ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Boucher, 2017 ONSC 6199 DATE: 2017-10-23

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON BOUCHER

COUNSEL: Beverley Olesko and Alexandra Penny, for the Crown Mitchell Chernovsky for Jason Boucher

HEARD: October 5, 2017

Reasons for Sentence

MacDonnell, J.

[1] On June 14, 2017 a jury found Mr. Boucher guilty of second degree murder. Pursuant to s. 235(1) and s. 745(c) of the Criminal Code, the sentence to be pronounced on a person convicted of second degree murder is imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence. Pursuant to s. 745.4, however, the sentencing judge “may” increase the period of parole ineligibility from 10 years up to a maximum of 25 years, having regard to the nature of the offence and the circumstances surrounding its commission, the character of the offender, and the recommendations, if any, of the jury. In R. v. Shropshire, Justice Iacobucci stated as follows with respect to the exercise of that discretion:

[As] a general rule, the period of parole ineligibility should be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in [s. 745.4], the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be ‘unusual’, although in the median number of cases, a period of 10 years might still be awarded.[^1]

A. The Statutory Criteria

(a) the nature of the offence and the circumstances surrounding it

[2] Mr. Savoy was 48 years of age. He lived alone in a basement apartment on Danforth Road in Scarborough. About two years before his death, he was hit by a taxi and he suffered a serious injury to his leg that caused him significant pain and restricted his mobility. Over time, his mobility problems worsened and he became increasingly dependent on a cane, crutches and an electric scooter. As a result of his condition, Mr. Savoy was receiving disability benefits, but that was not his only source of income. He was also a drug dealer, selling both cocaine and marihuana out of his apartment, and he had a steady stream of customers coming and going every day and at all hours.

[3] Mr. Boucher was both an acquaintance and a customer of Mr. Savoy. From time to time he had stayed overnight in Mr. Savoy’s apartment. Their relationship was close enough that about six weeks before Mr. Savoy was killed Mr. Boucher had been a guest for Christmas dinner in Mr. Savoy’s apartment. There is no evidence of anything in their history that might have given rise to hostility between them.

[4] On Wednesday February 4 2015 Mr. Savoy’s body was found on the kitchen floor of his apartment. He had been dead for several days. He had been severely beaten and had suffered a considerable number of contusions, abrasions and lacerations to his head, neck and face. While there was no evidence of broken bones, his larynx had been massively fractured. In the opinion of the pathologist, Dr. McAuliffe, death had been caused by manual strangulation and blunt force injury to the neck. There was no direct evidence as to the amount of force that would have been required to cause death but Dr. McAuliffe testified that the fracture of the larynx was indicative of severe pressure to the neck.

[5] The position of the defence at trial was that although Mr. Boucher was present at the time Mr. Savoy was strangled and killed he was unaware of what happened to him because he had passed out from the effects of the considerable quantity of drugs and alcohol he had consumed. It was suggested that a third party, perhaps one of Mr. Savoy’s drug customers, must have come into the apartment and killed Mr. Savoy while Mr. Boucher was unconscious. The jury rejected that suggestion: its verdict represents a finding not only that Mr. Boucher was the person who beat and strangled Mr. Savoy but that in doing so he meant either to kill him or to cause him bodily harm that he knew was likely to kill him. What the verdict does not do is answer why Mr. Boucher did that.

[6] In his statements to the police, Mr. Boucher described himself as being in the midst of a drug and alcohol-fueled bender that had begun after work on Friday evening and that had continued right up when he went to Mr. Savoy’s apartment with two friends late on Saturday night. Kerry Burnette was visiting Mr. Savoy when Mr. Boucher and his friends arrived. Both she and Mr. Boucher testified that over the next few hours alcohol and drugs were being consumed. Ms Burnette testified that everyone was getting along well. After a while, Mr. Boucher’s two friends left, followed, at about 1:30 or 1:45 a.m., by Ms. Burnette, leaving Mr. Boucher and Mr. Savoy alone in the apartment.

[7] As Mr. Savoy is dead, the only person who can explain how it was that Mr. Boucher came to strangle him is Mr. Boucher, but he did not testify. In the series of statements that he made to the police on the day that he turned himself in, he claimed that because he had passed out he had no memory of what happened. The jury obviously rejected that claim. In the absence of an explanation from Mr. Boucher, what is left is the circumstantial evidence.

