Court File and Parties

COURT FILE NO.: CR18-029 DATE: 2018/12/20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN J. Booy, for the Crown

- and -

HAIDEN SUAREZ-NOA C. Gill for Mr. Suarez-Noa

HEARD: December 18, 2018

Reasons for Sentence

A. J. Goodman, J.:

[1] On March 10, 2013, Tania Cowell (“Tania”) was found deceased in her apartment in Stoney Creek. Earlier that day, Haiden Suarez-Noa, (“Haiden”) had turned himself into the police in Guelph and confessed to having killed Tania. However, he maintained that he never intended to murder Tania.

[2] At trial, the jury did not accept that Mr. Suarez-Noa did not intend to murder Tania or that he was subject to the legal excuse of provocation, as it is defined in the Criminal Code and related jurisprudence.

[3] Based on all of the evidence, Mr. Suarez-Noa was convicted by a jury of the second degree murder of Ms. Cowell. As a result, he is to be sentenced to life imprisonment. The only matter to be decided is the period that he must serve before he is eligible to apply for parole, which must be fixed at between 10 and 25 years.

[4] Ms. Booy on behalf of the Crown submits that the period of parole ineligibility be increased to 17 to 18 years based on the numerous, serious aggravating features in this case, the lack of mitigating elements, and after-the-fact conduct, amongst other considerations. In addition, the Crown requests a prohibition order pursuant to s. 109 of the Criminal Code, a non-contact provision and a DNA order.

[5] Mr. Gill, counsel for Mr. Suarez-Noa, argues that the parole ineligibility period be limited to the minimum 10 to 12 year range. The defence submits that the court ought not to increase the period of parole ineligibility based on the lack of aggravating features including, no cogent evidence of planning or deliberation, the spontaneous conduct giving rise to the stabbing along with the significant mitigating factors in this case. Counsel suggests that his client has demonstrated remorse by his plea to a lesser and included offence, his turning himself into the police and admitting the killing. It is submitted that this acceptance of responsibility and remorse, albeit raising a legal issue for the jury’s consideration at trial, are all substantial mitigating factors and accrues to his benefit. The court ought to consider Haiden’s rehabilitation prospects and eventual reintegration back into the community. There appears to be no dispute with regards to the ancillary orders.

The circumstances of the offence

[6] On March 8 into March 9, 2013, Tania and Haiden had protracted arguments via text messages. Tania repeatedly berated Haiden. Tania told Haiden she already gave him two chances to change and start helping her and that she was not going to give him a third chance. She told him the relationship was over, and to start looking for his own apartment. Haiden beseeched Tania to take him back and promised to change if she would give him one more chance. Initially, she refused. However, Tania had a change of heart and allowed Haiden to return to the Stoney Creek apartment.

[7] Haiden returned to Stoney Creek and within hours their arguing recommenced. However, this was the last straw for Haiden. He was enraged by the constant bickering, Tania’s ingratitude, being kicked out of the apartment and her potentially leaving with his son. Filled with frustration and rage, Haiden grabbed a knife from the kitchen and advanced on Tania. She screamed as she ran toward the bedroom. Haiden intentionally drove the knife into her back. Tania staggered and fell into a door in the hallway. Haiden continued to stab Tania as she fell and landed on her back. Haiden stabbed her over and over again. Tania had sustained 11 stab wounds to her neck, shoulder, chest area, one of which was to her back. Four of the stab wounds on their own would have been fatal.

[8] Within seconds or minutes, Tania lay lifeless in a pool of her blood on the hallway floor. Following the murder, Haiden dropped the knife, grabbed Tania’s legs and dragged her into the living room. He began wiping the blood off of her face, arm and chest, until realizing that effort was ineffective. Haiden snapped a picture of her lifeless body on his cell phone. He left the apartment with his infant son and drove to Guelph. 12 hours later, Haiden turned himself into the Guelph police and admitted stabbing Tania.

[9] The pathologist testified that Tania’s cause of death was due to stab wounds of the neck, chest and back resulting in exsanguination and haemothorax. Death would have ensued in a matter of seconds or minutes.

Victim Impact Statements

[10] Fifteen victim impact statements (“VIS”) were filed with the Court. Members of Ms. Cowell’s immediate and extended family and friends read their respective victim impact statements. A community VIS was read in by Nancy Smith, the Executive Director of Interval House of Hamilton and Chair of the Woman Abuse Working Group.

