Court File and Parties

COURT FILE NO.: 14-5127 DATE: 2017/01/23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – MARC LEDUC Accused

COUNSEL: James Cavanagh and Lisa Miles, for the Crown Ian Carter, for the Accused

SENTENCING DECISION

RATUSHNY J.

Background

[1] Mr. Leduc has pled guilty to four Criminal Code offences against Rita Denobriga: aggravated sexual assault, contrary to s. 273(2); attempted choking to overcome resistance, contrary to s. 246(a); break and enter of her dwelling house with intent to commit an indictable offence, contrary to s. 348(1)(a); breach of his probation order, contrary to s. 733.1. All the offences occurred on November 1, 2012.

[2] The publication ban originally imposed to protect Ms. Denobriga’s identity has been lifted at her request.

[3] A Statement of Fact was filed as Tab 1 of Exhibit 1. Mr. Leduc indicated he admitted most but not all of those facts but conceded the Crown was able to prove all of the facts in Tab 1 beyond a reasonable doubt.

[4] At the time of Mr. Leduc’s four pleas in March 2015 he was facing two charges of first-degree murder for the death of a woman in June 2008 and another in September 2011. Counsel informed the Court they wished to adjourn the sentencing hearing on the charges involving Ms. Denobriga until after the conclusion of the murder trial. The Crown indicated its intention of pursuing a dangerous offender designation for Mr. Leduc if he was not convicted of first-degree murder as a result of his jury trial.

[5] Mr. Leduc was subsequently convicted of two counts of first-degree murder and given a mandatory life sentence with no eligibility for parole for 25 years. His convictions are under appeal.

[6] The Crown requests a life sentence for Mr. Leduc on the present offences. Defence counsel submits a sentence of 9-10 years’ incarceration is more appropriate.

Facts

[7] Ms. Denobriga was 19 years of age. She lived in an apartment with three other friends. She knew Mr. Leduc lived in a directly adjoining apartment to hers but she only knew him to see him and did not know his name.

[8] On the morning of November 1, 2012 she was alone in her apartment, sleeping. She awoke to hear her bedroom door open and heavy breathing. She looked and saw her neighbor Mr. Leduc enter the bedroom. She asked him how he got there.

[9] He closed the door and drew a knife. She tried to run for the door but he was in her way and said, “I’ll cut you with this”. He told her to take off her clothes or he would cut her. Again, she tried to leave but he blocked her. Fearing for her life, she removed her clothing.

[10] He then unbuttoned and pulled down his pants and underwear and told her to get on her knees. At first when she didn’t comply he said, “I’ll cut you, I’ll cut you”. He forced her to perform fellatio on him while he held the knife to her throat and told her “if you bite, I’ll cut you”.

[11] While being forced to perform fellatio Ms. Denobriga grabbed the knife Mr. Leduc was holding. As they struggled for it he cut both of her hands. She bled heavily from the cuts to her hands and let go of the knife. Mr. Leduc maintained control of it, grabbed her by the hair, held the knife to her throat and said, “You’re going to co-operate or I’ll cut you again”. He told her to lie down on her bed.

[12] He then lay on top of her. He tried to put his penis inside her vagina but was unable to do so as he was having trouble maintaining an erection. He then put his knife down on the bed beside her head and Ms. Denobriga grabbed it once more.

[13] A second struggle ensued. They both fell off the bed onto the floor but Mr. Leduc got behind Ms. Denobriga and placed her in a chokehold with his arm around the front of her neck. He tightened his chokehold. As Ms. Denobriga began having difficulty breathing she struggled to free herself and stabbed Mr. Leduc in the thigh, groin and back. She tried to scream for her roommates but Mr. Leduc tightened his chokehold.

[14] Ms. Denobriga had greater difficulty breathing. She began to feel dizzy and light headed. She decided to stop fighting and play dead. When she did, Mr. Leduc released the pressure of his chokehold but kept his arm around her neck. With that release of pressure Ms. Denobriga again fought to free herself. She struck Mr. Leduc in the head with the knife and the struggle continued until she managed to break free of his chokehold, stand up and flee the bedroom. Mr. Leduc fell down or off her as she stood up. Both were bleeding profusely.

