ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-2316
DATE: 20140728

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAUL KENYON

Ms. G. Sang and Mr. B. Juriansz, for the Crown

Ms. J. Penman and Ms. M. Wyszomierska, for Paul Kenyon

HEARD: June 25, 2014

REASONS FOR SENTENCE

Fuerst J.

Introduction

[1] On the morning of March 7, 2010, firefighters pulled the body of 46 year old Marion Deacon from her burning home. First responders had been called to the blaze by neighbours, after Ms. Deacon’s boyfriend, Paul Kenyon, alerted them to the fire.

[2] An autopsy revealed that Ms. Deacon died not from smoke inhalation, but from blunt force trauma to the head and face. She was dead before the fire began.

[3] On March 9, 2010, York Regional Police charged Mr. Kenyon with Ms. Deacon’s murder.

[4] Mr. Kenyon testified at his trial that he was present and watched helplessly as a third party killed Ms. Deacon.

[5] After four hours of deliberations, the jury found Mr. Kenyon guilty of second degree murder as charged.

[6] Mr. Kenyon faces a mandatory sentence of life imprisonment. The only matter for me to decide is the period that he must serve before he is eligible to apply for parole.

The Principles Governing the Parole Ineligibility Determination

[7] Section 745 (c) of the Criminal Code provides that 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 ten to a maximum of twenty-five years. Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of ten years to the period that the judge deems fit, up to the maximum of twenty-five years.

[8] In exercising his or her discretion under s. 745.4, the sentencing judge must 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.

[9] As a general rule, the period of parole ineligibility shall be for ten years, but this can be ousted by the sentencing judge’s determination that, according to the criteria set out in s. 745.4, the offender should wait a longer period before having his suitability for release assessed. The determination of the parole ineligibility period is “a very fact-sensitive process”: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 18. The sliding scale of parole ineligibility reflects the fact that “within second degree murder there is both a range of seriousness and varying degrees of moral culpability”: Shropshire, at para. 31.

[10] An increased parole ineligibility period does not require unusual circumstances: Shropshire, at paras. 26 to 27.

[11] In R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C (3d) 41 (Ont. C.A.), the court held that in assessing the s. 745.4 criteria and deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives, as set out in s. 718, are denunciation of unlawful conduct, deterrence both general and specific, the separation of offenders from society where necessary, rehabilitation, reparation for harm done to the victim or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. The court observed in McKnight, however, that the statutory ten year minimum ineligibility period limits the weight that can be accorded to the offender’s prospects of rehabilitation.

[12] In McKnight the court approved a range of parole ineligibility of twelve to fifteen years in cases of the brutal second degree murder of an unarmed wife or girlfriend. That range was reiterated in subsequent decisions: see, for example, R. v. McLeod (2003), 2003 4393 (ON CA), 177 O.A.C. 385; R. v. Bajrangie-Singh (2003), 2003 47384 (ON CA), 170 O.A.C. 99; R. v. Sodhi (2003), 2003 52179 (ON CA), 66 O.R. (3d) 641; and R. v. Teske (2005), 2005 31847 (ON CA), 202 O.A.C. 239.

[13] More recently, in R. v. Czibulka, 2011 ONCA 82, the court clarified that that range is not cast in stone for all brutal spousal murders. The range can extend beyond fifteen years in cases where the significant mitigating considerations noted in McKnight are absent.

[14] Regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled, but merely the period he must serve before parole can even be considered: see R. v. Trudeau (1987), 24 O.A.C. 376 (C.A.).

