R. v. Baldwin, 2017 ONSC 5040

CITATION: R. v. Baldwin, 2017 ONSC 5040

COURT FILE NO.: 16-82

DATE: 20170914

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Christopher Baldwin

Defendant

D. Brisebois, counsel for the Crown

L. Russomanno, counsel for the Defendant

HEARD: February 2, 2017, August 29, 2017 and September 14th, 2017

SENTENCING DECISION

J. Lafrance-Cardinal

[1] On February 2nd, 2017 Christopher Baldwin plead guilty to manslaughter as defined under section 222(5) of the Criminal Code being a culpable homicide by means of an unlawful act. This is the second time Mr. Baldwin, through his actions, causes the death of a human being; he has a prior manslaughter on his record. The Criminal Code provides that the maximum sentence for manslaughter is that of imprisonment for life. The Crown, considering the aggravating factors, is seeking a period of incarceration of 17-18 years less time served. Defence is asking that I consider a period of incarceration of 7-8 years taking into consideration the Gladue principles and parity of sentence.

CIRCUMSTANCES OF THE OFFENCE

[2] Both Christopher Baldwin and Rachel Fenn were originally jointly charged with second degree murder with regards to having caused the death of Mr. David Benson Hopps. At the time of the offence being the 29th day of November, 2014 Mr. Baldwin was 31 years of age, Ms. Fenn was 39 years of age and the victim Mr. Hopps was 61 years of age. Ultimately both co-accused plead guilty to manslaughter.

[3] Mr.Hopps was a 61 year old First Nation’s male who lived in a dilapidated house with no hydro at 701 Island Road on the Akwesasne Mohawk First Nations Territory.

[4] Ms. Fenn and Mr. Hopps were in a 10 year on and off relationship until Ms. Fenn starting dating Mr. Baldwin approximately 2 months prior to this event.

[5] On October 31, 2014 police had been called to Mr. Hopps residence after he reported he was involved in a physical altercation with Mr. Baldwin. Mr. Hopps wished that Mr. Baldwin and Ms. Fenn be removed from his property and police drove both of them back to Cornwall.

[6] Some 29 days later, on the date of Mr. Hopps death, both co-accused called a Taxi to be picked up at the Cornwall Square in Cornwall. The taxi driver observed that they were both wearing camouflage clothing, the driver also noticed that Ms. Fenn was wearing an air cast on her leg. Both co-accused asked to be brought to the beer store on Sydney Street and Mr. Baldwin entered and purchased a case of 28 beers. The driver of the taxi was then directed to drive them to Akwesasne Island and while going through the toll booth the taxi driver observed both co-accused to be hiding their faces. Ms. Fenn gave the taxi driver directions driving up to a fork in a remote laneway and at this point the driver started to fear for his safety. He expressed his concerns and Ms. Fenn asked Mr. Baldwin to get out making the taxi driver feel safer. The driver then continued and dropped Ms. Fenn at 701 Island Road East Akwesasne, home of Mr. Hopps. The driver assisted Ms. Fenn in bringing the case of beer to the house, he was then paid and while driving to the main road he observed Mr. Baldwin smoking, still standing at the fork in the laneway.

[7] During that early evening an altercation broke out between Mr. Baldwin and Mr. Hopps which resulted in the murder of David Benson Hopps.

