ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-40000614-0000
DATE: 20140611
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KAILA DUPUIS
Ms. T. Vogel and Ms. Rochelle Liberman, for the Crown
Mr. Adam Newman and Mr. David Shulman, for Ms. Dupuis
HEARD: May 20, 2014
FORESTELL J.
reasons for sentencing
Overview
[1] Kaila Dupuis was tried on an indictment charging her with the second degree murder of Jason Paglia. Ms. Dupuis pleaded not guilty to the charge. She was found guilty of manslaughter by the jury on April 11, 2014.
[2] In her trial, Ms. Dupuis testified and said that she did not knowingly inflict the stab wound to Mr. Paglia. She testified that she defended herself against an attack by Mr. Paglia by pushing him out of the door of her apartment while he was wielding a knife. She used the door to her apartment to push Mr. Paglia out into the hall. A short time after this occurred, Mr. Paglia knocked on her door asking for help because he was injured. Mr. Paglia had a wound to his upper chest and was bleeding. Ms. Dupuis was surprised and shocked. Essentially, Ms. Dupuis’ defence was that the fatal injury to Mr. Paglia was an accident that must have been caused when he stabbed himself in the chest as a result of Ms. Dupuis pushing him with the door to get him out of the apartment.
[3] The Crown position at trial was that Ms. Dupuis was angry with the deceased on the night of his death. The Crown relied on the evidence of the neighbor who heard an angry female voice prior to seeing the deceased walk down the hall wounded. The evidence also included angry text messages from that evening and other occasions. The Crown position was that Ms. Dupuis angrily stabbed Mr. Paglia in the course of an argument because he was not meeting her expectations in their relationship. The Crown position was that Ms. Dupuis intended to kill Mr. Paglia or intended to cause him bodily harm that she knew was likely to cause death.
[4] The jury, by its verdict, rejected the defenses of self defence and accident. The jury also rejected the Crown position that Ms. Dupuis had the intent for second degree murder.
Factual basis for the verdict
*The Law*
[5] In order to sentence Ms. Dupuis, I must, to some extent, determine the facts of the offence. The Supreme Court of Canada in R. v. Ferguson[^1] held that a sentencing judge is bound by the express and implied factual implications of a jury verdict. Where the factual implications of the jury’s verdict are ambiguous, the Court must come to an independent determination of the relevant facts.
[6] In order to sentence Ms. Dupuis I must find those facts that are necessary to determine the appropriate sentence. To rely upon an aggravating fact I must be satisfied beyond a reasonable doubt and to rely upon any other fact I must be satisfied of that fact on a balance of probabilities.
[7] The verdict of ‘guilty of manslaughter’ was available in this case if the force used by Ms. Dupuis was used in response to an assault but was not reasonable. It was also available to the jury to convict Ms. Dupuis of manslaughter if Ms. Dupuis struck out in anger at Mr. Paglia causing his injury and death, but without the intention for murder.
[8] The context of the assault on Mr. Paglia and the nature of the assault are necessary facts that I must determine in order to determine an appropriate sentence. In addition, the conduct of Ms. Dupuis after Mr. Paglia was wounded is relevant to sentencing. Ms. Dupuis did not, initially, assist Mr. Paglia beyond providing him with paper towels. I must determine Ms. Dupuis’ state of mind after the wounding in order to assess her after the fact conduct. The history of the relationship between Ms. Dupuis and Mr. Paglia is relevant in assessing the conduct of Ms. Dupuis on the night that she caused the death of Mr. Paglia.
[9] I will now set out some of the relevant evidence and my factual findings. I will not refer in detail to all of the evidence, but I have considered the totality of the evidence in reaching my factual findings.
The Evidence and Findings of Fact
[10] The deceased, Jason Paglia was 28 years-old at the time of his death. He and Ms. Dupuis had been involved in a relationship that was described as volatile and ‘on-again off-again.’ Mr. Paglia died from a stab wound to his chest. The forensic pathologist, Dr. Michael Pollanen testified that the force needed to push the knife to the heart was not significant.
