Court File and Parties

COURT FILE NO.: CR-17-0024-00 DATE: 2018-08-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN A. Sadler, for the Crown

- and -

BENJAMIN RONALD MARKI C. Marrello, for Benjamin Ronald Marki

HEARD: July 17, 2018, at Thunder Bay, Ontario

Mr. Justice T. A. Platana

Reasons For Sentence

Overview

[1] Benjamin Marki has been found guilty by a jury of two counts of second degree murder contrary to s. 235(1) of the Criminal Code, one count of intentionally or recklessly causing damage by fire to a residence contrary to s. 433(a), and one count of improperly interfering with human remains contrary to s. 182(b).

[2] The convictions result from an incident on December 27, 2015, when firefighters attended at a residence in Thunder Bay. Two bodies were discovered in the fire, Wilfred Potts and Anne Chuchmuch. It was ultimately found that Mr. Potts received multiple stab wounds to the head and neck and to the inner left thigh. Ms. Chuchmuch received 12 lethal wounds to the neck, chest, back and abdomen, and 17 wounds to the head and neck. The evidence established that both victims’ deaths occurred prior to the fire. In the case of Ms. Chuchmuch, the evidence showed that a pair of blue jeans with an indication of gasoline had been placed on the top of the body.

[3] Evidence of the witness from the Office of the Fire Marshall was that the fire was deliberately set.

Principles Governing Parole Ineligibility

[4] Mr. Marki faces a mandatory sentence of life imprisonment on the convictions for second degree murder. The issue on this sentencing is the period that he must serve for the murders before he is eligible for parole.

[5] The principles governing the determination of parole ineligibility were succinctly set out by Fuerst J. in R. v. Arashvand, 2012 ONSC 5852, [2012] O.J. No. 5255 at paras. 5-10:

[5] 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.

[6] 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.

[7] 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”: see R. v. Shropshire, [1995] 4 S.C.R. 227, at paragraph 18.

[8] An increased parole ineligibility period does not require unusual circumstances: see Shropshire, at paragraphs 26 to 27.

[9] In R. v. McKnight, (1999), 135 C.C.C. (3d) 41 (Ont.C.A.), the majority 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, deterrence both general and specific, the separation of offenders from society where necessary, rehabilitation, reparation for harm done to the victim or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and to the community. However, the majority in McKnight observed that the statutory 10 year minimum ineligibility period limits the weight that can be accorded to the offender's prospects of rehabilitation.

[10] 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 (Ont.C.A.).

[6] Section 745.51(1) of the Criminal Code provides:

At the time of the sentencing under section 745 of an offender who is convicted of murder and who has already been convicted of one or more other murders, 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 the recommendation, if any, made pursuant to section 745.21, by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.

Character of the Offender

[7] A Pre-Sentence Report (Exhibit S-5) and a Gladue update letter (Exhibit S-6) were filed as exhibits on sentencing. The Pre-Sentence Report details that there was nothing normal or stable regarding Mr. Marki’s upbringing. His father was a member of Hell’s Angels, and his mother was also heavily involved. Mr. Marki reports a highly abusive early life where the family moved around frequently. His parents separated when he was six years old, and he then lived with his mother. She continued substance abuse. Mr. Marki reports being victimized by abuse, both from his mother and several of her boyfriends. He frequently moved with his mother in order to accommodate her boyfriends. He was frequently in group homes and foster care.

[8] He acknowledged a criminal record, which is part of the Report. His record began when he was approximately 15 years of age. At age 17, he was deeply involved in abusing alcohol and drugs. He frequently came into contact with the law, spending time in custody for a variety of property offences.

[9] Around age 22, Mr. Marki lived in Southern Ontario near his father. He lived mainly in the Toronto area between 2004 and 2010.

[10] He met the victim, Wilfred Potts, while in custody. He moved to Thunder Bay in an attempt to “establish a fresh start.” He lived with the victims for almost three years until this incident. He stated he enjoyed spending time with them, including volunteering with them at a shelter.

[11] His grandmother on his father’s side was said to be of Ojibway background, however, he was not involved in traditional Aboriginal upbringing and he was not aware of his Indigenous background until he was 22 years of age. He has limited knowledge of his grandmother’s background. He states he has participated in some aspects of Indigenous spirituality and culture while in custody but rarely does so when not in custody.

