SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

GANESH PERSAUD

REASONS FOR SENTENCE

BEFORE THE HONOURABLE REGIONAL SENIOR JUSTICE M.K. FUERST

on June 28, 2018,

at NEWMARKET, Ontario

APPEARANCES:

N. Trbojevic Counsel for the Crown A. Richter, K. Grewal Counsel for Ganesh Persaud

THURSDAY, JUNE 28, 2018

REASONS FOR SENTENCE

Fuerst J. : (Orally)

Introduction

At the age of 70, Bodwatie Persaud should have been enjoying her senior years surrounded by loving children and grandchildren. Instead, she was brutally murdered by the husband from whom she had separated, Ganesh Persaud. Fueled by jealous suspicions that his wife was unfaithful to him, Mr. Persaud attacked and killed her at home, while other family members were at work.

Mr. Persaud pleaded guilty to second degree murder. Crown and defence counsel jointly submit that he should be sentenced to life imprisonment with no parole eligibility for 12 years.

I accept the joint submission, for the reasons that follow.

The Principles Governing the Parole Ineligibility Determination

Section 745 (c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years. Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years.

In exercising his or her discretion under section 745.4, the sentencing judge must have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any.

As Mr. Persaud pleaded guilty, there is no jury recommendation to be considered in this case.

As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by the sentencing judge's determination that, according to the criteria set out in section 745.4, the offender should wait a longer period before having his suitability for release assessed. The determination of the parole ineligibility period is "a very fact-sensitive process": R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 18. The sliding scale of parole ineligibility reflects the fact that "within second degree murder there is both a range of seriousness and varying degrees of moral culpability": Shropshire, at para. 31.

An increased parole ineligibility period does not require unusual circumstances: see Shropshire, at paras. 26 to 27.

In R. v. McKnight (1999), 44 O.R. (3d) 263, the Court of Appeal for Ontario held that in assessing the section 745.4 criteria and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives, as set out in section 718, are denunciation of unlawful conduct and the harm caused to victims or to the community, deterrence both general and specific, the separation of offenders from society where necessary, rehabilitation, reparation for harm done to victims or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community. The court, however, observed in McKnight that the statutory 10 year minimum ineligibility period limits the weight that can be accorded to the offender's prospects of rehabilitation.

Regardless 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.).

The Nature of the Offence and the Circumstances Surrounding Its Commission

Mr. and Mrs. Persaud separated a few years before July 2017, when she moved out of their Markham home. She did so because of her husband's longstanding verbal abuse of her, ranging from dissatisfaction over household matters to suspicion of her infidelity.

Mr. Persaud did not take the separation well. His suspicions about Mrs. Persaud's involvement with other men increased.

Although she remained firm in her decision to be separate from her husband, as a result of a family meeting, in early 2017 Mrs. Persaud agreed to move into a new house with her daughter Nandra, her two adult granddaughters, and Mr. Persaud. The hope was to find a place with a separate basement apartment. However, in March 2017 they moved into a house in Pickering which had a basement that was not blocked off from the upper floors. The family intended to eventually install a door to block Mr. Persaud from freely going to the rest of the house. In the meantime, he was told that he was never to attend the top level of the house where Mrs. Persaud, their daughter and granddaughters had their bedrooms. Mrs. Persaud was reluctant about the arrangement, but agreed to it.

After a couple of months, Mrs. Persaud expressed to at least one of her granddaughters fear about Mr. Persaud being in the house. She said that his preoccupation about her being unfaithful was worse than it ever had been. She tried to stay in her bedroom and leave it only after Mr. Persaud went to work.

Mr. Persaud's accusations of his wife's infidelity were viewed as untrue by family members, and caused them to doubt his mental health. The family took Mrs. Persaud's concerns seriously. The women routinely locked their bedroom doors. The family did their best to ensure that someone was always home with Mrs. Persaud. One of the couple's children often had Mrs. Persaud babysit her grandchildren in Markham.

On the morning of July 27, 2017, the Persaud's granddaughter Kathy pretended to leave for work, but returned to the house a few minutes later. She caught Mr. Persaud returning from the top floor. When challenged, he claimed that he needed to talk to Mrs. Persaud. Kathy warned him not to do this again. He left in his work van around 8:00 a.m. Kathy went to her grandmother's room and asked if she needed a drive somewhere. Mrs. Persaud had just awoken, and decided to stay home. Kathy made sure that her grandmother's bedroom door was locked, and left the house to go to work around 8:15 a.m.

Between 8:30 and 9:00 a.m., Mr. Persaud made a delivery to a bookstore on the campus of a community college that was a 15 to 18 minute drive from the home. He used the telephone there, purportedly to call his wife. Video surveillance showed that he arrived back at his house at 9:36 a.m. and entered it a minute later.