[8] That evidence includes Mr. Boucher’s serious addiction to drugs and alcohol. By his own admission his life, every day, revolved around drugs and drinking. By the time he arrived at Mr. Savoy’s apartment he had been on a bender for more than 24 hours and he had already gone through a substantial quantity of beer, cocaine, Fentanyl and other illegal drugs. He continued to drink and do drugs at the apartment with Mr. Savoy. The only reasonable inference is that the attack on Mr. Savoy was related to drugs and most likely to a desire on the part of Mr. Boucher to have access to more drugs. Mr. Savoy did not trust his customers and hid his drugs and money in various places within the apartment. After Mr. Savoy’s body was discovered, the police conducted a thorough search of the apartment and no drugs or money were found. The inference that I draw is that they were stolen by Mr. Boucher. I cannot make a finding, however, with respect to whether the theft was the motive for the beating or whether it was something that Mr. Boucher decided to do after he realized that Mr. Savoy was dead. I do not think that it matters much which of those possibilities is what actually happened. Either scenario – theft as the motive for the killing or theft as a crime of opportunity as Mr. Savoy lay dying – aggravates the extent of Mr. Boucher’s moral culpability for the death.

[9] After the killing, Mr. Boucher left the apartment, locked the door behind him and went home. He did nothing to bring to anyone’s attention the fact that Mr. Savoy was dead in his apartment. The body was discovered three days later when friends of Mr. Savoy, concerned about not being able to contact him, had the landlord break down the apartment door.

(b) the character of the offender

[10] Mr. Boucher was 40 years of age at the time of the killing, a few days short of his 41st birthday. He is now 43. He is Metis. His mother is non-Indigenous, but his father was either Métis or from the Wahta Mohawks First Nation. As a child Mr. Boucher also had connections to his aboriginal background through his relationship with his stepfather, J.B., who is Ojibwe.

[11] Much of Mr. Boucher’s childhood was spent in circumstances of poverty and deprivation in the Sutton and Collingwood areas in Ontario. His parents’ marriage was dysfunctional, marked by domestic violence and drug abuse. The marriage broke up when Mr. Boucher was quite young. His mother then began living with J.B. That union lasted a number of years, and Mr. Boucher came to call J.B. “dad”. He told the Gladue writer that through J.B. “I learned about the Aboriginal culture, [was] taught a lot about the culture, sweats, smudging and ceremonies. We’d go camping, he would try teaching us about plants, we learned how to hunt and skin an animal.” Unfortunately, the relationship between Mr. Boucher’s mother and J.B. was as dysfunctional as her marriage to Mr. Boucher’s father. It too was marked with domestic violence as well as heavy drinking. Mr. Boucher recalled an incident when he was 8 or 9 years of age when he attempted to stab J.B. because he was beating his mother.

[12] When Mr. Boucher was about 12 years of age, his mother and J.B. separated and Mr. Boucher moved to Toronto to live with his father. They initially were staying in a hostel, but even after they got their own place they were living in extremely impoverished circumstances. While living with his father, Mr. Boucher was sexually abused by an uncle.

[13] Mr. Boucher’s formal education is limited. He went through Grade 7 twice and then was pushed to Grade 8 but never finished. He took a couple of Grade 9 classes but then dropped out of school. He advised the Gladue writer:

During this time I would fight a lot at school. My dad would spend money on crack. I did not want to go to school in dirty clothes and no food. You would get the shit beat out of you, why would you want to go? My dad would collect welfare and then he would tell all of his kids to pay him $15 a day in rent. He didn’t care how you got it. He wanted you to cover room and board. Over time, my father couldn’t handle me. I guess I was disobedient and confrontational. I had counselling off and on

[14] Mr. Boucher started drinking and using marihuana when he was 16, cocaine when he was 17, and crack cocaine when he was 18. He told the Gladue writer: “During high school I was smoking, drinking, stealing, shoplifting and doing B&Es. I was really good at picking locks, breaking into cars and stealing them.” The Children’s Aid Society became involved and for a couple of years, until he was 18, Mr. Boucher was in a series of foster homes with non-Indigenous foster parents.

