not provide support for an entitlement to any early earned remission. ⁴

42I am satisfied that any adverse effects from her incarceration have been brought upon by Ms. Reed herself and are not the results of inadequate institutional staffing, security lockdowns, prison conditions or other issues. Ms. Reed has been repeatedly subjected to misconduct reports up to January 2013. However, I am also cognizant that there has been some delay in this case for the period leading up to this sentencing hearing. In my view, the period of delay from the October 2012 plea date is not attributable to Ms. Reed’s lack of cooperation or her behaviour and I do not ascribe fault to any party.

43I do not find that circumstances justify any enhanced credit for the period of Ms. Reed’s pre-sentence custody up to January 2013. However, given the lingering delay from October 2012 and Ms. Reed’s incremental improvement in her behaviour while incarcerated for the past few months, coupled with the other considerations as provided in Summers, I conclude that Ms. Reed is entitled to enhanced credit for the latter 6 month period of her pre-sentence custody.

The appropriate sentence for Manslaughter:

Positions of the parties:

44As mentioned, Ms. Tuttle takes the position that the appropriate sentence is 14 to 15 years in a penitentiary. The Crown accepted the plea to manslaughter premised on Ms. Reed’s significant degree of intoxication at the time of the offence and not based on the partial defence of provocation.

45Ms. Tuttle submits that this court ought to consider the gravity and nature of the brutal violence in this case.

46Ms. Tuttle says that apart from the plea of guilt, there are no other mitigating factors but significant aggravating factors. She submits Ms. Reed’s anti-social personality and her psychological make-up as described in the psychological assessment provides for a high likelihood of recidivism. While awaiting disposition, Ms. Reed sustained numerous misconducts and continued violent behaviour while incarcerated. Ms. Tuttle submits that Ms. Reed has an intractable substance abuse history coupled with a personality disorder, suggestive that she has neither insight nor is willing to address her behaviour.

47Ms. Brennan submits that the appropriate sentence is at the very low end of the agreed-upon range, a jail term of 12 years. She submits that even with the serious aggravating circumstances as found in this case, the jurisprudence reflecting similar types of cases supports her sentencing position.

48Ms. Brennan candidly acknowledges that Ms. Reed’s prior convictions may be a factor to militate against her proposed sentence. However, based on Ms. Reed’s admissions, the guilty plea, remorse, her recognized mental health concerns, her anti-social attributes and her significant and serious life-long addiction issues, the proposed term would best acknowledge the prospects for rehabilitation and meet the principles of deterrence and denunciation.

The sentencing authorities:

49I have been provided with authorities from both counsel on the issue of the appropriate sentence to be imposed in manslaughter cases. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to only set out those cases that are somewhat similar to the issues in the case at bar.⁵

50In R. v. Mohammed, [2008] O.J. No. 4716, (Ont. S.C), (aff’d [2009] O.J. No. 3100, (C.A.); Nordheimer J. imposed a global sentence of 9 years on a guilty plea to manslaughter, (factoring in 30 months of presentence custody- in effect an 11 ½ year sentence). The deceased was stabbed no less than 8 times with a knife. The accused had raised provocation and intoxication. The accused had no criminal record and had a positive pre-sentence report. The accused’s conduct on the day in question was completely out of character and he expressed sincere remorse.

51In R. v. Devaney, 2006 CanLII 33666 (ON CA), [2006] O.J. No. 3996, (C.A.) the accused was sentenced to 11 years in jail (less 6.5 years for presentence custody). The act was extremely brutal with the elderly victim having been stabbed 107 times in her own home. The victim suffered 25 defensive wounds suggesting a significant struggle. The trial judge and counsel agreed that this was a case of “aggravated manslaughter”. The accused had been intoxicated and had serious alcohol problem. He had no criminal record. The aggravating factors included an attack on the victim was in her own home; the viciousness of the attack suggested the accused flew into a rage; the knife was never found and there were attempts to remove evidence of the attack; as well as the impact on the victim’s family was described as “devastating”.

52On appeal, the Crown sought a sentence of 18 to 20 years. The issues before the appellate court were whether it was appropriate to label a subcategory of “aggravated manslaughter” for the purposes of sentencing. The Court considered the influence of their decision in R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966 as setting an immutable range of sentence and the ceiling at 12 years for aggravating factual circumstances arising out of a case of manslaughter. The Court of Appeal upheld the decision and held that the label “aggravated manslaughter” was not helpful to the sentencing exercise. The Court added that the nature of this case could have justified a sentence higher than the 8 to 12 year range as discussed in Clarke.