[11] The loss of Tania has greatly affected all members of the Cowell family. They will never be the same. I cannot do justice to the heartfelt, expressive, and deep emotions felt and expressed by the various individuals in their respective VIS by summarizing them here. While I will only be referring to segments of some of the VIS’s, all of them have been reviewed and considered.

[12] Tania’s sister in law, Julie Cowell describes her own experience from the loss of Tania as well as how the whole situation affected and affects Bailun as well as her own young children. She and her husband, Ivon are raising Bailun and despite these tragic events, he is so fortunate to have such a warm and caring family and grandparents to support him. The type of person that Tania was is so well described in the VIS presented by both Julie, Ivon, other family members, Jodie Manktelow, Chris Smyllie, TJ Schuurmans and others.

[13] I was particularly moved by Alyssa Cowell’s eloquent VIS, wherein as a result of this entire event she wonders if she will ever get to “normal” and still be able to be a kid. From her comments, it is evident that she grew up very quickly, having to fill a role of great responsibility in relation to Bailun. This is accompanied with feelings of loss and grief. She concludes that her childhood died with her aunt.

[14] Before I move on, and without taking anything away from the profoundly emotional and sincere comments referenced in the various VIS, I am unable to consider any of the statements therein with respect to what the various writers opine is the appropriate sentence or their suggestions about any maximum sentencing considerations or remarks related to retribution. Those statements go beyond the admissible nature and scope of VIS in criminal proceedings.

[15] However, I want the family and friends of Tania Cowell to know that I am aware of the utter devastation caused by her death. I have not failed to understand your pain and sorrow and I have not forgotten the tragedy of Tania’s death. Indeed, Bailun’s loss of his biological mother cannot be overstated. No one in this courtroom could help but not be moved by the heartfelt sense of bereavement and loss felt by the Cowells’ and extended family, friends and other interested persons, which has been vividly described throughout the sentencing hearing.

[16] Mr. Suarez-Noa has been convicted of murder and will be sentenced to a mandatory life sentence. That same sentence applies to every murderer and the courts do not differentiate between the killing of an innocent young woman, cherished by her family and friends, and the killing of any other human being. Nothing I do here will bring Tania back or expunge the grief felt by her family. However, I cannot exact vengeance. The focus at this stage of the proceedings is what sentence I am to impose based on fairness, balancing of the judicial principles, the case law and on the circumstances of this case and the offender.

The circumstances of the offender

[17] No pre-sentence report was prepared in this case. No evidence was adduced at the sentencing hearing on behalf of Mr. Suarez-Noa. Submissions by counsel were made on his behalf. I have also learned much about the offender during the course of the trial, through the evidence presented by the parties and from his own testimony.

[18] Mr. Suarez-Noa was born and raised in Cuba. He had some advanced education and is a very intelligent man. He speaks several languages.

[19] Mr. Suarez-Noa has been gainfully and fully employed while living in Cuba and Canada. Once Tania was pregnant, he financially supported Tania and his son. He appeared to have taken a great interest in his son’s upbringing.

[20] The offender has no prior criminal record and has no criminal antecedents. There are no prior reported incidents of domestic assaults or violence. His friend, Yoel Morales, described the offender as a caring individual who has been helpful to him in gaining employment.

[21] When addressing the Court, Mr. Suarez-Noa expressed regret for his actions, and the pain he has caused to all those who have been affected by Tania’s death. He says that “not a day goes by where he does not feel deep regret”. He is especially remorseful for the impact of his action on his son, Bailun. He also regrets the day when he will need to speak with Bailun about what had occurred. He still hopes and desires to be a part of his son’s life.

The governing principles

[22] Under s. 745(c) of the Criminal Code, 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.

[23] Section 745.4 empowers the sentencing judge to increase the general parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years. Section 745.4 requires that in exercising his or her discretion, the trial judge 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.

[24] In R. v. Shropshire, [1995] 4 S.C.R. 227, the Supreme Court of Canada articulated the standard to be applied in assessing the exercise of a trial judge's discretion under s. 744 [now s. 745.4] as follows:

... as a general rule, the period of parole ineligibility shall be for 10 years but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitable to be released into the general public assessed. To this end an extension of the period of parole ineligibility would not be unusual, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

[25] As well, the Supreme Court held that the power to extend the period of parole ineligibility need not be sparingly used and is not restricted to "unusual circumstances." The court recognized that "in permitting a sliding scale of parole ineligibility, Parliament intended to recognize that within the category of second degree murder there will be a broad range of seriousness reflecting varying degrees of moral culpability”: at pp. 242-243.

