Her Majesty the Queen v. George Christopher Gale
COURT FILE NO.: 10967
DATE: 2013/10/10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
L. Tuttle & L. Casey, for the Crown
- and -
GEORGE CHRISTOPHER GALE
J. Getliffe, for the Accused
HEARD: October 3, 2013
REASONS FOR SENTENCE
A. J. Goodman, J.:
[1] On June 27, 2010, Jocelyn Bishop went missing from the house where she had resided with George Christopher Gale. Eleven days later, Ms. Bishop was found buried in a shallow grave at the rear of the very same house on Fanshawe Park Road West in London.
[2] Jocelyn Bishop had been killed as a result of a single fatal penetrating gunshot wound. When found, her body was in a state of moderate to advanced decomposition.
[3] Mr. Gale was convicted by a jury of the second degree murder of Ms. Bishop. As a result, he is to be sentenced to life imprisonment. The only matter to be decided is the period that he must serve before he is eligible to apply for parole, which must be fixed at between 10 and 25 years.
[4] Ms. Tuttle on behalf of the Crown submits that the period of parole ineligibility be increased to 17 or 18 years based on the numerous, serious aggravating features in this case, the lack of mitigating elements, planning and deliberation and after-the-fact conduct, amongst other considerations. In addition, the Crown requests a prohibition order pursuant to s. 109 of the Criminal Code, a non-contact provision and a DNA order.
[5] Mr. Getliffe, counsel for Mr. Gale, argues that the parole ineligibility period be limited to the statutory 10 year minimum. The defence submits that the Court ought not to increase the period of parole ineligibility based on the jury’s recommendation of 10 years, the lack of aggravating features including no cogent evidence of planning or deliberation and the mitigating factors in this case. There is no dispute with regards to the Crown’s request for the ancillary orders.
The recommendation of the jury
[6] The recommendation of the jury was near unanimous. Ten jurors recommended 10 years, and two jurors made no recommendation.
The circumstances of the offence
[7] On June 27, 2010, Mr. Gale went out with his parents for a birthday breakfast. Later that morning, he and his best friend at the time, Justin Darlington, drove to the reserve to purchase cigarettes for his common-law partner, Ms. Bishop. Upon their return, Mr. Darlington did not go into the Gale residence. Later that day, Ms. Bishop and Mr. Gale may have had an argument or some other event occurred resulting in Mr. Gale sustaining a broken wrist. Sometime later, Mr. Gale retrieved his home-made Cobray M11 semi-automatic firearm. In the area near the kitchen where the computer desk and portable dishwasher was located, Mr. Gale shot and killed Ms. Bishop. Mr. Gale again called upon Mr. Darlington, this time to drive him to his parent’s house. After a short visit, Mr. Gale promptly returned back to his residence.
[8] At this juncture, Mr. Gale commenced disposing of Ms. Bishop’s body by burying her in the rear area of the large overgrown backyard. That endeavor continued in darkness from late evening on June 27 into the early morning hours of June 28. Subsequently, Mr. Gale began a partial clean-up of Ms. Bishop’s blood and he destroyed the firearm he used to kill Ms. Bishop.
[9] Over the course of the following days, Mr. Gale claimed that Ms. Bishop went missing after they had an argument and he had no idea of her whereabouts. It was not until July 4, 2010 that Mr. Gale called Mr. Don Bishop to advise him of his daughter’s situation. An extensive search for Ms. Bishop commenced and continued until her body was located by police in the rear yard of the residence on July 8, 2010.
[10] The pathologist testified that Ms. Bishop’s death was as a result of a single fatal penetrating gunshot wound of the head and brain.
Victim Impact Statement
[11] Fifteen victim impact statements were filed with the Court. Six members of Ms. Bishop’s family read their respective victim impact statements. While I will only be referring to segments of some of the Victim Impact Statements, all of these exhibits have been reviewed and considered.
[12] The deceased’s mother, Ginette Bishop, in a highly emotive recitation of her statement related the pain suffered by her since the loss of her daughter over 3 years ago. She described Jocelyn as a precious gift taken from her and she never thought that she would have to decide which casket or urn to choose for her daughter. To her consternation, many questions about her daughter’s last days and death still remain unanswered.
[13] Ms. Bishop’s father, Don Bishop, in an eloquent and powerful fashion related how the loss of his daughter had affected him personally and financially not to mention the impact on members of his close-knit family. Since the death of his daughter, Mr. Bishop has had difficulties coping with various employment opportunities. Recently, Mr. Bishop started to work at a poultry farm in a one man automated position. He claimed that the job is good for him as “chickens don’t ask why you are crying.”
