CITATION: R. v. Bush, 2017 ONSC 7627
COURT FILE NO.: 15-2310
DATE: 20171220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
IAN BUSH
Accused
James Cavanagh, for the Crown
Geraldine Castle-Trudel, for the Accused
REASONS FOR sentence
beaudoin j.
[1] On December 1, 2017, a jury found Ian Bush guilty of:
Attempt murder of Ernest Côté contrary to Section 239 of the Criminal Code
Robbery with violence contrary to Section 344(1) of the Criminal Code
Forcible confinement contrary to Section 279(2) of the Criminal Code
Possession of a prohibited weapon with readily accessible ammunition contrary to Section 95(2) of the Criminal Code
Possession of a firearm without being the holder of a license contrary to section 92(3) of the Criminal Code
[2] The sentencing provisions of the Criminal Code, R.S.C., 1985, c. C-46 allow for the imposition of a life sentence for the charges of attempt murder and robbery; there is a maximum period of imprisonment of 10 years for the charge of forcible confinement; there is a minimum period of imprisonment of 3 years for the possession of the prohibited weapon with readily accessible ammunition and no minimum period of imprisonment for the possession of the firearm without being the holder of a license.
The Circumstances Surrounding the Offences
[3] I turn first to the particular facts of this case and they invite me first to consider who is a hero? The Merriam-Webster on-line dictionary gives these two possible definitions: A hero is a person admired for achievements and noble qualities. A hero is also someone who shows great courage.
[4] By these definitions, I consider Ernest Côté to be a hero. He was certainly a hero when he landed on the beaches of Normandy on D-Day. His friends and family would say that he was a hero every day of his life and throughout his career of public service.
[5] He most certainly was a hero on December 18, 2014.
[6] On that day, Ian Bush, posing as a City of Ottawa employee, invaded his home and demanded money. When Ernest Cote refused and told him to get out, Ian Bush knocked the portable phone from Ernest Cote’s hands, twisted him around and tied his hands behind his back. Ian Bush then pushed him on his walker outside his bedroom door. He found Ernest Cote’s wallet and credit card and demanded his PIN. Twice, Ernest Cote gave him a false PIN. Ian Bush then took duct tape and wrapped it five or six times around Ernest Cote’s head to stop him from calling out for help. He then placed a plastic bag over his head and secured it with more duct tape and left Ernest Cote to die from asphyxiation. Despite his 101 years and inevitable frailty, Ernest Côté was having none of that. While all of these horrible events were quickly taking place, he kept his sang froid. As noted, twice, he had the presence of mind to give Ian Bush the same false PIN number for his credit card.
[7] Ernest Cote observed Ian Bush remove his gloves when wrapping duct tape around his head to gag him. After Ian Bush left him to die, he managed to free his hands and move with his walker to his bedroom to find scissors to cut a small hole in the plastic bag and call 911. While he did so, he was careful not to disturb the duct tape that bound his mouth as he thought that there could be evidence on that tape. Having called 911, he was prepared to sit down on his walker and wait for the police to arrive. He never removed the bag that almost killed him; he did not want to disturb the evidence.
[8] His presence of mind that day allowed the police to quickly identify Ian Bush as the person who had stolen his credit card. The DNA found on the duct tape was matched to the DNA found at the scene of an unsolved triple murder that occurred in 2007. That DNA was traced to Ian Bush. In April of this year, Ian Bush was convicted of the murders of 3 senior citizens, Alban Garon, his wife Raymonde, and their friend, Marie-Claire Beniskos. In that case, Alban Garon had been bludgeoned and had a plastic bag placed over his head. His wife, Raymonde, and their friend, Ms. Beniskos, died from suffocation from plastic bags being placed over their heads while their hands were tied behind their back.
[9] Ernest Côté’s actions led to the quick arrest of Ian Bush. The search of his residence revealed a hit list of people he intended to attack and rob. The details of that list and Ian Bush’s note books, complete with bus routes, provide evidence of extensive planning and reveal Ian Bush’s murderous intent on that day. His writings unmask Ian Bush’s hatred of government, politicians, judges, bureaucrats and human rights activists. He sought revenge on public figures for all the perceived wrongs that he believed that society had caused him and he was going to use his victims to send a message. I am satisfied on all of the evidence that Ian Bush was planning more victims. Ernest Côté’s courage on December 18, 2014, helped to solve a hideous cime, saved his own life and the lives of others.
[10] I underline these facts because Ernest Côté’s actions on that day will have a far greater impact on our community, and his heroism does more to restore our confidence in a just, peaceful and safe society than any sentence I can now impose on Ian Bush.
