Court File and Parties

FILE NO.: C5-15-13 SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN v. MITCHELL IVAN BROOKS

PROCEEDINGS

BEFORE THE HONOURABLE JUSTICE DITOMASO on JUNE 29, 2016 at BARRIE, Ontario

Appearances: D. Russell M.A. Alexander, Counsel for the Provincial Crown K. Miles, Counsel for Mitchell Brooks

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

WITNESSES IN-CH CR-EX RE-EX No Witness Examinations

Transcript Ordered....................... June 29, 2016 Transcript Completed..................... July 18, 2016 Ordering Party Notified.................. July 18, 2016

WEDNESDAY, JUNE 29, 2016 NEUTRAL CITATION NO. 4645

Reasons for Sentencing

DiTOMASO, J. (Orally)

1. Overview

Mr. Brooks was charged with first degree murder in relation to the death of his wife, Deena Brooks, on May 24, 2013. He pleaded not guilty to the charge. After a trial by jury, he was found not guilty of first degree murder but guilty of unlawful act - manslaughter by the jury on April 1, 2016. A sentencing hearing was conducted on April 25, 2016, with sentence to be imposed today.

2. The Facts

(a) Circumstances of the Offence

The circumstances of the offence based on the evidence at trial can be summarized as follows. On the evening of May 24, 2013, Mitchell Brooks and his wife Deena Brooks, were standing in the foyer of their home located near New Lowell in Clearview Township. Their daughter, Kristin, was at her prom, held at Tangle Creek Golf Course. She had texted her mother to pick her up. However, Deena Brooks never picked up Kristin because she died in the foyer as a result of a single gunshot wound to her right chest.

There was evidence that Mitchell Brooks made a 911 call, where he said his wife had been shot during a fight over a gun. The dispatcher gave Mitchell Brooks instructions to perform CPR on Deena Brooks. He did so as instructed. Despite the efforts of first responders, Deena Brooks was pronounced dead at the scene.

There was evidence from Mitchell Brooks and other witnesses that he had a long history of depression prior to May 24, 2013, for which he took medication. His family physician testified that Mitchell Brooks was being treated for depression and that he had been prescribed medication to be taken daily. Although Mitchell Brooks suffered from depression and had suicidal thoughts from time to time, his family physician testified that on his last visit of May 14, 2013, Mitchell Brooks was committed to safety and was not committed to self-harm or suicide at that time.

The first officer on the scene, P.C. Adam Pinn, asked Mitchell Brooks if he wanted to kill himself and Mitchell said yes.

The evidence at trial from a number of witnesses was that Deena Brooks had been unhappy in her marriage for some time and told Mitchell during the Easter weekend of 2013 that she wanted out of the marriage. For her, the marriage was over but for Mitchell, he did not want the marriage to end and looked for ways to reconcile.

There was no reconciliation. There was evidence about Mitchell and Deena Brooks obtaining legal and banking advice, about the financial consequences of divorce, about counselling sessions which were unsuccessful in repairing the marriage.

Leading up to the evening of May 24, 2013, there was evidence of a number of witnesses who testified that Deena did not fear for her own safety or the safety of daughters Cayley and Kristin. Rather, she feared that Mitchell Brooks might harm himself. She knew he possessed firearms and ammunition. Mitchell stored these firearms and ammunition in his workshop.

There was evidence from Mitchell Brooks about his suicidal thoughts, but not wanting to commit suicide in front of Deena or in the house. He testified about wanting to kill himself in the workshop.

There was evidence that Mitchell Brooks followed Deena Brooks into the house. She was concerned about leaving him alone in the workshop and would not pick up Kristin unless he went into the house. She did not know that he was armed with a Beretta semi-automatic handgun loaded with six shots with the safety off as they entered the house. The gun was in his back pocket.

Mitchell Brooks testified that when Deena first noticed the gun, he had turned to shut the front door. He withdrew the Beretta from his pocket. He described how she tried to take the gun away from him, how the struggle for the gun ensued, and how the gun discharged as they both lost their balance and were falling to the floor, with the result that Deena Brooks was fatally shot. Mitchell Brooks testified that Deena Brooks' death was an accident and that he did not intend to kill her.

There was evidence that Deena was shot from a distance of less than four inches at a height of no more than 35 cm from the floor.

There was also evidence that Mitchell Brooks was bigger and stronger than Deena Brooks and that he had control of the Beretta firearm. There was also evidence of peri-mortem injuries suffered by Deena. Mitchell Brooks knew that the handgun was loaded and the safety was off, and he knew the Beretta handgun was ready to fire. One shot was discharged from the firearm with the result that Deena Brooks was killed.