[14] Ms. Bishop’s sister, Melissa Linton advised that she feels the deep sense of loss of her sister and that her children will never know their aunt. Watching her parents go through this ordeal has been extremely difficult.
[15] Danielle Brousseau related to the court that Grandma Levesque, whose house was always a safe haven for Jocelyn, has a shelf in the living room, a sort of shrine, where the memory of Jocelyn is kept alive. Bill Bishop wrote that Jocelyn is grandchild 20 out of 21. The loss of Jocelyn has greatly affected Don and Ginette Bishop, and the entire Bishop clan will never be the same.
[16] Before I move on, I want the family and friends of Jocelyn Bishop to know that I am aware of the utter devastation caused by her death. I have not failed to understand your pain and sorrow and I have not forgotten the tragedy of Jocelyn’s death. No one in this court room could help but not be moved by the heartfelt sense of bereavement and loss caused to the Bishop family, which has been vividly described throughout the sentencing hearing.
[17] Mr. Gale has been convicted of murder and will be sentenced to a mandatory life sentence. That same sentence applies to every murderer and the courts do not differentiate between the killing of an innocent young woman, cherished by her family and friends, and the killing of any other human being. Nothing I do here will bring Jocelyn back or expunge the grief felt by her family. However, I cannot exact vengeance. The focus at this stage of the proceedings is what sentence I am to impose based on fairness, balancing of the judicial principles, the case law and on the circumstances of this case and the offender.
The circumstances of the offender
[18] A pre-sentence report was prepared in this case. The probation officer reported that Mr. Gale was born and raised in St. Thomas. His parents separated when he was three years of age, finally divorcing when he was five years old. According to Sheila Lundy, Mr. Gale’s mother, her son did not appear to be affected by the absence of his father. There was domestic violence in the home and alcohol abuse in the home.
[19] Mr. Gale completed his Ontario Secondary School diploma and went on to attend post-secondary education. His high school education was interrupted due to having anxiety as a result of suffering a seizure. Mr. Gale reports that he has always maintained some type of employment in the field of general labour.
[20] Mr. Gale has always shared a very close relationship with his mother and she continues to be very supportive of him. Eileen Pressey, Mr. Gale’s aunt described the relationship between Mr. Gale and his mother as one in which they are able to communicate openly and talk about things.
[21] Mr. Gale has been involved in a couple of relationships throughout his life, although a couple of short term relationships did not end well. Mr. Gale was in a common-law relationship with Jocelyn Bishop, for approximately one and a half years. He met Jocelyn Bishop at her parents’ residence eight years after his last relationship ended and they eventually moved in together. According to Mr. Gale, Jocelyn had social anxiety and did not like going out very often so they spent a lot of time at home.
[22] Mr. Gale described the first year of the relationship as one that was good and that they were both very happy. They shared the same interests in jokes and they both loved animals. He described the victim as someone that was jealous of him and as a result she began having negative thoughts. He then goes on to claim that Jocelyn was not often jealous and portrayed the relationship as being good 98% of the time and that she did not display feelings of jealously often. He explained that he tried to spend all of his time with her and even quit his job in order to stay at home with her. They struggled financially which caused some problems in the relationship. They no longer had the internet which was Jocelyn’s main source of communication with her family.
[23] Once Mr. Gale became involved in a serious relationship with Jocelyn Bishop, he did not visit his mother as much. Mrs. Lundy described Jocelyn as someone that was vulnerable with a good sense of humour. Mrs. Lundy went on to explain that she felt that her son and Jocelyn “were really good together” and that this was what she liked most about her.
[24] Mr. Gale reported to the probation officer that alcohol consumption has never been a concern for him. He disclosed that he smokes marijuana on a daily basis and was using approximately two or three marijuana joints per day. He reported no other type of drug use. Mrs. Lundy explained that she was aware of her son’s use of marijuana but was not concerned about it because she knows that a lot of people use marijuana on a casual basis.
[25] Mr. Gale advised that he is currently being treated by a psychiatrist and has been dealing with social anxiety for the past ten years. The psychiatric report prepared by Dr. Gary Chaimowitz, indicated that Mr. Gale “was considered to be a rather nervous person, prone to panic attacks”. Other comments made by the family physician were noted. The report went on to describe Mr. Gale as an individual who is rather shy and inhibited in social situations.