He did not exit the house until 10:25 a.m., when he emptied his van of his personal belongings, until 10:32 a.m. He placed his belongings in the front door hallway of the house.

Around 10:30 a.m. he told a dispatcher for the courier company where he worked that he could not do any more deliveries because he was stressed out at finding a man in bed with his wife.

Around 10:40 a.m. Mr. Persaud called his son Ranveer, and said that there was an emergency and to call him back. Ranveer tried to call his father back, but got no answer. He tried to call his mother, but got no answer. He learned that his sisters had tried unsuccessfully to reach their mother. He believed that Mrs. Persaud was at home as she was expecting a delivery of medication. He became concerned and so went to the house at approximately 1:00 p.m. He saw his father's work van in the driveway, which he thought was unusual as his father's work schedule usually kept him out of the house from morning until evening. The doors of the house were locked, the blinds were drawn, and no-one answered the door.

Ranveer called "911".

The first officer to arrive at 1:15 p.m. spoke with Ranveer, then went to the back of the house and knocked on the sliding glass door. It was partially opened by Mr. Persaud, who was not wearing a shirt. The officer asked why Mr. Persaud called his son saying there was an emergency. Mr. Persaud said that there had been a family problem. He confirmed that he was okay. The officer asked about Mrs. Persaud and whether she could come to the door. Mr. Persaud opened the door wider and invited the officer inside. The officer could see Mrs. Persaud's motionless body lying on the floor 10 feet from the door. There was a pool of blood four feet from her head. A blood trail led from the front door of the house down a hallway, and ended where she lay. She did not appear to be breathing.

Paramedics who arrived shortly after the officer performed CPR on Mrs. Persaud. She was pronounced dead at 1:41 p.m.

The police found notes written by Mr. Persaud and addressed to Ranveer, claiming that Mr. Persaud had "no choice" because he found a man at the house with Mrs. Persaud. The notes left information about Mr. Persaud's money, and that it could be used for the "funeral for both of us".

In Mr. Persaud's basement bedroom the police found a shirt, a cricket bat, and an orange handled knife, all of which were bloodstained. Mrs. Persaud's DNA was later identified in the staining. There were blood droplets in the hallway of the top level of the house. Blood spatter containing Mrs. Persaud's DNA was found in several areas of the home, including on stairwell walls between the three levels of the house, on the stairs to the main level, and by the front door area, suggesting that the door was open when Mrs. Persaud expirated blood onto it.

The lack of blood spatter on the items Mr. Persaud placed in the front hallway establishes that the murder of Mrs. Persaud occurred before 10:25 a.m.

While being photographed by forensic investigators, Mr. Persaud said that he had consumed a half bottle of toilet bowl cleaner. He was taken to hospital where he was treated for second degree burns to his throat.

On August 30, 2017, police interviewed Mr. Persaud. He said that he and his wife argued that morning over his jealous suspicions of her. He did not find a man with her that day. He struck her on the head with the cricket bat, at least twice, once to disarm her of the knife which she picked up in self-defence, and a second time by the front door of the house which he described as "fatal". He then dragged her body down the hall to his living area and recalled stabbing her twice.

On autopsy, the cause of Mrs. Persaud's death was determined to be blunt force head trauma and multiple stab wounds to the chest. The blunt force head injuries included two lacerations to the back of the scalp, multiple fractures to the top and base of the skull, multifocal subarachnoid hemorrhages, and multifocal cortical contusions. These injuries would have been fatal on their own, and death would have ensued in minutes. Of the 13 stab wounds to the chest, two wounds that went through the front and back of the heart would have been instantly fatal. Mr. Persaud's DNA was found in fingernail clippings taken from Mrs. Persaud.

The Victim Impact Information

The Victim Impact Statements recount that Mrs. Persaud was the mother of three children and a grandmother of four, as well as a sister and an aunt. She is described as the rock of the Persaud family. Her children and oldest grandchildren relate that her murder at the hands of their father and grandfather left them in shock and disbelief. The betrayal of their trust was shattering. They experienced and are still dealing with shame, a sense of vulnerability, and a lack of self-confidence that hinders their relationships with others.

The sudden and violent nature of Mrs. Persaud's death continues to be difficult for all family members to process. They feel immense pain and an emptiness that is hard for them to describe. The fact that she is gone is brought home every time they come into the house and do not hear her voice, every time they reach for the phone to call her, and on birthdays, holidays, and special occasions that would have been shared with her. She is missed every day.

The Character of the Offender

Mr. Persaud is approaching his 72nd birthday. He has no criminal record.