The Positions of the Parties

[15] On behalf of the Crown, Ms. Sang submits that the applicable range of parole ineligibility is fifteen to eighteen years. She argues, based on cases including Czibulka, that the parole ineligibility period should be increased beyond twelve to fifteen years where the circumstances of the offence are particularly serious and/or significant mitigating factors are absent. She contends that the only mitigating factors in this case are that Mr. Kenyon has no prior convictions for acts of violence, and he enjoys the support of his family. She points to numerous aggravating factors. Mr. Kenyon’s attack on Ms. Deacon was persistent and sustained. He struck at least ten blows to her head and face with a baseball bat, employing sufficient force to fracture her jaw and skull. Ms. Deacon was taken by surprise, having just walked into her own home. The injuries to her hands were consistent with trying to fend off the blows. Although she remained alive in some sense for a period of thirty minutes to six hours, Mr. Kenyon did not summon help. He left her to die on her kitchen floor, and callously tried to access her bank account from the home telephone. Ms. Sang submits that the only reasonable inference is that Mr. Kenyon set fire to the house to destroy evidence of the murder, just as he lied to everyone to try to conceal his involvement. She points out that the jurors’ parole ineligibility recommendations were unusually high.

[16] Ms. Sang seeks a DNA order and a lifetime weapons prohibition order.

[17] On behalf of the defence, Ms. Wyszomierska submits that the range of parole ineligibility for brutal domestic murder is twelve to fifteen years, as established in McKnight. The parole ineligibility period in this case should be twelve to thirteen years. She argues that the hallmark aggravating factors that mandate a higher ineligibility period are absent in this case, such as prior acts of violence against the victim, elements of planning and deliberation, extreme savagery, or the infliction of gratuitous violence to or mutilation of the victim. She emphasizes that the Crown did not prove beyond a reasonable doubt, either by direct evidence or circumstantially, the asserted aggravating fact that Mr. Kenyon deliberately set fire to Ms. Deacon’s house. The jury recommendations were not considered and fully informed, and should not be slavishly followed. Ms. Wyszomierska points to a number of mitigating factors, particularly that Mr. Kenyon has no prior record for crimes of violence, those who know him have attested that the offence was out of character for him, his relationship with Ms. Deacon was not plagued by violence or threats of violence, and he has the ongoing support of his family. Additionally, he has been clean from drug use since his arrest.

[18] Ms. Wyszomierska made no submissions on the request for a DNA order or a lifetime weapons prohibition order.

The Nature of the Offence and the Circumstances Surrounding its Commission

[19] Ms. Deacon and Mr. Kenyon began dating in late 2005. At that time, Ms. Deacon was separated from her husband and living with her three teen-aged daughters in the former matrimonial home in Whitchurch-Stouffville.

[20] Mr. Kenyon moved into the house in the summer of 2006. He was addicted to crack cocaine. Throughout his relationship with Ms. Deacon, he stole money for drugs, not just from her but also from her daughters. At times he went on binges and was missing for periods of days. His addiction was a source of friction between him and Ms. Deacon. She repeatedly told him that he had to stay clean if he wanted to be in a relationship with her, tried to manage his income so that he did not have money with which to buy drugs, and on at least one occasion took him for professional help, all to no avail. He continued to use crack. On more than one occasion, Ms. Deacon told Mr. Kenyon to leave the house, and he did so. But, in each instance, after a period of time she relented and took him back.

[21] One by one, Ms. Deacon’s daughters left home because they did not support their mother’s involvement with Mr. Kenyon.

[22] In early 2010, Mr. Kenyon was living with his parents and working in Gravenhurst. However, he and Ms. Deacon continued to see one another and he stayed overnight at her home. Text messages between them indicated that their relationship continued to be troubled because of his drug use. I am unable to find beyond a reasonable doubt that as of March 2010 Ms. Deacon had made a firm decision to end the relationship, but I do find beyond a reasonable doubt that Mr. Kenyon’s continued drug use was causing her to question their relationship. For example, in late February, Ms. Deacon texted Mr. Kenyon that he had lied to her for the last time, and that she did not want “to go on like this”. She told him that she needed “to live my life and be happy”.

[23] On March 5, Ms. Deacon texted Mr. Kenyon that they had to “sit and straighten issues”. It was in that context that he came to her home that weekend.