[8] Police investigation revealed that early on that evening of November 29th, 2014 Mr. Baldwin left a frantic voice mail message to Mr. Michael Fenn , Rachel Fenn’s brother. In that recording Mr. Baldwin sounds scared, emotional and possibly crying. Mr. Baldwin is heard saying that David, the deceased, went after Rachel and that he went after David. He is pleading with Mr. Michael Fenn to please answer the phone and to call them back because they need a ride back to Cornwall. The investigation also revealed that Ms. Fenn attended Jake Hopps residence which is located approximately 700 meters up the laneway from the deceased residence. Ms. Fenn asked for a ride back to Cornwall, the occupants of the home refused. Ms. Fenn and Mr. Baldwin then walked to the residence of Mr. David Junior. His residence is located approximately 500 metres from the deceased residence. Mr. David noticed that Mr. Baldwin’s hands appeared to have some red stuff on it believing it to be like a chalk type substance. Ms. Fenn offered Mr. David twenty dollars for a ride back to Cornwall. Mr. David was reassured that there was no contraband involved and he agreed and did transport them back to Cornwall at 15 Second Street East in Cornwall where Ms. Fenn resided. He too noted that both Ms. Fenn and Mr. Baldwin were wearing camouflage type clothing and were carrying two backpacks. Inside the backpacks were two puppies and one adult dog. The investigation also revealed that the reason why Mr. Baldwin and Ms. Fenn attended Mr. Hopps residence was probably for Ms. Fenn to retrieve the dog and the puppies and she knew that she would be getting some resistance from Mr. Hopps. It would seem that once in her apartment, Ms. Fenn and Mr. Baldwin changed their clothing, put the camouflage clothing under her bed, and attended a friend’s residence where they stayed overnight.

[9] The next day at approximately 1:30 pm, Mr. David Junior, the same person who gave Mr. Baldwin and Ms. Fenn a ride, went to check on Mr. Hopps as he had not heard from him all day. It is then that he discovered that Mr. Hopps was dead, he immediately notified Mr. Hopps family who all lived close by. Police were called, Mr. Hopps body was discovered on the floor lying in a pool of dry blood having no vital signs. His body showed signs of trauma. A substantial amount of blood was located throughout the residence but the highest volume of blood was located on the kitchen floor.

[10] It was difficult for police to conduct a forensic examination of the premises as it was difficult to discern what was related to the actual altercation and what was related to the general state of the residence. The police did discover a shattered Pyrex style dish and knife in a dry pool of blood on the floor near the kitchen sink.

[11] It is unclear how or when the deceased made his way to the bedroom after the altercation. What is clear through the forensic evidence however is that no one transported Mr. Hopps nor was he dragged by someone to the bedroom area. After speaking with Mr. David Junior the police immediately suspected Ms. Fenn and Mr. Baldwin as being persons of interest. They commenced surveillance on Ms. Fenn’s apartment in Cornwall. On that evening being Sunday November 30th, 2014 the police observed Mr. Micheal Fenn the accused brother entering the residence of Ms. Fenn. Upon being questioned Mr. Fenn explained to police that he did receive, the night before, a message from Mr. Baldwin.. He had just used his key to go into the apartment to check up on his sister but no one was inside. What he did observe however were empty cases of beer or cans on the floor and he could smell dog feces and urine inside the residence.

[12] The next morning being Monday December 1st, 2014 Ms. Fenn and Mr. Baldwin were seen walking towards 15 Second Street East in Cornwall, they were arrested outside the residence and were taken to the Long Sault OPP Detachment. At the time of the arrest the police seized both of their clothing. They also seized Ms. Fenn’s air cast, they observed no visible injuries on either of the co-accused save and except for Mr. Baldwin’s left knee that appeared to be swollen but no medical attention was required.

[13] That same day Mr. Baldwin gave an inculpatory statement admitting to being in the deceased home on the Saturday. He confirmed that both he and Ms. Fenn were going to the reserve to pick up the dogs. Mr. Baldwin admitted that all of them were drinking, that he and the deceased were involved in a fight, he indicated that the decease went after Ms. Fenn and then after him. He admitted to striking the deceased during the fight on the head, with a glass pot or a glass oven dish, and that the dish would have shattered. He states that Ms. Fenn did not participate in the fight. He claims that because there was no hydro in the house it was difficult for him to see if there was any blood visible. He indicates that Mr. Hopps was still living when they left the home, he was making groaning sounds.

[14] Following the investigation Mr. Hopps DNA profile was located on the following items: blood stains on the long sleeve shirt seized from Mr. Baldwin at the time of his arrest, blood stained front and back of the sleeve cuffs of a US army jacket style found in Ms. Fenn’s apartment under her bed, blood stains in the collar area outside edge hood of the Rule Tree jacket seized again under the bed in Ms. Fenn’s apartment, blood stains from a cut out of the balaclava seized on the kitchen table at Ms. Fenn’s apartment. There is no evidence however from anyone that the balaclava was used in the course of the crime.

