Court File and Parties
COURT FILE NO.: C-NJ-6522 (Kitchener) DATE: 2016-07-18 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Fraser Kelly, for Her Majesty the Queen Applicant
- and -
ARNOLD THIESSEN Susan Pennypacker, for Arnold Thiessen Defendant
HEARD: December 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 2015 and April 15, 2016 in Kitchener
REASONS FOR SENTENCE
[1] Mr. Thiessen was convicted by this court December 23, 2015 of attempt murder and conspiracy to commit murder. Counsel agreed that the principles enunciated in R. v. Kienapple, [1975] 1 S.C.R. 729 were applicable and that Mr. Thiessen should be sentenced on the offence of attempt murder.
I. Sentencing Objectives
[2] The object of sentencing is to impose a sentence which based on the nature of the offence, the impact upon victims, the jurist crafts a result which is sensitive to the background and antecedents of the particular accused and meets the objectives of sentencing as set out in s. 718 of the Criminal Code.
II. Factual Context
The Nature of the Offence
[3] In the spring of 2007 the Thiessens were a couple in distress. Mr. Thiessen demonstrated through various abusive acts that he was becoming progressively more frustrated with his spouse. The Thiessen children ranging in ages from 11-16, up until that summer had been normal compliant children. No doubt influenced by their father, they became belligerent, insulting and rebellious towards the parenting by their mother. He also engendered a fear on their part of being poisoned by their mother. Mr. Thiessen engineered the German letter to the parents of Mrs. Thiessen ostensibly authored by the children damning Mrs. Thiessen and portraying her as an individual “possessed” who had abandoned her Christian principles.
[4] Mrs. Thiessen retained counsel to negotiate a separation. By the fall, Mr. Thiessen who was on bail for assaulting his wife, was residing with his father and stepmother. His access to his children appeared to be replete with negativity on his part towards Ingrid.
[5] He started to prevail upon the children with a solution to his dilemma. Slowly the solution emerged that the children would cause the demise of their mother by drowning her in the bathtub in circumstances which would present Ingrid as intoxicated and drowning in that state.
[6] The “staging” took place November 30, 2007. Fortunately for all, the children lost their nerve to carry through. In the aftermath, Eric who was 14 at the time, quickly realized that there would be repercussions for their behaviour. He phoned 911 and started to sow the seeds that it was his mother Ingrid who attacked the children and that they acted out of self-defence. Ingrid, as she refers to in her original victim impact statement was arrested, strip-searched. Monica returned to her care within three days. But it took almost a year before the boys were returned to their mother.
[7] In the days following the November hiatus the truth slowly emerged from their children as to how their father had prevailed upon them, utilizing religious symbolism to demonstrate that Ingrid had become a “devil incarnate”, the loss of whom would not be a sin.
[8] Mr. Thiessen in all his interviews portrayed himself as a bystander to the growing frustration of his children who acted independent of his protestations. In others words, the children were free agents.
[9] As a result of that theme, the children had to testify on two occasions, once before a jury and Mr. Justice Ramsay and again before this jurist alone in December, 2015. On both occasions Mr. Thiessen was convicted. He was originally sentenced April 16, 2010 to 12 years with credit for pretrial custody.
III. Sentence Calculations
[10] Mr. Thiessen had been originally arrested December 1, 2007. So he would have been in the provincial correctional system between December, 2007 and April, 2010, approximately two years, four months.
[11] In January, 2015 his appeal against his original conviction was successful. He was therefore remanded back from the federal penitentiary system to the provincial system where he remained until eight months later he was granted bail on September 29, 2015. That latter time period, like the original time in the provincial system prior to trial (namely the two years, four months) would be pretrial custody.
[12] The time in the federal penitentiary of almost five years would be pretrial custody relative to the sentence to be imposed by this court. That being said, it would not be true pretrial custody subject to a multiplicand to determine how much credit should be given for it, because the rationale for such a multiplicand, namely the absence of programs of rehabilitation and education, was absent.
a) Credit for Pretrial Time Served
[13] In R. v. Rezaie (1996), 31 O.R. (3d) 713 Laskin J. explained that there would be an unfairness if pretrial custody has no impact with respect to parole eligibility (which is typically available after serving one-third of a sentence) nor statutory remission (which comes into play after the serving of two-thirds of a sentence). In the pretrial custody setting there are no educational, retraining or rehabilitative programs.
[14] This unfairness that Laskin J.A. spoke of was a basic tenet in the judgment of the Supreme Court of Canada in R. v. Summers, (2014) 2014 SCC 26, S.C.J. No. 26, authored by Justice Karakatsanis. Her Honour expressed the belief that it would be undesirable that an individual who fails to make bail could actually “serve more time than an individual who makes bail”. Especially so given that during the former, the defendant is presumed innocent (ref. paras. 22 and 23).