53In R. v. Medwid, [2009] O.J. No. 1992, (S.C.), Wein J. considered the range proposed by counsel of between 8 to 12 years’ incarceration. The deceased was brutally beaten, kicked and stabbed with a knife. The wounds were described as horrendous and extensive. The accused was youthful and had no criminal record and may have been under the influence of alcohol and drugs at the time of the offence. Justice Wein imposed a sentence of 11 years.

54In R. v. Docherty, [2010] O.J. No. 2728, Wein J. imposed a sentence of 12 years after trial as she found that the circumstances in that case were at the most serious end of the range. The accused stabbed the deceased in the throat seven or more times. There were several aggravating factors as well as some evidence of provocation and other mitigating factors. The accused was in fear of the victim, cooperated with the police and an unrelated and dated criminal record.

55In R. v. Jamieson, 2012 ONSC 1114, [2012] O.J. no. 766 (S.C.J.), the court imposed a sentence of 12 years’ imprisonment. The accused had stabbed his common law partner in the abdomen and did not obtain any medical help. The mitigating factors were his plea of guilt and expression of remorse. However, the aggravating factors were an assault on a domestic partner; the use of a weapon in the commission of the offence; the accused did not obtain medical assistance because he was concerned about getting into more trouble; he had a lengthy prior criminal record, including violence and previous convictions for assault on the same victim and he was on probation with terms not to contact the victim, consume alcohol or possess weapons when the offence occurred.

56In R. v. Besszer, [2006] O.J. No. 3829, the court imposed a sentence of 11 years’ imprisonment (less 50 months presentence custody). In this case the victim suffered a blunt impact trauma to his head and torso and ultimately died of a crushed larynx caused by manual strangulation some hours after the assault. There were multiple blunt force injuries, including a cracked breast bone injury. The attack was protracted and death did not immediately ensue. The accused returned from “time to time” in the hours following the attack and called 911 and was cooperative with the police. He admitted that he killed the victim. The victim and the accused had been drinking heavily when the attack occurred. The accused plead guilty following the preliminary inquiry and he was remorseful.

57There were aggravating factors including the accused was much younger than the victim and he was on a recognizance; the victim was killed in his own home, the attack was described as “brutal and protracted” and the accused left the victim without seeking medical attention. The accused had a prior criminal record with numerous convictions, although he had not served a ‘substantial sentence’ and his record was linked to alcohol abuse. The court concluded that this case had “aggravating factors” present and called for a sentence at the “upper end” of the range.

58In R. v. Cleyndert, 2006 CanLII 33851 (ON CA), [2006] O.J. No. 4038 (C.A.), the court imposed a sentence of 12 years’ imprisonment (less 3.5 years’ presentence custody) after trial. The offence occurred at a “field party” after high school graduation. The victim punched the accused and the accused then stabbed the victim eight times in the torso. The victim was unarmed and did not know the accused had a knife. The accused kept the knife concealed and had fled the scene.

59The trial judge took into account that the accused was 19 years old at the time of the offence, who had a supportive family, an employment record, prospects for rehabilitation, and good character while in custody. The trial judge considered the vulnerability of the victim, the appellant’s youth record, the brutality of the attack, impact on the family, and after-the-fact conduct of flight. The trial judge found that the accused’s expressions of remorse were not sincere on all of the evidence and should not be considered a “mitigating factor”. The Court of Appeal found no error in the trial judge’s conclusion on this issue.

60In R. v. Shepherd, [2006] O.J. No. 2860; 70 W.C.B. (2d) 347 (S.C.J.), after trial, the court imposed a sentence of ten years’ imprisonment (less 2.5 years presentence custody). In this case, the victim told the accused to leave the common room of the elderly residence. The victim attempted to phone the police and the accused struck her with the phone, buckled her knees and then kicked and hit her. The victim died four days after the attack from complications arising from her injuries. The aggravating factors were that the assault was carried out in the victim’s own residence and she was vulnerable. Other residents witnessed the attack and were terrified. The attack was described as brutal, sustained and vicious. The offender had “uncontrolled” anger problems in the past, was on probation and had a prior record for assault and mischief.

61The mitigating factors in this case were that the victim suffered from severe seizures, had a very difficult childhood and was a victim of childhood sexual abuse. He was diagnosed with a personality disorder and had paranoid delusions. The accused expressed remorse, although the court had concerns about how much insight he actually had into his behaviour. The court concluded that this was a case of “near murder” and emphasized specific deterrence.

62In R. v. Calladine, [1995’] O.J. No. 395 (C.A.), rev’g [1993] O.J. No. 1637, after trial, the court sentenced the accused to 14 years’ imprisonment which was on appeal reduced to 10 years’ imprisonment. The accused stabbed his wife 11 times and one wound was fatal. Both parties were intoxicated at the time. The accused was 29 years old with an “extensive” prior criminal record, however he had some prospects of rehabilitation. The Court of Appeal did not provide reasons for the reduced period of imprisonment except that the sentence was deemed to be “beyond the range”.