[26] One of the former leading authoritative appellate cases in Ontario addressing the period of parole ineligibility for second degree murder in a domestic context is that of R. v. McKnight (1999), 44 O.R. (3d) 263.

[27] In that case, the offender murdered his wife of 20 years by stabbing her to death in their bedroom with a serrated bread knife. The victim sustained numerous injuries and had over 50 defensive wounds. There were elements of planning and deliberation. The jury rejected a defence of not criminally responsible by reason of mental disorder and convicted on second degree murder.

[28] In McKnight, there were some mitigating circumstances that do not apply to Mr. Suarez-Noa. Mr. McKnight was deeply and genuinely remorseful about the murder. He was 53 years old and had been a solid contributing member of society. He was found to have a positive potential for rehabilitation. The Crown's expert conceded that but for Mr. McKnight’s serious depression, he likely would not have killed his wife. There was no post-offence conduct.

[29] The trial judge in McKnight fixed the period of parole ineligibility at 17 years. The Court of Appeal was concerned that with a 17 year ineligibility date, the offender would be 69 years old before he would be released. In reducing the period of parole ineligibility to 14 years, Laskin J.A. held:

Taking into account all of these aggravating and mitigating features, in my opinion, a 17-year period of parole ineligibility falls outside a reasonable range. No two cases are the same but similar cases from this province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.

[30] The decision in McKnight confirms that both denunciation and rehabilitation are relevant factors in fixing the period of parole ineligibility. Elements of planning and deliberation can be considered as an aggravating feature of second degree murder. See also R. v. Armstrong, [1995] O.J. No. 535 (C.A.) at para 21.

[31] The Court of Appeal in McKnight confirms that no two cases are the same and reiterated the oft-quoted principle that sentencing is an individualized process.

[32] In the more recent case of R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, at para. 67, the Court of Appeal considered McKnight and opined that the range of 12 to 15 years for second degree murder of a domestic partner is not cast in stone for all violent spousal or domestic murders. A part of the exercise to determine parole ineligibility requires consideration of the availability or lack of mitigating factors. The court went on to opine that the ceiling for the range of sentence of parole ineligibility has increased to 17 years. The Court of Appeal did not disturb the trial judge’s conclusion of a period of 15 years of parole ineligibility.

[33] Both counsel have referred to a number of authorities setting out parole ineligibility findings in cases of second degree murder involving domestic violence. While I do not intend to reference all of them, I tend to agree with the Crown attorney that some of the cases presented in support of the defence position on parole ineligibility are somewhat dated and may not reflect current social values and sentencing principles towards domestic violence murders. I have also considered a number of other reported cases.

[34] In R. v. Morrow, [1995] O.J. No. 4052, McLean J. imposed a period of parole ineligibility of 15 years on a conviction for second degree murder. The jury had recommended 20 years parole ineligibility. The accused murdered his common-law spouse by cutting her throat following an argument. The accused had a criminal record. The court found the commission of the murder in the presence of his two-and-a-half year old child to be particularly aggravating.

[35] In R. v. McLeod, (2003), 177 O.A.C. 385, [2003] O.J. No. 3923, the Court of Appeal increased the period of parole ineligibility from 10 years to 12 years following a conviction of second degree murder. The accused had stabbed his girlfriend four times in the neck, then cut up her body and deposited it in a suitcase by the highway. The court considered the callous treatment of the victim's body.

[36] In R. v. Kailayapillai, [2009] O.J. No. 1145, Fuerst J. imposed a period of parole ineligibility of 14 years. The court observed the accused to be in a position of trust to the victim and that she was killed in her own home. The wife's skull was fractured and she was hung up in the garage and was discovered by her children. The injuries were horrific. There were some elements of planning. The accused had no criminal record or prior history of domestic violence.

[37] In R. v. Moo, 2004 CarswellOnt 3432, aff’d. 2009 ONCA 645, the trial judge sentenced the offender to a period of parole ineligibility of 12 years. In that case, Moo beat his wife with a mortar. He called 911 immediately after the attack, and admitted to the dispatcher “I tried to kill my wife now.” There were prior domestic incidents or situations. The offender had no criminal record, was described as a young man and had gainful employment, similar to Mr. Suarez-Noa’s situation. The trial judge accepted the McKnight range of parole ineligibility. The Court of Appeal was not called upon to review the sentencing decision.