[11] Mr. Paglia had other recent injuries on his body at the time of his death. These were: an abrasion below the right elbow, an incised wound on the back of the right thumb, a purple bruise with a punctate wound on the inside of the left arm near the bicep, three superficial parallel incised wounds to the dorsal surface of the left thumb and minor abrasions on the forehead and neck.
[12] Ms. Dupuis had a superficial incised wound to the palm of her hand. She also had bruising and swelling to her left hand. She had a bruise on her left thigh and a bruise on her left arm.
[13] The physical evidence in the apartment supports the inference that a struggle occurred between Mr. Paglia and Ms. Dupuis in the kitchen and foyer of the apartment. Knives were found in the sink; blood was found on the floor and on the doorframe between the kitchen and the foyer; bloodied paper towels were found in the foyer; a bent knife was found in the foyer area; two large bags of marijuana were found to the right of the kitchen sink.
[14] There was clearly an effort made to clean up the blood on the outside of the apartment door and some of the blood inside the apartment.
[15] There were no fingerprints found on any of the knives in the apartment with the exception of one knife that had a left thumbprint that was consistent with Mr. Paglia’s print. The print was found on the blade of the knife, near the handle.
[16] The evidence of Ms. Bartnicka–Beyo, one of Ms. Dupuis’ neighbours, was that she heard yelling from Ms. Dupuis’ apartment on the night of the homicide. She heard a loud, angry female voice. She heard three phrases: "that's it; I've had enough; this is the last time." She could not say in what order the phrases were uttered. Ms. Bartnicka-Beyo did not tell the police these exact phrases when she spoke to them after the homicide, nor did she say these exact phrases at the preliminary inquiry. She had made notes of the phrases at the time, but she explained that she found the notes that she had made after the preliminary inquiry. I accept her evidence as to what she heard.
[17] Ms. Bartnicka- Beyo heard a door open and close and then the yelling stopped. A short time later, she saw Mr. Paglia walk down the hall towards the elevator. He was pale and bleeding. She asked him if he was okay and he said “yes”. She asked him if he needed help and he said “no”.
[18] Another neighbor, Concetta Delina, also testified. She lived next door to Ms. Dupuis.
[19] She heard stomping and slamming from the stairwell. She then heard pounding on the door of Ms. Dupuis’ apartment. She heard a man at the door yelling "open up open up ‒ something happened to me." The man sounded distraught and sounded like he needed assistance. She heard the door open and heard a woman scream. The woman sounded surprised.
[20] In examination-in-chief, Ms. Delina testified that the woman screamed and said "get out, get out, get out." Ms. Delina then heard the door shut. In cross-examination after listening to her call to the 911 operator, she testified that she was sure that the woman said "oh my God, oh my God" after she opened the door and screamed. She was not sure when the woman said "get out, get out". After the scream and the woman saying "oh my God, oh my God" there was no more yelling or screaming.
[21] Ms. Dupuis testified at her trial. As noted above, she testified that she did not ever use a knife against Mr. Paglia. She pushed him out the door after he attacked her with a knife. He was holding a knife when she pushed the door against him. She did not see how the knife caused the injury to him, but she did not inflict the wound. Counsel for Ms. Dupuis argues that it is open to me to accept Ms. Dupuis’ version of events and to find that her actions in pushing Mr. Paglia out the door while he held the knife were not reasonable and therefore not self-defence. These factual findings would support a verdict of manslaughter.
[22] Ms. Dupuis has lied under oath in the past and admitted to lying under oath when she testified at the trial. However, even without the weakness to her general credibility as a result of her past lies, I would have rejected her evidence as to the events leading to the death of Mr. Paglia. Her evidence was inconsistent with the evidence of other witnesses and inconsistent with the physical evidence. It is improbable that Ms. Dupuis, unarmed, could have pushed Mr. Paglia out of the apartment while he was armed with a knife and threatening her. Her injuries are not consistent with that account. His injuries are not consistent with that account.