[15] Mr. Baldwin and Ms. Fenn’s DNA were also found on some of the Budweiser empty bottles located at the scene. The toxicology report from CFS being the Center of Forensic Science shows a blood alcohol concentration 303 mg in 100ml of blood in Mr. Hopps blood at the time of his death.

[16] The investigation reveals that the cause of death was determined to be multiple blunt force and sharp force to the head and neck area of Mr. Hopps. The injury sustained resulted in significant bleeding which was likely the primary reason of the death. The toxicologist Doctor Kepron prepared a report date June 22nd , 2015, she concludes as follows:

“As summarized above, there were numerous blunt force and sharp force injuries to the upper and lower extremities. None of these injuries were of sufficient severity to represent an independent cause of death.

… the post mortem toxicology testing was positive for a significant concentration of ethanol. It is known that acute ethanol intoxication can affect blood clotting and exacerbate bleeding. In addition, the decedent’s heart showed the characteristic findings of hypertensive heart disease. This heart disease would have rendered the decedent less able to survive a significant loss of blood than an otherwise healthy individual.”

She concludes:

“Based on the historical information and the post-mortem findings, death is attributed to the blunt and sharp force injuries to the head and neck.”

[17] By admitting guilt Mr. Baldwin concedes that he caused the death of Mr. Hopps while engaging in the unlawful act of assault. Mr. Baldwin appreciated that bodily harm was a foreseeable consequence of his actions and could harm the deceased.

PERSONAL CIRCUMSTANCES OF THE ACCUSED AND GLADUE REPORT

[18] Mr. Baldwin has two entries on his criminal record in 2001 while he was in youth court, and he has three entries as an adult. The first adult entry is failing to stop at the scene of the accident and possession of property obtained by crime. This would have occurred in North Bay for which he was given a total of 90 days custody and probation.

[19] In October 2005 in Ottawa he was found guilty of manslaughter under section 236 (b) of the Criminal Code. He obtained 6 years custody over and above the one year pre-sentence custody that he had already served. There was a mandatory weapon prohibition under section 109 of the Criminal Code. Some 4 years later in 2009 he was found guilty of robbery for which he obtained 12 months consecutive to the unexpired portion of his sentence on the manslaughter charge. He was found to be a parole violator and recommitted.

[20] On June 19th, 2017 the day set aside for the sentencing hearing Mr. Baldwin, through his solicitor, indicated that he believed that he may have indigenous blood through his maternal grandmother. Consequently, the sentencing hearing was adjourned in order to determine if Mr. Baldwin did qualify for the preparation of a Gladue Report and if so, for the preparation of the report.

[21] The Gladue report was co-written by Mark Marsolais-Nahwehgahbow and Sarah Niman. The report confirms that Mr. Baldwin is from the Ojibwa indigenous community and that he is a non-status Indian.

[22] Mr. Baldwin’s mom is half Ojibwa on her matrilineal line, she was adopted in 1962. It is unclear as to whether or not she was part of the “Sixties Scoop” practice of removing indigenous children from their families and placing them in non-indigenous homes in different geographic locations. It is safe to say however, that his mom was raised in a non-indigenous home. She is now applying for her status as an Ojibwa decedent. Mr. Baldwin has learned that his maternal grandmother was an Anishinaabe-Ojibwa woman from the Lake Simcoe area in the Kawartha Lakes Region of Ontario north of Toronto.

[23] Mr. Baldwin grew up in a home with an alcoholic father, an abusive father, and that was his way of life. He was physically punished by his father, and his mother and father would argue for days sometimes weeks. When such discord happened, Mr. Baldwin would go live with a paternal aunt until his mom came back to get him. He was sent to Laurencrest Youth Services, a residence where teens have experienced difficulties at home or with the law. Christopher recalls that he had turned into his dad with arguments and yelling. After a particular instance of abuse between his father and mother, witnessed by the children, his mom and dad separated. His dad left with some of the siblings and Christopher stayed back with his mom. However after the separation, his relationship with his mother went downhill. At the present time, Christopher does not have a relationship with his dad but continues to have a relationship with his mom and stepfather. He also speaks to his brother on a regular basis and gets news about his sister from his parents. He is of limited intellectual ability. He has never done well in school but as an adult earned his grade 12 diploma. He also earned his forklift licence and another licence that allows him to deal with certain workplace chemicals. It would be his wish to start working with small engines and to get his certificate permitting him to do so.