[26] Mr. Gale spends his leisure time engaged in pro-social activities such as Frisbee golf, small engine and appliance repairs, hunting as well as being an avid gun smith. There were no concerns noted with Mr. Gale’s companions. The probation officer reports that family sources have all supported Mr. Gale throughout the entire court proceedings and his family remains committed to the offender. Members of his family describe Mr. Gale as a kind and humble man, one who helps others in need. I note that in contrast to the psychiatrist report, family members described Mr. Gale as a friendly outgoing and sociable young man. He was also described as a quiet and caring individual who has been isolated as a result of the matters before the court.
[27] When discussing the matters currently before the court, Mr. Gale recounted his version of the offence to the probation officer. When queried why he did not contact police, Mr. Gale stated that it never occurred to him. He told the officer that his main concern for not allowing Jocelyn Bishops’ parents to attend her funeral was because he felt that is what she would have wanted.
[28] The probation officer concluded that it is likely that Mr. Gale would be outwardly compliant with any community supervision that may be ordered. However, his minimization and lack of remorse could be a significant barrier to him gaining any benefit or insight that community supervision could offer.
[29] Several letters on behalf of Mr. Gale were filed. His aunt Eileen Pressey writes: I have known Chris Gale all of his life. I always found him to be a kind-hearted, good-natured, loving person. He is a devoted son and well-loved by his extended family. Many times he has extended a helping hand to family and friends. He is a good friend and has always been well-liked with many friends. He tries to help and look after others.
[30] Beulah Turner writes: Having known for Chris for his entire life, I was completely astonished when I heard of the charges filed against him. I can assure you that this incident is completely out of character and in no way reflects the kind, gentle and good humored person I know and helped raise. Chris has always been thoughtful, polite, considerate, personable, responsible and more than anything very giving.
[31] Lorna Whalls writes: I have experienced Chris to be a mature, respectful, compassionate, gentle, kind and sweet person. From a young age Chris exhibited his sweet and gentle nature as I observed his relationship with his mother. He was always attentive, well mannered, and well raised. Chris spent time with my family on many Saturday mornings for his sign in and errands. I have had no qualms to include him in my family’s lives. Chris is a good person. I am proud to have him as a member of my family.
The events following the verdict:
[32] The Crown seeks to demonstrate Mr. Gale’s deleterious character and his lack of remorse by reference to, inter alia, an incident that occurred following the jury’s verdict. Evidence was adduced at the sentencing hearing with respect to alleged utterances or gestures made by Mr. Gale that occurred while both I and the jury were out of the courtroom awaiting the jury’s recommendation. The Crown called three witnesses, Mrs. Ginette Bishop, Mr. Don Bishop and Ms. Melissa Linton. The accused testified on his own behalf.
[33] From my understanding of the evidence, it is alleged that Mr. Gale turned towards and mouthed an expletive to Mr. Don Bishop and his family and also stated “I know where you live”.
[34] It is clear that any post-verdict conduct cannot be used to punish Mr. Gale rather if accepted, it is a factor that goes to the character of Mr. Gale and may be considered in sentencing. As Mr. Gale disputes the incident, the Crown must satisfy the burden of proof of this aggravating factor beyond a reasonable doubt.
[35] At the time of the alleged event, no doubt, emotions were running high in the court room. Mr. Gale had just been found guilty of second degree murder after a difficult trial. The Bishop family having been present for two trials and other numerous proceedings. Disparaging and unfounded accusations towards the Bishop family about their treatment and lack of care or support for their daughter had been repeatedly brought out by Mr. Gale in his testimony.
[36] I recall that the court room had been extremely crowded prior to the jury leaving for their recommendations. I take notice that Mr. Gale had been placed into custody prior to my leaving the courtroom. No police officer, who would have been next to or close to Mr. Gale, testified about this incident. All of the witnesses testified that they heard Mr. Gale “mouth” the expletive and did not hear any words. Mouthing a phrase, while readily interpreted by the intended recipient may not be entirely accurate, even a short two-word expletive, especially during a highly charged and emotional situation following the verdict. Further, there were some inconsistencies in the evidence as to what was heard and who told whom with respect to the alleged statement “I know where you live”. Mr. Don Bishop testified in chief the he heard the entire phrase. In cross-examination he admitted that he only heard the word “live” and that he obtained the rest of the utterance from his daughter. Mrs. Ginette Bishop did not hear the comment herself. Ms. Linton testified that she did not hear the exact words. Mr. Gale testified on this issue and he denied making any expletive or statement and even claimed that during the commotion following the verdict he never heard any disparaging comments shouted out to him.
