Her Majesty the Queen v. Matthew Brush, 2017 ONSC 664

CITATION: R. v. Brush, 2017 ONSC 664

COURT FILE NO.: CR-16-3621

DATE: 20170130

Oral Decision: January 30, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Matthew Brush

Offender

Belinda Pagliaroli and Eric Costaris, for the Crown

Kenneth W. Golish, for the Offender

HEARD: January 23, 24 and 25, 2017

REASONS FOR SENTENCE

thomas j.:

1On January 25, 2017, after a guilty plea, I found Matthew Brush guilty of second degree murder and arson. While the sentence for the murder conviction must be one of life imprisonment, I must decide the term of parole ineligibility and hence the need for this analysis and these reasons.

2Section 745 of the Criminal Code, R.S.C. 1985, c. C-46, demands a sentence of imprisonment for life and directs pursuant to s. 745(c) that the sentencing judge determine the term of parole ineligibility from 10 to 25 years. Any greater term than 10 years can only be substituted after considering the following factors contained in s. 745.4 of the Criminal Code:

1. The character of the offender;

2. The nature of the offence;

3. The circumstances surrounding the offence.

3There is a fourth issue that deals with the recommendations of the jury which has no play in this decision.

4R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, continues to be the defining case from the Supreme Court of Canada on the principled application of the statutory criteria that I have mentioned. At paragraphs 27 and 29, the court stated the following:

As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, 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 it may well be that, in the median number of cases, a period of 10 years might still be awarded.

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. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder.

5Apart from the considerations mentioned above, I must, as well, apply the purposes of sentencing reflected in s. 718 and the principles contained in s. 718.1 and 718.2 of the Criminal Code. The acceptable range for parole ineligibility must be regarded as being set primarily for continuing the denunciation of a rehabilitated person after the date upon which the Parole Board would have recommended release. In other words, should a further period be added beyond 10 years to take into account the gravity of the particular offence and society’s repudiation of it? (R. v. Mafi (2000), 2000 BCCA 135, 142 C.C.C. (3d) 449 (B.C.C.A.); R. v. Brown (1993), 83 C.C.C. (3d) p. 394 (B.C.S.C.)).

6The issues of denunciation and deterrence must be considered by me the primary purposes directing this exercise. The statutory 10 year minimum period of parole ineligibility for second degree murder limits the weight that can be awarded the prospects of rehabilitation. While rehabilitation cannot be excluded from consideration, it does not have the same role as it would in other sentencing situations (R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (O.C.A.) (McKnight).

7While not directly consistent with the facts of the matter before me, in McKnight the court approved a range of parole ineligibility of twelve to fifteen years in cases of the brutal second degree murder of an unarmed wife or girlfriend. That range was reiterated in subsequent decisions (R. v. McLeod, 2003 CanLII 4393 (ON CA), 177 O.A.C. 385; R. v. Bajrangie-Singh, 2003 CanLII 47384 (ON CA), 170 O.A.C. 99; R. v. Sodhi, 2003 CanLII 52179 (ON CA), 2003 CanLII52179; R. v. Kenyon, 2014 ONSC 4454, para. 12).

8Most cases involving parole ineligibility in the 20 year range usually involve repeat offenders, multiple victims or circumstances of the most egregious and appalling nature (R. v. Haley, 2011 ONSC 5966, at para. 23; R. v. Brunet, 2010 ONCA 781, [2010] O.J. No. 4932 (O.C.A.); R. v. Pearson, 2012 ONSC 4198).

9Regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled, but merely the period he must serve before parole can even be considered: see R. v. Trudeau (1987), 24 O.A.C. 376 (C.A.).

10It is important to remember that a person sentenced for murder may never be paroled.

Position of the Parties

11The Crown stresses the appalling and savage nature of this crime perpetrated in the home of a defenceless and particularly vulnerable young woman. The Crown emphasizes that the serious post-offence conduct is a significantly aggravating factor and offers an acceptable range of 23-25 years.