[15] Ms. Denobriga escaped. She frantically sought help from a neighbor. After the police arrived they found trails of blood leading them to Mr. Leduc hiding in one of the bedrooms of his own apartment. He also had wounds to his head. He told arresting officers he had used crack cocaine within the last day and claimed to also have had vodka and beer. He had been on probation since October 17, 2011.

[16] Ms. Denobriga suffered cuts to her fingers, abrasions to her face and neck and petechiae or small hemorrhages, to her face, eyes, mouth, neck and upper chest. Mr. Leduc has agreed these were caused by his chokehold on her that blocked her airway and that his choking was dangerous and potentially fatal. He acknowledges petechiae are a classic symptom of strangulation and that his choking endangered her life.

The Victim

[17] Ms. Denobriga is a remarkable, and fortunate, person to have been able to survive this attack.

[18] She read her Victim Impact Statement to the Court. As the facts reveal so terrifyingly, she awoke that day to find herself in a very real nightmare. She said everything felt so surreal, like she was the victim in a scary movie. She said she thought that she was going to die right there in her bedroom, naked and covered in blood. She recalled her many bruises, mostly to her upper body, with black marks all around her throat, red eyes, red spots all over her face and purple ear lobes from the strangulation. She said she almost became unconscious at one point and when taken to the ambulance, she was dizzy and disoriented.

[19] She has been afraid to be alone ever since. The attack has strongly impacted her sense of security, her sleeping patterns and her relationship with her boyfriend. It has also affected her mother’s health and that of her sister. The scars on her hands are a constant reminder of the terror she went through. Her recovery period from the trauma, both physical and emotional, has cost her financially. She is grateful for the immense amount of support from family, friends, neighbours and the community. She looks forward to a career as a police officer, something she has wanted her entire life and that she feels is even more meaningful to her now as a victim of these crimes.

[20] The Crown has commented on the tremendous bravery and determination exhibited by Ms. Denobriga and that she was instrumental in bringing Mr. Leduc to justice in respect of the 2008 and 2011 murders for which he has now been convicted. Each of those deceased women’s bodies had been found naked from the waist down with evidence of their having been sexually assaulted, brutally beaten and strangled to death. DNA evidence was collected from each of the deceased women in 2008 and again in 2011, indicating the same male profile. There was no match to a known person, however, until after the attack on Ms. Denobriga in 2012. When the DNA profile from Mr. Leduc’s blood samples collected from Ms. Denobriga’s apartment were compared with the DNA samples collected and analyzed from the 2008 and 2011 deceased victim’s bodies, Mr. Leduc was identified as the match to the DNA from each of the murders.

[21] With this chilling connection, the courage and determination exhibited by Ms. Denobriga in participating in the murder trial is underscored. Her journey away from that real life nightmare has been long and difficult.

The Accused

[22] Mr. Leduc was 56 years of age at the time of his attack on Ms. Denobriga. He is now 60. He has been hearing impaired since a teenager. He is separated from his wife. He has two daughters. He used to work in the construction industry and at one time he was a maintenance worker for the apartment building where his attack on Ms. Denobriga took place. He has had problems with alcohol and drugs with the result that he has worked less and began receiving provincial disability support payments.

[23] Mr. Leduc has a long criminal record dating back to 1973. It reveals 40 years of offending including eight previous break and enters, a robbery, an assault, criminal harassment, petty property offences, impaired driving offences and breaching Court orders. There is a gap in his record between 1987 and 2005.

[24] The only indication from Mr. Leduc of an explanation for his actions is his statement to his arresting officer when asked why this happened. He said it was all a blur and “I was smoking too much crack I guess” and “I can control it if I stop drinking and doing drugs. I’m finished with all that stuff.”