63As mentioned, the case of R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966; 172 O.A.C. 133 (C.A) had once been referred to as establishing a range for the imposition of an appropriate range of sentence in manslaughter cases with ‘aggravating features. The accused stabbed the victim seven times. The victim was intoxicated at the time of the offence. The aggravating factors in this case were that the attack occurred in the victim’s home and the victim was frail, vulnerable and defenseless. The accused initially tried to divert suspicion from him but then he admitted that he caused the death. This was a brutal attack with the use of a knife and the accused attempted to conceal the weapon. The offence had a devastating impact on the deceased’s family. The mitigating considerations were that the accused entered a guilty plea and there was clear evidence from family members that the accused had made marked changes since the offence occurred. The trial judge concluded that the jury accepted a combined provocation/intoxication defence.

64The Court of Appeal summarized the aggravating factors and held that this was a “senseless brutal killing of an elderly woman” committed by a man “on parole and under an order prohibiting him from having firearms”. The Court upheld the sentence stating it as being “fit and proper”, however the Court stated that provocation deserved some “modest consideration”. At the time, the Court of Appeal found the sentence of 14 years’ was outside the appropriate range of 8 to 12 years for similar-type of brutal killings. The suggested “ceiling” interpreted by many justice participants arising from the decision in Clarke for manslaughter cases with ‘aggravating features” has been oft-criticized and effectively neutered by recent appellate decisions.

65In considering these cases and the jurisprudence generally, I appreciate that the range of sentence varies considerably. In manslaughter sentencing there is a wide range of sentences available to the judge. There are several examples of similar brutal and violent manslaughter cases where the sentence imposed was at the upper single digit penitentiary range to the mid double-digit range. I can only conclude that the range of penalty is very broad and the particular circumstances of this case must be carefully considered.

Analysis:

66The court is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.

67As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that reflect enumerated objectives. Those objectives, relevant to this case, are denunciation of the unlawful conduct, deterrence of other potential offenders and rehabilitation of Ms. Reed. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.

68Section 718.2 addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. I have not neglected to consider all of the other principles listed in ss. 718 and 718.2 of the Code including rehabilitation and other relevant factors in deciding what sentence to impose.

69It is clear that there is no sentencing ceiling for manslaughter cases, even those that feature significant aggravating factors. Crown and defence counsel agreed to the range of sentence between 12 and 15 years, and by virtue of that concession have tacitly agreed that the range of sentence in this case may indeed go higher than what had been considered the ceiling of 12 years.

70In my view, a most significant aggravating factor is the nature of the offence. Ms. Reed’s defenseless mother fought for her life during the prolonged attack while Ms. Reed repeatedly beat and stabbed her. Ms. Reed grabbed her mother in a choke hold. Her mother begged her daughter to let her go. Genevieve continued to attack her mother. During the time of the beating, Ms. Reed closed the curtains on the living room window. Karen Reed was on the floor and unconscious. Ms. Reed went into the kitchen and returned with a steak knife and stabbed her mother in the head area and neck a number of times. Karen Reed was hit with a candle holder and a ceramic ornament.

71Karen Reed suffered from approximately 20 stab wounds, at least 7 of which were to the head and neck. There were also multiple incised and blunt force wounds to the hands which indicate attempts by Karen Reed to escape or ward off injury. There were approximately 18 blunt force injuries to the head and neck and nine to the torso, as well as several to the hands and arms. Two of Karen Reed’s ribs were fractured. One of the stab wounds was through the upper lip and then penetrated the skull base and brain causing death. One of the stab wounds entered Karen Reed’s face just below her left eye and the pathologist found the tip of the knife broken off and embedded internally in the wound. Ms. Reed was described as being in a “catatonic state” at the time of the offence, yet she deliberately mislead the police upon their arrival at the residence.

72Ms. Reed has an extensive criminal record. She has numerous convictions for CDSA charges and failing to comply with court orders. She has not spent much time in jail. Her most serious convictions occurred in October 2009 when she received probation, (30 days’ time served) for theft and in December 2009 when she received a suspended sentence (58 days’ time served) for a level one assault. The transcripts filed by the Crown with respect to some of these convictions reflect a pronounced and continual substance abuse history as well as manifest mental health issues.

73In this case, I agree with Ms. Tuttle that there are but a few mitigating factors. Recently, Ms. Reed has taken some courses and has participated in counselling sessions. She appears to have started down the road to deal with some of her underlying issues, although I acknowledge the Crown’s consternation about Ms. Reed’s intractable substance abuse history.