[15] Therefore, given that pretrial custody does not influence the statutory calculation or serving of a sentence (i.e. through parole eligibility or statutory release) there is a need for a multiplicand to create a credit greater than 1 to 1. A multiplicand or ratio of 1.5 would even out the potential fairness (ref. para. 26).
[16] To this point of the judgment, Justice Karakatsanis had addressed “quantitative reasons for a credit with respect to the pretrial custody”. From a qualitative point of view, Her Honour recognized that such custody is oft times served in extreme circumstances; for example, overcrowded detention centres, tremendous turnover in inmates, and a workplace punctuated by labour disputes (ref. para. 27).
[17] These qualitative phenomena could be considered “exceptional circumstances” justifying enhanced credit (ref. para. 27).
[18] Historically, courts have addressed this combination of “qualitative” and “quantitative” phenomena by the giving of enhanced credit towards the sentence imposed, a credit greater than 1 to 1. Depending on the circumstances, the ratio could be as high as two.
[19] Justice Karakatsanis observed that there was no limiting language in the Truth in Sentencing Act, S.C. 2009 to eliminate this historical treatment of pretrial custody (ref. para. 27). As Justice Arbour had noted in R. v. Wurst 2000 SCC 18, [2000] 1 S.C.R. 455 “that provision in penal statutes when ambiguous should be interpreted in a manner (amongst other factors) favourable to the accused.” (ref. para. 34).
b) Sentencing Precedent for Attempt Murder
[20] As Section 718.2(b) of the Criminal Code states, a sentence should be similar to that imposed to similarly situated offenders.
[21] Case law such as [R. v. Edwards (1996) O.J. No. 54 (O.C.A.)] emphasizes the social challenge represented by domestic violence. It was clearly an aggravating factor in the imposition of the sentence (see Section 718.2(a)(ii)). In many instances, it is a crime committed in an emotionally charged atmosphere. As with all assaultive behaviour, there is a correlation between the severity and duration of the injuries inflicted and the length of sentence. Mr. Edwards received a 10-year sentence for shooting his wife three times in the head and rending her paralyzed from the waist down. It should be noted that the accused did give an inculpatory statement and pled guilty. Timely recognition of responsibility and guilty pleas are always considered a sign of remorse, and are gratefully accepted as the victim is not further victimized by having to testify.
[22] In R. v. Boucher (2004), O.J. No. 2689 (O.C.A.), Justice Simmons agreed with the Crown that there was a “range” of sentence available, from eight and-a-half years to life. An aggravating feature in these emotionally charged social issues was the degree of “deliberation and planning”. That element would be of greater weight even in the absence of injury. Boucher had tried to kill his wife by ramming her car, miraculously she escaped injury. The incident took place after several declarations on his part of an intent to kill. The absence of injury was as Justice Simmons opined a function of chance (ref. para. 23). There was always “the likelihood of lasting psychological trauma to the victim... [given]... the irrational and obsessive nature of the misconduct”. The original sentence meted out to Boucher of two years on top of credit for 28 months’ credit (using a 2 for 1 ratio) was considered inadequate. The sentence was increased to six years with credit for pretrial custody.
[23] In R. v. Gill (2015) 2015 ONSC 6184, O.J. No. 5339, Justice Dawson sentenced an accused who had stabbed his spouse multiple times and who had attempted to strangle her. Their daughter was unfortunately present at the time of the attack and had intervened to save her mother. The daughter later attempted to commit suicide. His Honour, referring to both [R. v. Edwards] and [R. v. Boucher], imposed a sentence of 11 years, 1 month, minus 3 years, 1 month for pretrial custody.
IV. Sentencing Documentation
a) The Presentence Report
[24] It would appear that Mr. Thiessen was abandoned by his mother when he was three or four years of age. His relationship with his father was always good, but his relationship with his stepmother was strained. His father now suffers from early-stage dementia.
[25] Mr. and Mrs. Thiessen married in 1985. There were intermittent incidents of verbal and physical abuse, sometimes in front of the children.
[26] Mr. Thiessen’s spotty employment history rendered the family dependent upon Mrs. Thiessen’s employment as a house cleaner.
[27] Mr. Thiessen achieved grade 12 and some credits in an electrician program. In prison, he assisted the maintenance workers and electricians and was considered “trusted”.
[28] Although the author of the presentence report states that from the perspective of the Salvation Army Chaplain, he has no bitterness towards his ex-wife and children (ref. p. 6); he has according to his counsellor Burns McLeod maintained his innocence.
[29] Mr. Thiessen was described as being a voice of reason in an inmate strike in 2013.