12The defence, while recognizing the aggravating features, reminds me that this is a relatively young man with no prior criminal record who provided a confession, assisted police and entered a guilty plea. The defence suggests parole ineligibility of 20 years.

The Character of the Offender

13Matthew Brush is 28 years of age. He was 26 when he murdered Cassandra Kaake. He has no prior criminal record. He has a high school education and a somewhat sporadic employment record. His last work at a Canadian Tire store in Windsor was terminated days before his arrest for this offence. Matthew Brush was living with his parents at the time of the murder.

14The record before me, most particularly his videotaped interview over eight hours in duration, offers evidence of an addiction to marijuana which may account, in part, for his irregular employment. In addition and directly related to this offence is his long-standing obsession with women’s underwear. An obsession that drove him to Cassandra Kaake’s apartment on the day he killed her but an obsession that, as well, caused him to enter other area homes to steal women’s underwear.

15Most of these thefts involved females with whom he was acquainted. Often he would masturbate on the underwear and either discard them, leave them with their owner or take them home and hide them away.

The Nature of the Offence and the Circumstances Surrounding Its Commission

16Matthew Brush knew Cassandra Kaake. He had met her brother Cameron in high school. He maintains Cameron was his best friend. It seems clear he had some attraction to Cassandra. He had taken a key to her apartment from Cameron and duplicated it. He had entered her apartment a number of times before he was caught there on December 11, 2014. He had entered to steal her underwear and to masturbate.

17On December 11, 2014, he knew she was well along in her pregnancy. He also was aware of her work schedule. He was expecting her to work until 10:00 p.m., enough time for him to enter her residence in some state of perverse sexual excitement relieve himself and slink away. Unfortunately, Cassandra Kaake had taken the night off so she and a friend could plan her baby shower.

18It is clear that when she unlocked her door, she knew someone was in her apartment. Brush’s clothes were on her living room floor. She called out. What followed next was a violent and senseless crime carried out in a most brutal manner. In an act of pure self-gratification, Matthew Brush had entered Cassandra Kaake’s home. A home where he had been welcomed before. Simply because he was afraid of being recognized, he chose to save himself from a relatively minor offence and from the potential of personal embarrassment. He chose to save himself by butchering her and rendering lifeless her female fetus.

19He attempted to throw a blanket over her head to obstruct her ability to identify him. His assault escalated to choking her, punching her in the face and head and beating her with a table leg. He attempted to slash her throat with a butter knife but then returned to the kitchen to retrieve a better knife to “finish her off”.

20Forensic investigation revealed significant blood splatters and blood smears on a number of the apartment walls.

21The post-mortem report of Dr. Tweedie established the cause of death as a large incised wound to Cassandra Kaake’s neck with cut marks indicating several attempts. There was an upward stabbing motion to a depth of 10 centimetres which penetrated the larynx and she bled to death. He found multiple blunt force impacts to her face and head which may have caused a loss of consciousness. There were petechial hemorrhages of both eyes indicating blunt force pressure to her neck. There were multiple bruises to the back of her hands indicating defensive wounds caused when Ms. Kaake attempted to shield or protect herself from the beating. While Dr. Tweedie was unable to state the exact number of injuries sustained as a result of the attack, his appended diagrams indicate 45 different areas of injury.

22In his interview after slashing Cassandra Kaake’s throat, Matthew Brush describes his surprise at how long it took her to die lying on the floor of her living room. As part of his attempt to destroy evidence, he took a shower in her home while she bled to death on the floor.

23He tried to clean up. He drove back to his parent’s home to obtain items to obstruct investigators. He had been scratched on the face in the struggle. He was concerned that his DNA might be under Cassandra Kaake’s fingernails and so he returned with crude shears and amputated all her fingers and thumbs and took them in a plastic bag from the scene depositing the now weighted bag in the Detroit River. In his carelessness, he left one finger behind that ultimately assisted in his arrest.