[23] As I will set out below, I accept some aspects of Ms. Dupuis’ account of the events preceding the stabbing, but I reject her evidence as to her actions in causing the death of Mr. Paglia. Having considered the totality of the evidence, I am satisfied beyond a reasonable doubt that Ms. Dupuis stabbed Mr. Paglia in the course of an angry argument.
[24] The messages from the night of the homicide, considered in the context of the evidence of the neighbours and the video surveillance, provide some evidence of the sequence of events and the interaction between Ms. Dupuis and Mr. Paglia. There was clearly an initial argument between the two that ended with Mr. Paglia leaving the apartment. There is an exchange of text messages that refers to Ms. Dupuis having a relationship with ‘Ron’ and in which Mr. Paglia refers to Ms. Dupuis selling drugs for Ron. Ms. Dupuis in her text messages professes her love for Mr. Paglia and says that she does not want a relationship with Ron. Mr. Paglia comes back to the apartment. By Ms. Dupuis’ account, Mr. Paglia said nothing to her upon his return. He essentially ignored her. She became frustrated and may have raised her voice. He picked up the large bags of marijuana left by Ms. Dupuis’ friend Ron and began to head for the door. Ms. Dupuis tried to stop him from leaving the apartment with the marijuana and struggled with him in the kitchen area.
[25] I accept that the events unfolded as described by Ms. Dupuis up to the point of the struggle. The evidence supports the finding that there was an argument between Mr. Paglia and Ms. Dupuis and that it concerned Ms. Dupuis’ relationship with Ron and the presence of Ron’s drugs in her apartment. The evidence also supports the finding that Mr. Paglia’s response to the argument was to attempt to leave.
[26] I accept Ms. Dupuis’ evidence that she struggled with Mr. Paglia to prevent him from leaving. I do not accept her account of the details of the struggle.
[27] I find that Ms. Dupuis armed herself with a knife or knives. I do not accept that Mr. Paglia armed himself. I find that Ms. Dupuis was angry with Mr. Paglia for what Ms. Dupuis perceived as his inadequate attention to her and to her needs. I find that she was also angry that Mr. Paglia was attempting to leave with the bags of marijuana that belonged to her friend Ron. I find that she threatened Mr. Paglia with the knife. I accept that there was some kind of struggle between the two. I make this finding on the basis of the physical evidence of the struggle and on the basis of the injuries to Ms. Dupuis. The injuries to Ms. Dupuis are consistent with Mr. Paglia attempting to subdue and disarm Ms. Dupuis. I find that in the course of the struggle, Ms. Dupuis stabbed Mr. Paglia. The injuries to Mr. Paglia are consistent with Ms. Dupuis striking at Mr. Paglia at least twice with the knife. The presence of Mr. Paglia’s thumbprint on the blade of one of the knives is consistent with Mr. Paglia struggling to disarm Ms. Dupuis.
[28] In making my factual determinations with respect to the acts that caused the death of Mr. Paglia, I have taken into account the history of the relationship between Ms. Dupuis and Mr. Paglia. This history was explored at some length in the trial. It was argued that Mr. Paglia was abusive ‑ verbally, emotionally and physically. I do not accept that Ms. Dupuis can be characterized as a victim of domestic abuse by Mr. Paglia. I find that the relationship was volatile and that both Ms. Dupuis and Mr. Paglia had angry and occasionally abusive outbursts.
[29] I accept that Mr. Paglia behaved in an erratic and disruptive manner on a camping trip in September 2011. I also accept that he uttered a threat to “let his 22 do the talking” over the telephone during an argument earlier in the summer of 2011. I do not find that he physically assaulted Ms. Dupuis on any other occasion.