[24] On the evening of March 6, while Ms. Deacon was at work, Mr. Kenyon admittedly used crack and consumed alcohol. I find beyond a reasonable doubt that soon after Ms. Deacon arrived home from work around 11:00 p.m., Mr. Kenyon murdered her in her kitchen. She did not even have time to change out of her work clothes or remove her outer jacket. I find beyond a reasonable doubt that Mr. Kenyon struck her with a baseball bat multiple times on the head and face. He did so with such force that her skin was lacerated through to the scalp, and the base of her skull as well as her jaw were fractured. Although she sustained a traumatic brain injury, she could have survived anywhere from thirty minutes to six hours after the bludgeoning.

[25] I find beyond a reasonable doubt that after the murder, Mr. Kenyon twice attempted to access Ms. Deacon’s bank account from her home telephone, at 12:20 a.m. and again at 6:01 a.m. on March 7. I also find beyond a reasonable doubt that Mr. Kenyon used the home telephone multiple times to attempt to contact one of his crack dealers, from 5:40 to 6:53 a.m.

[26] Around 8:00 a.m. Mr. Kenyon went to a neighbour’s home, yelling that Ms. Deacon’s house was on fire. Neighbours called “911” when they realized that Ms. Deacon’s house was ablaze. Mr. Kenyon made a series of statements to neighbours, first responders and police officers, to the effect that Ms. Deacon was still alive in the house when he escaped from it. I find beyond a reasonable doubt that he lied to try to cover up his murder of Ms. Deacon.

[27] Forensic examination revealed that the fire started in a lower family room, but its cause could not be determined. While I think it likely that Mr. Kenyon set the house on fire as part of his attempt to cover up the murder, I am unable to make that finding beyond a reasonable doubt in light of the inconclusive results of the forensic examination.

[28] Mr. Kenyon testified at trial that Ms. Deacon was murdered in his presence by one of his crack dealers. Crown counsel called Mr. Jackson to testify in reply. He denied being in the house or having anything to do with the murder. The jury obviously rejected Mr. Kenyon’s testimony.

[29] Victim impact statements were provided by Ms. Deacon’s daughter Amanda Deacon, her estranged husband Gordon Deacon, her father Jacob Monsma, her sister Susan Koree-Monsma, her cousin Darlene Monsma, and her friend Agnes Lobbezoo. They paint a picture of a woman of strong moral character, who cared deeply about her family, was a positive force in her daughters’ lives, had a strong work ethic, and encouraged those around her to be the best that they could be. They also describe the emotional impact Ms. Deacon’s murder has had on those closest to her. Ms. Deacon’s father wrote that her murder has broken him as a father. Her mother, who was terminally ill at the time of the murder, lost the will to live. Ms. Deacon’s sister, who used to speak with Ms. Deacon twice a week by telephone from Holland, wrote that she has become emotionally unstable and suffered post-traumatic stress disorder as a result of the murder. Amanda Deacon wrote that she thinks about her mother every day. She described the pain of coming to terms with the fact that someone who played such a pivotal role in her life and the lives of her sisters will not be there to share in their futures. As she put it, “You only get one mom”.

[30] It is self-evident that nothing I say in these reasons can restore Ms. Deacon to those who loved her.

The Character of Mr. Kenyon

[31] The defence did not request a pre-sentence report. Information about Mr. Kenyon’s background was provided in submissions by defence counsel and in letters of support from family members and friends.

[32] Mr. Kenyon is now 47 years old. He was 43 years old at the time of the murder. He has a previous criminal record. In May 1991 he was convicted of breach of trust. He was fined $5000 and put on probation for two years. In June 1995 he was convicted of two counts of fraud over $1000 and one count of theft over $1000. He was sentenced to a total of eight months in jail.

[33] Mr. Kenyon grew up in a close-knit and loving family. In letters of support, family members and others who have known him over the years describe him as a non-violent person.

[34] Mr. Kenyon completed grade 12 and then attended one year of a community college program in law and security. He worked briefly as a Special Constable doing security work in government buildings. At the age of 21 he joined the Ontario Provincial Police, but resigned from the police force in 1991 after two years. I was not told the reason or reasons for his resignation, but I note that in May of 1991 he was convicted of his first criminal offence.