[25] Aside from Mr. Leduc’s guilty pleas, there is no indication from him of any remorse. While this is not an aggravating factor, it is part of Mr. Leduc’s decision to reveal almost nothing about himself to the Court. Other than what has been stated above and as can be gleaned from his criminal record, the facts of the two murders and the present offences, there is an absence of information about Mr. Leduc to allow for a fuller assessment of his risk to reoffend and, critically, of the risk he poses to the public.

Analysis

Sentencing Objectives

[26] It is incontrovertible that in all of these circumstances the primary objectives of sentencing are protection of society, separation of Mr. Leduc from it, denunciation and deterrence both general and specific. The other sentencing objectives of rehabilitation and promotion of a sense of responsibility in Mr. Leduc retreat into their shadow and, to use the Crown’s phrase, become vanishingly small in importance.

[27] The only sentencing issue is the appropriate length of incarceration so as to serve these primary and secondary sentencing objectives, taking into consideration the aggravating and mitigating circumstances as well as the sentencing principles of proportionality, parity with sentences imposed on similar offenders for similar offences committed in similar circumstances, and restraint.

[28] A more unique aspect to this sentencing is the influence that Mr. Leduc’s two first-degree murder convictions exert over the offences committed against Ms. Denobriga. The circumstances between those two earlier murders and his later attack on Ms. Denobriga are very similar, except, of course, Ms. Denobriga managed to survive.

[29] The consequence is that Mr. Leduc’s murder convictions operate to cast a darker, even more dangerous and sinister shadow over the facts of the present offences because when considered in light of his prior actions, Mr. Leduc’s actions can be viewed as amounting to a prelude to her later murder. The Crown’s submissions reflect this aggravating circumstance. The Crown argues that Mr. Leduc would have had to kill Ms. Denobriga after he had finished with her because she knew him.

[30] Mr. Leduc, however, was not charged with attempt murder. As his counsel has submitted, he is not to be sentenced, in effect, for this more serious offence for which he has not pled guilty.

[31] His counsel has also submitted that because his murder convictions are under appeal, to sentence him for his present offences as if they had been a prelude to murder would be inappropriate, and particularly so if his convictions are overturned. His counsel asks, therefore, that the murder convictions be accorded little weight as an aggravating circumstance.

Aggravating and Mitigating Circumstances

[32] The only mitigating circumstances are Mr. Leduc’s pleas of guilt and saving Ms. Denobriga from having to testify at a preliminary inquiry and at trial.

[33] The aggravating circumstances are numerous. They primarily arise from the facts of the 2012 offences as recounted above, from Mr. Leduc’s prior criminal record and from the little that is known about Mr. Leduc. They are the following:

(1) Mr. Leduc commenced his attack with a home invasion, breaking into Ms. Denobriga’s apartment in the morning as she was sleeping; (2) Mr. Leduc’s actions were clearly premeditated as opposed to being impulsive acts. He had seen Ms. Denobriga’s roommates leave shortly before he somehow gained entry into her apartment; (3) Mr. Leduc armed himself with a knife and threatened to use it against Ms. Denobriga to force her compliance with his demands; (4) Mr. Leduc engaged in prolonged, terrorizing, violent and degrading sexual assaults against Ms. Denobriga; (5) After Mr. Leduc’s knife cut Ms. Denobriga’s hands and she was bleeding profusely, he threatened to cut her again if she didn’t lie down on the bed and then he continued his sexual assault against her; (6) Mr. Leduc endangered Ms. Denobriga’s life when he deliberately administered a chokehold to subdue her in their struggle and then tightened his chokehold as the struggle continued, causing her to have great difficulty breathing and to suffer petechiae. This intentional choking with life-threatening consequences, when considered in this violent context, operates to increase the gravity of Mr. Leduc’s crimes; (7) Ms. Denobriga suffered serious physical injuries particularly to her hands and the emotional trauma she suffered was severe; (8) Mr. Leduc’s actions have had a lasting impact on Ms. Denobriga and her family; (9) Mr. Leduc has a long criminal record and was on probation at the time of the offences; and (10) The crimes remain unexplained and there is no evidence of Mr. Leduc’s psychiatric status. This operates as an aggravating circumstance because Mr. Leduc has engaged in extreme violence against Ms. Denobriga and I can only infer from the evidence before me namely, the facts of the offences and Mr. Leduc’s prior criminal record including his ignoring his probation order, that he continues to be a danger to the public. There is no information before me that Mr. Leduc might not repeat this kind of violence.

