NEUTRAL CASE CITATION NO. 7657
FILE NO. 16-0118/14-0253
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
DONALD FELDHOFF
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE FUERST
on SEPTEMBER 20, 2016 at BARRIE, Ontario
Appearances:
B. Bhangu Counsel for the Provincial Crown
G. Leslie
R. Martin Counsel for Donald Feldhoff
ONTARIO COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
IN-CH
CR-EX
RE-EX
No Witness Examinations
Transcript Ordered....................... September 20, 2016
Transcript Completed..................... December 8, 2016
Ordering Party Notified.................. December 8, 2016
TUESDAY, SEPTEMBER 20, 2016
NEUTRAL CASE CITATION NO. 7657
R E A S O N S O N S E N T E N C I N G
FUERST, J.(Orally):
Introduction
On the evening of September 12, 1978, 26 year old Michael Traynor went drinking in downtown Barrie. Hours later, he was shot and killed at a house located on nearby Worsley Street.
The house was owned by William Feldhoff and his wife, but occupied at the time by their son Donald.
The shooting was not reported to the police. Mr. Traynor's body was discovered about three weeks later, in a wooded area in the north part of Barrie.
Despite police investigation, the circumstances of the death remained unknown for over three decades, until July 11th, 2012. On that date, Donald Feldhoff went to the police. He confessed that he shot and killed Mr. Traynor, and that he and his father then disposed of the body.
On May 30th, 2016, Donald Feldhoff pleaded guilty to manslaughter and improperly interfering with the dead body of Michael Traynor. He also pleaded guilty to possession of child pornography, consisting of thousands of images that the police found on his computer following his arrest on the other charges.
The Circumstances of the Offences
In 1978, William Feldhoff, who was 42 years old, and his wife purchased a house at 76 Worsley Street in Barrie. It was to be an income property rooming house. The couple lived elsewhere, at another property they owned in Barrie. William Feldhoff, who I will refer to as "Mr. Feldhoff", gave his son, who I will refer to as "Donald", the responsibility of looking after the rooming house. Donald was then 20 years old.
Donald began living on the main floor of the Worsley Street house in September 1978. The upstairs rooms had not yet been rented out. Mr. Feldhoff gave Donald a .22 calibre rifle to use in case of intruders at the house. Mr. Feldhoff also gave his son a box of 50 rounds of ammunition. Donald told the police that his father gave him the gun and ammunition "in case there was a problem and someone broke in". Mr. Feldhoff explained to the police that he did so because the rooming house was in a rougher neighbourhood. He told the police that he instructed his son, "If he threatens you, shoot the son of a bitch".
Michael Traynor was 26 years old in September 1978. He had grown up in Barrie, and lived in the Barrie area with his wife.
On the evening of September 12, 1978, just a few days after Donald Feldhoff began living at the Worsley Street house, Mr. Traynor went for drinks at some bars in downtown Barrie. He became drunk. His wife told him to go home.
Mr. Traynor's brother lived in the area of 76 Worsley Street. Between 2:00 and 3:00 a.m. on September 13th, Mr. Traynor went to the home of friends at 80 Worsley Street. He knocked on the front door, but his friends did not let him in because they thought that he was likely drunk.
Donald Feldhoff later told the police that he was awakened when someone broke the window on the kitchen door at the back of the house at 76 Worsley Street. Donald found Mr. Traynor, whom he did not know in the kitchen. He described Mr. Traynor as thinish, about 100 pounds. Donald confronted Mr. Traynor as to what he was doing. Mr. Traynor said that he used to live there. Donald told him to get out, but Mr. Traynor refused to leave the house. Donald told Mr. Traynor that he was going to call the police or somebody, and to "get out while you can". Mr. Traynor did not leave the kitchen.
Donald went to his bedroom, and retrieved the rifle and ammunition from under his bed. He loaded the rifle. It was a bolt action rifle. The user could move one round into the chamber, shoot, move a second round into the chamber, and fire again.