[12] He experienced some difficulties in school due to issues with attendance and was at times suspended from school. He completed his high school credits while serving custody in juvenile facilities, treatment facilities, and finally while serving a federal sentence.

[13] He has worked at various places, and states he often did “under the table” renovation work. He acknowledges selling drugs after he located to Thunder Bay.

[14] He was exposed to drug and alcohol abuse from an early age, under the influence of his parents and their friends. He began experimenting with alcohol around age 9 and with marijuana and other drugs around 13. Beginning around age 20, he began the use of cocaine and became addicted to heroin, which resulted in periods of custody for some 6 years. He has participated in rehabilitative programs, both while in, and out, of custody.

[15] The Pre-Sentence Report describes that he has spent much of his adult life in custody and expresses anti-social and pro-criminal attitudes and values. He does not express any remorse. Tests show him to be of average intelligence with no signs of any major mental illness. While in federal custody, a risk/needs assessment classified him as moderate to high risk of reoffending. The report noted him as comfortable with a criminal lifestyle and possessing criminal values.

[16] The Report indicates a negative response to community supervision. In a closing summary of a 2008 Probation Report, he was classified as “high to very high needs”, and concerns include violence involved in earlier offences of assault and robbery.

[17] He is the father of two children. He has no contact with one of the children and that child’s mother, but does maintain contact with a son who is in the custody of that son’s mother. His youth record includes assault with a weapon and obstructing a police officer. Two periods of open custody followed by probation are part of his youth record.

[18] His adult criminal record, which began in 1993 in British Columbia, shows numerous convictions and periods of incarceration for offences related to property. In 2004, the record shows convictions in Toronto for charges related to drugs, five charges of robbery, weapons, and ends in July 2012 when he was recommitted as a statutory release violator after having been granted statutory release in December 2011.

[19] In addition to the Pre-Sentence Report, an update letter to a Gladue Report prepared in February 2007 is part of the sentencing materials. It indicates that Mr. Marki’s Anishnawbe ancestry is limited in detail and is based on family narrative relating back to his grandmother. His Indigenous ancestry cannot be confirmed. Some family members deny that an Indigenous connection exists.

[20] The updated Report describes in detail his relationship with the victims. They took him into their home while he tried to straighten out his life. He at times referred to them as his parents by referring to them as “mom” or “pop”.

[21] The updated Report indicates that after his initial Gladue Report from 2007 in Toronto, he experienced difficulties in benefitting from Gladue aftercare supports that were available, particularly to deal with his addictions.

[22] He is noted as being receptive to using Anishnawbe teachings, worldviews and ways of life to address the issues that brought him to this point in his life. The Report focuses on the development of a healing plan to help prepare him and introduce him to individuals and experiences who may help him on his cultural journey. It recommends that a strength-based approach be considered. Many of the recommendations in the Report and update with respect to supervision must be considered in the context of the life sentence.

[23] He estimates that he has spent about 7 of his 42 years in total in jail.

Nature of the Offence and Circumstances of the Offence

[24] As noted earlier in these reasons, the murders can only be described as brutal. Mr. Potts received multiple stab wounds to the head, neck, and inner left thigh. He also received numerous blunt force injuries. Ms. Chuchmuch received 12 lethal wounds to the neck, chest, abdomen and back. She had at least 40 stab wounds. The evidence shows some of the wounds were defensive, indicating she was alive for some of the wounds.

[25] Fire was deliberately set to the residence and to the body of Ms. Chuchmuch.

Impact on the Victims/Community

[26] The Crown filed Victim Impact Statements on behalf of family members of both Wilfred Potts and Anne Chuchmuch. I do not propose to attempt to describe the devastating effect the deaths have had on the victims’ families, particularly in light of the circumstances of the deaths. In not doing so, I do not in any way intend to minimize the impact of having lost loved members of their families. The Victim Impact Statements reveal a devastating loss to members of the family and a significant loss to the community as both victims were involved in volunteer activities.

Recommendation of the Jury

[27] As noted by the Crown in its submissions, the recommendation of the jury was divided: 8 jurors made no recommendation; 1 recommended 10 years; 1 recommended 12 years; and 2 jurors recommended 25 years.