[34] In R. v. Klair, 2004 ONCA 8965, [2004] O.J. No 2320 (ONCA), at para. 32, Sharpe J.A. commented on the lack of psychiatric evidence in that case where a sentence of life imprisonment had been imposed and stated,

…psychiatric evidence is not always required to sustain a sentence of life imprisonment in cases of this type. In some cases, the offence is so bizarre and shocking that it is quite appropriate to infer from the circumstances of the offence itself that the appellant poses an ongoing danger to the public.

[35] I recognize the role played by Mr. Leduc’s murder convictions in assessing not only the seriousness of his attack against Ms. Denobriga but also his future dangerousness. It would be artificial, however, to leave them out of the assessment of dangerousness just because they are under appeal. His murder convictions now form part of the circumstances of his 2012 offences and must be considered and given weight, notwithstanding that they are under appeal.

[36] While the aggravating circumstances referred to before exist independently of a consideration of the murder convictions, when the facts behind those convictions are factored into those aggravating circumstances for the 2012 offences, Mr. Leduc’s actions have to be regarded as being more dangerous, more life-threatening and advancing along the gravity of the offence spectrum towards constituting a near attempt murder.

[37] I conclude that Mr. Leduc is an ongoing danger to society and society needs to be protected from him by his incarceration. If rehabilitation can occur, it will have to take place in an institution.

[38] Notwithstanding this conclusion, the sentencing principles of parity and restraint need consideration to decide the appropriate length of incarceration.

Length of Incarceration

[39] Counsel have placed a number of cases before me none of which, as they recognize is the situation more often than not, mirror exactly the circumstances of these offences and this offender.

The Crown’s Cases

[40] The Crown refers me in particular to cases of home invasions accompanied by aggravated sexual assaults where the range of incarceration imposed has been between 12 and 18 years.

[41] In R. v. Bellegarde, 2010 SKCA 15, the Saskatchewan Court of Appeal reduced the sentence from 15 to 12 years’ incarceration for pleas of guilt to break and enter of a dwelling house and sexual assault. Mr. Bellegarde was an aboriginal person so that Gladue principles were applicable; he did not use a weapon; he had a limited and unrelated criminal record; he had been a productive member of the community for many years; he expressed shame and remorse and was assessed as a low to moderate risk to reoffend.

[42] None of these circumstances apply to Mr. Leduc.

[43] In R. v. Nuvaqiq, 2009 NUCJ 11, the Nunavut Court of Justice sentenced Mr. Nuvaqiq after his pleas of guilt to 18 years’ incarceration for a home invasion and an aggravated sexual assault that left the victim with permanent disabilities including a fractured skull and brain damage. Mr. Nuvaqiq was an aboriginal person. There was no suggestion of a desire to change or of remorse aside from his guilty pleas. He had a related criminal record spanning ten years. He was given increased parole ineligibility of one half of his sentence pursuant to s. 743.6(1) of the Criminal Code.

[44] By way of contrast, Mr. Leduc is not an aboriginal person, his record spans forty years, he was on probation in 2012 when he attacked Ms. Denobriga and had already murdered two women by sexually assaulting them, beating them and strangling them to death.

[45] In R. v. L.C.D., 2004 BCCA 405, the British Columbia Court of Appeal upheld an 18 years sentence of incarceration as appropriate to denounce, deter and protect the public. The accused had pled guilty to break and enter of the victim’s home and aggravated sexual assault. He had raped the victim, an 88 year-old woman, at knifepoint. He had a criminal record but no record for sexual violence, a troubled life and was assessed as intellectually impaired.