Donald returned to the kitchen. Mr. Traynor was still there. Donald again told Mr. Traynor to leave. Mr. Traynor responded by running toward Donald. Donald shot Mr. Traynor multiple times, killing him.
At some point, Donald called his father for assistance. He told his father that someone had broken into the house and that he was in the kitchen. His father said that he would come over, and instructed Donald not to call the police because the police could not do anything.
Mr. Feldhoff drove to the Worsley Street house. He saw the body of Mr. Traynor in the middle of the kitchen floor. Mr. Feldhoff later told the police that Donald said three shots were fired. Mr. Feldhoff said that he noticed a couple of shots had hit the fridge.
Donald asked if they should call the police. Mr. Feldhoff said no. Instead, Mr. Feldhoff decided that the best course of action was to tie up Mr. Traynor's body with copper wire, to make the shooting look like an organized crime "hit", and so deflect attention from his son and himself.
Mr. Feldhoff and Donald bound Mr. Traynor's wrist behind his back, and also tied wire around his ankles and below his knees. They put the body in the trunk of Mr. Feldhoff's car and drove it to a wooded area at the northern city limits of Barrie, where they dumped it in a ditch. Donald told the police that they then "went home and called it a day".
On September 18, 1978, Mr. Traynor's wife and his mother reported to the police that he was missing.
On October 2nd, 1978 a duck hunter found Mr. Traynor's body. It was badly decomposed. It was identified as that of Mr. Traynor through dental records. An autopsy was conducted. The cause of death was determined to be gun shot wound to the chest. X-rays indicated that there were two bullet fragments in the central posterior chest. Two bullets were retrieved from the body.
The t-shirt worn by Mr. Traynor had a hole at the back and a hole on the rear of the right sleeve. The jacket he wore had a hole at the back and a hole on the rear of the right sleeve. Both holes in the jacket lined up with those on the t-shirt. The jacket had a hole in the front, but there was no corresponding hole in the t-shirt.
Mr. Feldhoff sawed up the gun and disposed of the pieces. Repairs were made to the rooming house. It was sold soon after the events.
The case went unsolved for years. One theory of the police investigation was that organized crime was involved. The Feldhoffs' names never came up in the investigation.
On July 11th, 2012, Mr. Feldhoff evicted Donald from the family home after the two men had an argument. Donald went to Barrie City Police. He told them that he shot and killed Mr. Traynor and that he and his father disposed of the body. He and his father were arrested.
As a result of information Donald gave the police about explosives, firearms and ammunition at his father's home, the police executed search warrants there. They found a computer and CDs that Donald admitted belonged to him. The computer contained four movies of child pornography and 81 still images of child pornography. The CDs contained 6,061 still images and videos of child pornography, a few of which were movies and the majority of which were still images. Most of the children were females, but some were male. The various movies, videos and still images depicted the children being subjected to acts of fellatio, digital penetration, anal intercourse, and vaginal intercourse.
The Victim Impact Information
Victim Impact Statements from members of Michael Traynor's family, including his brothers and a sister-in-law, were filed on the sentencing hearing. They recount that Mr. Traynor's mother died without knowing who was responsible for her son's death, that the family lived in fear because of reports of Mr. Traynor's death as a gangland style killing, and that family members are once again suffering emotional distress as they relive Mr. Traynor's disappearance and the discovery of his body.
The Circumstances of Donald Feldhoff
Donald Feldhoff is now 58 years old. He is a first offender.
Donald Feldhoff grew up under his parents' strict disciplinary regime, which included corporal punishment and beatings by his father. The beatings were such that on one occasion, the neighbours contacted the police. He was not permitted to spend time with friends after school or to have friends over to the house. He feared his father, who was very domineering.
Donald Feldhoff completed high school. He worked as a sales person, as the head receiver at a grocery store for about 20 years, and then prior to his arrest as a supervisor at an electronics recycling company. He was living with his parents in July 2012 because he had financial problems.