Position of the Crown

[28] Mr. Sadler, on behalf of the Crown, points to Mr. Marki’s extensive criminal record filed in the Pre-Sentence Report, which includes convictions for 10 violent crimes; 3 weapons charges, including 2 counts of carrying a concealed weapon; 4 drug charges; and 5 convictions for robbery.

[29] He notes the Pre-Sentence Report which characterizes Mr. Marki as having “anti-social orientation” and having no remorse for any of his crimes. Mr. Marki has denied any involvement and, therefore, shows no remorse for his current convictions.

[30] The Crown acknowledges Mr. Marki’s Indigenous background, but notes that Mr. Marki only became aware of that when he learned of it at age 22. The Crown queries whether Mr. Marki’s difficult upbringing is because of Indigenous factors or his parental background. Mr. Sadler remarks that Mr. Marki’s background is difficult, but not one which has been specifically affected by his Indigenous heritage.

[31] Mr. Sadler asks me to consider the nature of the offence and the significant number of stab wounds to both victims before the fire was set. Further, he suggests that the fire was set to cover-up the murders.

[32] He points me to the Victim Impact Statements for the effect these crimes have had on family and friends and on community organizations where the deceased volunteered.

[33] Mr. Sadler notes the recommendations of the jurors, but asks me to consider that, although two-thirds of the jurors made no recommendation, they had no information as to Mr. Marki’s background, now known. He submits that, if I determine the sentence for the murders be considered as consecutive, the period of ineligibility be fixed at 30 years; if concurrent, the sentence be at the upper end of the 25 year period. He seeks concurrent sentences of time served, equivalent to 45 months, for the arson and the indignity to human remains charges.

Position of the Defence

[34] Ms. Marrello, on behalf of Mr. Marki, starts by noting s. 745.4. She then relies on R. v. Dahr, 2012 ONCA 433, [2012] O.J. No. 2815, R. v. Boukhalfa, 2013 ONSC 1255, [2013] O.J. No. 2386, and R. v. Brown, 2017 ONSC 1441, [2017] O.J. No. 1257, which involved convictions after multiple stabbings. Based on these cases, she submits that the period of ineligibility should be 15 years, concurrent on each murder.

[35] She notes Mr. Marki’s background history taken from the Pre-Sentence Report and the Gladue Report. She submits that the Crown has downplayed Mr. Marki’s Indigenous heritage. She submits that once I accept his heritage, I must consider the Gladue factors. She argues that, as stated in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 85, “There is no discretion as to whether to consider the unique situation of the Aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence.” Ms. Marrello notes that Mr. Marki has participated in Indigenous practices and customs while in jail previously.

[36] Counsel comments on his criminal record by relating it to his family background, where he had no support system. His father and mother were involved with Hell’s Angels, and people around him were all associated with illegal drug use or other criminal activity. Ms. Marrello submits that Mr. Marki was never provided with the tools of life necessary for success.

[37] Ms. Marrello notes that the evidence showed that Mr. Marki had consumed alcohol the day of the offence and that he was co-operative with the police on arrest.

[38] She asks me to put minimal weight on the jurors’ recommendations.

[39] She cites R. v. Baumgartner, 2013 ABQB 761, [2013] A.J. No. 1497, where the court dealt with the issue of consecutive/concurrent sentences. At para. 58, the court states that concurrent sentences should be imposed where there is one continuous criminal act or a single criminal enterprise. The test involves a fact-specific inquiry. The process of getting to the conclusion involves the totality principle.

[40] She cites R. v. Koopmans, 2015 BCSC 2120, [2015] B.C.J. No. 2484 to submit that, while consecutive sentences reflect the importance of the individual acts, increased time for concurrent sentences reflect the same importance. She argues that concurrent sentences can meet the sentencing objectives of denunciation and deterrence. She refers to R. v. Sharpe, 2017 MBQB 6, [2017] M.J. No. 22, at para. 21, where Keyser J. stated:

Considering all of the factors involved in a s. 745.4 assessment, I conclude that consecutive periods of parole are not necessary. However, the reality that two people were killed and the brutal nature in which the murders were committed call for a raised period of parole ineligibility even though not consecutive.