[11] I also recognize that this has been an emotionally charged case and I am mindful that the facts of this case should not distort my application of the principles of sentencing as found in the Criminal Code and in the case law.
The Positions of Counsel
[12] The Crown seeks a life sentence and asks that I apply section 743.6(1) and limit Ian Bush’s parole eligibility for a period of 10 years. The Crown also seeks ancillary DNA orders and a weapons prohibition under section 109 of the Criminal Code for life.
[13] The Defence submits that a global sentence of 7 to 10 years is appropriate with credit for the 3 years spent in pre-trial detention calculated at one day and a half for each day served. That credit would be effectively approximately 4 1/2 years if it is calculated from the date of December 19, 2014, the date on which Mr. Bush was arrested on these charges. Ian Bush was arrested on the murder charges on February 18, 2015. Mr. Bush has already been sentenced to 3 concurrent life sentences for those murders. It is not clear to me if he has already been given credit for that period of pre-trial detention arising from the later arrest. If so, any credit for pre-trial detention in this case would be limited to the 2 months period between the two arrests.
The Law
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.
Fundamental Principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
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,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
Analysis
[14] The primary sentencing objectives in this case are denunciation and deterrence both general and specific and the protection of society and the separation of Mr. Bush from it. The sentencing objectives of rehabilitation and the promotion of a sense of responsibility in Mr. Bush are greatly diminished in importance. Mr. Bush is already serving 3 concurrent life sentences and any rehabilitation will have to be achieved within the penitentiary system.
[15] These are the aggravating factors:
This was a home invasion of a senior citizen, a place where every citizen has a right to feel safe and secure.
While Ernest Côté was not the originally intended victim, there was clear evidence of a coldblooded and clinical execution of a planned robbery and death by suffocation. The intended target was Pierre Richard. Ian Bush had twice travelled by bus in the preceding month to assess that location. He carried an envelope that he had prepared and addressed to Pierre Richard supposedly from an organization that Mr. Richard belonged to. He carried a plastic bag and duct tape ready for use.
There was an extraordinary degree of planning, detailed in Mr Bush’ notebooks, for this particular attack; from alternate bus routes and arrival times along with a chilling description of the process he would use during what he called his “assignments.”
Ernest Côté, the 101year old victim, was quick-witted but frail. He was dependent on his walker for mobility.
The 2007 suffocation murders of Alban and Raymonde Garon and Marie-Claire Beniskos were strikingly similar.
There was an explicit risk to other intended victims listed in Ian Bush’s notebooks.
There was a collection of concealable weapons hidden in Ian Bush’s home.
There were numerous false identification documents crafted by Mr. Bush to facilitate his entry on his “assignments.”
There is a lack of any insight on the part of Mr. Bush.
There is a lack of any psychological explanation for his actions.
[16] The Defence argued that these are mitigating factors:
Ernest Côté suffered minor injuries.
There was no extreme violence.
No weapon was used.
The event was of brief duration; some 10 to 15 minutes.
Mr. Côté was not frightened.
There was no property damage.
Mr. Bush was invited into the apartment; there was no forced entry.
There was no attempt to break Mr. Côté’s communications with anyone else.
There was a less than complete forcible confinement and it was of short duration.
The financial loss was minimal or nonexistent.
The weapons were not in a public place and there is no evidence of any use.
[17] In my view, these cannot be considered mitigating factors as they do not provide any insight to the accused nor do they diminish his actions. In any way These are simply facts that the Defence relies on in an attempt to sanitize the seriousness of Ian Bush’s conduct. Moreover, this list is not accurate. There was no forced entry because Ian Bush used deceit by posing as a City of Ottawa employee in order to gain entry. After he bound and gagged Ernest Côté and placed the bag on his head, Ian Bush placed Ernest Côté’s portable phone on a table out of his reach. The financial loss was non-existent since Ernest Côté outwitted his attacker by giving him a false PIN number. There was extreme violence; Ian Bush’s actions were meant to kill Ernest Côté. Ernest Côté’s composure and bravery in the face of Ian Bush’s actions cannot be considered a mitigating circumstance. The prohibited weapon may have been out of reach of anyone else because it was hidden in a bag of gruesome concealable weapons along with knives, rope, duct tape, plastic bags and other tools that Ian Bush might require on his future “assignments.”
