SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ 7668

DATE: 2015/07/15

RE: R. v. DAVID THOMAS

BEFORE: The Honourable Justice D.A. Broad

COUNSEL:
K. Katzsch and N. Redgate, for the Crown

J. Milligan and N. Wansbutter, for David Thomas

HEARD: May 29 and June 23, 2015

reasons for sentence

Background

[1] David Thomas was convicted of second-degree murder of his common-law girlfriend Denise Bourdeau on March 13, 2015. The jury reached its verdict after two days of deliberations following nine weeks of trial.

[2] David Thomas and Denise Bourdeau lived together in an on-again off-again common-law relationship from January 2005 until Ms. Bourdeau’s disappearance in the early morning hours of January 1, 2007. Mr. Thomas and Ms. Bourdeau were last seen leaving a bar in Waterloo, Ontario together at approximately 1:30 AM that morning and Ms. Bourdeau was never seen alive again. Her badly decomposed body was discovered on the floodplain of the Grand River in the Doon area of Kitchener on April 17, 2007. In addition to the extent of decomposition, Ms. Bourdeau’s body had been also predated by animals. Due to the condition of the body, the forensic pathologist who conducted the post-mortem examination was unable to make a determination of the cause of Ms. Bourdeau’s death.

[3] The relationship of David Thomas and Denise Bourdeau was marked by excessive drinking and repeated acts of vicious violence inflicted by Mr. Thomas on Ms. Bourdeau. The nature and extent of the abuse and violence inflicted by Mr. Thomas on Ms. Bourdeau was described in detail in the ante-mortem writings of Ms. Bourdeau admitted into evidence at the trial. These included letters addressed to Mr. Thomas as well as diary entries. In her writings Ms. Bourdeau also described death threats made by Mr. Thomas towards her.

[4] Mr. Thomas pled guilty to assault causing bodily harm on Ms. Bourdeau November 9, 2005 arising out of an incident in September 2005 which resulted in Ms. Bourdeau being hospitalized. The statement of facts agreed to by Mr. Thomas, and entered into the court record on his guilty plea, related that during the assault Mr. Thomas repeatedly told her “I want you dead.”

Guiding Principles

[5] S. 745(c) of the Criminal Code mandates that following conviction of second-degree murder the offender must be sentenced to imprisonment for life without eligibility for parole for a fixed period of not less than 10 years and not more than 25 years. In calculating the period of imprisonment for the purposes of s. 745(c), any time that the offender has spent in custody after the date of his arrest to the date of his sentencing is to be included by virtue of s. 746 of the Code. Mr. Thomas was arrested and taken into custody in respect of the offence on July 13, 2011.

[6] Accordingly, the only issue for determination is what period of parole ineligibility must Mr. Thomas serve before being eligible for consideration for release by the Parole Board. This period of ineligibility will run from July 13, 2011.

[7] S. 745.4 of the Code empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the number of years that the judge deems fit, up to the maximum of 25 years. The section requires that the sentencing judge to have regard to the following factors:

(a) the character of the offender;

(b) the nature of the offence and the circumstances surrounding its commission; and

(c) the recommendation, if any, made by the jury as to the appropriate period of parole ineligibility.

[8] The Supreme Court of Canada in the case of R. v. Shropshire [1995] 4 S.C.R. 227 at para. 29 confirmed that, as a general rule, the period of parole ineligibility should be for 10 years, but this can be ousted by a determination of the trial judge, based on the criteria in s. 745.4, that the offender should wait a longer period before having his suitability to be released into the general public assessed. The court confirmed that an extension of the period of parole ineligibility beyond 10 years would not require unusual circumstances and 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.”

[9] The Ontario Court of Appeal in the case of R. v. McKnight (1999) 119 O.A.C. 364 (C.A.) confirmed, at para. 9, that in assessing the considerations under s. 745.4 of the Code and in determining whether to increase the period of parole ineligibility beyond 10 years all of the objectives of sentencing are relevant. Those objectives are set out at s. 718 of the Code and include the denunciation of unlawful conduct, both specific and general deterrence,, the separation of offenders from society where necessary, rehabilitation of offenders, reparation for harm done to the victim or to the community and the promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. Given the statutory 10 year minimum period of ineligibility, the weight that can be attached to the offender’s prospects of rehabilitation must be limited, as confirmed by the court in McKnight.