[24] Mr. Baldwin did not learn of his indigenous heritage until a few months ago. He is now tapping into different services offered at OCDC. He finds the cultural teachings to be very healing. He states “with the smudging, it gets rid of all the negative energy and feelings that I have”. Christopher states that he is open to any interventions or programming as he would like to get rid of the demons inside of him. The authors of the reports go on to give us suggested recommendations with regards to assistance in the Federal Institutions.

[25] As for the unique systemic or background factors that may have played a part in bringing this particular offender before the Courts ( Gladue), it is very difficult to ascertain how Mr. Baldwin may have been affected by the fact that growing up, he did not know of his indigenous background. There is no evidence of his mom being directly implicated in the “Sixties Scoop”. All we know is that she was adopted in a non-native home. Adoption being what they were in the 60’s, with all of the secrecy involved, it is not surprising that that information was not readily available to his mom. There is no doubt, however, that an important factor is that he was robbed of being raised in his native culture, of embracing his native traditions and traditional ways. He has found solace in participating in cultural teachings inside The Provincial Institution: Hopefully these programs will help him heal and assist him in finding strength to conquer the demons that inhabit him.

PSYCHIATRIC ASSESSMENT

[26] Dr. Helen Ward a forensic psychiatrist prepared a report for the Court, one dated June 2nd, 2017 and an update dated June 16th, 2017. Dr. Ward was retained to conduct a psychiatric assessment of the effects on Mr. Baldwin’s mental health as a result of his incarcerations and the conditions of his incarceration since December 2014. As with the Gladue report, the report indicates that Mr. Baldwin’s formative years were difficult. His father was abusive, he was a drinker and Mr. Baldwin was physically abused by him. Mr. Baldwin would take a knife to school and he was expelled from Public school on many occasions for getting into fights and threatening teachers. He was in special education class for ADHD and learning disabilities. He stopped attending school in grade 8 when he was 16 years old.

[27] Mr. Baldwin reports that he started drinking at the age of 14 and by the time he reached 18 or 19 he was drinking heavily on a daily basis and not going to work. Mr. Baldwin has a history of occasional Cannabis abuse and occasional Amphetamine abuse but alcohol is his main addiction. Mr. Baldwin attempted suicide on two occasions.

[28] Mr. Baldwin is on psychiatric medication, he takes an antidepressant daily and an antipsychotic medication twice a day.

[29] Dr. Ward concludes that Mr. Baldwin meets the criteria for the following psychiatric diagnoses:

1. Post-Traumatic Stress Disorder (as a result of his childhood abuse)
2. Attention Deficit Hyper Activity disorder (based on history and childhood behavior)
3. Alcohol Use Disorder.
4. Anti-Social Personality Disorder (childhood misconduct and adult anti-social behavior)

[30] However Dr. Ward concludes in her assessment:

“I cannot definitively link Mr. Baldwin’s new psychotic symptoms to the conditions of his incarceration. It is generally accepted that “solitary confinement” often produces psychosis and other mental health disturbance. Mr. Baldwin’s self-report, however, is that while he was completely segregated for 3-4 months of his incarceration he has been in what we would generally term “protective custody”, with limited contact with other inmates but with a cellmate, for much of his time in pre-trial custody. Having said this, the overall impact of being in pre-trial custody, experiencing interpersonal difficulties, uncertainty about his future, having limited contact with others, and limited ability to manage and cope with stressors, likely produces psychosis in an already vulnerable individual”.