[38] In R. v. Bonder, 2005 CarswellOnt 7077, Wein J. sentenced the offender to the minimum parole ineligibility period of 10 years. The Crown attorney sought a period of 12 years. In this case there was a single stabbing of his wife while asleep. There was a long history of domestic dysfunction in the family. There had been marital affairs by both Mr. and Mrs. Bonder. There was one prior incident where the deceased had scratched the offender and was subjected to a peace bond. The offender had no criminal record and had been subject to depression and stress. The trial judge found that the offender demonstrated remorse. He had the full support of his children.

[39] In R. v. Teske, (2005), 202 O.A.C. 239, [2005] O.J. No 3759, the Court of Appeal reviewed the sentence imposed by the trial judge. The appellant was 41 years of age at the time of his conviction. He did not have a criminal record, but had received a conditional discharge for assaulting his wife. He killed his wife in their home, and the trial judge imposed a period of parole ineligibility of 16 years, emphasizing the accused’s elaborate efforts to cover up his crime as an aggravating factor.

[40] The Court of Appeal held that the record offered no reason to depart from the range described in McKnight. While the Crown did not contend that the appellant set out to kill his wife, the appellant's prior domestic assault and his after-the-fact conduct were significantly aggravating features. The appeal court reduced the parole ineligibility from 16 to 13 years premised on the dearth of supporting reasons to elevate the period beyond the range proffered in McKnight.

[41] In R. v. Wristen (1999), 47 O.R. (3d) 66, [1999] O.J. No. 4589, the Court of Appeal endorsed the trial judge’s imposition of a period of parole ineligibility of 17 years. The trial judge took into account many factors including that it was a spousal murder, the appellant's failure to disclose the location of the body and the jury recommendations ranging from 14 to 20 years. The appellant had a criminal record but his only conviction for a crime of violence was the assault on his wife. He was on probation when he killed his wife. After killing his wife, he demeaned her character to others. Her body was never found and the offender also tried to conceal her death, going as far as conscripting his daughter to assist him in the cover-up.

Analysis

[42] This court, or any court, is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that reflect enumerated objectives.

[43] The objectives relevant to this case are denunciation of the unlawful conduct, specific and general deterrence of other potential offenders, separation of offenders from society where necessary and rehabilitation. It is important to impose a sentence that promotes a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

[44] The circumstances of the offence and of the offender must be analyzed to identify the aggravating and mitigating factors.

[45] In particular, in assessing s. 745.4 factors and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing as found in ss. 718 to 718.2 are relevant. I am permitted to draw inferences from the evidence adduced at trial and arrive at my own conclusion of fact.

Jury Recommendations

[46] At the end of this trial, following two days of deliberations, two members of the jury recommended that the period of parole ineligibility be fixed at 10 years and four jurors recommended 15 years, the remaining six jurors made no recommendations.

[47] As Watt J.(as he then was) wrote in R. v. Barry [1991] O.J. No. 2666: [1]

It is difficult to gauge with any accuracy the weight which should be attributed to a jury recommendation regarding parole ineligibility. In one sense, it might be said to represent the community view upon the issues. To so hold, however, as it appears to me, is somewhat to overstate the case. They are given no guidance on the precedents concerning the appropriate range. They are simply told the numbers. They are not required to at least endeavor to achieve unanimity. It is, as it was in this case, but a brief, somewhat informal exercise, after they have been earlier told that sentence forms no part of their responsibility in determining liability, and thereafter told it is but a recommendation. They receive no further evidence concerning, for example, the likelihood of recidivism, future danger to society or other matters which might logically bear upon the issue other than what they can recall was given at trial.

[48] After having reached a verdict in this case, the jury was then asked to make their recommendations. The jury spent less than 20 minutes and came back with their recommendations. I acknowledge and appreciate the jury’s combined wisdom and experience as representatives of the community. While the jury's recommendation is not binding on me, it is a factor that I consider and weigh when setting the period of parole ineligibility.

[49] However, the members of the jury did not have the benefit of considering the applicable case law, the principles of sentencing pursuant to s. 745.4 of the Code, the aggravating or mitigating factors or have the benefit of hearing submissions from both counsel before making their recommendations.

Mitigating Factors

[50] Mr. Suarez-Noa has no previous criminal record. For all intents and purposes, aside from this incident, Mr. Suarez-Noa has lead a pro-social life.

[51] There was no history of physical domestic violence, although his relationship with Tania was marked with a plethora of verbal disagreements and disputes. Tania had claimed that the relationship was over and that she had enough. However, she appeared to resile from that stance on several occasions, primarily for the sake of their young son, Bailun.