[41] In summary, Ms. Marrello submits that I impose a sentence of 15 years concurrent on the murders. She submits that an appropriate sentence for the arson is three to five years, and for the indignity to human remains three years, both counts to be considered as time spent.

Factors in Section 745.4

[42] Section 745.4 of the Criminal Code enumerates the factors to be considered in deciding whether it would be appropriate to raise the minimum period from that of ten years. These factors include:

(a) the character of the offender; (b) the nature of the offence; (c) the circumstances surrounding its commission; and (d) the recommendation, if any, made pursuant to s. 745.2.

[43] Section 745.2 provides the opportunity for members of a jury who have found an accused guilty of second degree murder to make recommendations on parole ineligibility should they so desire.

[44] The Supreme Court of Canada decision in R. v. Shropshire, [1995] 4 S.C.R. 227 makes it clear that even where one murder is concerned, an extension of the period of parole ineligibility is not confined to cases involving unusual circumstances. As was said in that case:

26 I also find it necessary to deal with Lambert J.A.’s conclusion that a period of parole ineligibility in excess of 10 years will not be justified unless there are “unusual circumstances”. ... In my opinion, this is too high a standard and makes it overly difficult for trial judges to exercise the discretionary power to set extended periods of parole ineligibility. ...

31 If the objective of s. 744 [now s. 745.4] is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the “judge deems fit in the circumstances”, the content of this “fitness” being informed by the criteria listed in s. 744 [now s. 745.4]. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.

Discussion

[45] Notwithstanding the mandatory sentence imposed, all general principles of sentencing set out in s. 718 must be taken into account when considering the period of parole eligibility. I have considered the principles of separating offenders from society and acknowledgment of, and reparation for harm done to the victims, and the community. In this case, the factors of denunciation and deterrence are paramount. While rehabilitation is always a hoped-for factor, in view of Mr. Marki’s extensive and long-standing difficulties with rehabilitation, I place little emphasis on that principle. At 42 years of age, he will be in his advanced days when released.

[46] Mr. Marki was 40 years of age at the time of the offence. Currently nearly 43. He is of Indigenous heritage and must be sentenced considering s. 718 of the Criminal Code and the factors in R. v. Gladue, [1999] 1 S.C.R. 688.

[47] There are few, if any, mitigating factors in this sentencing.

[48] The aggravating factors are significant. The brutality of the facts, committed in the residence of the victims, and the apparent attempt to cover-up the murder must be considered as aggravating, as should the nature of the relationship.

[49] Mr. Marki is clearly no stranger to the criminal justice system. His criminal record, which includes crimes of violence, cannot be ignored.

[50] In R. v. Dahr, 2012 ONCA 433, [2012] O.J. No. 2815, the Court of Appeal upheld the parole ineligibility of 15 years ordered by the sentencing judge. The Court accepted that the murder of the accused’s father was brutal with the victim having been stabbed at least 50 times. One of the factors relied on by the sentencing judge was that the accused showed no insight into his conduct and showed no remorse.

[51] In R. v. Boukhalfa, 2013 ONSC 1255, [2013] O.J. No. 2386, the judge relied on the range suggested by the Court of Appeal in R. v. Czibulka, [2013] ONCA 82, O.J. No. 372, of 12 to 17 years for a second degree murder of a spouse and commented that “there is no principled reason to distinguish between a spouse and a parent in sentencing” (Boukhalfa, at para. 24). Forestell J. also considered the brutality of the murder in sentencing parole ineligibility at 15 years. I am very much aware that the victims in this case were not “parents,” however, I note that the evidence established that Mr. Marki often called them “mom” and “pop,” which gives some indication as to the nature of the relationship between them.

Consecutive/Concurrent Sentences

[52] I have considered whether the sentences for the murders should be consecutive or concurrent. In R. v. Sharpe, 2017 MBQB 6, [2017] M.J. No. 22, Keyser J. noted that, while s. 745.51(1) applies in situations where murders are committed concurrent to each other, most of the cases where consecutive sentences have been ordered involve a joint submission or an accused having been initially charged with at least one count of first degree murder. In imposing concurrent sentences of 22 years, she considered the brutal nature of the offence.