[10] The court in McKnight, while confirming that no two cases are the same and that sentencing is an individualized process, suggested that, in the case of a brutal second-degree murder of an unarmed wife or girlfriend, a range of 12 to 15 years of parole ineligibility would be considered appropriate. However as the Court of Appeal noted in the more recent case of R. v. Czibulka 2011 ONCA 82 (C.A.) at para. 67, the range of 12 to 15 years is not cast in stone and may be exceeded when the mitigating considerations that applied to the offender in the McKnight case are not present. These factors included McKnight’s remorse, his many contributions to the community and his mental illness.

[11] In the case of R. v. Praljak 2013 ONSC 298 (S.C.J.) Justice Dambrot observed, at para. 18, that the ceiling of the range established by the Court of Appeal in McKnight has been breached so often that the range must now be accepted to be 12 to 17 years.

Positions of the Crown and Defence

[12] The Crown’s position is that the applicable range of parole ineligibility should be found to be seventeen years.

[13] The Crown seeks an order requiring Mr. Thomas to provide bodily fluid samples for DNA analysis pursuant to s. 487.051 of the Code and the imposition of a weapons prohibition order for life.

[14] The defence submits that the parole ineligibility in this case should be thirteen to fourteen years.

[15] The defence acknowledges the existence of a number of aggravating factors in this case, some of which it agrees are serious and some of which it describes as not as strong. These include:

(a) that Mr. Thomas and Ms Bourdeau were in what defence counsel characterized as a “quasi-conjugal relationship”;

(b) that there was a previous history of physical and emotional abuse by Mr. Thomas towards Ms. Bourdeau, including a conviction for assault causing bodily harm as well as other acts of violence disclosed by the evidence which did not result in charges;

(c) that Mr. Thomas hid evidence;

(d) Mr. Thomas’ criminal record, mostly involving alcohol-related offences; and

(e) the linkage between Mr. Thomas’ acts of violence and his excessive consumption of alcohol.

[16] The defence points to five mitigating factors which should be considered, including the following:

(a) that Mr. Thomas was steadily employed as a plumber and was hard-working;

(b) that Mr. Thomas has the support of his family;

(c) that the defence made many admissions at trial which shortened the proceeding and avoided the need for certain witnesses to testify;

(d) that there were no charges laid against Mr. Thomas in the 3 ½ year period following Ms. Bourdeau’s death until his arrest, suggesting increased prospects for rehabilitation; and

(e) Mr. Thomas’ age, pointing out that he would be in his mid-sixties if a period of parole ineligibility were set at 17 years as suggested by the Crown.

[17] The defence argues that there is a lack of evidence that Ms. Bourdeau’s murder, although tragic, was “brutal,” thereby bringing it within the type of case to which the range in McKnight would be applicable. The defence states that McKnight is therefore distinguishable and that the range established in that case and in the cases which follow it has no application.

[18] The defence does not dispute the Crown’s request for a DNA order and weapons prohibition.

[19] I have reviewed and considered the cases cited by and relied upon by the Defence and the Crown, as set forth on Schedule A to these Reasons.

Consideration of the Relevant Factors

(a) The nature of the offence and the circumstances surrounding its commission

[20] I do not accept the defence submission that the range of 12 to 17 years suggested by McKnight, as modified by the cases which have followed it, has no application because there is no proof that Ms. Bourdeau’s murder was “brutal”. The defence points to a definition of “brutal” in the Concise Oxford Dictionary (6th ed.), published in 1976, of “coarse; savagely cruel; merciless” and says that there is no evidence that Ms. Bourdeau’s murder had those characteristics.

[21] In my view, it is not appropriate to parse the words of the Court of Appeal in McKnight in the fashion proposed by the defence. In my view, absent other circumstances that are not present in this case, it is hard to envisage a murder of defenceless wife or girlfriend to be anything other than brutal. Moreover, a major factor justifying an increase in the period of parole ineligibility in cases of domestic homicide is the fact that they most often represent an egregious breach of trust. Partners usually trust the other person not to cause them harm, especially if that party is defenceless to a violent person (see R. v. Folker [2013] N.J. No. 434 (Nfld. S.C.) at para. 36). The breach of trust factor is particularly applicable in the present circumstance, as was poignantly exemplified by Denise Bourdeau’s writings. It came through clearly in her writings that what Ms. Bourdeau was looking for in her relationship with David Thomas was love, acceptance and security. What she got was physical violence, emotional abuse and ultimately death at his hands.