(b) Circumstances of the Offender

Mitchell Brooks is 53 years of age. He married Deena Brooks in December of 1990. They had two daughters, Cayley and Kristin Brooks. Mr. Brooks was a woodworker who built stairs from his workshop, which was located on the property behind the Brooks' home near New Lowell. He suffered from depression, which was first diagnosed by his family doctor in 1993. He had been prescribed various medications up to the date of the offence by his family doctors.

Mr. Brooks was very close to his family. Around Easter of 2013, Deena Brooks told him that she wanted to leave the marriage and that she was unhappy for some time. Mr. Brooks became depressed over his marital breakup. There was evidence that in the weeks before May 24, 2013, he had suicidal thoughts but was unable to commit suicide.

After the death of Deena Brooks, he was arrested and charged. He has remained in custody since May 24, 2013. He is a first offender.

(c) Impact on the Victims

Victim Impact Statements

Marked as Exhibit 3 on the sentencing hearing, was a brief containing Victim Impact Statements. Collectively, these impact statements are full of pain and sorrow. Individually, they speak of devastating personal loss and grief. The Victim Impact Statements can be summarized as follows.

Cayley Brooks

Cayley is the eldest daughter of Mitchell and Deena Brooks. She was devastated by the loss of her mother. She is haunted by regret and sadness. Cayley has suffered physical stress and emotional anguish. She is heartbroken over the loss of her mother.

Frieda Balser

Mrs. Balser is the mother of Deena Brooks. The death of her daughter has caused a great and sad change in her life. This loss is a grievous one that she will feel for the rest of her life. She has lost a loving daughter. She wrote, "A child should not die before a parent".

Michael Balser

Michael Balser is the brother of Deena Brooks. He was devastated by her death. He wrote of an overwhelming sadness that affects him and also affects his family. He is haunted by the death of his sister and suffers physically and emotionally from her loss. He also is aware of the suffering that Mitchell Brooks endures "knowing that he killed the mother of his children will haunt him for the rest of his life. Whatever sentence he receives will pale before that."

Eric Balser

Eric is also Deena Brooks' brother. He wrote of the emotional impact that he and his family felt as a result of the death of his sister. He spoke of significant emotional loss and sadness. He spoke of the effect that Deena's death has had on her mother. She has suffered a profound decline in her mental health. She had become withdrawn and less active since the loss of her only daughter. He spoke of the overwhelming sadness for his family.

Jane Brooks

Ms. Brooks is the sister-in-law of Deena Brooks. She too, wrote of her emotional loss as a result of Deena's death and her anxiety about seeing Mr. Brooks again. She felt deeply a sense of grief and difficulty finding closure as a result of Deena's death. She spoke of the profound sadness that she experiences and the sadness that has touched the lives of her family.

Denise Parliament

Ms. Parliament was a co-worker, as well as the best friend of Deena Brooks. She relied and looked forward to seeing Deena every day and being touched by Deena's positive attitude. The loss of her friend makes her sad every day. She feels the loss of a person she could trust and rely upon. She has trouble sleeping and has nightmares about the safety of her own family.

Kristin Brooks

We were also presented with the Victim Impact Statement of daughter, Kristin Brooks. Not only has she lost her mother, but she does not wish to lose her father, too. She wishes to save whatever relationship they have together. She described her relationship with her father as being best friends. They did many and varied things together. She will forever treasure her memories as a family. She will always think about what happened to her mother as an accident. She suffers from nightmares, guilt that she went to her prom that night, and haunted by not being able to help her father when he needed her most.

My review of the Victim Impact Statements can only give some small insight as to the heartfelt loss suffered by family and friends of Deena Brooks. In life, she brought joy to all of them; in death, they were devastated by her loss.

3. Legal Parameters

In this case, Mr. Brooks was convicted of unlawful act - manslaughter. The Crown proved beyond a reasonable doubt that he caused the death of Deena Brooks and that he caused her death unlawfully. There were two unlawful acts established in this case: (i) possession of a weapon for a purpose dangerous to the public peace; and (ii) careless use and/or handling of a firearm.

Section 236 of the Criminal Code provides as follows:

Manslaughter - s. 236

Every person who commits manslaughter is guilty of an indictable offence and liable,

(a) where a firearm is used I the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years.

The maximum penalty is life in prison.

There was no dispute in this case that a firearm was used in the commission of the offence. Neither is there any dispute that the mandatory minimum punishment of imprisonment for a term of four years applies.

