CITATION: R. v. J.A., 2017 ONSC 525

COURT FILE NO.: CR-15-30000339-0000

DATE: 20170113

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.A.

Defendant

J. Battersby and L. Zamojc, for the Crown

M. Bojanowska and J. Lastuk, for the Defendant

HEARD: October 21, 2016

REASONS FOR SENTENCE

B. P. O’Marra, J.

[1] J.A. was found guilty by a jury of the following offences:

(1) The second degree murder of his six-year-old daughter, E.V.; and

(2) The attempted murder of his seven-year-old son, E.J.

[2] J.A. testified and denied that he intended to harm, let alone kill, either of his children. The Crown alleged that the motive for these crimes was to spite his estranged wife and deprive her of these two children. On any view, the circumstances of this case are utterly tragic. These are my reasons for sentence.

OVERVIEW OF THE FACTS

[3] By early February 2014, the marriage between J.A. and his wife C.J. had reached a crisis point. They had four children, including twins who were younger than the two victims.

[4] On Sunday, February 2, 2014, J.A. and his wife had a loud argument. She told him to leave the home and he eventually did so. In the early morning of Monday, February 3, 2014, J.A. returned to speak to his wife as she prepared E.J. and E.V. for school. There was a further argument between J.A. and his wife. J.A. left at her request. He returned again before the children left for school. There was a further argument with his wife. He again left the home. His wife walked E.J. and E.V. to a nearby intersection where they boarded a bus to go to school.

[5] After C.J. got home she received further phone calls from J.A. He wanted to speak to her. She eventually agreed to meet him again at their apartment. However, she was now resolved that the marriage was over.

[6] When J.A. re-attended the apartment there was a further argument that escalated to a physical confrontation. She told him to get out and that she was going to call the police. J.A. testified that before he left, C.J. said words to the effect of “we will be fine without you” and “don’t be surprised if the police come for you at work.”

[7] After J.A. left, he phoned C.J. to say he was sorry. He testified that C.J. told him “tell me you are sorry after the police arrest you” and hung up.

[8] J.A. testified that as a result of the tension and conflict in his marriage culminating in the events of February 2 and 3, 2014, he felt suicidal. He decided he wanted to say goodbye to E.J. and E.V. who were old enough to have a memory of him when he was gone.

[9] J.A. went and picked up E.J. and E.V. at school. He told the teachers and school officials that the children had medical appointments to attend. That was untrue. The school officials had no reason to doubt what J.A. told them.

[10] J.A. and the two children took a cab to a hotel where he had previously stayed. He referred to the hotel as his “second home.” He had stayed there on prior occasions when he was told to leave the family home by his wife. En route they stopped at an LCBO and a Shoppers Drug Mart where he purchased alcoholic beverages, two types of sleep medication (Nytol and Sleep MD) and mouthwash. He had decided that sleeping pills were the best way to commit suicide.

[11] When they checked in at the hotel he asked for adjoining rooms. He testified that he wanted one room for his two children and one for himself. He planned to tell the children how much he loved them and then to commit suicide in his own separate room. However, there were no adjoining rooms available. They checked in to a single room.

[12] Once inside the room he asked the children to take off their winter clothes. He consumed some alcohol to help calm down before ordering pizza for the children. He took two blue pills and two yellow pills of sleep medication. He spoke to the children about the pending divorce and issues with their mother.

[13] J.A. testified that he wanted the children to nap but they did not rest very often during the day. He looked at the box of blue pulls and decided they would be safe for the children. He gave each child two blue pills. They both had trouble with the second blue pill. The second blue pill for E.V. was dissolved in liquid in a cup. He gave each child some Spumante Bambino to drink. They did not like it at all.

[14] The two boxes of sleep medication were later seized by police. The Nytol instructions refer to “adults and children over twelve years of age.” The recommended dosage was one soft gel before bed and “do not mix with alcohol.” The Sleep MD box was indicated for adults over the age of eighteen. The dosage is one tablet before bed and “not to be exceeded over twenty-four hours.” J.A. testified that he did not read those instructions. He glanced at the packages and did not see any reference to possible fatal consequences.