[22] No authority was cited for the proposition that the range suggested in McKnight and the cases which follow it has no relevance to a domestic homicide where the element of brutality may be said to be unproven. In the case of R. v. Wristen [1999] O.J. No 4589 (C.A.) the Crown’s case was entirely circumstantial as it was in this case. The body of the accused’s wife was never found. Notwithstanding this the Court of Appeal referred to its earlier decision in McKnight and upheld the trial judge’s imposition of a 17 year period of parole ineligibility. In R v. Borbely 2013 ONSC 3355, [2013] O.J. No. 2593 (S.C.J.) Glass, J. at para 71, characterized McKnight as having set a range of 12 to 15 years before parole eligibility “with a second degree murder of a spouse”, without specifically referring to the element of brutality.

[23] Due to the state of decomposition of Ms. Bourdeau’s body, the forensic pathologist Dr. Fernandes was unable to determine the cause or time of death. His examination revealed nothing about what Ms. Bourdeau endured in the final minutes or hours of her life and how prolonged her suffering may have been. What can be safely surmised is that at the time of her death Ms. Bourdeau was utterly isolated and alone with no one to protect her from Mr. Thomas’ violence.

[24] In my view, the focus of the defence on whether Ms. Bourdeau’s murder was or was not brutal, in isolation from the other characteristics of a domestic homicide, including most importantly the element of breach of trust, is misplaced on the issue of whether the McKnight range is applicable. In consideration of all of the circumstances, the approach and range identified in McKnight and its prodigy have application to this case.

[25] It is unknown whether Ms. Bourdeau was alive or dead when she entered the Grand River likely in the early morning hours of January 1, 2007. What is evident is that Mr. Thomas threw her into the river and left her to be carried downstream. He did nothing to report what had happened and maintained a story to Ms. Bourdeau’s family and to police that she had gone off on her own, that he did not know where she was or what had happened to her, and that he was worried about her and missed her. Her family was left in a state of uncertainty and concern about her whereabouts until her remains were ultimately discovered on the floodplain of the Grand River some 3 ½ months after her disappearance.

[26] In addition to hiding evidence of his crime by disposing of Ms. Bourdeau’s body, the evidence indicated that Mr. Thomas also attempted to carry out a cleanup of Ms. Bourdeau’s blood from his vehicle.

[27] The Crown filed victim impact statements from Mr. Bourdeau’s sisters Jennifer Bourdeau and Shannon Levan, her mother Amy Miller, her daughter Jessica Haner and her nephew Zach Larocque. Shannon Levan, Amy Miller, Jessica Haner and Zach Larocque read their statements in court. These statements describe, in heartfelt fashion, the devastating impact that Ms. Bourdeau’s murder has had on the lives of these members of her family and also on the relationships among the family members. I do not propose to review the victim impact statements in detail as any attempt by me to summarize them would not do them justice in their deep and heartfelt conviction.

[28] I would not ascribe any weight to the fact that the defence made certain admissions at trial, by entering into agreed statements of fact, which served to shorten the trial to some degree. The defence has provided no authority in support of the proposition that this is a relevant factor on the determination of the period of parole ineligibility. Defence counsel routinely make tactical decisions in the course of a trial, some of which have the effect of shortening the proceeding and some of which have the opposite effect. In my view, these tactical decisions should generally not work for or against an offender on sentence. The admissions of fact made by the defence in this case did not represent admissions of responsibility, as would be the case with a guilty plea which clearly would be seen as a mitigating factor.

[29] I would similarly ascribe very little weight to the fact that Mr. Thomas was in the community for 3 ½ years after Ms. Bourdeau’s disappearance and death until his arrest, with no other charges being laid against him. This period extended after Mr. Thomas’ apartment and car were searched under warrant and he knew that he was under suspicion by the police for possible involvement in Ms. Bourdeau’s disappearance. It was therefore in Mr. Thomas’ interest to stay out of trouble and to avoid interaction with the police. Moreover, Mr. Thomas’ previous incidents of violence arose out of his domestic relationship with Ms. Bourdeau and from his inability to control his anger and jealousy in that relationship. There was no evidence that he was in any domestic relationship after her death when he may have had the inclination and opportunity to engage in similar kinds of violent behavior.

(b) The character of the offender

[30] The defence did not ask for a pre-sentence report. However, it did file five letters on behalf of Mr. Thomas. Mr. Thomas is currently 52 years old and was 44 at the time of the commission of the offence. He was born in Winnipeg and has one sister and two significantly younger half-sisters. As a young adult he moved to Kitchener and ultimately became a licensed plumber in 1990 and worked mostly as a plumber until his arrest in July, 2011.