4. Positions of the Crown and the Defence

Position of the Crown

It is the Crown's position that there is a mandatory minimum of four years imprisonment because of the use of the firearm. The maximum penalty is life in prison. Mr. Brooks has been in custody since his arrest on May 24, 2013. If he were to receive credit at 1.5 to 1, as of June 29, 2016, his pre-sentence custody would be the equivalent of 4 years, 7 months and 23 days. The Crown concedes he should receive this enhanced credit. The Crown does not agree that Mr. Brooks receive any enhanced credit on a two for one basis for any time spent in presentence custody.

The Crown also seeks the following ancillary orders:

• 7 to 8 years of jail less pretrial custody;
• DNA order (primary);
• Weapons prohibition order under s. 109 of the Criminal Code for life and;
• Forfeiture of all handguns, ammunition, and magazines found pursuant to s. 491 of the Criminal Code.

Position of the Defence

The defence submits that Mr. Brooks ought to be sentenced to time served in custody. Further, the defence seeks enhanced credit on a two for one basis for 100 days while Mr. Brooks was in lockdown, over and above the enhanced credit of one point five to one. There are no issues in respect of any of the ancillary orders sought by the Crown.

5. Review of Relevant Case Law

Both the Crown and defence submitted case briefs. I have reviewed all of the authorities submitted by both side. Understandably, neither side was able to provide me with cases that were on all fours with the case before us. Each side presented cases which were illustrative of legal principles involved in this kind of offence. Sentencing depends on the specific facts of each and every case. To a very large measure, sentencing is tailor made to the offence and to the offender.

The defence relied upon the following cases:

1. R. v. McMath, 2015 BCSC 1046;
2. R. v. Seguin, 2016 BCPC 235;
3. R. v. Brinton, 2014 ABCA 236;
4. R. v. Ayorech, 2012 ABCA 82;
5. R. v. Chan, 2006 ONCJ 456; and
6. R. v. Gaeler, 2006 ONSC 5867.

I found that these cases presented by the defence were somewhat dissimilar and in a number of instances, dealt with guilty pleas followed by joint submissions as to sentence. We have no guilty plea in our case and we have no joint submission as to sentence. In the case of R. v. Gaeler, Mr. Gaeler killed his wife and plead guilty to manslaughter. The joint submission was for four years on top of time served. The global sentence amounted to incarceration for seven years and six months which the trial judge found was at the high end of the range on a manslaughter conviction in 2006, in that case.

The Crown produced a number of authorities, which I have reviewed as follows:

1. R. v. Dupuis, 2014 ONSC 3573;
2. R. v. Creighton;
3. R. v. Hohner;
4. R. v. Kostinchuk; and
5. R. v. Canning.

I find the Crown's authorities more persuasive and applicable to the case at bar.

In R. v. Dupuis, Ms. Dupuis assaulted her victim by deliberately stabbing him in anger. In Dupuis the Court recognized that 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 at para 86:

"...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, that the sentence can be and is tailored to suit the degree of moral fault of the offender. ..."

In Dupuis, the trial judge cited the breadth of range of sentences imposed for manslaughter anywhere from a suspended sentence to 12 years.

In Dupuis, the trial judge considered the highly individualized process involved in sentencing. The trial judge considered the applicable provisions of the Criminal Code, she found that the offence occurred in the context of a domestic relationship and that, in accordance with the analysis in R. v. Creighton, the moral fault of the offender was at the upper range of the spectrum of blameworthiness for the offence of manslaughter. Ms. Dupuis assaulted her victim with a weapon in a manner that a reasonable person would have known would cause her victim serious bodily harm. She acted impulsively and out of anger, and a loss of self-control.

Balancing considerations of deterrence, prevention and rehabilitation, Ms. Dupuis was sentenced to eight years in prison with a credit of three years for pre-trial custody.

In R. v. Creighton, the Ontario Court of Appeal dealt with an appeal by the accused from a conviction and sentence for manslaughter. The appellant injected the deceased with cocaine as a result of which she suffered a heart attack and died. On the issue of sentence, the Court of Appeal held that the appellant was engaged in dangerous criminal conduct that resulted in death. The sentence of four years was imposed. In Creighton, there was no domestic relationship and no use of a handgun.

In R. v. Hohner, Ms. Hohner pled guilty to manslaughter. She fired a shot through a closed door. The shot struck the victim who was standing in some location behind the door. On the joint submission, Ms. Mohner was sentenced to 10 years in prison. In R. v. Canning, a 1996 decision of the Newfoundland Supreme Court, the accused was convicted of manslaughter and sentenced to a term of imprisonment of four years.