[15] J.A. testified that he started writing a suicide note but did not finish as he was “multitasking” with the children. While they awaited delivery of the pizza, both children were pretty active. He gave each child one yellow pill with water. The incomplete suicide note referred to loving his children and “want them with me.” He testified that he meant having them with him so he could say goodbye.

[16] J.A. testified that his plan was for the children to be safe while he committed suicide. The police would eventually find them in the hotel room by tracing his use of a bank card that day. He agreed that he never called the police or medical personnel to alert them. He claimed he wanted the children to take a nap in the room “so they would not be alarmed when they awoke.” He denied he wanted them all to sleep forever.

[17] The routine on school days was for C.J. and the twins to meet E.J. and E.V. at the bus stop and then go home together. That day, C.J. did not see either of her children get off the bus. She was told that their father had picked them up at school. She knew there was no reason for him to do so that day. She knew something was wrong.

[18] C.J. went home and contacted the police and the school. She was told that her husband had picked up the children at school for a medical or dental appointment. She knew there were no such appointments scheduled. She made further calls to friends and neighbours in case they had any knowledge of where her children were. The police began to investigate the matter as a possible parental abduction. They approached the case with an appropriate level of urgency. Based on bank card transactions they eventually arrived at the hotel at approximately 7:15 p.m. where J.A. had checked in with his two children.

[19] In the hotel room, the children had eaten pizza as J.A. drank alcohol and took more sleep medication. His plan was to take all of the medication. He claimed that each child was on a bed and seemed “happy and alert.” His next memory was being roused from a deep sleep by banging on the door and someone calling his name. It was the police demanding that he open the door. The police were eventually able to enter the room with the assistance of hotel staff. Their entry was delayed and complicated by the fact that the door was both locked and bolted from the inside.

[20] When police and medical staff finally entered the room, they found E.V. unconscious and E.J. drowsy but awake. J.A. was extremely drowsy and drifted in and out of consciousness. Immediate efforts were made to revive E.V. All three were rushed by medical staff to the hospital. Investigators recovered the two packages for the sleep medication and a bottle of partly consumed Spumante Bambino. They also observed that the bath tub was filled with several inches of water.

[21] E.V. died shortly thereafter without regaining consciousness. The cause of death was the combined toxicity of the sleep medication and alcohol. E.J. recovered without significant physical harm. J.A. remained in intensive care for several days.

[22] Before the events of February 2 and 3, 2014, J.A. had sought treatment for depression. He was very well represented by counsel at trial. The defence did not suggest that any combination of depression, alcohol and sleep medication on the critical days impacted his ability to form the specific intention required for the charges he faced.

[23] Julia Fridmar was a registered nurse who spoke to J.A. on February 5, 2014 while he was in intensive care at the hospital. At one point J.A. told her that he wanted to protect the children and also that they not feel the pain.

POSITION OF THE PARTIES

[24] The Crown submits that on the count of second degree murder, parole eligibility should be set at twenty years. On the count of attempt murder, the Crown submits that a sentence of between twelve and fifteen years to run concurrent to the life sentence on Count 1 is appropriate.

[25] The defence submits that parole eligibility should be set at the minimum ten years on Count 1. On the charge of attempt murder, the defence submits that a concurrent sentence of between five and seven years is appropriate.

STATUTORY PROVISIONS

[26] The following sections of the Criminal Code of Canada are relevant to this sentencing process:

Punishment for murder

235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

Minimum punishment

(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.

Sentence of life imprisonment

745 Subject to section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be

(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4

Recommendation by jury

745.2 Subject to section 745.3, where a jury finds an accused guilty of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.

Ineligibility for parole

745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

Purpose and Principles of Sentencing

718 The fundamental purpose of sentencing is to protect society and 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 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.

Objectives – offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

Victim impact statement

722 (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.

Definition of “victim”

(4) For the purposes of this section and section 722.2, “victim”, in relation to an offence,

(a) means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and

(b) where the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection (1), includes the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person.

Non-communication order

743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.