[46] Mr. Leduc is not intellectually impaired and his murder convictions significantly elevate concerns over his future dangerousness.

[47] In R. v. Wheeler, 2011 BCCA 248, the British Columbia Court of Appeal upheld a 15 years sentence imposed after trial for aggravated sexual assault and overcoming resistance by choking. Mr. Wheeler, then 50 years of age, was also found to be a long-term offender and given a ten-year supervision order. The attack occurred in the victim’s own home but it was not a break and enter. Mr. Wheeler had a related criminal record with a record for assaulting women. He had abused both alcohol and drugs. He had been assessed as a moderate to high risk of reoffending. The Court remarked there was “almost nothing mitigating in Mr. Wheeler’s circumstances.” (para. 18)

[48] Mr. Leduc’s situation is similar except that he is a decade older, he has recently been convicted of two murders, and from these circumstances and the similar circumstances involving Ms. Denobriga as stated before, I have concluded he is an ongoing danger to the safety of the public. How much of a danger I cannot say. In Wheeler, the public gained some protection from Mr. Wheeler’s future risk for a total period of 25 years, through supervision by the criminal justice system while incarcerated and under a long-term offender order. There is no long-term offender application before this Court for Mr. Leduc.

[49] In R. v. Anderson, 2011 ONSC 5551, upheld in R. v. Anderson, 2012 ONCA 373, Mr. Anderson was a first-time offender convicted after trial of attempt murder, aggravated sexual assault, break and enter, unlawful confinement and threats of death. He was sentenced to life imprisonment for the first three offences. The Ontario Court of Appeal upheld the life sentence as a fit sentence. The victim was a 76 year-old woman. Mr. Anderson broke into her home brandishing a knife and told her he had come for sex. He threatened to kill her if she screamed. When she grabbed the phone he cut the cord, hit her with the knife, pushed her onto the bed and had forcible vaginal intercourse with her. During the assault, he stabbed her in the abdomen three times and cut her face. She finally broke free and escaped. Her injuries were severe and required surgery. Mr. Anderson was a first-time offender with a supportive family. He refused to co-operate with a psychiatric assessment. The trial judge remarked that there was little evidence before him to give insight into Mr. Anderson’s character or motivation for the attack (para. 26) and concluded he could infer from the circumstances of the offence that Mr. Anderson posed an ongoing danger to the public despite the lack of psychiatric evidence and that a life sentence was required to protect society. (para 62)

[50] By way of contrast to Mr. Anderson, Mr. Leduc is not a first-time offender and Ms. Denobriga’s physical injuries from the knife were less severe and bound up in the consequences of the struggle. However, the chokehold was a severe resort to deliberate violence with life-threatening consequences and when Mr. Leduc’s attack against Ms. Denobriga is considered in light of his two previous murders, it can be characterized as similar in severity to Mr. Anderson’s actions.

Defence Cases

[51] Defence counsel has referred me to Ontario cases with somewhat comparable though varying facts but none of which involve home invasions, having a sentencing range of five to eighteen years’ incarceration. He submits an appropriate sentence is nine to ten years imprisonment after according the murder convictions little weight because of their being under appeal. He submits the Anderson case imposing a life sentence is unique and involved more brutality than that inflicted by Mr. Leduc. He cautions against inferring that Mr. Leduc had a specific intent to kill, as was the situation for Mr. Anderson.

[52] I emphasize that Mr. Leduc has not been charged with attempt murder. He cannot be found guilty of an offence with which he has not been charged and in respect of which there has been no trial or plea of guilt. In my analysis, I make no finding as to whether Mr. Leduc had a specific intent to kill Ms. Denobriga or that he was attempting to murder her. That would be speculative, I agree.

[53] I only conclude, as explained before, that after an assessment of all of the circumstances, an appropriate characterization of Mr. Leduc’s 2012 charges in terms of their gravity, moves them towards amounting to a near attempt murder.