24He brought a can of gas to the scene and poured the gas throughout the apartment. He attempted to burn items that might contain trace evidence and lead police to him. He attempted to burn the body of Cassandra Kaake. He set the detached home on fire knowing full well others lived in an apartment upstairs without any thought as to whether or not they were home.

25It is now appropriate for me to consider the mitigating and aggravating factors.

Mitigating Factors

26Matthew Brush is 28. He has no prior criminal record. He entered a guilty plea after the matter was pre-tried in the court. He indicated through counsel his willingness to plead guilty to second degree murder. Apparently a preliminary hearing would have been spared if the plea had been accepted earlier. He has expressed his remorse.

27He confessed to Detective Henry in the early morning hours of February 4, 2015 and from that point assisted in the police investigation. While it took eight hours with Detective Henry, Matthew Brush showed little interest in contacting a lawyer. He voluntarily attended and gave up his blood for DNA analysis. He endlessly answered often repetitive questions. Detective Henry seemed to sense that he wanted to tell her more and to her great credit, she kept him talking until he simply capitulated. Her process was patient but persistent and constitutionally compliant throughout. I am not sure Matthew Brush would have confessed to anyone else. However, he did confess and that expedited the investigation, provided some relief to the family and effectively made seeking an acquittal for murder impossible.

28By way of investigation as well, Brush provided his lawyer with instructions that allowed for an orderly and expeditious hearing including an agreed statement of facts.

29Finally, his parents have supported him throughout and appeared at every court appearance. His mother spoke in this proceeding. It seems the love of a mother is unyielding even in the darkest of circumstances. He will continue to have family support.

Aggravating Circumstances

30The most aggravating circumstances are the facts of the crime itself which I have already described in some detail. The senseless brutality, the destruction of evidence and the dangerous post-offence conduct in setting the home on fire.

31There is, as well, the uncharged conduct of breaking into homes and stealing women’s underwear.

32It is impossible to consider an appropriate sentence here without acknowledging that Cassandra Kaake was seven and a half months pregnant. She had already named her unborn child Molly Grace. I emphasize the pregnancy because it increases the tragic consequences of this loss and it magnifies the suffering of the family about which I will speak next. Further, the pregnancy rendered Cassandra Kaake particularly vulnerable to the assault of Matthew Brush. The vulnerability of a pregnant woman has been viewed by other courts as an aggravating factor in sentencing and I endorse that conclusion (R. v. Panghali, 2011 BCSC 421, at para. 42; R. v. Grandine, 2015 ONSC 18, at para. 213).

33The effects of this crime on the friends and family of Cassandra Kaake provide context to this crime and I find to be an aggravating factor (R. v. Kummer, 2011 ONCA 39, at para. 11). This was the loss of a young, fun-loving, hardworking, expectant mother who obviously brought joy to those around her and exhibited a level of kindness to which we all should aspire.

34To the family and friends who are present, I have listened to you and read your victim impact statements. I have seen you lay your grief open to view in the most public of ways.

35I have heard of “a constant emptiness; an insurmountable sorrow unlike any other…a sorrow of hopeless despair”.

36I have heard the father of this unborn child conclude with the following powerful comments:

I remember the last ultrasound. I remember being able to distinguish between the two hearts beating.

For how long that night did one of them have to beat on its own?

There is not an end to the impact of these crimes. Not for me. Not until I am the one that’s dead.

I am the one with the life sentence, except for me there is no chance of parole.

37Nancy Kaake, Cassandra’s mother, has observed, “I go on from one day to the next…waiting for justice.”

38The criminal justice system does not grant the kind of justice you seek. The value of Cassandra’s life cannot be measured intrinsically by the number of years I ascribe to parole ineligibility. My sentence cannot breathe life back into your loved one, would that it were that simple (R. v. Costa, [1996] O.J. No. 299 (Gen. Div.), at para. 42).

39Having said that, the anguish of the victims is but one factor for my consideration. I cannot sentence on the pretext of revenge.