JURY RECOMMENDATION

[27] The jurors are not required to be unanimous on this and they give no reasons for their decision. The results were as follows:

No recommendation – 2 jurors

10 years – 8 jurors

11 years – 1 juror

15 years – 1 juror

VICTIM IMPACT

[28] The Crown submitted two victim impact statements. The defence objected to the admissibility of one and the other in its entirety.

[29] C.J. is the mother of the two victims in this case. She provided an articulate nine-page statement detailing the pain and anguish inflicted on her and her family by these crimes. Those of us who have never lost a child cannot understand the devastation of such a loss, particularly in circumstances such as these. I believe that a parent never fully recovers from such a loss. She also confirms how important it is for her and her family to cherish and care for her three surviving children.

[30] There are two portions of her statement that the defence take issue with. I agree with Ms. Bojanowska that I should not consider those items on sentence, namely:

(a) C.J. is understandably angry that J.A. has resorted to his share of the matrimonial assets to finance his defence to these charges; and

(b) C.J. does not feel that J.A. has expressed remorse for his actions.

I will disregard those brief portions of her statement. The remainder of that document is a powerful and clear statement of her loss.

[31] In addition to her victim impact statement, I had the opportunity to see and hear her testimony at trial. She was an essential witness to certain critical events. Her dignity and clarity in describing these events was impressive. The anguish, fear and dread inflicted on her began when her two children did not get off the bus after school that day. Her worst fears were realized after several hours when she was contacted by the police and asked to go to the hospital where her children had been taken.

[32] The second proffered victim impact statement is from a friend of C.J. whose son went to school with E.J. In my view the relationship between the author of this statement and the victims’ family does not come within the definition of victim for the purposes of s. 722 of the Criminal Code. Thus, I will not consider the contents of that statement on sentence.

[33] I did not receive a separate victim impact statement from E.J. However, I did observe and hear him recount these events in a video statement recorded four days after his sister died. I also observed and heard him testify from a remote room at trial when he adopted his video statement and answered a few brief questions from counsel. He is an articulate and brave young fellow. He survived these events without significant physical harm. However, I do not require expert evidence to discern that the long-term impact of these events and who was involved in them will be painful.

[34] In this case, I have also had evidence often not available to judges and jurors: I have seen brief video excerpts of little E.V. in life. She was evidently a bright, sweet child. Her death is a grievous loss to her family and to the community which will not benefit from the life she would otherwise have led.

DEGREE OF RESPONSIBILITY

[35] J.A. has been convicted of two of the most serious offences in the Criminal Code. On Count 2, the jury was instructed that the requisite intention to be proven was nothing short of an intention to kill. R. v. Logan, 1990 84 (SCC), [1990] 2 S.C.R. 731.

[36] On Count 1, the jury was instructed in accord with s. 229(a)(i) and (ii) of the Criminal Code as the alternate definitions of the requisite intention for murder. The Supreme Court of Canada rejected the argument that the intent required for the second form of murder was not as grave a crime as the first, where the offender means to cause death. The Court concluded that “the variation in the degree of culpability is too slight to take into account. … The difference in the calibration on the scale of culpability is too minute to merit a distinction.” R. v. Nygaard and Schimmens, 1989 6 (SCC), [1989] 2 S.C.R. 1074.

AGGRAVATING FACTORS

[37] The crimes committed against these two young children by their father constitute an egregious breach of parental trust. They had no reason to fear their father or refuse to take the sleep medication he administered to them. The jury were satisfied beyond a reasonable doubt that he had a murderous intention towards both children. The motives for his actions on February 3, 2014 were to spite his wife and deprive her of what she loved most.

[38] The fact that there were two young victims, as well as their mother and other family members who have suffered this grievous loss, is a further aggravating feature.

[39] The actions of J.A. on February 3, 2014 were not spontaneous. He acknowledged that he purchased sleep medication to commit suicide, yet he denied any criminal intent when he gave that same medication to his young children. He isolated himself and the children in a hotel room behind a door that was both locked and bolted shut. His desire to end his own life was one thing. To take his children with him from this life was a dreadful decision. The steps he took that day significantly and fatally delayed medical attention for his daughter.