[52] Mr. Suarez-Noa turned himself into police and confessed to the killing, albeit 12 hours later. He provided a limited, voluntary inculpatory statement. At trial, Haiden had been described by his friend, Yoel Morales, as a person of good character, a hard worker and an individual always willing to help others.

[53] I also acknowledge that the offender had been transferred back and housed in a detention facility in lieu of a penitentiary, for about one year following the successful Crown appeal of his previous conviction in this case for manslaughter. As such, he was not able to benefit from the rehabilitative programs in the federal institution that he would have otherwise had access to.

Aggravating Factors

[54] There are a number of serious aggravating factors in this case. Mr. Suarez-Noa killed Ms. Cowell as part of a domestic altercation, which is recognized as a statutorily aggravating factor pursuant to s. 718.2(a)(ii) of the Code. This was a breach of trust situation, in that a woman in such a relationship would not expect her domestic partner to murder her in the sanctity of her own home. Tania was killed in the very apartment, she shared, off and on, with Haiden. She was murdered in front of their five month old son.

[55] After the fact conduct: Haiden left Tania on the floor where he killed her. She was left there, dying without compassion or regard. No calls to 911, neither CPR nor requests for assistance. A photograph of the deceased was taken. He left the apartment with his young infant son to Guelph. In the interim, he conducted banking transactions and paid some bills. He also researched some criminal law issues related to homicide and sentencing. I am unable to conclude that Haiden was planning to flee the country in order to return to Cuba.

[56] Haiden began to contaminate the scene of the crime, although he did not destroy the murder weapon, or remove the body from the apartment. There was evidence of some wiping or swiping of blood by the offender; an aborted attempt to clean up some of the blood from certain areas of the deceased’s body.

[57] The nature of the murder: A neighbor heard a female scream and footsteps concomitant with the timing of the murder. Tania was stabbed 11 times. Once in the back and the remaining stab wounds to the front of her body. At the time, Haiden would have been holding the kitchen knife in his hand. I am persuaded that Tania would have had her back to him at first instance, likely running away from him in fear and panic in the small apartment.

[58] Given the events and the forensic evidence, along with the testimony at trial, it is logical to draw the reasonable inference that Tania was stabbed first in the back with the remaining stab wounds to her front. The nature of the stabbing was extremely vicious and forceful, actually causing the knife to bend on impact with Tania’s internal skeletal structure. One can only imagine the excruciating pain suffered by Tania during the last seconds or even minutes of her life.

[59] When I consider the blood spatter evidence, it is reasonable to conclude that Tania would have been situated lower than her assailant or bent over when some of the stab wounds were being inflicted. There were no defensive wounds on the deceased. She had no time to ward off the attack. As such, Tania would have been in an entirely vulnerable and defenseless position the instant she was repeatedly stabbed by Haiden.

[60] It is not an aggravating factor that Mr. Suarez-Noa pleaded guilty to manslaughter and had a second (or third) trial for a count of second degree murder. He, in fact, accepted responsibility for the killing. However, he cannot benefit from the mitigation that flows from a plea of guilty with the acceptance of responsibility for the charged crime. Mr. Suarez-Noa denied his level of culpability.

Application of the legal principles to this case

[61] The applicability of McKnight for "brutal second-degree murders of an unarmed wife or girlfriend has been the subject of much discussion in the case law. In the past, courts have held that McKnight supported a range for the period of parole ineligibility in cases of domestic violence to be between 12 to 15 years.

[62] Based on the Court of Appeal decisions in Czibulka and French, I am now persuaded that for serious domestic violence murder cases, the range of parole ineligibility has been expanded from 12 to 17 years in circumstances where there are negligible or limited mitigating factors. This range has been reflected in recent jurisprudence from both the Superior and appellate courts in Ontario.

[63] While I have referenced some of the authorities in support of his position, defence counsel also presented, inter alia, the case of R. v. Angelis, 2011 ONSC 462. The offender asphyxiated his wife during the course of a domestic altercation. There was a prior bitter custody battle that precipitated the murder. He claimed that he acted in self-defence. The murder occurred in the presence of his two young children, one of whom had to testify at trial. The offender failed to administer CPR or call 911. The jury unanimously recommended 10 years. The accused had no criminal record and was gainfully employed. The trial judge imposed a parole ineligibility period of 12 years. The case is not binding on me. I find that the brief reasons and conclusions offered by the trial judge in two paragraphs of his decision are at the low end of the range and do not mesh with the aggravating features of the case. With respect, I decline to give effect to this decision.