[53] In R. v. Bains, 2015 BCSC 2145, [2015] B.C.J. No. 2515, the court accepted a joint submission, and the court established the minimum period of parole ineligibility at 18 years for two counts of second degree murder, where the accused had no criminal background and pleaded guilty.

[54] In R. v. Arashvand, 2012 ONSC 5852, [2012] O.J. No. 5255, Fuerst J. considered the factor of excessive and brutal violence. There was also a desecration of the victim’s body. The offender was a young man. Support from his family and his previous criminal record was minimal. A guilty plea had been entered. The jury recommendation was divided. The judge noted that “jury recommendations are just that, and need not be slavishly followed.” Parole eligibility was set at 15 years.

[55] I have considered the character of Mr. Marki, the nature of the offence, the circumstances surrounding its commission, and the recommendation of the jury. I have reviewed and considered the case law provided by Crown and defence counsel in their respective books of authorities. The aggravating features to which I have referred reflect the seriousness of Mr. Marki’s offence and a high degree of responsibility and moral culpability. A significant increase in the parole ineligibility period is warranted.

[56] In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the court noted that a judge must consider the unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the court. A judge must also consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular indigenous heritage or connection. The sentencing of an Indigenous offender is case-specific.

[57] I have considered that Mr. Marki should be sentenced in accordance with s. 718.2(e) and the application of the factors established in R. v. Gladue, [1999] 1 S.C.R. 688. In considering these factors, I accept the submission of the Crown that, although Mr. Marki is acknowledged to be of Indigenous descent as best as can be determined, the Report filed does not establish that this is a significant factor in his particular background. Although he clearly had a troubled and difficult upbringing having been raised by parents with a Hells Angels involvement, there is no indication in the Report that his Indigenous background played any part in bringing him before the court.

[58] I reference R. v. Weese, 2016 ONCA 499, [2016] O.J. No. 3819 where the Court of Appeal stated at paras. 26 and 27:

[26] The Gladue principles do not apply in a mechanical fashion, nor do they require reductions in sentences for offences committed by aboriginal persons. On the contrary, as the Court noted in Gladue at para. 79, “Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non‑aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.”

[27] This was a very violent and serious crime and the trial judge was required to consider a number of factors, including the appellant’s circumstances as an aboriginal offender, in crafting the appropriate sentence.

[59] The maximum penalty under s. 433(a) for arson is imprisonment for life. Under s. 182(b), the maximum penalty for indignity to human remains is a term of imprisonment not exceeding five years.

[60] The Crown has relied on the decisions in R. v. Houle, 2013 ABQB 70, 549 A.R. 281, where the sentencing judge referenced a number of cases in sentencing for indignity to human remains. In this case, the jury has found there was an indignity after the victim had been murdered.

[61] The Crown has submitted that an appropriate sentence for the arson and the indignity would be 4 years and that, after taking into account the time served equivalent to 45 months, the sentence on these charges should be time served. Considering the fact that there is a mandatory life sentence on the murder convictions, any sentence that I would have imposed in relation to these two charges would have been concurrent. Mr. Marki has been in custody for the equivalent of a 45 month sentence. In that regard, the sentences for intentionally causing fire should be time served and for the indignity to human remains, time served concurrently to the arson. The charge of arson is a secondary offence for purposes of a DNA sample. I order a sample to be given pursuant to s. 487.04.

[62] On the two counts of murder, taking all of the factors as previously articulated into consideration, I am of the view that an appropriate disposition would be life imprisonment with no chance of parole for 20 years on each count to be served concurrent to each other. This means that Mr. Marki will serve a significant period of time in custody before parole authorities will have to decide if he merits some form of release into the community. It is important to remember that the sentence is one of life imprisonment.

[63] The counts of murder require a mandatory DNA order. I order you to provide bodily fluid samples for DNA analysis pursuant to s. 487.051 of the Criminal Code. There will also be a weapons prohibition order under s. 109(2)(a) and (b) for life.

[64] The warrant of committal will be endorsed to reflect that Mr. Marki’s life sentence began to run on the date of his arrest, January 15, 2016.

“original signed by”

The Hon. Mr. Justice T. A. Platana

Released: August 29, 2018 /sab