[30] I also accept that Ms. Dupuis, during an earlier argument, punched Mr. Paglia. He did not respond to her punching except to hold her hands. While Ms. Dupuis described the punches as ‘little girl’ punches, she admitted hitting Mr. Paglia. In some of the text messages from Ms. Dupuis to Mr. Paglia, Ms. Dupuis refers to harming her young son and threatens suicide. Although Ms. Dupuis did not actually harm her son or attempt suicide, the statements sent to Mr. Paglia, who loved Ms. Dupuis and her son, were emotionally abusive. Ms. Dupuis, in her messages to Mr. Paglia, was frequently insulting and verbally abusive. I refer to these incidents of abuse by Ms. Dupuis not to diminish the seriousness of the prior acts of Mr. Paglia but to explain my finding that the abuse that was present in the relationship was mutual.
[31] I find that the actions of Ms. Dupuis in stabbing Mr. Paglia were not in any way related to any fear of Mr. Paglia. I find that Ms. Dupuis stabbed Mr. Paglia in the course of an intense and angry argument. She did not intend to kill him, nor did she know that her actions were likely to cause his death, but she did intend to stab him.
[32] I find that after Mr. Paglia was stabbed, neither Mr. Paglia nor Ms. Dupuis realized the severity of the injury. Ms. Delina’s evidence supports the inference that Ms. Dupuis was surprised by the nature of the injury to Mr. Paglia. Mr. Paglia turned down the offer of assistance from Ms. Bartnicka-Beyo and walked to his car, supporting the inference that even he was not aware of how seriously he was injured.
[33] Ms. Dupuis tried to clean her apartment after the stabbing. I am not able to conclude that Ms. Dupuis chose to clean her apartment while knowing that Mr. Paglia had a life-threatening injury. I find that she did not appreciate the severity of the injury. She did know that he was bleeding from a chest wound.
[34] In summary, upon a review of all of the evidence in the trial, I find that when Ms. Dupuis assaulted Mr. Paglia, she deliberately stabbed him and did so in anger. I find that there was no element of self-defence. To the extent that there was a history of verbal, physical or emotional abuse in the relationship between Ms. Dupuis and Mr. Paglia, it was mutual. Ms. Dupuis was not a victim in the relationship. I further find that Ms. Dupuis failed to get help for Mr. Paglia and cleaned her apartment but that when she did so, she did not appreciate how seriously she had wounded Mr. Paglia.
Background and Character of the Offender
[35] Ms. Dupuis was 21 years-old at the time of the offence and 23 years-old at the time of sentencing. She has a son who is now 5 years-old. Ms. Dupuis was a very good student in high school but her ability to pursue a post-secondary education was interrupted by her pregnancy and the birth of her child. She had resumed her education at the time of the offence. She was enrolled in a college course in interior design.
[36] Ms. Dupuis has been employed consistently since she was in high school.
[37] While incarcerated, Ms. Dupuis has completed over 50 courses. I have received and reviewed the many certificates earned by Ms. Dupuis during the two years that she has been incarcerated. Over 20 of these courses were directed at survivors of violence. Many of the other courses addressed life skills. Ms. Dupuis, through counsel, advised that during her first months of incarceration she completed an anger management course.
[38] The Pre-sentence Report prepared for sentencing was very positive. It outlines Ms. Dupuis’ family, education and employment history. Ms. Dupuis’ childhood was characterized by dysfunction in her family. Ms. Dupuis has alleged that her father was physically and sexually abusive. Other family members have said that Ms. Dupuis’ father was physically abusive. Ms. Dupuis’ mother was not able to protect Ms. Dupuis from the abuse. Ms. Dupuis’ mother is currently supportive of Ms. Dupuis.
[39] Ms. Dupuis’ former domestic partner, who is the father of her son, was physically abusive towards her. He was charged and convicted of assaulting her.
[40] In the past, Ms. Dupuis has shown herself to be capable of seeking out assistance from agencies such as Jessie’s Centre and the Elizabeth Fry society. She has been successful in her education in spite of her unstable family situation. Ms. Dupuis appears to be an intelligent and hardworking person and a good parent to her son.
[41] Ms. Dupuis has demonstrated remorse for the offence. While she did not plead guilty to the offence, she did not deny causing the death of Mr. Paglia. When asked if she wanted to speak before being sentenced she acknowledged the impact of her actions on Mr. Paglia’s family.