[18] The Crown seeks a life sentence. In the past, our law reserved a maximum sentence for the worst conceivable offender. That “worst offender, worst offence” principle has been unequivocally rejected by the Supreme Court of Canada, in R. v. Solowan 2008 SCC 62, 3 S.C.R. 309 where Justice Fish said at paragraph 3:
3 The “worst offender, worst offence” principle invoked by the appellant in the Court of Appeal has been laid to rest. It no longer operates as a constraint on the imposition of a maximum sentence where a maximum sentence is otherwise appropriate, bearing in mind the principles of sentencing set out in Part XXIII of the Criminal Code, R.S.C. 1985, c. C-46:. … Unwarranted resort to maximum sentences is adequately precluded by a proper application of those principles, notably the fundamental principle of proportionality set out in section 718.1 of the code, and Parliament’s direction in section 718.2(d) and (e) to impose the least restrictive sanction appropriate in the circumstances. (Internal citations omitted)
[19] In R. v. L.M. 2008 SCC 31, 2 S.C.R. 163 at paras. 19-23, Justice Lebel considered maximum sentences and said this at paragraphs 19 through 22:
[19] As Morin J.A. noted in his dissenting reasons, human nature is such that it will always be possible for a court to imagine a worse case than the one before it. Morin J.A. rightly pointed out that it is important for a judge, when deciding whether the maximum sentence can or should be imposed for a given offence, to avoid contemplating fictitious situations in this way. This approach is consistent with this Court's recent case law.
[20] In R. v. Cheddesingh, 2004 SCC 16, 1 S.C.R. 433, the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances. Instead, all the relevant factors provided for in the Criminal Code must be considered on a case-by-case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases.
. . . terms such as “stark horror”, “worst offence” and “worst offender” add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code. . . must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely . . . and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis.
21] Even where a maximum sentence is imposed, therefore, regard must be had to the trial judge’s discretion, the individualized nature of sentencing and the normative principles set out by Parliament in ss. 718, 718.1 and 718.2 Cr. C. There is still a place in criminal law for maximum sentences in appropriate circumstances.
[22] Thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances. The trial judge’s decision will continue to be dictated by the fundamental principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 Cr. C.). Proportionality will be achieved by means of a “complicated calculus” whose elements the trier of fact understands better than anyone. The trial judge’s position in the sentencing process justifies the respect owed to the reasoned exercise of his or her discretion and the deferential approach that appellate courts should take in such matters…. As is noted in one commentary on sentencing principles:
[TRANSLATION] [The] objectives of denunciation, deterrence, separation from society, rehabilitation, reparations and retribution are all quite general, and there is no precise standard that can be applied to rank them. At first glance, this is desirable, since the sentencing process is fundamentally an individualized one in that sentences will necessarily vary from one offender to another in light of the particular emphasis that will be placed on one or the other of the objectives in order to arrive at the appropriate sentence, having regard to all the circumstances, in each case.
[20] This principle is echoed by the Ontario Court of Appeal in a case involving four counts of attempted murder. In R. v. McArthur (2004), 2004 8759 (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.), Doherty J.A. said the following at paragraphs 42, 46 and 47):
42 The danger of the worst offence/worst offender approach to the sentencing of offenders like the respondent is that it moves the focus away from a detailed examination of the specific offences committed by the specific offender to a comparison of the offender’s crimes and background with those of the hypothetical worst offender who has committed the hypothetical worst offence. Human behaviour being what it is, it is always possible to imagine a worse case.
46 In determining whether life imprisonment is a fit sentence, one must look at the entirety of the respondent's criminal conduct. ….
47 Without diminishing the seriousness of any of the crimes committed by the respondent, it can be safely said that the four attempted murder convictions are the most serious crimes. Under our law, a person can only be convicted of attempted murder if he or she intended to kill. The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.
[21] Before turning to other cases cited by the Crown, I must turn to the argument presented by the Defence. The Defence submits that a concern for the protection of the public does not trump all other sentencing objectives. She argues that this should not to be used as an alternative to invoking the dangerous offender provisions of the Criminal Code. She also argues that the facts of this case are significantly different from the cases cited by the Crown. Her argument leads to a consideration of the Hill principle.