[40] The Crown submits that I should also consider the water in the bathtub later observed by police as further evidence of J.A.’s determination to kill both of his children. The Crown submits that J.A. planned to drown the children if they did not die from the sleep medication. J.A. denied this in cross-examination. He claimed the water was for a foot bath for himself. It is not necessary for me to resolve or rely on this evidence in light of the cause of death. I will specifically not consider it as an aggravating feature on sentence.

[41] A further aggravating factor was the serious breach by J.A. of the trust placed in him by the school officials on February 3, 2014. He has admitted that he lied to them about medical appointments for E.V. and E.J. so that he could take them out of school early. The school officials had no reason to disbelieve J.A. or to suspect that he would harm the children in any way. As I observed and listened to their testimony at trial, it was evident that they remain devastated by what happened to E.V. and E.J. after they were released to the care of their father.

MITIGATING FACTORS

[42] J.A. is now 38-years-old. He has no prior convictions. He and his wife faced a series of career, financial and health problems throughout their marriage. There were deaths in both of their extended families that deeply affected them. The births and early lives of some of their children included serious medical issues for them as well as for their mother. The marriage grew more and more fractious. Notwithstanding that, in trial testimony, both of them described the other as a caring, involved, loving parent.

[43] J.A. experienced long-standing depression for which he sought and obtained treatment before these events. This was confirmed by his testimony at trial, as well as the evidence of his wife and medical reports filed on sentence.

[44] J.A. is an articulate and soft-spoken man. In his testimony at trial and on the sentencing hearing, he expressed remorse and regret for these events that left one child dead and another burdened by the memories. He denies he ever intended to harm, let alone kill, either of his children. I must sentence J.A. based on the verdicts returned by the jury and the specific criminal intentions that were proven. I accept that he regrets the loss of his entire family. He was entitled to have a trial and must not be punished in any way for having the Crown prove its case.

[45] Counsel for J.A. filed character letters from his mother, older sister and a family friend. They all describe him in most positive terms as a father. There were further supportive letters from his godfather and first cousin. I also received material confirming his involvement in Bible study while he has been incarcerated.

[46] The prospects for rehabilitation of J.A. are positive. However, for these offences, that factor is far outweighed by the need to reflect denunciation and general deterrence.

ANALYSIS

[47] The Supreme Court of Canada considered the appropriate factors in determining whether parole eligibility on second degree murder should be longer than ten years in R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227. The accused in that case had pleaded guilty to second degree murder. The trial judge set parole eligibility at twelve years. On appeal, parole eligibility was lowered to ten years. On appeal to the Supreme Court, the trial judge’s order was restored. The Court set out the applicable principles at pp. 9-13 inclusive:

(1) The determination is a very fact-sensitive process. The factors to be considered in fixing an extended period of parole ineligibility are:

(i) The character of the offender;

(ii) The nature of the offence; and

(iii) The circumstances surrounding the commission of the offence;

all bearing in mind the discretionary power conferred on the trial judge.

(2) There must be a proportionality between a sentence and the moral blame worthiness of the offender and other considerations such as deterrence and societal condemnation of the acts of the offender.

(3) Parole eligibility is part of the “punishment” and thereby forms an important element of sentencing policy. Deterrence is a well-established objective of sentencing policy.

(4) A period of parole ineligibility in excess of ten years does not require “unusual circumstances”.

(5) In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability.

(6) It is not the law that unusual circumstances, brutality, torture or a bad record must be demonstrated before the judge may exercise his discretion to move above the ten-year minimum. There is no burden on the Crown to demonstrate that the period should be more than the minimum.

[48] In R. v. Dewald, 2001 4721 (ON CA), [2001] O.J. No. 1716 (Ont. C.A.), the accused pleaded guilty to two counts of second degree murder. He had drowned his two children, aged ten and twelve. The precipitating event was the break-up of a spousal relationship. He had no prior criminal record and long-standing clinical depression. Counsel at trial made a joint submission for parole ineligibility of twelve years. The trial judge rejected the joint submission and set parole ineligibility at twenty-three years.

[49] On appeal, the parole eligibility was lowered to seventeen years. The Court indicated that killing one’s own children is one of the worst offences but Mr. Dewald was not one of the worst offenders.