Victim Impact
[42] Victim impact statements were filed in this case. Jason Paglia’s mother and members of his extended family provided the Court with statements that set out the impact of this offence. The statements disclose the central role that Mr. Paglia played in his family and the profound loss suffered by those close to him.
[43] They have lost his companionship, his love and his contribution to their family. Their pain over their loss is greater knowing that he died violently.
[44] The effect upon them, as disclosed by their victim impact statements, has been significant. I have considered the impact of the offence as disclosed by the victim impact statements in determining the appropriate sentence while recognizing that no sentence can compensate the family and friends of Mr. Paglia for their loss.
Positions of the Parties
[45] The Crown seeks a ten-year sentence of imprisonment. The Crown argues that a significant penitentiary sentence is necessary to further the sentencing objectives of general deterrence and denunciation.
[46] Counsel for Ms. Dupuis submits that the range of sentence is three to five years and that a sentence of time served of three years is appropriate. Such a sentence, while taking into account general deterrence and denunciation, would facilitate Ms. Dupuis’ rehabilitation.
[47] Both parties agree that Ms. Dupuis should receive credit on a 1.5:1 ratio for pre-trial custody. Counsel for Ms. Dupuis submits that she should also receive some credit for six and one-half months of strict bail conditions.
Sentencing Principles and Analysis
[48] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to “contribute …to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (d) to assist in rehabilitating offenders; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.”
[49] Although all sentencing objectives are relevant, depending on the facts of the case, the court is entitled to give different weight to the various objectives. Deterrence and denunciation are generally the dominant sentencing objectives in sentencing for manslaughter.
[50] The range of sentences imposed in manslaughter cases is very broad. The reason for the range of sentencing for manslaughter was explained by the Supreme Court of Canada in R. v. Creighton:[^2]
…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. …
[51] The breadth of the range of sentences imposed for manslaughter is illustrated by the cases provided to me by counsel in this case. In R. v. Bennett[^3] the offender, an abused spouse who stabbed her husband to death was given a suspended sentence. In R. v. Chan[^4] the court imposed a four-year sentence on a 61 year old man who killed his wife in a struggle. The victim in Chan died of positional asphyxia when she fell between the bed and the wall. The offender failed to seek medical help for her. At the other end of the spectrum are cases such as R. v. Clarke[^5] and R. v. Cleyndert[^6] in which sentences of 12 years were imposed. The aggravating factors in Clarke included the vulnerability of the victim, the fact that the victim was attacked in his house by a friend, the use of a knife, the brutality of the attack and the post-offence conduct, including the failure to call for medical help. In Cleyndert, the offender, who was armed with a knife, had provoked a fight with the unarmed victim and then stabbed him eight times.
[52] A sentencing court is obliged to consider the circumstances of the offence and of the offender and to impose similar sentences for similar offences and offenders.[^7] However, sentencing is a highly individualized process. It will be rare for a sentencing court to have the benefit of a prior identical case. The circumstances of offenders and offences vary widely. This is particularly true in sentencing for manslaughter.
[53] Section 718.2(a) of the Criminal Code requires the court to consider any relevant aggravating and mitigating circumstances and subsection (ii) of that provision provides that where a spouse or common-law partner is abused in the commission of the offence, that circumstance is deemed to be an aggravating factor. A domestic relationship renders the victim vulnerable to the offender. An assault in the domestic context is a breach of trust.
[54] The offence in this case occurred in the context of a domestic relationship, although the deceased and the offender were not spouses or common-law partners. While section 718.2(a)(ii) is not strictly applicable, the relationship between Ms. Dupuis and Mr. Paglia is an aggravating factor. The relationship rendered Mr. Paglia vulnerable to Ms. Dupuis because of the trust between them. A further aggravating factor is the use of a weapon. A further seriously aggravating factor is Ms. Dupuis’ failure to seek medical help for Mr. Paglia. I have found that Ms. Dupuis did not appreciate the gravity of the injury and did not know that the injury was life-threatening. She did, however, know that Mr. Paglia was wounded. Knowing this, she failed to assist him. Instead, she attempted to clean the blood from her apartment. She put her own self-interest ahead of the medical needs of Mr. Paglia.