[37] I do not doubt for a moment the sincerity and honesty of Ginette and Don Bishop and Melissa Linton. I find that they are entirely truthful as to what they believed they saw or heard. Frankly, I prefer the Bishop’s testimony over that of Mr. Gale. I conclude that it is likely, even probable that something derogatory, perhaps threatening was transmitted in some fashion by Mr. Gale towards the Bishops’. However, based on all the evidence, I am not satisfied on the higher standard of proof beyond a reasonable doubt that Mr. Gale mouthed an expletive or uttered words to the effect that “I know where you live”. Therefore, I will not consider this evidence for purposes of sentencing.
The governing principles
[38] Under s. 745(c) of the Criminal Code, on conviction for second degree murder the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years.
[39] In cases of second degree murder, the imprisonment may continue for the rest of Mr. Gale’s natural life. Ultimately, it will be for the Parole Board to decide when, if ever, Mr. Gale has been sufficiently rehabilitated that he is no longer a danger to others in our society and that he may be released on parole. My determination of the minimum period of time at which Mr. Gale will become eligible for release on parole does not necessarily mean that Mr. Gale will be released upon the expiration of whatever minimum period I impose today.
[40] Section 745.4 empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years. Section 745.4 requires that in exercising his or her discretion, the trial judge have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury.
[41] In R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, the Supreme Court of Canada articulated the standard to be applied in assessing the exercise of a trial judge's discretion under s. 744 as follows:
... as a general rule, the period of parole ineligibility shall be for 10 years but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitable to be released into the general public assessed. To this end an extension of the period of parole ineligibility would not be unusual, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.
[42] As well, the Supreme Court held that the power to extend the period of parole ineligibility need not be sparingly used and is not restricted to "unusual circumstances." The court recognized that "in permitting a sliding scale of parole ineligibility, Parliament intended to recognize that within the category of second degree murder there will be a broad range of seriousness reflecting varying degrees of moral culpability."
[43] The leading authoritative appellate case in Ontario is R. v. McKnight 1999 3717 (ON CA), [1999] O.J. No. 1321. In that case, the offender murdered his wife of 20 years by stabbing her to death in their bedroom with a serrated bread knife. The victim sustained numerous injuries and had over 50 defensive wounds. The jury rejected a defence of not criminally responsible by reason of mental disorder and convicted on second degree murder. There were elements of planning and deliberation. The trial judge fixed the period of parole ineligibility at 17 years. In reducing the period of parole ineligibility to 14 years, Laskin J.A. held:
Taking into account all of these aggravating and mitigating features, in my opinion, a 17-year period of parole ineligibility falls outside a reasonable range. No two cases are the same but similar cases from this province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.
[44] The decision in McKnight confirmed that both denunciation and rehabilitation are relevant factors in fixing the period of parole ineligibility. The Court also acknowledged that elements of planning and deliberation can be considered as an aggravating feature of second degree murder. [^1]
[45] It is clear that the Court of Appeal in McKnight directs in cases of brutal murders of spouses or girlfriends in a domestic context, a range of 12-15 years of parole ineligibility is to be respected. I pause to mention that I will return to this case later on in my decision.
[46] I have been referred to a number of authorities setting out parole ineligibility findings in cases of second degree murder involving domestic violence. I have also considered a number of other reported cases.
[47] In R. v. Morrow, [1995] O.J. No. 4052, McLean J. imposed a period of parole ineligibility of 15 years on a conviction for second degree murder. The jury had recommended 20 years parole ineligibility. The accused murdered his common-law spouse by cutting her throat following an argument. The accused had a criminal record. The court found the commission of the murder in the presence of his two-and-a-half year old child to be particularly aggravating.
[48] In R. v. McLeod, 2003 4393 (ON CA), [2003] O.J. No. 3923, the Court of Appeal increased the period of parole ineligibility from 10 years to 12 years following a conviction of second degree murder. The accused had stabbed his girlfriend four times in the neck, then cut up her body and deposited it in a suitcase by the highway. The court considered the callous treatment of the victim's body.
