Court File and Parties

Court File No.: CR-16-50000176-0000 Date: 2018-12-18 Ontario Superior Court of Justice

Between: Her Majesty the Queen - and - Dellen Millard

Counsel: J. Cameron and K. Lockhart, for the Crown R. Pillay, for Dellen Millard

Heard: November 16, 2018

Before: M. Forestell J.

Reasons for Sentence

Background

[1] On September 24, 2018 I found Dellen Millard guilty of the first degree murder of his father, Wayne Millard. Wayne Millard was killed by Dellen Millard on November 29, 2012. Because the death of Wayne Millard was initially believed to be a suicide, Dellen Millard was not arrested and charged with this murder until April 10, 2014. Before his arrest for Wayne Millard’s murder, Dellen Millard was arrested and charged with the murder of Tim Bosma which was committed on May 6, 2013 and the murder of Laura Babcock which was committed on July 3rd to 4th, 2012. By the time of his conviction for the murder of his father, Dellen Millard had been convicted of the first degree murder of Mr. Bosma and the first degree murder of Ms. Babcock.

[2] In June of 2016, Mr. Millard received a life sentence and a 25-year period of parole ineligibility for the murder of Mr. Bosma. On February 26, 2018, Code J. sentenced Mr. Millard to life imprisonment with a 25-year period of parole ineligibility for the murder of Laura Babcock. Code J. ordered that the period of parole ineligibility for the first degree murder of Ms. Babcock be served consecutively to the 25-year period of parole ineligibility previously imposed on Mr. Millard for the murder of Mr. Bosma. Dellen Millard is therefore currently subject to two life sentences and a global period of parole ineligibility of 50 years. Pursuant to his current sentence, he will be eligible to apply for parole when he is 77 years-old.

[3] The sentence that I must impose on Dellen Millard for the first degree murder of his father is a mandatory sentence of life imprisonment with a period of parole ineligibility of 25 years. The only issue on this sentencing hearing is whether the 25-year period of parole ineligibility should be concurrent or consecutive to the 50-year period of parole ineligibility currently being served by Mr. Millard.

Legal Principles

[4] Section 745.51(1) of the Criminal Code, R.S.C., 1985, c. C-46 provides that:

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 …may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission,… by order, decide that the periods without eligibility for parole for each murder conviction are to be served consecutively.

[5] It is not open to a sentencing judge under section 745.51(1) to impose a mix of concurrent and consecutive parole ineligibility for a single murder. The full 25 years of ineligibility must therefore be either consecutive or concurrent. R. v. Millard, 2018 ONSC 1299.

[6] Section 745.51(1) is a discretionary provision. In deciding whether to exercise my discretion to impose a consecutive period of parole ineligibility, the section requires that I must consider the character of Dellen Millard, the nature of the offence and the circumstances surrounding its commission. The Crown bears the burden of showing on a balance of probabilities that a consecutive period of parole ineligibility is just and appropriate.

[7] Because section 745.51 is part of sentencing, the determination of whether the period of parole ineligibility should be consecutive is governed by the usual principles of sentencing.

[8] The usual test applied by a court to determine when a consecutive sentence is appropriate is a two-step test. At the first step I must assess whether or not there was a factual relationship or nexus between the offences. Absent such a nexus, a consecutive sentence will be appropriate unless, at the second step, I determine that a consecutive sentence results in a cumulative sentence that is excessive. The second step entails a consideration of the “totality principle” which is codified in s. 718(2)(c) of the Criminal Code. That section provides that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. R. v. Millard, 2018 ONSC 1299, at para. 30.

[9] In the case before me, it is conceded that there is no factual relationship or nexus between the murder of Wayne Millard and the murders of Ms. Babcock and Mr. Bosma. The offences are clearly separate and distinct. There is no relationship in time or circumstance.

[10] The issue, in this case, is the second step of the two-step test: the application of the totality principle and the determination of whether or not the combined sentence would be unduly long or harsh.

[11] In R. v. M. (C.A.), [1996] 1 S.C.R. 500, Chief Justice Lamer explained the rationale underlying the totality principle and its relationship to proportionality:

In the context of consecutive sentences, th[e] general principle of proportionality expresses itself through the more particular form of the ‘totality principle’. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

[12] In R. v. Johnson, 2012 ONCA 339, the Court of Appeal for Ontario summarized the totality principle as follows:

18 In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: see R. v. C. (J.A.) (1995), 26 O.R. (3d) 462 (Ont. C.A.). This point was reinforced by Lamer C.J. in M. (C.A.), at para. 74.