6. Aggravating and Mitigating Factors

Aggravating Factors

The aggravating factors in this case relate to violence on the part of Mr. Brooks in a domestic relationship with the use of a firearm. His moral blameworthiness lies at the higher end of the spectrum, notwithstanding the submission by defence counsel that Mr. Brooks' moral blameworthiness should be found at the lower end.

I accept the submissions by the Crown that by his conduct, Mr. Brooks exposed his wife to injury. He knew or ought to have known that entering the foyer with a loaded handgun with the safety off would cause Deena Brooks to try and take the handgun away from him. Even if he had no intent to kill himself there and then, he would not allow his wife to have control of the gun. She was concerned for his well-being and that no harm should come to him. He resisted all efforts to let go of the gun and he acted out of anger. Even though his evidence was that he did not to wish to kill himself in the foyer, he exposed Ms. Brooks to danger, to injury, where he knew or ought to have known she would try to stop him. The consequence of Deena Brooks trying to stop Mr. Brooks is that she had a firearm pointed at her and Mr. Brooks continued to offer resistance. They struggled, the gun discharged, and she was killed.

Mr. Brooks did not need to bring a loaded handgun with the safety off into the foyer. He could have left the handgun in the workshop where he and Ms. Brooks had been involved in a discussion. He could have given the gun to Ms. Brooks without the struggle that ensued. He could have put the safety on the handgun and handed it to her. He did none of those things. However, Mr. Brooks knew from his experience handling firearms, all about the use and importance of the safety mechanism particularly, where a handgun was loaded.

All that Ms. Brooks wanted to do was to pick up Kristin from the prom. It was Mr. Brooks who brought a loaded firearm, safety off and ready to fire, into the foyer. It was Mr. Brooks who created the situation of danger which resulted in the death of his wife.

Mitigating Factors

Mr. Brooks is 53 years old and is a first offender. He has no criminal record. He is remorseful for what has happened. Marked as Exhibit 5 is a statement which he read where he accepts full responsibility for the death of his wife, resulting in the devastating consequences to many family members. He apologizes for the pain he has created for being selfish and for not being the better person that he should have been. He never intended to take Deena Brooks away from her children or her family. For this, he is deeply sorry for his conduct which he describes as unforgiveable.

I accept that Mr. Brooks' remorse is both genuine and profound.

Defence counsel submits that consideration of Mr. Brooks' depression as a contributing factor to what happened on May 24, 2013, and shifts the scale of moral culpability lower. His mental health issues ought to be taken into account. I do not agree. Mr. Brooks knew exactly what he was doing May 24, 2013. His depression was well controlled and managed. He was taking medication for his depression. There was no evidence that his decision-making was impaired in any way, contrasted by someone who would be delusional or in a psycho-schizophrenic state. His depression is not a mitigating factor.

Neither do the facts as submitted by defence counsel place his conduct on the lower end of the spectrum of moral blameworthiness. We do not require underlying facts of historical cruelty or Ms. Brooks' death preceded by vicious and brutal conduct on the part of Mr. Brooks. While he called 911 and tried to assist Ms. Brooks with CPR, she died within minutes. His attempts to assist attract no credit. Rather, he acted out of anger. He sought to control a dangerous situation which he knew or ought to have known would result in fatal injury to his wife.

I also reject the submission by defence counsel that an offer to plead guilty to manslaughter at an early stage ought to be considered as a mitigating factor. Such an offer amounts to nothing more than discussions with the Crown that amounted to nothing. Mr. Brooks did not seek to plead guilty to manslaughter at trial. Defence counsel acknowledged there were no legal authorities to support her position.

I find that in the tragic circumstances of this case, the aggravating factors far outweigh any mitigating factors.

7. Principles of Sentencing and Reasons

The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention initiatives, 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 and the harm done to victims or to the community that is caused by the unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

The fundamental principle at play in sentencing can be found in s. 718.1 of the Criminal Code where a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 (a) of the Criminal Code requires the court to consider any relevant aggravating and mitigating circumstances and at 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: R. v. Dupuis, 2014 ONSC 3573, supra, at para. 53.

Sentencing necessarily involves a balancing of specific and general deterrence with the rehabilitation of offenders. While Mr. Brooks has been convicted of unlawful act - manslaughter, he had no prior criminal record and he is 53 years of age. He has the capacity to be a productive member of society.