[49] In R. v. Kailayapillai, [2009] O.J. No. 1145, M.K. Fuerst J. imposed a period of parole ineligibility of 14 years. The court considered the accused to be in a position of trust to the victim and the fact that she was killed in her own home. The wife's skull was fractured and she was hung up in the garage and was discovered by her children. There were some elements of planning. The accused had no criminal record or prior history of domestic violence.
[50] In R. v. Wristen 1999 3824 (ON CA), [1999] O.J. No. 4589 the Court of appeal endorsed the trial judge’s imposition of a period of parole ineligibility of 17 years. The trial judge took into account many factors including that the offence was a spousal murder, the appellant's failure to disclose the location of the body and the jury recommendations ranging from 14 to 20 years. The appellant had a criminal record but his only conviction for a crime of violence was the assault on his wife. He was on probation when he killed his wife. After killing his wife, he demeaned her character to others. Her body was never found and the offender also tried to conceal her death, going as far as conscripting his daughter to assist him in the cover-up.
[51] In R. v. Teske, 2005 31847 (ON CA), [2005] O.J. No 3759, the Court of Appeal reviewed the sentence imposed by the trial judge. The appellant was 41 years of age at the time of his conviction. He did not have a criminal record, but had received a conditional discharge for assaulting his wife. He killed his wife in their home, and the trial judge imposed a period of parole ineligibility of 16 years, emphasizing the accused’s elaborate efforts to cover up his crime as an aggravating factor.
[52] The Court of Appeal considered the appropriate period of parole ineligibility. The Court held that the record offered no reason to depart from the range described in McKnight. While the Crown did not contend that the appellant set out to kill his wife, the appellant's prior domestic assault and his after-the-fact conduct were significantly aggravating features. The appeal court reduced the parole ineligibility from 16 to 13 years premised on the dearth of supporting reasons to elevate the period beyond the range proffered in McKnight.
Analysis
[53] This court, or any court, is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code. As 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. These objectives relevant to this case are denunciation of the unlawful conduct, specific and general deterrence of other potential offenders, separation of offenders from society where necessary, the protection of society and rehabilitation. The objectives may include an assessment of dangerousness and recidivism. It is important to impose a sentence that promotes a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.
[54] The circumstances of the offence and of the offender must be analyzed to identify the aggravating and mitigating factors.
[55] In particular, I must apply the considerations mandated by s. 745.4. In assessing s. 745.4 factors and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing as found in ss. 718 to 718.2 are relevant. I am permitted to draw inferences from the evidence adduced at trial and arrive at my own conclusion of fact.
Jury Recommendations
[56] At the end of this difficult trial, followed by two days of deliberations, ten members of the jury recommended that the period of parole ineligibility be fixed at 10 years and two jurors made no recommendations.
[57] As Watt J.(as he then was) wrote in R. v. Barry [1991] O.J. No. 2666:[^2]
It is difficult to gauge with any accuracy the weight which should be attributed to a jury recommendation regarding parole ineligibility. In one sense, it might be said to represent the community view upon the issues. To so hold, however, as it appears to me, is somewhat to overstate the case. They are given no guidance on the precedents concerning the appropriate range. They are simply told the numbers. They are not required to at least endeavor to achieve unanimity. It is, as it was in this case, but a brief, somewhat informal exercise, after they have been earlier told that sentence forms no part of their responsibility in determining liability, and thereafter told it is but a recommendation. They receive no further evidence concerning, for example, the likelihood of recidivism, future danger to society or other matters which might logically bear upon the issue other than what they can recall was given at trial.
[58] I acknowledge and appreciate the jury’s combined wisdom and experience as representatives of the community. While the jury's recommendation is not binding on me, it is a factor that I consider and weigh when setting the period of parole ineligibility. However, the members of the jury did not have the benefit of considering the applicable case law, the principles of sentencing pursuant to s. 745.4 of the Code, the aggravating or mitigating factors or have the benefit of hearing submissions from both counsel before making their recommendations.
[59] No doubt, after having reached a verdict in this case, the jury was then asked to making their recommendations. The jury spent less than an hour and came back with their near-unanimous recommendation of 10 years.
[60] I have taken all of these factors into account including the important recommendations of the jury in assisting the court with the appropriate period of parole ineligibility. I find that the jury’s recommendation is totally unrealistic and contrary to the principles of sentencing that I must employ in this case. While I cannot and must not ignore their recommendations, with respect, I have rejected their recommendation of the minimum 10 year parole ineligibility period.