[55] Mitigating factors in this case are Ms. Dupuis’ youth, the fact that she is the mother of a young child, her lack of any prior criminal record, her consistent employment and pursuit of education and her remorse. Ms. Dupuis’ rehabilitative efforts are also mitigating. Ms. Dupuis has undertaken many programs while in custody, although it is a matter of some concern that most have been directed at her perceived victimization and few have been directed at anger management.
[56] The circumstances of the offence before me call for a significant penitentiary term. The moral fault of Ms. Dupuis, assessed in accordance with the analysis in R. v. Creighton, is at the upper range of the spectrum of blameworthiness for the offence of manslaughter. I have found that Ms. Dupuis assaulted Mr. Paglia with a weapon in a manner that a reasonable person would have known would cause Mr. Paglia serious bodily injury. She did so in a domestic context. There was no element of self-defence or provocation. She acted impulsively and out of anger and a loss of self-control.
[57] This is not a case where self-defence, provocation or intoxication played a role in the events. This is not a case where the circumstances of the case fall close to the accident end of the spectrum. The objectives of deterrence and denunciation in this case cannot be advanced by a sentence in the range of 3 to 5 years as suggested by counsel for Ms. Dupuis.
[58] The range of sentence for manslaughter with aggravating circumstances like the aggravating circumstances in this case is 7 to 12 years imprisonment.[^8] The mitigating factors of Ms. Dupuis’ youth, her prior good character, her rehabilitative efforts and her remorse support a sentence toward the lower end of that range.
[59] Balancing the considerations of deterrence, prevention and rehabilitation, I have concluded that a sentence of eight years is appropriate. A sentence of 8 years, in my view, meets the objectives of deterrence and denunciation without removing the opportunity for Ms. Dupuis to rehabilitate herself.
[60] The parties agree that Ms. Dupuis should be credited for pre-trial custody on a 1.5:1 basis. She has served just under two years of pre-trial custody. She must therefore be credited with three years for the pre-trial custody. Ms. Dupuis was released on bail for six and one-half months before her sureties withdrew their support. Counsel for Ms. Dupuis has argued that she should also be credited with some time for the six and one-half months of strict bail conditions. The bail conditions permitted Ms. Dupuis to be out of her home to deliver and pick up her son, to attend medical appointments and to attend school. She was permitted to be out for other purposes with a surety. There is no evidence that the conditions had any negative impact on Ms. Dupuis. The conditions, while somewhat restrictive, do not merit credit on sentencing.
Conclusion
[61] Therefore, with the credit of three years for pre-trial custody, the sentence that I impose is a further five years imprisonment.
[62] There will be a s. 109 order prohibiting Ms. Dupuis from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[63] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Ms. Dupuis provide such samples of her bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.
Forestell J.
Released: June 11, 2014
COURT FILE NO.: CR-13-40000614-0000
DATE: 20140611
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KAILA DUPUIS
reasons for sentencing
Forestell J.
Released: June 11, 2014
[^1]: R. v. Ferguson, 2008 SCC 6, [2008] S.C.J. No 6 at paras. 15‑18
[^2]: 1993 61 (SCC), [1993] S.C.J. No. 91 (S.C.C.) at para. 86
[^3]: [1993] O.J. No. 1011 (Prov. Div.)
[^4]: [2006] O.J. No. 4565 (C.J.)
[^5]: 2003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.)
[^6]: 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.)
[^7]: Section 718.2(b) Criminal Code; R. v. Devaney, 2006 33666 (ON CA), [2006] O.J. No. 3996 (C.A.)
[^8]: R. v. Kimpe, 2010 ONCA 812, [2010] O.J. No. 5119 (C.A.); Clarke, supra, note 4 at para. 8