[13] At paragraph 23 of the Johnson decision, the Court of Appeal went on to observe:

The system must be seen to be fair and rational — both to the offender and the community — and its integrity must be preserved. Just as a sentence cannot be unduly harsh and excessive, neither can it be overly lenient or unresponsive to other purposes and principles that underpin the sentencing regime — denunciation, deterrence, the promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and the community, and the protection of the public: Criminal Code, s. 718. In this sense, an offender such as the appellant ought not to be seen to be reaping benefits from his previous serious criminal misconduct.

[14] The totality principle requires that for a consecutive sentence to be just and appropriate it must be reflective of the relevant sentencing purposes and principles, both in relation to the offence for which it is imposed and in the aggregate. If those purposes and principles require the imposition of a consecutive sentence, while the sentence may be long and harsh, it will not be unduly long and harsh.

[15] The paramount sentencing principles in this case are denunciation and retribution.

[16] In R. v. M. (C.A.), the Supreme Court of Canada explained that retribution is an accepted and important principle of sentencing. The Court, at page 367, para. 79 wrote: “Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender.” While vengeance has no place in sentencing, retribution is not the same as vengeance. As the Court went on to explain at para. 80, “unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothing more .” [Emphasis original] Retribution was described as representing “an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct”. [Emphasis original]

[17] The Court, in R. v. M. (C.A.), at para. 81, also distinguished retribution from denunciation, saying,

Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender . The objective of denunciation mandates that the sentence should also communicate society’s condemnation of that particular offender’s conduct . In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law…. The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost an offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. ... [Emphasis original]

[18] The Supreme Court of Canada in R. v. Latimer, 2001 SCC 1 at paragraph 86 described the importance of the objective of denunciation in cases involving planning and premeditation, saying:

Furthermore, denunciation becomes much more important in the consideration of sentencing in cases where there is a ‘high degree of planning and premeditation, and where the offence and its consequences are highly publicized, [so that] like-minded individuals may well be deterred by severe sentences’: R. v. Mulvahill (1993), 21 B.C.A.C. 296 (B.C. C.A.), at p. 300. This is particularly so where the victim is a vulnerable person with respect to age, disability, or other similar factors.

[19] Although the principles of denunciation and retribution are paramount in this case, general and specific deterrence and rehabilitation must also be considered in arriving at a just and appropriate sentence.

[20] In R. v. Shropshire (1995), 102 C.C.C. (3d) 193 at para 21, the Supreme Court of Canada stated that lengthened periods of parole ineligibility could be expected to deter some people.

[21] In Johnson, and more recently in the case of R. v. Colasimone, 2018 ONCA 256, the Court of Appeal for Ontario has held that the potential for rehabilitation should not be disregarded completely even where the potential for rehabilitation is dim and the concepts of denunciation and deterrence are paramount.

[22] In R. v. Baumgartner, 2013 ABQB 761, [2013] A.J. No. 1497 (Q.B.), Rooke A.C.J. observed that a period of parole ineligibility that allows some hope of release may ‘paradoxically’ serve as a specific deterrent to the offender, deterring him from committing offences in prison. The Fauteux Report observed that “there is social utility in a prisoner having the potential of one day facing the possibility of parole. This is an incentive for good behaviour and rehabilitation”.

[23] Although hope of parole would be removed by a parole ineligibility period that exceeds the life expectancy of the offender, all hope of release is not removed by such a sentence. As Campbell J. observed in upholding the constitutionality of s.745.51 in the case of R. v. Granados-Arana, 2017 ONSC 6785, “…assuming — without deciding — that an offender who is convicted of multiple murder offences and is subject to an order of consecutive periods of parole ineligibility under s. 745.51 of the Code, must be able to retain, as a matter of constitutional law under ss. 12 and/or s. 7 of the Charter, some hope of potential eventual release from custody, I conclude that the royal prerogative of mercy provides that element of hope…”

Application of the Principles

[24] In applying the sentencing purposes and principles to the issue before me, the starting point is the consideration of the factors set out in section 745.51(1): the character of the offender, the nature of the offence and the circumstances surrounding its commission.

[25] The circumstances of the offence are set out in detail in my reasons for judgment. R. v. Millard, 2018 ONSC 5602. Dellen Millard shot his sleeping father through the eye. Before killing his father, Dellen Millard took steps to set up a false alibi by leaving his car, a phone and his credit card at the home of his friend, Mr. Smich. He arranged for Mr. Smich to use the card to order pizza to be delivered to Mr. Smich’s home in Oakville. There was a high degree of planning and premeditation in the circumstances surrounding the offence.