Mitigating Factors
[61] Mr. Gale has one unrelated conviction for possession of a scheduled substance for the purpose of trafficking and possession of proceeds of crime, and he received a fine on each charge. I have not considered these unrelated offences for the purpose of this sentencing. For all intents and purposes I am satisfied that Mr. Gale enjoys the benefit of no prior related crimes of violence. The presentence report is generally positive and I am satisfied that Mr. Gale has lead a pro-social life with no relevant criminal antecedents.
[62] Mr. Gale has been described as a person of very good character, generous to others. He has no past history of any violence and in fact has a general reputation in the community as being a passive person and an individual always willing to help others. As I do not have extensive evidence on point, and based on the letters and evidence filed, I conclude that Mr. Gale’s psychological and socialization attributes are neutral if not mitigating factors.
Aggravating Factors
[63] There are a number of serious aggravating factors in this case. Mr. Gale killed Ms. Bishop as part of a domestic altercation, which is recognized as an aggravating factor pursuant to s. 718.2(a)(ii) of the Code. Ms. Bishop was killed in the very residence she shared with Mr. Gale.
[64] After the fact conduct: Mr. Gale left Ms. Bishop on the floor where he killed her, left the residence to go to parent’s house, quickly returned back home and then proceeded to drag Ms. Bishop’s body out to the rear yard and bury her in a shallow unmarked grave in the overgrown back area of the property. The grave that he hastily dug was haphazard and was not even large enough to fit Ms. Bishop’s body. He used plastic garbage bags, duct tape and Urea to mask the scent of decomposition.
[65] Mr. Gale set off to contaminate the scene of the crime, destroyed the murder weapon and attempted a clean-up of the blood in conjunction with the removal of potential evidence from the residence. He further exacerbated the situation by deceitfully and shamelessly perpetuating a lie about Ms. Bishop’s disappearance and her running away from home, and continued with that lie over the course of many days by actively promoting it to the Bishop family, the police, neighbours, his friends, the community and even to his very own mother.
[66] Planning and deliberation: Mr. Gale’s best friend at the time, Mr. Justin Darlington testified that he had a conversation with Mr. Gale on the day of the murder while on route to the reserve to pick up cigarettes. Mr. Darlington testified that: “I remember Chris was upset and depressed and he was going on about how terrible his life was getting living with her. She was always so crazy and in moods all the time and very controlling. And he also talked about how he had thought about shooting her in the head and burying her in the back yard and no one would come looking for her”. Hours later, this scenario in fact came true.
[67] The nature of the murder: Ms. Bishop was shot with a home-made Cobray M11 9 mm semi-automatic firearm. A single bullet entered her skull in the right parietal region at the top of her head. The bullet penetrated through her right parietal skull, brain and exited the skull through the left temporal bone where a deformed 9 mm bullet was lodged under the skin behind the left ear. The non-contact wound had a downward and right to left track with a slight front to back projection. Based on the expert opinion, at the time of the killing, Ms. Bishop’s head was situated between 24 and 40 inches above the floor.
[68] It is clear that Ms. Bishop had some mental health challenges. However, the jury rejected Mr. Gale’s contention that she committed suicide. Mr. Gale murdered Ms. Bishop. He held his Cobray M11 semi-automatic firearm and discharged a single round into Ms. Bishop’s head. Based on the evidence, Mr. Gale would have to have been standing or situated considerably higher than Ms. Bishop with the weapon pointed downwards towards Ms. Bishop’s head. At 5 foot 4 inches in height, Ms. Bishop would have to have been bent over, kneeling, seated or otherwise positioned much lower than the muzzle of the firearm held by Mr. Gale. As such, Ms. Bishop would have been in an entirely vulnerable and defenseless position at the instant she was killed by Mr. Gale.
[69] It is not an aggravating factor that Mr. Gale pleaded not guilty and had a trial. However, he cannot benefit from the mitigation that flows from a plea of guilty and the expression of remorse. In this case, Mr. Gale continues to deny his involvement in the crime and he maintains that Ms. Bishop committed suicide.
Application of the legal principles to this case:
[70] With the greatest of respect. I reject the 10 year minimum proffered by Mr. Getliffe for this case based on the application of the jurisprudence, and the circumstances of the case and of the offender.