[54] I also emphasize, as reviewed before, that the murder convictions are a necessary consideration in determining a fit sentence regardless that they are under appeal. They exist as part of Mr. Leduc’s circumstances and criminal record and must be factored into the issue of an appropriate sentence for his 2012 charges.

[55] Defence counsel refers me to R. v. Cameron, [2002] O.J. No. 899, a decision of Watt J., as he was then, where Mr. Cameron was sentenced for six convictions arising out of three separate incidents that took place over about a one-year period and only given a life sentence for the murder. As summarized in R. v. Assing, 2008 ONSC 58607, [2008] O.J. No. 4527, at paras. 37-40, Mr. Cameron had committed a series of three separate sexual assaults culminating in murder. He had no criminal record and had pled guilty. All the incidents involved planned home invasions, sexual assaults and arming himself with a letter opener for the first and a knife for the next two. The crimes remained unexplained and there was no evidence of Mr. Cameron’s psychiatric make-up (Cameron, at para. 72). Watt J. sentenced Mr. Cameron to life imprisonment for the murder, 5 years for the first attack and 12 years for the second, both concurrent to the life sentence.

[56] The Crown submits these five and twelve year sentences in Cameron could simply be the allocation of a number by Watt J. while relying on the life sentence to provide the necessary protection to the public. I agree. Protection of the public was of paramount concern to Watt J. He commented that “considered together, these incidents represent a disturbing escalation of physical violence.” (para. 56) In discussing the applicable sentencing objectives in relation to the first incident, he omitted the sentencing objective of rehabilitation but stated it had a place as the offender was a first offender, “[b]ut he is also a first offender who will be sentenced to imprisonment for life, so the objective is somewhat less influential than it might otherwise have been had each conviction attracted a fixed-term sentence”. (para 62)

Conclusion

[57] Protection of the public is of paramount concern in relation to Mr. Leduc for all the reasons reviewed above. I cannot be satisfied that anything less than a life sentence will achieve this objective, notwithstanding Mr. Leduc’s age. There is a dearth of evidence before me about him and this is concerning.

[58] In considering the appropriateness of a life sentence for Mr. Leduc for his 2012 crimes, because of this concern for public safety, I am guided by the words of Chief Justice McLachlin in R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433 (SCC),

A maximum penalty of any kind will by its very nature be imposed only rarely and is only appropriate if the offence is of sufficient gravity and the offender display sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis. (para. 1)

[59] I conclude that as Mr. Leduc’s 2012 offences are extremely grave and his blameworthiness and dangerousness can only be regarded as high, the rare sentence of life imprisonment with increased parole ineligibility must be imposed to achieve the paramount sentencing objectives of protection of society, denunciation and deterrence.

[60] Mr. Leduc, please stand.

[61] For the offence of aggravated assault, I sentence you to life imprisonment. For the offence of attempt to choke, I sentence you to life imprisonment to be served concurrently. For the offence of break and enter a dwelling house with intent, I sentence you to 15 years imprisonment to be served concurrently. For the offence of breach of a probation order I sentence you to 2 years imprisonment to be served concurrently.

[62] With respect to your eligibility for parole regarding the life sentences and the concurrent fifteen years sentence imposed today, I am satisfied pursuant to the principles set out in s. 743.6(1) of the Criminal Code that you must serve ten years of those sentences before being able to be released on full parole.

[63] Ancillary Orders are also required.

[64] There is an Order made under s. 109 of the Criminal Code banning you for your lifetime from possessing any firearm or ammunition or any other item referred to in that section.

[65] You are ordered to submit forthwith to the taking of a bodily sample for DNA analysis and data bank storage.

[66] A lifetime registration under the Sexual Offender Information Registration Act (SOIRA) is ordered.

[67] Finally, pursuant to s. 743.21 of the Criminal Code, you are prohibited from communicating directly or indirectly with Rita Denobriga or any member of her family while serving your sentence.

Justice L. Ratushny Released: January 23, 2017