[30] The author of the report concludes the report with recommendations for terms of probation within the community; reporting as required, attending rehabilitative programs for partner abuse and emotional problems, a geographical and non-communication restriction relative to Mrs. Thiessen and the children, and seek employment or alternatively participate in a job training/apprenticeship program. All of which are excellent recommendations to reintegrate Mr. Thiessen.
b) The Victim Impact Statement of Mrs. Thiessen
[31] The sentiments expressed by Mrs. Thiessen are quite understandable given the enormity of the original delict. Naturally, she continues to have ongoing fears. Hopefully, Mrs. Thiessen will derive some comfort from the complete absence of issues since Mr. Thiessen’s release on bail.
[32] The original victim impact statement described her anguish immediately after the event. She was assaulted, strip searched as a result of a story concocted by her son.
[33] As mentioned before, her daughter was returned to her care within three days, but it took almost a year for the return of the boys. During that year Eric was initially in a group home and then in a foster home. The Children’s Aid Society was involved along with various agencies and lawyers.
[34] By 2008, she commenced a rebuilding of the family unit. Mrs. Thiessen spoke of how difficult it was for the children to testify, an experience they had to repeat in 2015.
[35] In a way, Mr. Thiessen abused his children as well as his spouse. He took three relatively normal children and not only pressured them to attempt a heinous crime, but he severed their trust in him as a parent. They became “liars” in a formalistic process, namely a trial.
V. The Position of Counsel
a) Crown Counsel
[36] Counsel for the Crown seeks the imposition after giving credit for pretrial custody (essentially as described above) of an upper reformatory sentence followed by three years’ probation with terms as suggested by the probation/author of the presentence report.
[37] Counsel appropriately emphasizes: (1) the planned and deliberate nature of the offence; (2) the weird and unprecedented nature of the offence in which the wellbeing of the children were sacrificed; and (3) principally the total lack of empathy on the part of Mr. Thiessen, a lack of appreciation of the impact of his actions upon his children, a perception of himself as a “victim”.
[38] Counsel argues that the facts speak of a deep-seated psychiatric issue on the part of Mr. Thiessen.
b) Defence Counsel
[39] Counsel notes that the original sentence was for 12 years, the statutory release was in August 2015.
[40] As stated before, the provincial “dead time” (as Justice Laskin referred to it) has been clearly identified. The first such period before the first trial was approximately two years, four months. Counsel appropriately notes that the ratio at that time could be as high as 2 for 1.
[41] Another eight months of dead time was incurred between January 2015 and September 2015.
[42] So potentially, even if you apply a 1.5 ratio for the last time period, you have at least a 6 year credit for dead time above and beyond the time in the federal system of just shy of 5 years.
[43] Counsel emphasized that Mr. Thiessen has effectively served more time than an inmate who originally received a twelve year sentence. There is a potential for injustice if Mr. Thiessen is sentenced to any further time in custody.
VI. Conclusion
[44] As stated at the outset, sentencing is always a function of a focus on the nature of the crime and the related circumstances of the individual and any victim. Above all, there is a societal interest in denunciation and deterrence of spousal abuse.
[45] This matter was particularly egregious in that the children were recruited as “agents” and consequently were “abused” by this conscription.
[46] The original sentence, which is not “under appeal” before this court, but is still nevertheless a point of reference, as it led to significant incarceration of Mr. Thiessen, in a way was within the range described in [R. v. Boucher].
[47] So the question becomes, is there a need to augment the incarceration that has incurred? There are some positive post-sentence phenomena. Mr. Thiessen did appear to improve as an individual in a harsh environment; namely, prison. His improvement was obviously not to the extent that he came to accept full responsibility for his actions and could see the impact in particular upon his children. It would be miraculous if an unsophisticated individual could realize and “own” the enormity of his actions, but that would require considerable cognitive therapy and openness of spirit. However, he did improve; he participated in programs, he was a “trusted inmate” with responsibilities.
[48] Mr. Thiessen has been on bail since September 2015 without incident relative to his family. He was originally under a form of judicial release which was on a par with “house arrest”. His release has been on less restrictive terms since December 23rd, 2015.
[49] Mr. Thiessen is 52 years of age. He does not have a record of employability. He has limited training. He is compliant with court ordered terms of release.
[50] If Mr. Thiessen had not appealed he would be on a form of statutory release at this point with supervision.
[51] Surely in terms of social utility, we would want him to gain some economic independence through employment, if it in turn (if his prison experience is anything to go by) appears to give him a degree of self-fulfillment.
[52] The understandable safety concerns of Mrs. Thiessen and the children can be addressed by the terms of a probationary period, with terms vis-à-vis his family.
[53] Therefore, for all of the above it is the intention of this court to impose an effective sentence of one day in jail followed by a term of three years’ probation, July 18th, 2016, the return date for sentencing. That sentence will reflect credit given for 11 years pretrial (i.e. relative to the trial before this jurist) custody.
[54] The terms of the probationary period will be as per the suggestions of the author of the presentence report and any other appropriate terms suggested by counsel on the return date scheduled for sentencing.