[15] As an adult, Mr. Boucher has had a number of long-term relationships and he has been married once. He lived with his wife in Michigan, but when the marriage fell apart in 2013 he returned to Toronto and was living with his father. At the time of Mr. Savoy’s death Mr. Boucher had a steady job as an auto body technician. However, the pattern of substance abuse that began when he was a teenager had continued virtually non-stop, and his life had long since descended into an abyss of substance abuse. Each day of his life seemed to revolve around obtaining and using drugs and alcohol, living from hit to hit. While he was able to hold down his auto body job, he told the police that he was consuming an extraordinary quantity of drugs and alcohol while working and every Friday, when he got paid, he would go on a two-day bender.

[16] Mr. Boucher has made efforts in recent years to obtain treatment for his addictions. In 2014 he was in a program at Harbour Light, but he was discharged when a cell phone was found in his room. He then went out west for a few months. While there, he checked himself into a recovery program for a few days. When he returned to Toronto, he attempted to reconnect with the Chaplain at Harbor Light, Father Ed, who has known him for about five years. Father Ed’s opinion is that Mr. Boucher was and is sincerely attempting to overcome his addictions.

[17] Mr. Boucher has been in custody since his arrest on February 9, 2015. He has been seeking programming within the institution and he has completed one of those programs. He is involved in mentoring other inmates. He has also been writing short stories and poems. Samples of his writing have been filed on this sentencing hearing, and I have read them all. It is quite clear that notwithstanding his limited formal education Mr. Boucher is intelligent, articulate and well-spoken, and that he has genuine talent as a writer. There are autobiographical elements within the stories that he has written that demonstrate clear insight into the dynamics of the Indigenous experience within the larger Canadian culture, and into the ways in which those dynamics can lead to the spiral of despair to which too many Indigenous persons fall victim.

[18] Mr. Boucher has a prior criminal record consisting of 14 entries. Eight of those entries are for offences committed as a young person and six are for offences committed as an adult. The only crimes of violence on the adult record are two convictions for assault in 2007, for which sentence was suspended. It should be said that the last convictions on the record were recorded some 7½ years prior to the offence in the present case.

(c) the recommendations of the jury

[19] A judge considering whether to increase the parole ineligibility period for a person convicted of second degree murder is required to take into account any recommendations made by the jury in that respect. Only two jurors recommended an increase beyond the minimum of ten years. Both recommended an increase to 15 years. Five jurors made no recommendation and the other five recommended that the period be left at ten years.

[20] Recommendations of the jury are simply that: recommendations. Their obvious limitation is that the jury will usually have a less than complete picture of an offender’s character. In this case, for example, some of the evidence that would have reflected negatively on Mr. Boucher was kept from the jury during the trial. However, jury recommendations do provide some indication of the jury’s assessment of the gravity of what the offender did.

(d) Victim Impact Statements

[21] Victim Impact Statements from Mr. Savoy’s father and two of his friends, Kimberley Spencer and Steve Swanton, were filed on the sentencing hearing. As might be expected, those statements confirm that Mr. Savoy’s death has had a devastating impact on those who were close to him.

(e) the positions of the parties

[22] On behalf of the Crown, Ms Olesko submitted that the court should order that Mr. Boucher serve between 12 and 15 years before eligibility for parole. On behalf of Mr. Boucher, Mr. Chernovsky submitted that the period of ineligibility should not be increased beyond the minimum of ten years.

B. Discussion

[23] In R. v. Shropshire, Justice Iacobucci observed that “in permitting a sliding scale of parole ineligibility, Parliament intended to recognize that within the category of second degree murder there will be broad range of seriousness reflecting varying degrees of moral culpability.”[^2] To determine where within that broad range any particular case falls, the sentencing judge is required to take into account the nature of the offence and the circumstances surrounding it, the character of the offender, and any recommendations of the jury. The determination is to be made bearing in mind the purposes and principles of sentencing set forth in s. 718 to 718.2 of the Criminal Code. One of those principles, set forth in s. 718.2(e), is that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders”. A term of imprisonment for life is mandatory for offenders convicted of second degree murder but the direction to take into account the circumstances of aboriginal offenders applies to decisions with respect to parole ineligibility, and thus the principles enunciated in R. v. Gladue[^3] must be considered.[^4]