However, in balancing these sentencing factors, Mr. Brooks' rehabilitation is secondary to deterrence and denunciation. Given Mr. Brooks' acceptance of responsibility and his insight as to what he has done, specific deterrence is not a driving factor in sentencing here. Rather, general deterrence and denunciation are paramount.

The tragic and inescapable reality is that Mr. Brooks killed his wife with a handgun in the home where they lived in a domestic relationship. In a place where Deena Brooks should have felt safe, she was killed by her husband. When she wanted to leave the relationship, he did not want to let her go. Now she is gone and Mr. Brooks must face the consequences of his criminal conduct.

Another principle of sentencing is that the punishment must fit the crime. I am of the view where Mr. Brooks was convicted of unlawful act - manslaughter, that is, he caused the death of Deena Brooks by the use and/or handling of a firearm, a mandatory minimum sentence of four years in prison is the starting point when considering the fit and appropriate punishment for what Mr. Books has done. To accept the defence position on sentencing would impose a global sentence on Mr. Brooks in the range of four-and-a-half years or time served. Time served in this case is definitely not a fit and appropriate sentence. Such a sentence after allowing for the mandatory minimum penalty for the use of the firearm does not impose a sufficient penalty to give full effect to the serious offence of manslaughter.

In my view, taking all of the factors into consideration, such as the circumstances of the offence, circumstances of the offender, impact on the victims, the positions of the Crown and defence, review of relevant case law and, aggravating and mitigating factors, and principles of sentencing, I find the Crown's position regarding the range of sentence to be the fit and appropriate penalty.

8. Sentence

Enhanced Credit

The defence called Sergeant Curtis Descroches of CNCC, where Mr. Brooks has been held since May 24, 2013. He brought with him Mr. Brooks' "housing file". He testified that Mr. Brooks was housed in a single unit under suicide watch for two weeks when he first came to CNCC. Thereafter, he was transferred to a double cell. While in the double cell, he was assaulted by his cellmate, with the result that Mr. Brooks received a "misconduct" and wished to return to be housed in the segregated unit for safety concerns. The defence submitted through information received from Sergeant Desroches that while Mr. Brooks was in custody, the facility would have been locked down for more than 100 days. During the lockdown of 100 days, the defence seeks credit for time in custody at two to one. The Crown is opposed.

I am not persuaded on the evidence of Sergeant Desroches that Mr. Brooks would be entitled to enhanced credit at two for one for 100 days.

Rather, I find that Mr. Brooks would be entitled to enhanced credit, but at one point five to one. To allow Mr. Brooks' enhanced credit at two to one, I would have expected to hear further and better evidence as to how the lockdown adversely affected him specifically. I did not hear this evidence and therefore, reject the defence argument in this regard.

I find that Mr. Brooks is entitled to pre-sentence custody on the basis of an enhanced credit at one to one and a half as follows:

(a) May 24, 2013 to April 25, 2016 (sentencing hearing date): 1,065 days X 1.5 = 1,597 days; (b) April 25, 2016 to June 29, 2016: an additional 66 days X 1.5 = 99 days for a total of 1,696 days, or four years, seven months, 23 days credit for presentence custody.

Mr. Brooks, please stand. For the unlawful act - manslaughter of Deena Brooks, I impose a global sentence of seven years, from which is deducted the enhanced credit on a one point five to one basis for pre-sentence custody of 1,696 days, or four years, seven months and 23 days. Your net sentence to be served in penitentiary, in addition to time served, is two years, five months and 23 days.

Ancillary Orders

In addition, there will be the following ancillary orders:

(i) There will be a DNA order (primary); (ii) There will be a weapons prohibition order under s. 109 for life; (iii) There will be a forfeiture order of all ammunition and magazines found and seized by the police from the workshop, together with all handguns found and seized by the police from the workshop: (a) Sig Sauer handgun; (b) Beretta 85F handgun; (c) Smith and Wesson 357 handgun; (d) Glock handgun; (e) Beretta handgun found and seized by police in the foyer.

Please be seated. Mr. Russell, any comments?

MR. RUSSELL: No comment, thank you, sir.

THE COURT: All right. Ms. Miles, Ms. Miles, any comments?

MS. MILES: No sir.

FORM 2 Certificate of Transcript Evidence Act, subsection 5(2)

I, Shannon Heryet, certify that this document is a true and accurate transcript of the recording of R. v. Mitchell Brooks in the Ontario Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No.(’s) 3811-03-20160629 which has been certified in Form 1.

July 19, 2016

Shannon Heryet - ACT #3389634078