[31] Letters from his father and step-mother Jack and Barbara Thomas described Mr. Thomas as uncomplicated, with a dull but consistent and regimented lifestyle. He was described as hardworking and that he loved his job as a plumber and found pride and satisfaction in it.

[32] A letter from a neighbour and friend Ann Josling described Mr. Thomas’ kindness towards her disabled son Adam who also filed a letter describing his appreciation for their relationship and his concern for Mr. Thomas.

[33] A letter from a friend and co-worker Darrell Mongeon described Mr. Thomas as a dedicated worker with a strong work ethic and a valuable mentor to him during his apprenticeship. He also described Mr. Thomas as having interacted well with Mr. Mongeon’s children.

[34] The evidence indicated that David Thomas became an alcoholic sometime in his young adulthood and that his excessive consumption of alcohol was intimately associated with the violence and abuse that he inflicted on Denise Bourdeau throughout their two-year relationship.

[35] As indicated, Mr. Thomas pled guilty to assault causing bodily harm towards Denise Bourdeau in November, 2005. The level of violence described in the statement of facts read into the record on the plea can only be described as horrendous, comprising a prolonged and vicious attack inflicted over two days and included death threats. The beating inflicted by Mr. Thomas resulted in Ms. Bourdeau requiring hospitalization. The statement of facts describing the incident leading to the charge against him was consistent with the descriptions of repeated beatings and prolonged abuse in Denise Bourdeau’s writings.

[36] In his interactions and discussions with his probation officer following his release David Thomas blamed his violence inflicted on Ms. Boudeau on his choice of her as his partner and on what he regarded as her infidelity and deception, rather than on his own choice of behaviour.

[37] The evidence indicated that David Thomas engaged in abusive, violent and controlling behaviour towards Ms. Bourdeau including kicking her out of the apartment, throwing her clothing and belongings in the garbage bin, locking her in the apartment and stalking her when she attempted on a number of occasions to escape the abusive situation.

[38] There is, on balance, very little in Mr. Thomas’ background and character which can be regarded as mitigating.

(c) The recommendation made by the jury as to the appropriate period of parole ineligibility

[39] Six of the jurors recommended that Mr. Thomas serve 25 years before becoming eligible for parole, one recommended 24 years, one 20 years, one 19 years, one 17 years, and one 14 years. One juror made no recommendation on parole eligibility.

[40] It is evident that all of the jurors who expressed their views recommended a period of parole ineligibility significantly higher than the minimum of 10 years. Indeed, eight of the jurors recommended a period of 20 years or more. It is clear from this that the jury viewed the nature of the offence and the circumstances surrounding its commission as most serious and troubling.

[41] The case law indicates that, although as the sentencing judge I am required to consider the jury’s recommendations in fixing the appropriate period for parole ineligibility, they need not be slavishly followed. As the Court of Appeal noted in McKnight, in approving the comments of Justice Watt, as he then was, in the case of R. v. Barry [1991] O.J. No. 2666 (Gen. Div.) aff’d [1993] O.J. No. 3955 (C.A.), the members of the jury are given no guidance on the precedents concerning the appropriate range, and their recommendations are developed in a brief and somewhat informal exercise.

[42] The jury’s recommendations were made without the benefit of submissions from counsel or instructions from me as the trial judge and without any factual context other than what they were able to recall from the evidence given at trial and without the benefit of any information on the guiding principles.

Conclusions

[43] On the basis of the foregoing I find that the mitigating circumstances identified by the defence are not sufficiently strong or compelling to support a period of parole ineligibility at the lower end of the range suggested by the Court of Appeal in McKnight. It is noted that upon being asked if he had anything to say, pursuant to s. 726 of the Criminal Code, Mr. Thomas denied any responsibility for Ms. Bourdeau’s death. Acceptance of responsibility and remorse as possible mitigating factors are therefore not present.