[22] In R. v. Hill (1974), 1974 1417 (ON CA), 15 C.C.C. (2d) 145 (Ont. C.A.) affirmed, 1975 38 (SCC), [1977] 1 S.C.R. 827, a life sentence was imposed in a case characterized as involving “stark horror.” In R. v. Horvath (1982), 1982 3838 (ON CA), 2 C.C.C. (3d) 196 (Ont. C.A.), Martin J.A. made it clear that the principle set out in Hill, was not to be used as an alternative to invoking the dangerous offender provisions of the Criminal Code. The Hill principle was reviewed in R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737 where the Court of Appeal noted that a life sentence was justified on the Hill principle in a pattern-of-violent-behaviour case. At paragraph 71 the Court held:
71 The second type of case where a life sentence has been justified on the Hill principle can be described as the pattern-of-violent-behaviour case. Such cases involve the repeated commission of crimes of very serious violence that do not, however, reach the level of stark horror. There is often expert evidence about the offender's continued dangerousness, but the repeated commission of these very serious crimes itself will often provide the court with the information necessary to find that the offender represents a continuing danger. ….
[23] The Court went on to conclude:
78 To conclude, in my view, imposition of a life sentence on the pattern-of-violent-behaviour branch of the Hill principle is justified where, in accordance with s. 718.1, the offence is sufficiently grave and the degree of responsibility of the offender is such that a life sentence would not be disproportionate and the offence is part of a pattern of conduct demonstrating that the offender represents a substantial risk for committing similar serious violent offences in the foreseeable future. Where the Crown seeks a life sentence on this basis it ought to provide expert evidence on risk. I am also of the view that to avoid conflict with the principle limiting use of evidence of untried offences to proof of background and character, the pattern of violent behaviour should be demonstrated in the offender's criminal record or the very offences for which the life sentence is sought.
[24] While that Court expressed the desirability of obtaining expert evidence on risk, the Court of Appeal has more recently decided that a forensic psychiatric assessment is not always necessary. In R. v. Anderson 2012 ONCA 373, 292 O.A.C. 365, the Court of Appeal upheld the life sentence imposed by the trial judge and said this at paragraphs: 15 to 17:
15 In connection with the latter principles, the sentencing judge explicitly addressed the defence submission that a life sentence should not be imposed in the absence of supporting psychiatric evidence of both continuing dangerousness and the limited likelihood for successful treatment. He also took account of the defence contentions that the imposition of a life sentence would be to “overreach” and that protection of the public should not trump all other sentencing objectives.
16 In this case, as we have mentioned, the appellant declined to participate in a forensic psychiatric assessment, thereby depriving the sentencing judge of “insight into his personality or how it is that he could have committed this terrible crime”, and precipitating the Crown’s withdrawal of its dangerous offender application.
17 The appellant was entitled to make this choice. However, it does not follow that, by virtue of that fact, the sentencing judge was precluded from giving any weight to the appellant’s future dangerousness. On the contrary, the sentencing judge was entitled – indeed obliged – to consider the full circumstances of these offences and this offender in determining whether the gravity of the appellant’s offences and his moral blameworthiness justified the maximum sentence of life imprisonment. This included the available indicators of the appellant’s future dangerousness and the random and gratuitous nature of his attack on the complainant.
[25] The Crown places particular reliance on the decision of Justice Ratushny in R. v. Leduc 2017 ONSC 398, a case which mirrors this one in on material points. In that case, the accused pleaded guilty to 4 Criminal Code offences including aggravated sexual assault (and not attempt murder as in this case). At the time of Mr. Leduc’s 4 pleas in March 2015, he was facing 2 charges of first degree murder for the death of a woman in June 2008 and of another in September 2011. The sentencing hearing was adjourned until after the conclusion of the murder trials. Mr. Leduc was subsequently convicted of 2 counts of first degree murder and given a mandatory life sentence with no eligibility for parole for 25 years. His convictions were under appeal at the time of sentencing.
[26] Aside from Mr. Leduc’s guilty pleas, Ratushny J. found that there was no indication of any remorse. Other than the facts of the two murders and the present offences, there was an absence of information about Mr. Leduc to allow for a fuller assessment of his risk to reoffend and, critically, of the risk he posed to the public. In her analysis, she noted:
28 A more unique aspect to this sentencing is the influence that Mr. Leduc’s two first-degree murder convictions exert over the offences committed against Ms. D. The circumstances between those two earlier murders and his later attack on Ms. D. are very similar, except, of course, Ms. D. managed to survive.
29 The consequence is that Mr. Leduc’s murder convictions operate to cast a darker, even more dangerous and sinister shadow over the facts of the present offences because when considered in light of his prior actions, Mr. Leduc’s actions can be viewed as amounting to a prelude to her later murder. The Crown’s submissions reflect this aggravating circumstance. The Crown argues that Mr. Leduc would have had to kill Ms. D. after he had finished with her because she knew him.
30 Mr. Leduc, however, was not charged with attempt murder. As his counsel has submitted, he is not to be sentenced, in effect, for this more serious offence for which he has not pled guilty.