40Let me comment now on this specific offence and the positions taken by Crown and defence. This matter was, until guilty plea, being prosecuted as a first degree murder. The Crown had an arguable case for first degree murder. That case focussed on the planning and deliberation exhibited when Matthew Brush returned to the kitchen for a better knife. There would have been a very real concern that these gruesome facts would serve to overwhelm the jury and their consideration of any evidence of planning and deliberation.

41The defence was prepared to enter this guilty plea to second degree murder and confine its submissions to a very high range of parole ineligibility. In the end, it is my view a position was reached that expressed the reality of the circumstances and provided a certainty in result. It was the right decision. It allowed this court to view the tragedy of the crime without putting the family and friends of Cassandra Kaake through weeks of excruciating testimony. It allowed this court to efficiently use its resources. In my view, counsel for the Crown and defence must be congratulated for that.

42This type of result was considered in R. v. Dhaliwal, 2016 BCSC 710. In Dhaliwal, Justice Schultes had a joint submissions for 21 years but I think his views as set out below are equally applicable to the narrow range of submission I am considering here:

The agreed facts support the offence to which Mr. Dhaliwal has entered his plea. It carries with it a mandatory life sentence. The aspect of the sentence on which I am urged to accede to the joint submission is in the number of years of parole ineligibility – 21 years.

This period of parole ineligibility is very high for the offence of second degree murder and likely exceeds the normal range of sentence for murders of this kind. Generally speaking, the cases in that range involve multiple homicides.

No doubt the benefits of a predictable outcome – a resolution of this matter without the uncertainties of trial and appeal, loom large for both the Crown and defence.

The Crown’s willingness to accept a plea to a reduced offence would understandably be contingent on securing a very lengthy period of parole ineligibility to address the applicable principles of sentencing.

While the number agreed on is only four years lower than would have been imposed after a conviction for first degree murder, by this plea Mr. Dhaliwal obtains a conviction for a reduced offence, and on less aggravated facts than in the Crown’s original theory of a planned killing. That result addresses his relative youth, lack of previous criminal record, and acceptance of responsibility through a guilty plea.

These considerations satisfy me that the range should be exceeded in this case. However, it is not a situation in which the Crown has thereby raised the bar on parole ineligibility for a single murder. I think the range stays exactly where it has been in the usual cases. This is a case that depends on its specific facts, and especially on the existence of a negotiated plea.

I am satisfied that the joint submission has been arrived at for appropriate reasons and provides an appropriate outcome, and that if I follow it, which I intend to do, I will be involved in a process that enhances the administration of justice rather than detracts from it.

43Mr. Brush, I acknowledge that you have expressed your remorse. Sadly, it seems to me, your articulate comments continue to focus on you, your burden and your sorrow. I am hopeful that this long penitentiary sentence will somehow assist you. You have left a trail of broken lives in your wake. But let there be no mistake, it was Matthew Brush who left Cassandra Kaake to die on that floor. This was not some out of body experience. To learn as much as she could, Detective Henry kept suggesting that you simply panicked. Simple panic cannot explain the time and effort you expended in killing Cassandra Kaake and in trying to save yourself. Resolving the question of “why” is likely your first step in any rehabilitation.

Conclusion

44Please stand Mr. Brush. In considering all the factors I have just mentioned, I conclude that a significant increase in the parole ineligibility period is warranted. It is necessary to satisfy the need for deterrence and to denounce your crime.

45On Count 1, that is the offence of second degree murder, the sentence is life imprisonment without parole eligibility for 22 years.

46I order that you provide blood for DNA analysis for the DNA databank.

47I impose a lifetime weapons prohibition order pursuant to s. 109(2).

48The warrant of committal will be endorsed to reflect that the life sentence began to run on the date of Mr. Brush’s arrest on February 3, 2015.

49On Count 2, that is the offence of arson, there is a sentence of five (5) years concurrent.