[64] In R. v. Kenyon, 2014 ONSC 4454, Fuerst RSJ. imposed a period of parole ineligibility of 15 years. The Crown sought 15 to 18 years while the defence submitted that a period of 12 to 15 years was appropriate. The murder occurred in the deceased’s own home. The killing was excessively brutal. A particularly aggravating factor was the post-offence conduct, causing others to put their lives at risk in an attempt to rescue the deceased, along with the offender levelling a false accusation. The offender had an unrelated prior criminal record, primarily for crimes of dishonesty. While he presented letters of support from family and others, the learned trial judge found that the offender was not of good character. The jury had recommended ranges from 20 to 25 years of parole ineligibility.

[65] Mr. Gill also referred to the case of R. v. Jimenez-Acosta, 2013 ONSC 5525, a sentencing of an offender convicted of second degree murder involving a situation of brutal domestic violence. I sentenced the offender to an increased period of parole ineligibility of 13 years.

[66] In that case, defence counsel urged me to find that the range of parole ineligibility for second-degree murders in the context of domestic situation was between 10 to 14 years, referring to the Court of Appeal’s decision in R. v. Pasqualino 2008 ONCA 554, [2008] O.J. No. 2737. As I stated in Jimenez-Acosta, at para. 46, the Court of Appeal in Pasqualino did not endorse 10-14 years as establishing a range for parole ineligibility for second degree murder involving domestic violence. In that case, the Crown attorney opined that the maximum range for parole ineligibility was set at 15 years based on the McKnight principles: at para. 47.

[67] Jiminez-Acosta had several aggravating features, some of which are similar to the case at bar. For example, the killing of his wife (domestic partner) in the home in what could only be described as brutal, leaving the body in the house, along with an unsuccessful attempt to contaminate the scene of the crime. There were also other differing features, including an attempt to enlist his elderly father to provide an alibi. Yet, as I recall, the deceased’s family and offspring were entirely supportive of the convicted offender; some of whom testified on his behalf, and all of whom did not condone the fact that their deceased mother had an extra-marital affair; as if to almost justify the murder. It was seen as a monumental embarrassment to the family and close-knit community. Indeed, there was but one VIS read into the record, that from the deceased’s sister who resided in South America. I confess that I found the family’s reaction to the brutal killing of Mrs. Patricia Pacheco-Hernandez quite perplexing and disconcerting. In sentencing Mr. Jiminez-Acosta, I adopted the range of parole ineligibility proposed by the Crown attorney with the ceiling set at 15 years.

[68] Amongst the authorities proffered by Ms. Booy, I briefly refer to four cases posited to support her position for the maximum parole ineligibility period.

[69] In R. v. Sollows, 2017 ONSC 2359, Fuerst RSJ. accepted a joint position from both Crown and defence of a period of parole ineligibility of 17 years. This was a case of murder of the offender’s father, an unarmed 76 year old man, killed in his own home. Multiple stab wounds were inflicted. The offender pleaded guilty and was a first time offender. He was subjected to abuse by the deceased. It can be gleaned from the case that the Crown had a strong case and a reasonable prospect of conviction for first degree murder.

[70] In R. v. Thomas, 2015 ONSC 3472, [2015] O.J. No. 3813, Broad J. described the domestic relationship in that case as marked with repeated acts of vicious violence inflicted by the accused on his spouse. Ante-mortem death threats from the accused were admitted into evidence. The incident could not be described as impulsive. The accused had a prior criminal record and alcohol was a contributing factor in the killing. The offender callously threw the deceased into the river and eventually, her decomposed body was found on the flood plain near Kitchener. There was also extensive clean-up of the murder scene. Eight of the jurors recommended 20 years of parole ineligibility. Upon my review of this decision, it is evident to me that there were more significant aggravating factors than in the case at bar. The post offence conduct was described as nothing short of egregious. There was a considered and active effort to conceal and destroy evidence versus what I can categorize as reactive behaviour by the offender in the instant case. In any event, after considering all of the serious aggravating factors and acknowledging the high water mark set at 17 years, the trial judge imposed a period of parole ineligibility of 16 years.