Donald Feldhoff is an alcoholic. He also has an addiction to opiates. He has participated in methadone treatment. He has suffered from depression over the years. He told the police that he had attempted suicide in the past. While in custody, he has been seeing a psychiatrist.
Donald Feldhoff has been in custody since his arrest in July 2012, a period of four years and two months. Of the period of pretrial custody, 118 days were spent in segregation.
In court, Donald Feldhoff expressed that he is very sorry for what happened to Mr. Traynor.
The Positions of the Parties
On behalf of the Crown, Ms. Bhangu submits that Donald Feldhoff should be sentenced for the manslaughter to 7 to 10 years in jail, less credit for his time in pre-sentence custody. She acknowledges that it is open to me to credit the pre-sentence custody on a one and a half to one basis. She seeks a sentence of three to four years consecutive for the offence of interference with a dead body, and a further six months consecutive for the offence of child pornography. She also seeks a DNA order, a SOIRA order for 10 years, a s. 98(2) weapons prohibition order for five years, a forfeiture order, a s. 161(a), (b) and (c) order for life, and a s. 743.1 non-contact order.
Ms. Bhangu submits that Donald Feldhoff intentionally used excessive force against an unarmed Mr. Traynor, whom she asserts was merely a drunken nuisance and not a threat. Rather than phoning for help, Donald Feldhoff retrieved the rifle, loaded it, and fired multiple shots. He participated with his father in binding and disposing of Mr. Traynor's body by hiding it in the woods, so that by the time it was found, evidence had been destroyed by decomposition. Donald callously covered up his crime for 34 years, and ultimately went to the police only after he had a fight with his father.
On behalf of Donald Feldhoff, Mr. Leslie seeks a sentence of five to five and a half years in jail for the manslaughter, 9 to 12 months in jail concurrent for the offence of interfering with a dead body, and six months in jail for possession of child pornography, which he suggests could be either consecutive or concurrent. He submits that Donald Feldhoff's pre-sentence custody should be credited at one and a half to one, which would amount to six years and three months. Essentially, he submits that Donald Feldhoff should be sentenced to "time served." Mr. Leslie does not oppose the ancillary orders requested, except that the s. 161 order should be for 20 years and should not include clause (c).
Mr. Leslie emphasizes that Donald Feldhoff pleaded guilty, and is being sentenced as a first offender. He submits that the circumstances of the killing must be taken into account. Donald, then only 20 years old, was asleep in his residence when he was awakened in the middle of the night by an intruder breaking into the house. The house was in a rough area, and Donald's father had given him a rifle and ammunition to deal with any problems. Donald got the rifle to confront Mr. Traynor, who had refused to leave the house when told to do so. There is no evidence that Donald knew that Mr. Traynor was unarmed. The shooting occurred when Mr. Traynor ran at Donald. Mr. Leslie submits that it is highly mitigating that Donald Feldhoff went to the police and told them what he had done, enabling them, with his co-operation, to solve what otherwise would have remained a "cold case."
The Principles of Sentencing
The provisions in the current version of the Criminal Code that set out the purpose and principles of sentencing, including ss. 718, 718.1 and 718.2, were not in force in 1978. However, those provisions are largely a codification of common law principles and objectives of sentencing that applied before they were expressly set out in Part XXIII. The denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, and rehabilitation were objectives of sentencing that applied in respect of offences committed in 1978. Similarly, sentencing courts were guided then, as they are now, by the principles of proportionality between the gravity of the offence and the degree of responsibility of the offender, and the need to consider and weigh aggravating and mitigating circumstances.
Ordinarily, denunciation and general deterrence are the predominant principles in sentencing for manslaughter: R. v. E.H., 2005 BCCA 3, [2005] B.C.J. No. 4 (C.A.).
The maximum sentence for manslaughter in 1978 was, as it is now, life imprisonment. There is now a mandatory minimum punishment of four years in jail where a firearm is used, but that provision was not in existence in 1978. By virtue of section 11(i) of the Canadian Charter of Rights and Freedoms, it does not apply in this case.