He came to Canada in 1985. His family followed later, once he was established here. He worked steadily, in property maintenance and with Canada Post. On his retirement at age 65, he went to work for a courier company and continued there until his arrest. He helped his children pay for their post-secondary education.

Mr. Persaud has a number of health problems, including coronary disease and diabetes. He suffered a suspected mild stroke, and later a suspected mild heart attack, while in custody.

Defence counsel was clear that Mr. Persaud is fit to stand trial and does not have available a defence of not criminally responsible on account of mental disorder. However, he has exhibited some depressive symptoms, and has some memory problems that may be age-related.

Mr. Persaud has been harassed and bullied by other inmates at the jail. He is somewhat isolated, in that he is not visited by family members or friends.

In court, Mr. Persaud apologized to his children and grandchildren for what he did.

The Positions of the Parties

Crown and defence counsel jointly submit that Mr. Persaud should be sentenced to life imprisonment with no eligibility for parole for 12 years. They agree that there should be a DNA order, a section 109 weapons prohibition order for life, and a section 743.21 non-communication order in respect of specific named persons.

Parole Ineligibility Parameters

In McKnight, the Court of Appeal for Ontario identified a range of parole ineligibility of 12 to 15 years for brutal second degree murders of an unarmed wife or girlfriend.

That parole ineligibility period has been extended to 17 years on occasion, where there are particularly aggravating considerations. For example, in R. v. Wristen (1999), 47 O.R. (3d) 66 (C.A.), the offender hid his wife's body and refused to disclose its whereabouts. The court upheld a parole ineligibility period of 17 years. Subsequently, the Court of Appeal referenced Wristen in R. v. Czibulka, 2011 ONCA 82 at para. 67, commenting that the range indicated in McKnight "is not cast in stone for all brutal spousal murders", and that the trial judge could not be faulted for taking Wristen to reflect the upper end of the range.

I acknowledge that the Supreme Court of Canada cautioned in R. v. Lacasse, 2015 SCC 64 that even where sentencing ranges are identified, they are guidelines and not hard and fast rules. They are not straightjackets to the exercise of a sentencing judge's discretion.

Analysis

All murders are brutal by definition, but this one was especially so. The 70 year old victim was struck in the head with a weapon, at least twice, so forcefully that her skull was fractured in multiple locations. She was then dragged down the hallway, and stabbed multiple times, including in the heart.

There are additional aggravating factors. Mr. Persaud's conduct in returning to the house at a time when he knew no family members other than the victim would be home indicates an element of planning on his part. Although he and the victim were separated, she had been his spouse for many years and was the mother of his children. The offence was a grave breach of trust, especially because he had been told by family members to stay away from Mrs. Persaud's room. Mr. Persaud's actions were driven by jealousy and anger. Mrs. Persaud did nothing to provoke the attack on her.

In mitigation, Mr. Persaud pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his actions. He attempted to take his own life after the murder. He has no previous criminal record. It appears that he was a hard-working man, who supported his family financially.

Mr. Persaud now is in his senior years. Given his age and his health issues, imprisonment will be more difficult for him than for a younger, healthier man. His incarceration to date has involved a measure of hardship above and beyond the conditions of his confinement, in that he is isolated from outside contact and is easy prey for sophisticated, self-interested inmates. That likely will continue to be the case in the penitentiary.

Conclusion

It is unfortunate that in 2018, judges must continue to send the message that acts of violence by one domestic partner against another have no place in our society.

An increased period of parole ineligibility is warranted in this case, having regard to the criteria set out in section 745.4, the domestic context of the murder, and the objectives of denunciation, general and specific deterrence, and the need to separate Mr. Persaud from society. I agree, however, that in light of Mr. Persaud's age and personal circumstances, along with his relatively early guilty plea, a parole ineligibility period at the low end of the McKnight range is appropriate.

Mr. Persaud, please stand. I sentence you to life imprisonment with no eligibility for parole for 12 years.

The sentence began to run on July 27th, 2017.

I make a DNA order, a section 109 weapons prohibition order for life, and a section 743.21 non-communication order in respect of the persons specifically named except with their revocable written consent provided to the institution, or through counsel for the purposes of disposition of property and finances. I impose the victim surcharge of $200 with five years to pay.

I recommend that the correctional authorities consider you for placement in an institution that can address your health and age-related issues.

You may be seated.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Tracey Beatty, certify that this document is a true and accurate transcript of the recording of R. v. Ganesh Persaud in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on June 28, 2018 taken from Recording No. 4911_401_20180628_093014_Y_5_FUERSTM.dcr which has been certified by K. Draganac in Form 1.

Tracey Beatty, ACT ID#7742785329

August 2, 2018

Transcript Ordered: July, 2018 Transcript Completed: August 2, 2018 Ordering Party Notified: August 2, 2018