VICTIM IMPACT STATEMENT

[31] Rebecca White (Katsitsiaienne eldest of the family, sister of the deceased) prepared the Victim Impact Statement on behalf of the family. Ms. White talks about the loss the family suffered since Mr. Hopps passed away. She indicates that their family’s circle is no longer complete, that the family celebrations are no longer the same. Ms. White indicates that life does not prepare someone to bury siblings, it is normal to bury parents and elders but not our siblings. She indicates that Mr. Hopps was a good person who did not deserve to die such a violent death. Ms. White indicates that Mr. Hopps enjoyed living a simple life down by the river and they have turned his home into the family camp where the family can now gather. Ms. White indicates that they, the family, have been given a life sentence with no option of parole. She asks how many more times will this violent person be given his freedom back only to destroy other people’s lives? She pleads with the Court to make sure that Mr. Baldwin is never permitted to go back on their territory, the territory of Akwesasne. She is hoping that they will be able to walk their homeland without having to look over their shoulders.

ANALYSIS

MITIGATING FACTORS

[32] There are no mitigating factors in this file other than the plea of guilt; the acknowledgment that he caused the death of Mr. Hopps, a culpable homicide through an illegal act. By pleading guilty Mr. Baldwin has saved the Court considerable time and resources and has offered some closure to the deceased’s family.

AGGRAVATING FACTORS:

[33]

1. This is the second time Mr. Baldwin causes the death of a human being. In both cases, he does not intend to kill the person but in both cases it is a culpable homicide by means of an unlawful act. He also had a previous criminal record, he was a parole violator.
2. Mr. Baldwin placed himself as the third participant in a very dysfunctional relationship, that of Ms. Fenn and Mr. Hopps. A relationship laced with alcohol abuse and domestic violence initiated and fueled by both parties. He knew there was a good possibility of violence on the date in question. Ms. Fenn and him had already tested the waters on October 31st, 2014 when Ms. Fenn brought her new boyfriend on the Awkesasne reserve to meet Mr. Hopps.. That visit also involved a lot of alcohol and terminated in a physical altercation between Mr. Baldwin and Mr. Hopps. Apparently a machete could have possibly been involved. Police were called by Mr. Hopps and both Mr. Baldwin and Mr. Fenn were escorted back to Cornwall by police. Consequently, continued violence was predictable.
3. Mr. Baldwin was part of the plan to retrieve the dogs. He went and bought a 28 case of beer hoping that would gain them entry into Mr. Hopp’s home.
4. Mr. Baldwin is the one that physically assaulted Mr. Hopps and caused his injuries. In his inculpatory statement, he states Ms. Fenn had nothing to do with the assault.
5. Mr. Hopp was a vulnerable victim, Mr. Hopps was a severe alcoholic who was seriously intoxicated at the time of his death. Mr. Baldwin contributed to this vulnerability, by buying the beer and feeding the addiction.
6. Mr. Hopps may have been severally intoxicated at the time of his death but he was in the comfort and security of his own home.
7. The Hopps family must now live with the repercussions of their brother’s death, no longer feeling safe on their homeland, no longer enjoying good times with their sibling.
8. The post offense conduct is an aggravating factor. Mr. Baldwin failed to: a) Call an ambulance or police to come and assist Mr. Hopps. Mr. Hopps was alive when they left the property, he actually managed to move from the kitchen to the bedroom. b) In the phone call to Michael Fenn, he failed to tell him what really happened and that they had left Mr. Hopps seriously injured with no assistance. c) Advise Mr. David, the neighbor, that Mr. Hopps was injured, intoxicated, alone in his home. Over and above this post offense conduct, once they are back in Cornwall, in Ms. Fenn’s apartment, the clothing, containing incriminating evidence ( blood and DNA) were hid under the bed and they left the apartment to go to a friend’s place and let things settle. This conduct confirms that they knew their actions of that day would have repercussions.

[34] Mr. Baldwin’s post offense conduct exacerbates his moral blameworthiness. It is one thing to assault a vulnerable old man and to hit him over the head with a Pyrex bowl, it is another thing altogether to not seek assistance and to let him bleed to death.

[35] The sentence must reflect the principles of sentencing as set out in s.718 of the Criminal Code. The sentencing objectives in a case such as this one are protection of the public denunciation, deterrence, and rehabilitation. The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. One must weigh the seriousness of the crime and the moral blameworthiness of the offender.