Diverse circumstances will found a conviction for manslaughter. At one end of the manslaughter spectrum, the circumstances may approximate an unintentional and almost accidental killing, while there will be those approaching murder at the opposite extremity. See R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C (3d) 569 (Ont. C.A.), at para. 10. For this reason, there is wide variation in the range of sentence. The sentence in any given case must reflect the degree of moral blameworthiness, or moral fault, of the offender.
The maximum penalty for the offence of improperly interfering with a dead body was in 1978 and is now, five years in jail. The cases provided to me by Crown and defence counsel indicate that the applicable range of sentence for the offence of improperly interfering with a dead body, where the interference involves the disposal of the body, is 18 months to five years' imprisonment. See, for example, R. v. Holly, [1998] B.C.J. No. 357 (C.A.); R. v. Leblanc, [1990] O.J. No. 2654 (H.C.J.); R. v. Valliere, 2005 BCSC 124; R. v. Habteab, [2006] O.J. No. 5728 (S.C.J.).
Analysis
This is an unusual case, most particularly because of the passage of time from the date of the offence to Donald Feldhoff's arrest. I recognize that these court proceedings have caused the family of Michael Traynor to relive the pain inflicted on them 38 years ago when they learned of his shocking death. No sentence that I impose can bring Michael Traynor back to life, nor can it possibly reflect the enormity of the loss suffered by those who loved him.
I have reviewed and considered all of the case law provided by Crown and defence counsel. None of the decisions are factually similar to this case. They do, however, provide some broad parameters, and assist with the identification of aggravating and mitigating factors.
The aggravating factors in this case include:
Donald Feldhoff used a firearm to kill Michael Traynor.
Donald Feldhoff resorted to self-help and did not call the police for assistance in getting Mr. Traynor out of the house, even though he had access to a telephone and the time to make such a call.
His conduct in loading the rifle in the bedroom before returning to the kitchen reflects a preparedness to use it to inflict lethal harm. It was unnecessary to load the gun if its only purpose was to scare Mr. Traynor into leaving the house.
Donald Feldhoff fired more than one shot at Mr. Traynor. The violence that he used against the unarmed Mr. Traynor was excessive.
He made no effort to get help for Mr. Traynor after the shooting.
The disposal of Mr. Traynor's body was not conduct born of panic, but a calculated act on the part of William Feldhoff in which Donald Feldhoff participated in order to avoid apprehension as the killer.
Donald Feldhoff concealed his responsibility for Mr. Traynor's death for over three decades. In that time, Mr. Traynor's family members were left to wonder about the circumstances of his death, and most particularly to struggle with the impression that he had been the victim of a gangland killing.
The pornography collection that Donald Feldhoff more recently amassed was very large.
There are significant mitigating factors. They include:
Donald Feldhoff was relatively young when he committed the 1978 offences. I accept that he was, to some extent, under the control of his father and his father's distorted self-preservationist attitude.
Donald Feldhoff pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his actions.
Although his history in the years since the killing is not unblemished given his collection of child pornography, he is before me as a first offender.
Unlike some of the cases provided to me by counsel, Donald Feldhoff had not gone looking for trouble that night in 1978. Rather, Mr. Traynor broke into the house while Donald Feldhoff was asleep in his own bed. It cannot be disputed that Mr. Traynor was a trespasser in Donald Feldhoff's home.
The events cannot be divorced from their context. Mr. Feldhoff was alone in the house, which was located in a rougher area of town. He awoke in the middle of the night to find Mr. Traynor, who was a complete stranger to him, in the kitchen. He told Mr. Traynor to leave. Mr. Traynor refused to do so. The gun was fired only once Mr. Traynor ran towards Donald Feldhoff.
Donald Feldhoff's father was the directing mind who made the decision not to call the police after the shooting, and to dispose of Mr. Traynor's body after binding it to make it look like a gangland murder.
Again unlike some of the cases to which counsel referred me, Mr. Traynor's body was not burned, or dismembered.