[71] In the case of R. v. French, 2017 ONCA 460, [2017] O.J. No. 2910, the Court of Appeal upheld the trial judge’s sentence decision of parole ineligibility of 17 years. The deceased was strangled. At trial he was charged with first degree murder. French could be aptly described as a ‘near case’ of first degree murder, in that the trial judge accepted the accused’s confessions that he had planned to murder his common law partner, albeit the jury found that there was no deliberation. See also R. v. Hindessa [2009] O.J. No. 6412 (S.C.) aff’d. 2011 ONCA 477, [2011] O.J. No. 2811.

[72] In R. v. Tayongtong 2017 ONSC 6436, the trial judge elevated the parole ineligibility period to 17 years. This was a brutal murder, a total of 138 stab wounds inflicted on the deceased. It was not a quick or painless death. There was significant post offence conduct. There was no remorse. The majority of the jury recommended parole ineligibility be set at 25 years. The trial judge described this murder as most brutal, cold blooded and callous, with sheer hatred exhibited by the offender. He imposed a period of 17 years of parole ineligibility.

[73] In this case, Ms. Booy argues that in order to sustain her position for 17 to 18 years of parole ineligibility, this Court ought to distinguish the applicability of the ratio in McKnight and apply Czibulka and French. Mr. Gill concedes that the range for brutal domestic murder has increased from the McKnight era. I agree.

[74] That said, the guidance provided by the Ontario Court of Appeal does not exceed 17 years of parole ineligibility for these types of cases. With respect, there is no basis to support Ms. Booy’s submission of an increased period of parole ineligibility beyond the ceiling of 17 years. With the plethora of case law on point, I am not persuaded that the factors and circumstances here warrant surpassing the range established by the Court of Appeal.

[75] It is clear that sentencing ranges are merely guidelines and a judge must apply all of the considerations that flow from Part XXIII of the Code in order to arrive at a just and proper sentence. Sentencing remains an individualistic process requiring a careful exercise of judicial discretion. However, if a trial judge is considering going towards the high end of the range in cases of severe or brutal domestic violence leading to second degree murder, there must be measured and articulable reasons for doing so.

[76] In this case, the murder committed by Mr. Suarez-Noa does not bear elements of any planning or deliberation. Whether I can agree with Mr. Gill that it was a spontaneous killing is another matter. While it appears that the jury reflected long and hard on the excuse of provocation based on questions posed post-charge, I am not persuaded that it was entirely spontaneous, rather the result of a build-up of rage and a loss of patience, as explained by Mr. Suarez-Noa.

[77] There is no expert or medical evidence about Mr. Suarez-Noa’s prospects for rehabilitation or dangerousness to society at large, particularly to women. Whether or not Mr. Suarez-Noa has a moderate or high risk to reoffend or poses a risk or danger to the community will have to be assessed by the Parole Board in due course.

[78] It is true that Mr. Suarez-Noa was not legally obliged to assist the police. He was entitled to exercise his right to silence and require the prosecution to prove the case against him beyond a reasonable doubt. However, he did admit to the killing. I find that he did take some measures to drag the body and wipe blood away from the deceased. His other actions after the murder and prior to turning himself into the police remain unexplained and are bizarre. The post-offence conduct here may be somewhat less pronounced than that found in other cases presented by both the Crown and defence.

[79] That said, with respect, I reject the 10 to 12 year range of parole ineligibility submitted by Mr. Gill for this case based on the circumstances of the case and of the offender. In my opinion, the suggested range does not adequately address the principles as set out in s. 718 and 718.2 of the Code.

[80] I have also considered the recommendations of the jury in assisting me with the appropriate period of parole ineligibility. While I cannot and must not ignore their recommendations, with respect, I have rejected the recommendations of those jurors who referenced a period at the lower end of parole ineligibility.

[81] Mr. Suarez-Noa remains adamant that he did not have the intent to kill Ms. Cowell and that he was provoked. He pleaded guilty to manslaughter. To a limited degree, I can understand why he would not demonstrate any remorse for his culpability in the murder. As mentioned, in his comments to me, Mr. Suarez-Noa states that he is regretful and apologetic for his own involvement, especially with regards to how it now directly impacts his young son.

[82] While not intending to overstate the issue, with respect to the submission of demonstrated remorse, I observe that, during his testimony and more importantly at the sentencing hearing, Mr. Suarez-Noa has not expressed regret or sorrow for the actual loss of the mother of his child and his partner, Tania. He cites much regret for his actions, the rage that he felt or his loss of patience at the time of the incident. Yet, apart from his brief emotive testimony at trial in describing the events of March 9, 2013, with some final comments related to his conduct giving rise to his conviction for the murder; it is indeed very disconcerting that there is not one scintilla of evidence or remorse presented to me in some fashion from Mr. Suarez-Noa tending to demonstrate any feelings of loss or bereavement for the untimely death of Tania, the mother of his son. I find that his expression of regret or remorse is less than sincere.