[24] In that regard, judicial notice must be taken of “the history of colonialism, displacement and residential schools, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and…higher levels of incarceration…”[^5] Notice should also be taken of the tendency of the adverse impacts of that history to percolate down from one generation to the next. For example, the negative consequences of the residential school experience are not restricted to those who attended those schools but can also affect the children and grandchildren of those persons, weakening social bonds and giving rise to feelings of fear, shame, anger and guilt that can lead to the abuse of alcohol and drugs and conflict with the criminal law.

[25] In Gladue, the Supreme Court also recognized, however, that “generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders whether the offender is aboriginal or non-aboriginal.”[^6]

[26] In considering the nature of the offence and the circumstances surrounding its commission one must be careful not to confuse the very circumstances that made the offence murder with circumstances that aggravated that murder. In every case in which the issue of parole ineligibility is considered, the offender will be a person who without lawful justification has not only killed someone but has done so having meant to kill or having meant to cause harm known to be likely to kill. A conviction for murder will always be founded on inherently serious conduct deserving of the significant sanction of imprisonment for life.

C. Disposition

[27] I am required by law to sentence Mr. Boucher to imprisonment for life. The issue before me is whether the time that Mr. Boucher must wait before being considered for parole should be increased beyond the minimum period of ten years

[28] There are a number of aggravating circumstances that ought to find reflection in the decision that I make in relation to that issue. Mr. Savoy was murdered within his own home. He was murdered by someone he trusted. Because of his disability, Mr. Savoy’s ability to defend himself was significantly compromised. The fact that Mr. Boucher stole Mr. Savoy’s money and drugs is a factor that increases his moral culpability whether the stealing was the motive for the killing or something that Mr. Boucher decided to do as his friend lay dying.

[29] While Gladue considerations ought not to play an outsized role in determining parole eligibility in this case, neither should they be ignored. Mr. Boucher’s assault on Mr. Savoy occurred in the context of a lifestyle of drug and alcohol abuse to which the systemic and background factors that sometimes bring aboriginal offenders before the criminal courts can make a contribution. It must also be said, however, that it is clear from his statements to the police that Mr. Boucher was well aware of his tendency to do, as he put it, “stupid” things, including dangerous things, while under the influence of alcohol.

[30] There is reason to be optimistic about Mr. Boucher’s prospects for reintegration into the community. It is noteworthy that he was seeking help for his addictions prior to the incident in which he killed Mr. Savoy. It is significant that people such as Father Ed, the chaplain at Harbour Light, have positive impressions about his sincerity in wanting to break the self-destructive cycle of behaviour that he has exhibited for so many years. Mr. Boucher has been mentoring other inmates while in custody, and according to the Gladue Report, he has hopes of eventually entering the social work field. His writing talents can provide him with a valuable tool in that respect.

[31] But for a consideration of the factors discussed in Gladue I would have concluded that a twelve-year period of parole ineligibility would be fit and appropriate. To reflect the role that those factors played in Mr. Boucher’s conduct in causing Mr. Savoy’s death, I will reduce the period of ineligibility from 12 years to 11 years

[32] Because Mr. Boucher has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment, a prohibition order under s. 109(1)(a) of the Criminal Code is mandatory. Pursuant to s. 109(2), I direct that Mr. Boucher be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition and explosive substance for life.

[33] Murder is a primary designated offence within the meaning of s. 487.04, paragraph (a) of the Criminal Code and accordingly a DNA order is mandatory. Therefore I direct that Mr. Boucher provide a sample of his DNA.

MacDonnell, J.

Released: October 23, 2017

[^1]: 1995 47 (SCC), [1995] 4 S.C.R. 227, at paragraph 27 [^2]: at paragraph 29 [^3]: [1999] I S.C.R. 688 [^4]: R. v. Van Every, 2016 ONCA 87, at paragraph 87 [^5]: R. v. Ipeelee, 2012 SCC 13, at paragraph 60 [^6]: at paragraph 93