[36] Defence counsel argues that the range of sentence for a crime such as this one is in the range of 8 to 12 years: R. v. Clarke, 2003 28199 (ON CA), [2003] O.J. No 1966 (ONCA). However, having regards to the circumstances of this particular case, having regards to parity of sentence and the Gladue component, he argues that a sentence in the lower range being 7 to 8 years less time served would be warranted. It is to be noted that no one raised the issue of provocation other than defence counsel who stated that Mr. Baldwin may have been able to argue self-defence.

[37] There is no doubt that in sentencing cases of manslaughter, the Court has a very wide discretion: R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13. There is also no doubt that ranges of sentences, whatever they may be , are but mere guidelines to assist judges in sentencing that particular offender: R. v. D.D. 2002 44915 (ON CA), [2002] O.J. No. 1061 (ONCA).

[38] S.718.2 (b) of the Criminal Code mandates that a sentence should be similar to sentences imposed on similar offenders committed in similar circumstances. The circumstances of the crime and the offender must be compared on a case by case basis and one cannot “pigeonhole” the facts of any case under a particular label R. v. Devaney, 2006 33666 (ON CA), [2006] O.J. No 3996 (ONCA). The Crown is asking me to consider a much higher sentence, one of 17-18 years less time served. In their book of authorities, the cases deal mostly with offenders facing sentencing for a second death. Many are characterized as a “near murder”, most are convictions after trial, and none of these cases have satisfied me that a sentence of 17 to 18 years is warranted in this particular case.

[39] However, as in the case of R. v. Killiktee, [2011] O.J. No 4935 I find that it is the protection of the public that is the paramount consideration in this case. Mr. Baldwin has a substance abuse problem that has not been addressed. He has an anger management problem when he consumes alcohol. In the Agreed Statement of Facts that was filed in the first manslaughter charge, (October 2004), it quotes him as saying: “he was sorry for what he had done but he was mad and could not stop himself from choking her.”

He also admits punching the victim twice in the head after she fell to the ground.

[40] Also to be noted is the first psychiatric report on Mr. Baldwin dated January 24th, 2005. It suggests under the heading “Treatment” that Mr. Baldwin would benefit for treatment for addiction problems and impulse control problems. Twelve years later, he is still very much in need of treatment for his alcohol addiction and his impulse control problems. He will continue to be a threat to society unless he gets the necessary help. Consequently, in the interest of public safety he requires a substantial period of incarceration.

[41] Mr. Baldwin, please stand. I have concluded that your sentence in all of the circumstances of your particular case is that of 12 years less time served. Your credit for pre-sentence custody will be on a 1.5:1 basis. I calculate that to be 1530 days or 4 years, 3 months’ time served.

[42] Both counsel have asked me not to consider parole eligibility under s. 743.6 of the Criminal Code. They are both agreeing that this will be a decision left to the parole board.

[43] There will be an order under s.743.21 (1) prohibiting Mr. Baldwin from communicating directly or indirectly with Rachel Fenn or any members of Mr. Hopps’ family while he is in custody.

[44] There will be two mandatory orders, one being a s. 109 weapon prohibition for life and one being a DNA order on primary grounds.

[45] Lastly, I further direct that the warrant include my decision and the recommendations found at p.9, 10, and 11 of the Gladue report which I received on August 29th, 2017.

[46] Mr. Baldwin, I am hoping that while in the institution you will get the necessary help for your addiction issues, you anger management and your impulse controls while embracing your Aboriginal culture and Aboriginal healing paths. Hopefully you will use those teachings to become a better person and to battle those demons. I believe that there is some rehabilitative hope.

Madam Justice Johanne Lafrance-Cardinal

Released: September 14, 2017

CITATION: R. v. Baldwin, 2017 ONSC 5040

COURT FILE NO.: 16-82

DATE: 20170914

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Christopher Baldwin

REASONS FOR JUDGMENT

Madam Justice Johanne Lafrance-Cardinal

Released: September 14, 2017