[71] In R. v. Jimenez- Acosta, [2013] ONSC 5525, a case of second degree murder involving a situation of domestic violence, I sentenced the offender to a period of parole ineligibility of 13 years. In that case, defence counsel urged the court to find that the range of parole ineligibility for brutal second-degree murders in the context of domestic situation was between 10 to 14 years, referring to the Court of Appeal’s decision in R. v. Pasqualino 2008 ONCA 554, [2008] O.J. No. 2737. As I stated in Jimenez- Acosta, at para. 46, it was and remains my opinion that the Court of Appeal in Pasqualino did not endorse 10-14 years as establishing a range for parole ineligibility for second degree murder involving domestic violence.
[72] I agreed with Crown counsel regarding the applicability of McKnight for "brutal second-degree murders of an unarmed wife or girlfriend." The jurisprudence supports the applicability of the range for the period of parole ineligibility in similar cases of domestic violence to be between 12 to 15 years.
[73] It is clear that sentencing ranges are merely guidelines and a judge must apply all of the considerations that flow from Part XXIII of the Code in order to arrive at a just and proper sentence. The Court of Appeal does not impose a "ceiling" on the sentences that can be imposed in those kinds of cases as sentencing remains an individualistic process requiring a careful exercise of judicial discretion. However, McKnight and its prodigy direct that if a trial judge is considering going beyond the range of 12 to 15 years in cases of domestic violence leading to second degree murder, there must be a foundation and measured, articulable reasons for doing so.
[74] In this case, Ms. Tuttle argues that in order to sustain her position for 17 or 18 years of parole ineligibility, this Court ought to distinguish the applicability of the ratio in McKnight based on the unique circumstances of this case.
[75] I acknowledge that in McKnight, there were some mitigating circumstances that do not apply to Mr. Gale. Mr. McKnight was deeply and genuinely remorseful about the murder. He was 53 years old and had been a solid contributing member of society. He was found to have a positive potential for rehabilitation. The Crown's expert conceded that but for Mr. McKnight’s serious depression, he likely would not have killed his wife. There was no post-offence conduct. The Court of Appeal was also concerned that with a 17 year ineligibility date, the offender would be 69 years old before he would be released.
[76] In support of her position to distinguish the scope of McKnight, Ms. Tuttle provided Molloy J’.s decision in the case of R. v. Hindessa [2009] O.J. No. 6412 (S.C.) aff’d. 2011 ONSC 3685, [2011] O.J. No. 2811 (C.A.).
[77] In Hindessa, various serious aggravating factors, found by Molloy J. are not present in the case before me including: a particularly brutal and savage crime characterized by gratuitous violence and mutilation; the murder was the final installment in a repeated history of physical violence perpetrated by Mr. Hindessa; Mr. Hindessa had a prior criminal record for violence including assaulting the deceased and assaulting another woman who came to her assistance; Mr. Hindessa repeatedly disregarded and breached court orders requiring him to have no contact with the deceased; Mr. Hindessa also breached other terms of bail and probation orders requiring him to abstain from alcohol and not be near the deceased's residence; he lied about his previous criminal behaviour; he had vilified the victim in the course of seeking to avoid responsibility himself; he had longstanding substance abuse problems that exacerbated his other difficulties to which he had not been inclined to remedy; the evidence suggested that he would not be compliant in the future; there was no demonstration of remorse and the prospects of rehabilitation were poor. Mr. Hindessa had shown an inability to be controlled or supervised in the past, including persistent lying to his probation officer and the psychiatrist to whom he was referred. The trial judge also found that there was a danger to society in that Mr. Hindessa is at the very least a moderately high risk to re-offend.
[78] I note that, in contrast to the case before me, the jury in Hindessa made recommendations ranging from 15 years to 25 years, with six jurors recommending the maximum period of parole ineligibility.
[79] In Hindessa, Molloy J. also listed several other considerations that are similar to the circumstances before me. There was an element of planning and deliberation in the murder, the victim was vulnerable and in a domestic relationship with the offender; Mr. Hindessa consistently sought to blame the victim or her family, rather than accepting responsibility for his own wrongdoing. Mr. Hindessa had failed to show any true remorse for this murder and had no insight into his own conduct and had consistently minimized his behaviour.
[80] It is true that Mr. Gale is not legally obliged to assist the police. He was entitled to exercise his right to silence and require the prosecution to prove the case against him beyond a reasonable doubt. However, in this case, Mr. Gale took elaborate steps to cover up his crime and to dispose of Ms. Bishop’s body. Having done so, he then refused to tell either the family or the authorities where the body was located until an exhaustive search involving immeasurable resources was expended, while all the time actively and promoting a deliberate lie. Even after the discovery of the body, Mr. Gale deflected the blame for Jocelyn’s death and burial site onto the shoulders of her parents. Clearly, in the case before me the aggravating post offence conduct is more pronounced and serious than that found in Hindessa.