[26] In addition to the circumstances of the offence set out in my reasons for judgment, I have considered the Victim Impact Statement of Janet Campbell. Ms. Campbell was romantically involved with Wayne Millard when they were young and again just prior to his death. She has been profoundly affected by the violent death of Wayne Millard.

[27] Counsel for Mr. Millard argued that the circumstances of the two other murders should not be considered in making the determination under s. 745.51(1) in light of the wording of the section which specifies that the circumstances of the offence be considered and because a consideration of the circumstances of the other murders would effectively punish Mr. Millard twice for the same conduct. I have concluded that the circumstances, to the extent that those circumstances are the subject of judicial findings, are properly considered in my consideration of Mr. Millard’s character.

[28] In considering the character of Dellen Millard, I have considered that Mr. Millard committed three planned and deliberate murders in a period of less than one year. Two of the victims, Laura Babcock and Wayne Millard, were vulnerable victims. Ms. Babcock had a previous close relationship with Dellen Millard and trusted him. Dellen Millard exploited that trust and vulnerability. Wayne Millard was a loving and supportive parent to Dellen Millard. He trusted his son. Dellen Millard was living with Wayne Millard at the time of the murder. In addition, Wayne Millard was physically weakened and vulnerable as a result of a debilitating back problem from which he was recovering at the time of the murder.

[29] I do not have the benefit of findings of fact in relation to the murder of Mr. Bosma and have considered only that the murder of Mr. Bosma was a planned and deliberate murder of a stranger.

[30] I have considered Dellen Millard’s antecedents as disclosed by the sentencing record and supplementary record filed on his behalf. He is now 33 years-old and was 27 years-old when he killed his father. The record discloses that Mr. Millard had a privileged upbringing by two loving and supportive parents. He completed high school and had the opportunity to pursue several different courses of post-secondary study. The record contains letters from individuals who knew Mr. Millard before and after he committed the three murders. These individuals found him to be considerate, respectful and courteous.

[31] Mr. Millard has been incarcerated for the past five years. He is apparently a model inmate. He has pursued courses while in custody. He has not incurred any institutional charges and has treated his fellow prisoners and the guards at the institution respectfully.

[32] I find that Dellen Millard is capable of gaining the trust of friends, relatives and strangers. Mr. Millard has, however, used his ability to gain such trust as a vehicle for repeated planned and deliberate killings.

[33] While I accept that rehabilitation cannot ever be completely disregarded, the hope of the rehabilitation of Dellen Millard, in light of his pattern of offending, is so faint that it plays little role in the determination of a fit sentence.

[34] I have considered the position that a more lenient sentence would operate as a specific deterrent for Mr. Millard as it would offer some incentive for good behaviour in custody. I accept that the removal of the hope of parole removes some incentive for good behaviour. It does not remove all incentive. The correctional system sanctions misconduct and rewards good conduct by the granting and withholding of privileges. In addition, the royal prerogative of mercy remains available to Mr. Millard even if parole is not available. Specific deterrence therefore plays a very minor role in the determination of a fit sentence.

[35] General deterrence also plays a very minor role in this case. A person considering committing serial murders who would not be deterred by a 50-year period of ineligibility for parole is unlikely to be deterred by 75 years’ ineligibility.

[36] The sentencing objectives that are paramount in this case are denunciation and retribution. Those purposes require the imposition of a consecutive period of parole ineligibility.

[37] A consecutive period of parole ineligibility is unduly long and harsh where its impact exceeds the gravity of the offence or exceeds the overall culpability of the offender or is not related to sentencing objectives. I have concluded that a consecutive term of parole ineligibility in this case does not exceed the gravity of the offence or the moral culpability of Mr. Millard.

[38] Dellen Millard has repeatedly committed the most serious offence known to our law. He has done so with considerable planning and premeditation. In the murder of his father, he took advantage of the vulnerability of his father and betrayed his father’s trust in him.

[39] A consecutive period of parole ineligibility is related to the sentencing objectives of denunciation and retribution. Such a sentence is required to reflect the heightened moral culpability of Mr. Millard. It is necessary to impose a further penalty in order to express society’s condemnation of each of the murders that he has committed and to acknowledge the harm done to each of his victims. It is not unduly long and harsh.

[40] I therefore sentence Dellen Millard to imprisonment for life with no eligibility for parole for 25 years and I make an order under s. 745.51 that the period of parole ineligibility be served consecutively to the periods of parole ineligibility previously imposed.

[41] There will also be the mandatory DNA order and weapons prohibition for life.

M. Forestell J. Released: December 18, 2018