[50] The Court found it was reasonable for the trial judge to reject the joint submission for reasons that included the following:

[31] I think it was reasonable for three reasons: first, denunciation; second, aggravating features of the crime; and third, general deterrence. The appellant was convicted of not one, but two counts of second-degree murder. The enormity of his crime -- deliberately drowning his two young children -- would shock the sensibilities of any right-thinking person. The trial judge cannot be faulted for concluding a severe denunciatory sentence was called for, a sentence that would reflect society's abhorrence of this kind of crime. As he justly said:

Children such as Jennifer and Christopher place in their parents the ultimate trust. A parent comforts, consoles, sustains and protects. They rely on their parents for shelter, safety and survival. So, when a parent breaches that trust it is a breach of the worst kind. Children most often cannot fight back and cannot survive on their own. I have no doubt that a parent murdering their child is the worst possible breach of trust. . . .

The public interest requires that there be confidence in the court system and the administration of justice. The public must know the concept of denunciation and they must also know that courts will not tolerate a breach of trust of this magnitude.

[37] These aggravating features of the crime were all relevant to the appropriate period of parole ineligibility. The trial judge also considered that general deterrence was relevant. In his words:

However, of far more importance is the general deterrence to all those persons out there who may treat the lives of their children in a callous and mean spirited way. They need to know that they will not attract a period of ineligibility at the lower end of the range if they are convicted of second degree murder involving children.

[51] The Court went on to state that the trial judge gave inadequate weight to certain mitigating considerations as follows:

The trial judge gave very little weight -- inadequate weight in my view -- to these mitigating considerations. The trial judge did not fairly balance the effect of Mr. Dewald's depression, the remorse he showed and his prospects for being rehabilitated against the horrendous nature of his crime. Although the crime itself and the circumstances surrounding it warranted a period of parole ineligibility well above the minimum, the character of the offender militated against a period at the upper end of the range. In my view, an appropriate period is 17 years.

[52] R. v. Currie, [2003] O.J. No. 1389 (O.S.C.) before Watt J. related to a particularly brutal murder of a two-year-old child by her father. The accused suffered from depression as a result of marital problems. He did not have a prior criminal record. The Crown and the Court accepted a guilty plea to second degree murder with a joint submission of parole ineligibility set at eighteen years.

[53] J.A. will be subject to the following ancillary orders:

(1) Pursuant to s. 487.051(1) of the Criminal Code, he is to provide a sample of bodily substances for forensic DNA analysis;

(2) Pursuant to s. 109 of the Criminal Code, he is prohibited from possessing any firearm, cross-bow, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life; and

(3) Pursuant to s. 743.21 of the Criminal Code, he is prohibited from communicating, directly or indirectly, with C.J. or her children or her extended family during the custodial period of these sentences.

[54] Denunciation and general deterrence are the overriding principles of sentence in this case. There was no evidence of animus by J.A. toward his children before these events. His wife described him at trial as a good and loving parent (but a lousy husband). J.A. viewed himself as a victim of his wife’s actions. The motive for his murderous actions towards his children was to spite his wife and deprive her of what she loved most in the world.

[55] Family courts often deal with issues of parental alienation and parental abduction where marriages have broken down. Children become innocent pawns and victims of the battles between their parents. The extreme limit of such situations is where one parent chooses to kill a child to inflict the ultimate pain on their estranged spouse. Courts must make clear that such cases will attract significant denunciatory sentences. Parole eligibility set at or near the ten-year minimum would fail to reflect the gravity of such offences.

[56] RESULT: On Count 1, the second degree murder of E.V., the sentence as mandated by law is life imprisonment. Parole eligibility is set at eighteen years. That time period runs from the date of J.A.’s arrest since he has been in custody since then.

[57] On Count 2, the attempted murder of E.J., the sentence is ten years, concurrent to the life sentence on Count 1.

B. P. O’Marra, J.

Released: January 13, 2017

CITATION: R. v. J.A., 2017 ONSC 525

COURT FILE NO.: CR-15-30000339-0000

DATE: 20170113

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.A.

Defendant

REASONS FOR SENTENCE

B. P. O’Marra, J.

Released: January 13, 2017