[35] Mr. Kenyon married in 1992. He and his wife had two sons, who are now 20 and 15 years old. He and his wife separated just a few months after the birth of their younger son. Despite the marital breakdown, Mr. Kenyon maintained an active role in his sons’ lives.

[36] After leaving the police force, Mr. Kenyon worked at a variety of jobs, including for an insurance company, at a meat-packing company, as a waiter, at golf courses, as a store manager, and in sales at a drywall company.

[37] Around 2006 Mr. Kenyon tried cocaine, and then crack cocaine. He became addicted to crack.

[38] In 2009 Mr. Kenyon moved in with his parents in Muskoka. His parents were unaware of his drug addiction, which he hid from them.

[39] At the time he committed the murder, Mr. Kenyon was working nights at a grocery store in Gravenhurst.

[40] Mr. Kenyon has been in custody continuously since his arrest on March 9, 2010. A first trial before another judge of the court ended in a mistrial when it became apparent that a third party suspect defence would be advanced.

[41] While in custody, Mr. Kenyon has participated in one-on-one weekly counselling with a Salvation Army chaplain, and in other programs offered by the Spiritual and Religious Care Department of the institution. He has worked as the cleaner for his pod. The chaplain describes him as being a good influence on his range.

[42] Mr. Kenyon’s parents have visited him regularly at the jail, as have his two sisters and his brother-in-law. They have expressed their continued support of him.

The Recommendation of the Jury

[43] All jurors recommended a parole ineligibility period significantly higher than the minimum. Two jurors recommended twenty years before eligibility, one juror recommended twenty-two years, and nine jurors recommended twenty-five years.

[44] It is evident that the jury viewed the nature of the offence and the circumstances surrounding its commission as most serious. I bear in mind, however, the observation of the Ontario Court of Appeal in R. v. Chalmers, 2009 ONCA 268, at para. 115, that jury recommendations are just that: they are recommendations and need not be slavishly followed.

Analysis

[45] Mr. Kenyon’s murder of Ms. Deacon falls within the category of second degree murder identified in McKnight: the brutal murder of an unarmed wife or girlfriend.

[46] There are a number of significant aggravating factors. Mr. Kenyon took the life of a woman who had given him her love, trust and support, even at the expense of her relationship with her daughters. He attacked her in her own residence, and at a time when she was vulnerable to surprise, having just arrived home after working an evening shift. The killing involved excessive brutality, in that Mr. Kenyon used a weapon to strike numerous forceful blows to Ms. Deacon’s head and face. His actions following the assault demonstrated a shocking callousness. He did nothing to summon help for her, notwithstanding that she may have survived in some sense for a period of hours. Instead, as she lay on her kitchen floor, he twice attempted to access her bank account using her home telephone, having rifled through her belongings.

[47] Unlike the offender in McKnight, Mr. Kenyon was not a person of good character at the time of the murder. While there was no evidence before the jury of prior assaultive behaviour against Ms. Deacon or anyone else, it is clear that over a period of years Mr. Kenyon abused Ms. Deacon’s trust by stealing from her and also from her daughters, who were truly innocent third parties. He has a very serious drug addiction problem, which he failed to address successfully notwithstanding that he was well aware of the need to obtain professional help and in fact was encouraged to do so by Ms. Deacon. Although the convictions are dated, Mr. Kenyon has a prior criminal record for crimes of dishonesty. Deceit continued to be an element of his lifestyle in the period leading up to the murder. He lied to Ms. Deacon about his drug activity, and hid his addiction from his parents.

[48] A particularly serious aggravating factor in this case is Mr. Kenyon’s post-offence conduct. By lying to neighbours and first responders about Ms. Deacon’s condition, he caused them to put their lives at risk attempting to rescue her from the burning house. Ms. Sider was at the back door of the house when her husband told her to leave the property because of concern there would be a gas explosion. The firefighters who went into the house in search of Ms. Deacon crawled through thick, black smoke.

[49] It is equally reprehe