[81] I agree with Crown counsel’s argument and am convinced that the murder committed by Mr. Gale bears some element of planning or deliberation. Justice Molloy held that the killing in Hindessa was as close to first degree murder as it is possible to come without actually being first degree murder. While I find some element of planning in this case, I do not arrive at the same characterization or conclusion as my colleague did in Hindessa.
[82] More importantly, unlike Hindessa, there is no expert or medical evidence about Mr. Gale’s prospects for rehabilitation or dangerousness to society at large, particularly to women. While Ms. Tuttle’s submissions are entirely appropriate, I find that the aggravating factors are more extreme in the Hindessa case. I am unable to distinguish Hindessa to the degree required in order to elevate the ineligibility period beyond the range proffered in McKnight.
[83] Nonetheless, there can be no doubt that this was a murder of a vulnerable victim. Here, the use of a firearm is a specific aggravating factor in the commission of the offence. Its use to murder a defenseless and vulnerable woman in her own home for no reason other than fatigue with the relationship cannot be considered to be anything other than a very serious murder. Recourse to violence is not the manner in which to cope with an unhappy domestic situation.
[84] Having taken into account the parity principle, I am convinced that adherence to the 12 to 15 year range discussed in McKnight is appropriate in this case. While I cannot totally ignore the recommendations of the jury, in my opinion, the need for denunciation and specific and general deterrence, along with the many aggravating circumstances; require a parole ineligibility period at the high end of the range set out in McKnight.
Conclusion:
[85] Mr. Gale remains adamant that Ms. Bishop took her own life. He continues to deny responsibility. To a limited degree, I can understand why he would not demonstrate any remorse for his culpability in the murder. While not intending to overstate the issue, I am somewhat troubled that, post-verdict, Mr. Gale has not shed one ounce of regret or sorrow, not for his own involvement, rather for the loss of his true love, his soul mate, Jocelyn Bishop. Apart from his emotive testimony at trial in describing the events of June and July 2010, (including his statement that as soon as he discovered that she was dead he was devastated, distraught and could not go on and live his life without her); it is indeed very disconcerting that there is not one scintilla of evidence or information presented to me in some fashion from Mr. Gale tending to demonstrate or express any feelings of loss or bereavement for the untimely death of Jocelyn. I pause to question whether this is really a man who claims that he loves and cherishes Jocelyn, whose death would befall a void in his life.
[86] I am mindful that the after-the-fact conduct ought not to be over-emphasized. According to the probation officer Mr. Gale claimed that both he and Jocelyn loved their animals. It seems to me that individuals who are extremely fond of animals would have treated their dearly departed pets with more dignity than Mr. Gale did with Jocelyn Bishop in the fashion in which he hastily dumped her in a grave adorned with clumps of dirt and tree branches in the rear yard of their Fanshawe Park Road residence. The callous and disrespectful manner in which he treated Ms. Bishop after murdering her does not demonstrate to me any love or compassion; rather it was merely a calculated and cold-blooded attempt to conceal the act of murder and to secrete the body from future detection. Mr. Gale’s actions validate that he is a person devoid of conscience or feelings and that he only acted in his own contemptible self-interest.
[87] Mr. Gale is to provide a sample of his DNA pursuant to s. 487.051 of the Code. A s. 109 lifetime weapons prohibition will be imposed. Mr. Gale is prohibited from communicating, associating or contacting directly or indirectly any member of Jocelyn Bishop’s immediate family.
[88] Mr. Gale has been found guilty of second degree murder and is sentenced to imprisonment for life. In balancing all of the relevant factors in arriving at a just and proper sentence for Mr. Gale, I fix the minimum period of parole ineligibility at 15 years.
A. J. Goodman, J.
Released: October 10, 2013
COURT FILE NO.:10967
DATE: 2013/10/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
George Christopher Gale
REASONS FOR SENTENCE
A. J. Goodman J.
Released: October 10, 2013
[^1]: See also R. v. Armstrong 1995 1570 (ON CA), [1995] O.J. No. 535 (C.A.) at para 21
[^2]: (Gen. Div.), aff’d. [1993] O.J. No. 3955 (C.A.) See also R v. Olsen 1999 1541 (ON CA), [1999] O.J. No. 218 (C.A.)