Were it not for the fact that Donald Feldhoff went to the police and confessed to the killing, his involvement and that of his father would have gone undetected. He would not have been apprehended. Mr. Traynor's family and the community at large never would have known what happened that night.
I agree with Crown counsel that Donald Feldhoff was an adult at the time of the shooting, and must bear responsibility for his actions. His conduct went well beyond what was justified to protect himself or the property that was his home. By his hand, the life of another young man was snuffed out, and a family subjected to deep anguish that they are now reliving.
Nonetheless, it is a very important mitigating factor that Donald Feldhoff went to the police decades later and confessed to the killing. Had he not done so, neither he nor his father would have been identified as perpetrators and brought to justice.
I have concluded that the appropriate sentence for manslaughter lies between the ranges suggested to me by Crown and defence counsel.
In sentencing William Feldhoff for the offence of interference with a dead body, I found that it was he who came up with the plan to dispose of Mr. Traynor's body. I stated that had it not been for William Feldhoff's advanced age and medical history, I would have imposed a sentence of two and a half years in jail. I sentenced him to 20 months in jail. There must be parity in the sentence for Donald Feldhoff, who did not conceive of the plan, but participated in its execution.
I agree with Crown counsel that the sentence for interference with a dead body should, in the circumstances of this case, be consecutive to the sentence for manslaughter.
Conclusion
For the offence of manslaughter, I sentence you to six and one half years in jail.
For the offence of interfering with a dead body, I sentence you to 18 months in jail consecutive.
For the offence of possession of child pornography, I sentence you to six months in jail consecutive.
The global sentence is eight and one half years in jail.
Against that sentence I must credit Donald Feldhoff for the time spent in pre-sentence custody. He has been held at a regional remand centre. At least some of his time has been spent in segregation. I see no reason to depart from the practice in this region of granting credit for the time in pre-sentence custody on the basis of one and a half to one. I credit the 50 months in pre-sentence custody on a one and a half to one basis as 75 months. This leaves a sentence still to be served of 27 months in the penitentiary.
The forfeiture order sought by the Crown is granted, as is the non-communication order.
In respect of the offence of possession of child pornography, I impose an order under s. 161(1)(a),(b) and (c) for 20 years, in light of Donald Feldhoff's age. I am satisfied that such an order is enforceable. I also impose a SOIRA order for 10 years.
In R. v. K.R.J., 2016 SCC 31, at para. 29 the Supreme Court of Canada stated that post-conviction DNA databank orders do not constitute "punishment" under s. 11(i) of the Canadian Charter of Rights and Freedoms because they are imposed to assist in the investigation of future crimes, not in furtherance of the purpose and principles of sentencing. The Charter does not prevent me from making a DNA order in respect of the 1978 offences. There is a DNA order in respect of all three offences.
There is a s. 98(2) weapons prohibition order for five years in respect of the manslaughter.
Ms. Bhangu, is there anything that needs to be clarified?
MS. BHANGU: No thank you, Your Honour.
THE COURT: Mr. Leslie?
MR. LESLIE: No Your Honour.
THE COURT: And I'm sorry Ms. Bhangu, I believe there may have been another charge or charges...
MS. BHANGU: Yes.
THE COURT: ...on the indictment.
MS. BHANGU: If I haven't done so already, please, Your Honour, if those could be marked withdrawn.
THE COURT: No in fact I'm sorry, the remaining charge is against William Feldhoff only.
MS. BHANGU: Oh right, I was thinking of the other indictment.
THE COURT: It contains only one count.
MS. BHANGU: Right, I think I....
THE COURT: But I don't think, maybe Madam Registrar will just double check.
REGISTRAR: Yes.
THE COURT: We had multiple indictments at one point.
MS. BHANGU: I will make sure I stick around Your Honour and I'll assist Madam Registrar to get that clarified.
THE COURT: All right. So it will just take me a moment or two to endorse the indictment.
MS. BHANGU: Sorry, Your Honour, I'm just rising, Madam Registrar is just reminding me about the victim fine surcharge. I know on the, at least on the child pornography offence that would apply.