31 His counsel has also submitted that because his murder convictions are under appeal, to sentence him for his present offences as if they had been a prelude to murder would be inappropriate, and particularly so if his convictions are overturned. His counsel asks, therefore, that the murder convictions be accorded little weight as an aggravating circumstance.
[27] Justice Ratushny rejected that argument and commented on the lack of psychiatric evidence but concluded:
35 I recognize the role played by Mr. Leduc’s murder convictions in assessing not only the seriousness of his attack against Ms. D. but also his future dangerousness. It would be artificial, however, to leave them out of the assessment of dangerousness just because they are under appeal. His murder convictions now form part of the circumstances of his 2012 offences and must be considered and given weight, notwithstanding that they are under appeal.
36 While the aggravating circumstances referred to before exist independently of a consideration of the murder convictions, when the facts behind those convictions are factored into those aggravating circumstances for the 2012 offences, Mr. Leduc’s actions have to be regarded as being more dangerous, more life-threatening and advancing along the gravity of the offence spectrum towards constituting a near attempt murder.
37 I conclude that Mr. Leduc is an ongoing danger to society and society needs to be protected from him by his incarceration. If rehabilitation can occur, it will have to take place in an institution.
[28] In imposing a life sentence on Mr. Leduc, she reviewed the case law and at paragraph 49 of her decision she cited the Anderson decisions and said:
….The trial judge remarked that there was little evidence before him to give insight into Mr. Anderson’s character or motivation for the attack (para. 26) and concluded he could infer from the circumstances of the offence that Mr. Anderson posed an ongoing danger to the public despite the lack of psychiatric evidence and that a life sentence was required to protect society. (para. 62)
[29] I now consider the full circumstance of this offence. I have already identified the significant aggravating factors. The fact that Ernest Côté did not die does not disguise Ian Bush’s criminal intent. When his intended victim, Pierre Richard, was not at home, he simply chose another one who happened to be available. Even Pierre Richard was not an original target. The person listed in Ian Bush’s note books was Jennifer Lynch, a former Human Rights Commissioner who had since passed away. Undeterred by her death, Ian Bush decided her widower would be the target of his grim message. These facts in and of themselves are clear indications of his danger to others. If one victim was not available, he would simply go on to the next. His actual victims were all senior citizens; they were too old and too weak to defend themselves.
[30] Ian Bush’s attempt to kill Ernest Côté was cruel and equally horrific even if somewhat less graphic than the violence referred to in the other cases that the Defence sought to distinguish. He left his victims to die fully conscious of their impending death; watching the plastic bag around their head expand and deflate with their remaining breath and agonizingly aware of their inability to extricate themselves from their death trap.
[31] Ian Bush’s pattern of violent behaviour is clearly established by his past convictions, the facts of this case and the evidence of his future targets. All of these people were unknown to him; they were simply symbols of the society he rejected.
[32] Protection of the public from Ian Bush is the paramount concern in this case. I am satisfied that a life sentence is appropriate and proportionate to the gravity of the offences he has committed and the particular circumstances of this case. His degree of blameworthiness and dangerousness can only be regarded as high. The rare sentence of life imprisonment with increased parole ineligibility must be imposed to achieve the paramount sentencing objectives of protection of society, denunciation and deterrence.
[33] Ian Bush, for the offence of attempt murder, I sentence you to life imprisonment. For the offence of robbery with violence, I sentence you to life imprisonment to be served concurrently. For the offence of forcible confinement, I sentence you to 10 years imprisonment to be served concurrently. For the offence of possession of a prohibited weapon with readily accessible ammunition, I sentence you to 3 years imprisonment to be served concurrently. For the offence of possession of a firearm without being the holder of a license, I sentence you to 1 year imprisonment to be served concurrently.
[34] With respect to your eligibility for parole regarding the life sentences, I am satisfied pursuant to the principles set out in s. 743.6(1) of the Criminal Code that you must serve 10 years of those sentences before being able to be released on full parole.
[35] Ancillary Orders are also required. There is an Order made under s. 109 of the Criminal Code banning you for your lifetime from possessing any firearm or ammunition or any other item referred to in that section. You are ordered to submit forthwith to the taking of a bodily sample for DNA analysis and data bank storage.
Mr. Justice Robert N. Beaudoin
Released: December 20, 2017
CITATION: R. v. Bush, 2017 ONSC 7627
COURT FILE NO.: 15-2310
DATE: 20171220
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
IAN BUSH
Defendant
REASONS FOR sentence
Beaudoin J.
Released: December 20, 2017