[44] Conversely, I find that there are serious aggravating circumstances which would militate in favour of a period of parole ineligibility towards the upper end of the range laid down in McKnight, as modified and commented on in subsequent cases. These aggravating circumstances include the following:

(a) Mr. Thomas’ prolonged and persistent violent and abusive conduct towards Denise Bourdeau throughout their two-year relationship, including his conviction for assault causing bodily harm to her in November 2005;

(b) his blaming his violent behaviour on Ms. Bourdeau herself and his refusal to accept responsibility for his own behaviour;

(c) his actions in hiding evidence of his murder of Ms. Bourdeau by disposing of her body in the Grand River where it would be exposed to the elements and his attempting to clean up her blood from his vehicle; and

(d) his deceit in misleading the police and as well as Ms. Bourdeau’s family as to her whereabouts following her disappearance, thereby increasing her family’s pain and anxiety.

[45] Although I have considered the recommendations of the members of the jury, for the reasons mentioned above, I respectfully decline to follow them, as all but two of them recommended a period of parole ineligibility well in excess of the upper end of the range suggested in the case law, which remains binding on me. However, as indicated above, the lengths of the periods of parole ineligibility recommended by the majority of the jury members do demonstrate the very serious view that they took of Mr. Thomas’ conduct in causing the death of Ms. Bourdeau.

[46] Before I conclude with my ruling on the appropriate period of parole ineligibility I wish to pause to direct some comments to members of Denise Bourdeau’s family. I am acutely aware of the devastating impact that her disappearance and death and its aftermath have had on you, both individually and as a family, and the upheaval and pain that the circumstances of her tragic death have caused and which will no doubt persist into the future.

[47] It should be remembered that, regardless of the period of parole ineligibility that I impose, the sentence remains that of life imprisonment. I wish to echo the observations of Justice Hambly in the case of R. v. Hill 2011 ONSC 4382 (S.C.J.) at para. 41. Because Mr. Thomas will become eligible to apply for parole after serving the required period this does not mean that he will be necessarily granted parole. This will depend on whether he meets the criteria set by the Parole Board. If he is granted parole it will be subject to conditions and he will remain under the supervision of parole officers. If he violates any of the conditions he will be in jeopardy of being re-incarcerated. Life imprisonment for David Thomas means life imprisonment even if he is released into the community subject to conditions. He will never again be a free man.

[48] After careful consideration and balancing the required factors in s. 745.4 of the Code namely the character of the offender Mr. Thomas, the nature and circumstances of the offence which reflect a high degree of responsibility and moral culpability, and the recommendation of the jury, as well as the aggravating and mitigating factors, I fix the minimum period of parole ineligibility at sixteen years.

[49] David Thomas, I hereby sentence you to life imprisonment without parole eligibility for sixteen years. Murder is a primary designated offence for the making of a DNA order pursuant to s. 487.051 of the Criminal Code and I therefore order you to provide bodily fluid samples for DNA analysis. I also impose a weapons prohibition order under s. 109(2)(a) for 10 years and s. 109(2)(b) for life.

[50] The warrant of committal will be endorsed to reflect that Mr. Thomas’ life sentence began to run on the date of his arrest July 13, 2011.

D.A. Broad

Date: July 15, 2015

SCHEDULE A

Cases relied on by the Crown

1. R. v. McKnight [1999] O.J. No. 1321 (Ont. C.A.)
2. R. v. Czibulka 2011 ONCA 82, [2011] O.J. No. 372 (Ont. C.A.)
3. R. v. Folker [2013] N.J. No. 434
4. R. v. Panghali 2011 BCSC 421, [2011] B.C.J. No. 841
5. R. v. Gale [2013] O.J. No. 4597
6. R. v. Praljak [2013] O.J. No. 269
7. R. v. Wristen [1999] O.J. No. 4589 (Ont. C.A.)
8. R. v. Borbely 2013 ONSC 3355, [2013] O.J. No. 2593

Cases relied on by the Defence

1. R. v. Pasqualino, 2008 ONCA 544
2. R. v. Kenyon, 2014 ONSC 4454
3. R. v. Benham, 2009 BCSC 1863
4. R. v. P.T., 2005 31847 (Ont. C.A.)
5. R. v. Sodhi, 2003 52179 (ON CA), [2003] O.J. No. 3397 (Ont. C.A.)
6. R. v. Chalmers, 2009 ONCA 268
7. R. v. H.S., 2014 ONCA 323
8. R. v. Stewart, 2008 70846 (Ont. S.C.J.)
9. R. v. Sandercock, 1985 ABCA 218
10. R. v. Johnston and Tremayne, 1970 281 (ON CA), [1970] O.J. No. 1489 (Ont. C.A.)
11. R. v. Beier, [1995] O.J. No. 2552 (Ont. C.A.)