[83] I agree that the stabbing of a defenseless and vulnerable woman in her own home for no reason other than turmoil within the relationship cannot be considered to be anything other than a very serious and heartless murder. Recourse to violence of any nature or form, whether physical, verbal or psychological is not the manner in which to cope with an unhappy domestic situation. It cannot and must not be condoned.

[84] There can be no doubt that this was a senseless murder of a victim whose child, Bailun will be forever without his mother. The impact on Bailun, his adoptive family, Tania’s family and her many friends is significant.

[85] Mr. Suarez-Noa is to be sentenced to life imprisonment. I must point out that with a conviction for second degree murder, the imprisonment may continue for the rest of Mr. Suarez-Noa’s natural life. Ultimately, it will be for the Parole Board of Canada to decide when, if ever, Mr. Suarez-Noa has been sufficiently rehabilitated that he is no longer a danger to others in our society and that he may be released on parole. My determination of the minimum period of time at which Mr. Suarez-Noa will become eligible for release on parole does not necessarily mean that he will be released upon the expiration of whatever minimum period I impose today.

Conclusion

[86] Ms. Booy invites this Court to send a message to Mr. Suarez-Noa, to similarly situated offenders and to the community at large. She submits that the appropriate sentence to be imposed must reflect the ever-increasing understanding and changing attitudes towards violence against women and the protection of vulnerable persons in domestic relationships.

[87] The Court of Appeal has incrementally increased the parole ineligibility ceiling for these types of cases. Yet, some may argue that this is too little and unresponsive to the increasing awareness and alarming statistics related to spousal or partner violent abuse up to and including murder. Some may also suggest that the courts are failing to send the appropriate message to those who have or are contemplating acts of emotional, psychological or, more importantly, physical abuse and acts of violence against women.

[88] Domestic violence in whatever shape and form cannot be condoned. In my opinion, the period of parole ineligibility in the context of severe and brutal spousal or partner domestic violence has been escalating to reflect society’s abhorrence and condemnation of this form of hostility against vulnerable women. Judges must consider the community’s antipathy towards domestic violence, spousal or partner murder and crimes against women generally, tempered with the principles of sentencing as set out in the Criminal Code.

[89] I conclude that adherence to the 12 to 17 year range of increased parole ineligibility for second degree murder in cases of brutal domestic violence, especially against women is entirely appropriate.

[90] I am persuaded that the aggravating factors here are near the level of seriousness as in other cases proffered in support of the Crown’s position. I also acknowledge the very valid concerns raised by Ms. Booy in her final submission in addressing the principles of sentencing offenders who commit a brutal murder of a spouse or partner in a domestic context. Yet despite Ms. Booy’s able submissions, I am unable to accede to her ultimate position for two reasons. First, as mentioned, there are some mitigating factors that arise in this case.

[91] Second, and perhaps more importantly, I am able to distinguish the cases proffered by the prosecution; namely, French, Thomas, Sollows, Tayongtong and other relevant authorities to the degree that inhibits my ability to elevate the ineligibility period to the very top of the range, or for that matter, beyond the range as suggested by the Crown.

[92] That being said, in this case, I agree with the Crown attorney and I find that the need for denunciation and specific and general deterrence are paramount. This, along with the many aggravating factors in this case require a parole ineligibility period at the higher end of the range as set out in the jurisprudence.

[93] Therefore, the sentence to be imposed is as follows: Mr. Suarez-Noa is to provide a sample of his DNA pursuant to s. 487.051 of the Code. I order a s. 109 lifetime weapons prohibition.

[94] In accordance with s. 743.21 of the Code, Mr. Suarez-Noa is prohibited from communicating, associating or contacting directly or indirectly any member of Tania Cowell’s immediate family.

[95] Mr. Suarez-Noa has been found guilty of second degree murder and is sentenced to imprisonment for life. The life sentence will be noted to have begun from the date of arrest, March 10, 2013. In arriving at a just and proper sentence for Mr. Suarez-Noa, I hereby increase and fix the minimum period of parole ineligibility at 15 years.

A. J. Goodman, J. Released: December 20, 2018

[1] (Gen. Div.), aff’d. [1993] O.J. No. 3955 (C.A.) See also R v. Olsen, [1999] O.J. No. 218 (C.A.)