74However, in my opinion, a most significant mitigating factor is Ms. Reed’s plea of guilt to a very serious charge. While there was some early trepidation on Ms. Reed’s part in admitting responsibility, I am satisfied that after some passage of time, and upon reflection, Ms. Reed has come to accept her involvement for the crime. Ms. Reed’s guilty plea demonstrates remorse and acceptance of responsibility for her misconduct. I also accept that she has exhibited some compunction when she provided her brief apology to the Court in front of her family members. I have placed significant weight to Ms. Reed’s plea.

75Frankly, it is mind boggling to me that Ms. Reed would take the life of her mother. The attack was particularly brutal and vicious, fuelled by Ms. Reed’s high degree of intoxication by drug, and her borderline personality disorder, but that does not for a moment excuse her behaviour.

76Yet, the loss of her mother, the one person, in fact, the only person who cared and nurtured Ms. Reed throughout her entire life, who was there for her - when Ms. Reed was in need of someone, is gone. Her mother, who assisted her through various difficult periods, through addictions and mental health challenges is now gone. Indeed, when Ms. Reed needed shelter, financial or emotional support or assistance, her mother seemed to always be there for her. Ms. Reed has taken more than the life of her mother. She has deprived herself, her sister and other individuals of the love, support and care provided to them all by Karen Reed. Ms. Genevieve Reed may have yet to come to the stark realization that she took the life of someone who was so important and good to her.

77Clearly, Mrs. Karen Reed clearly did not deserve her fate at the hands of her daughter who she gave so much to and only wanted to help through a difficult life with insurmountable addiction and mental health challenges. I would like to believe that this revelation has hit home with Ms. Reed. Yet, when Ms. Reed eventually leaves jail, Karen Reed will not be waiting for her at the prison gates to provide her with what Ms. Genevieve Reed has come to rely upon throughout most of her life. Perhaps “rely” is the wrong word for it appears that Ms. Reed’s craving for drugs and self-indulgent behaviour outweighed any reliance or consideration for her mother on April 20, 2010. In any event, the actual profound and regrettable loss of Karen Reed and the resulting void in Ms. Reed’s life may find its way to serve as some degree of moral penance.

78In my view, Ms. Reed’s serious addiction issues and criminal antecedents including her limited success with previous treatment and counselling programs suggest that she is likely to re-offend. These factors raise the concern that rehabilitative programs may not be of further benefit to her and must be considered in the overall mix of factors that go into determining a fit sentence.

79The aforementioned factors are an indication that specific deterrence and denunciation are required at a high level. In my opinion, the range proposed with respect to the period of incarceration for this offender is entirely appropriate. The prospects for rehabilitation are negligible. While I am not suggesting that 12 years is the limit or ceiling for this type of offence in these circumstances, many of the manslaughter cases that feature brutal, horrific or aggravating factors tend to undulate but generally do not surpass 12 years in duration.

80While the facts here involve a brutal and prolonged attack and there are very serious aggravating factors, on balance, including the guilty plea, I am satisfied that a sentence at the low end of the proposed range is warranted here.

Disposition

81I have taken into account the circumstances of the offence and of the defendant, while recognizing and applying the applicable sentencing principles. I impose a s.109 order for life. Ms. Reed is to provide a sample of her DNA pursuant to s. 487.051 of the Criminal Code.

82I conclude that a fit and appropriate global sentence in this case is a term of imprisonment for 12 years. Ms. Reed has been in custody from her date of arrest to this date, a total of 3 years and 3 months. Except for the latter 6 months, Ms. Reed is to be credited for the period of 2 years and 9 months of pre-sentence custody on a 1:1 basis. In the exercise of my discretion, enhanced credit on a 1:1.5 basis is justified for the period post-January 2013. As a result, Ms. Reed has served the equivalent of 3 ½ years of pre-sentence custody.

83Therefore, the net custodial term with respect to the one count of manslaughter shall be a term of imprisonment of 8 ½ years in a federal penitentiary.

84Pursuant to s. 743.6 Ms. Reed shall serve at least one half of her sentence before she may be considered eligible for release on parole.

Footnotes

1. 1R. v. Lalo, 2002 NSSC 157, 206 N.S.R. (2d) 250 at para. 39.
2. 2Cited with approval by the Ontario Court of Appeal in Summers.
3. 3See also Summers at para. 123.
4. 4I have not considered the application of s. 743.6.
5. 5I have also considered R. v. Cheddesingh, 2002 CanLII 49362 (ON CA), 168 C.C.C. (3d) 310 (C.A.) aff’d 2004 SCC 16, 182 C.C.C. (3d) 37 (S.C.C.).