THE COURT: Yes.
MS. BHANGU: So I leave that in Your Honour's hands.
THE COURT: Mr. Leslie.
MR. LESLIE: Your Honour, upon Mr. Feldhoff's release, the one count is, what is it $100?
THE COURT: Or 200.
MR. LESLIE: Is it 200?
THE COURT: It's 200.
MR. LESLIE: I would be asking for six months to pay that please.
THE COURT: Now the endorsements have to be split between the two indictments, so it won't read precisely as it is structured in my reasons, but it has the same effect of a net sentence of 27 months in the penitentiary.
MS. BHANGU: Thank you Your Honour.
THE COURT: So on the first indictment which is the multi-count indictment to which Mr. Feldhoff pleaded guilty to manslaughter, I have endorsed: Sentenced for manslaughter to six and a half years in jail, and on count two to 18 months in jail consecutive, for a global sentence of eight years in jail less time served of 50 months credited on a one and a half to one basis of 75 months, leaving a sentence to be served of 21 months in jail. There is a DNA order on both counts, a s. 98 order for five years on the manslaughter and a non-contact order while in custody. So I think...
MS. BHANGU: It is.
THE COURT: ...that's everything on that indictment.
MS. BHANGU: That's right Your Honour. Just to assist Madam Registrar, with respect to the no contact names, I believe on the last occasion I had asked Your Honour to consider leaving it as any member of Michael Traynor's family. I don't recall that I specified the names.
THE COURT: You didn't.
MS. BHANGU: Okay.
THE COURT: It should at least - if you're going to do it in that sense it has to be known to him.
MS. BHANGU: So any member known....
THE COURT: To be members of the family.
MS. BHANGU: Exactly. And for clarity, perhaps we can also indicate, if Your Honour feels it's appropriate, any of the persons who prepared Victim Impact Statements.
THE COURT: All right, well their names are all in Exhibits 2 and 2-A which Madam Registrar has. I think it would be best to name them specifically, and then if there's no objection there can be the default clause, so to speak, and any other member - anyone else known to him to be a member of the Traynor family.
MS. BHANGU: Yes, please, Your Honour.
THE COURT: Mr. Leslie?
MR. LESLIE: That's fine.
MS. BHANGU: Thank you Your Honour. And for the record, Madam Registrar I'll give you this list. So just for the record, it will be Keith Traynor, Robert Traynor, Joe Traynor, Roxanne Traynor, Deseree Traynor, Andy Traynor, Gail Traynor, Terry Traynor, Anna Traynor. I'll just give you - here's the list Madam Registrar for spellings.
THE COURT: All right, and on the second indictment charging child pornography, I've endorsed: Sentenced to six months in jail to be served consecutively to the sentence on the indictment dated November 26th, 2014, which is the indictment to which he pleaded guilty to manslaughter. There is a DNA order, a SOIRA order for ten years, a s. 161(1)(a), (b) and (c) order for 20 years, a forfeiture order, a non-communication order while in custody, and a victim surcharge of $200 with six months to pay. So, as I say, the sentence has to be endorsed separately on the two indictments, but the net sentence is as I indicated in my reasons. So Madam Registrar, does that give you enough assistance to complete the paperwork?
REGISTRAR: Yes Your Honour. I will just need you to sign the papers.
THE COURT: That's fine, I will be in chambers.
REGISTRAR: Thank you.
THE COURT: And I will sign the forfeiture order now.
REGISTRAR: Thank you.
THE COURT: All right, I think that's everything then.
MS. BHANGU: It is. Thank you very much Your Honour.
THE COURT: Thank you to the staff for your help today.
C O U R T A D J O U R N S
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. Donald Feldhoff in
the Ontario Superior Court of Justice, held at 75 Mulcaster Street,
Barrie, Ontario, taken from Recording
No.(’s) 3811_03_20160915_090569_30_FUERSTM.dc which has been
certified in Form 1.
December 8, 2016 __________________________________
Shannon Heryet - ACT #3389634078