SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JOSE FERNANDES
REASONS FOR SENTENCE
BEFORE THE HONOURABLE REGIONAL SENIOR JUSTICE M.K. FUERST
on December 10, 2018,
at NEWMARKET, Ontario
APPEARANCES:
K. Smyth, L. Saunders Counsel for the Crown
J. Dos Santos Counsel for Jose Fernandes
MONDAY, DECEMBER 10, 2018
REASONS FOR SENTENCE
Fuerst J.: (Orally)
Introduction
Fourty-nine year old Maria Fernandes died at the hands of her husband of a single stab wound to the abdomen.
Jose Fernandes pleaded guilty to the second degree murder of his wife. The issue for decision is the period of time that he must serve before he will become eligible for parole.
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. Fernandes 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 CanLII 47 (SCC), [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 CanLII 3717 (ON CA), [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
Regrettably, Mrs. Fernandes’ murder was not the first incident of domestic violence in the course of this couple’s relationship. In August 2002, Mr. Fernandes was charged with uttering death threats against Mrs. Fernandes and their four children. He was released on a recognizance with conditions including that he not be within 100 metres of his family’s known residence, and that he be with a surety at all times. Following his release, he lived at an address other than the matrimonial home.
On October 1st, 2002, Mr. Fernandes went to the matrimonial home in Bradford alone. His wife and children were staying elsewhere.
That morning, Mrs. Fernandes arrived at the house with two of her children and a friend, to pick up some belongings. Unknown to her, Mr. Fernandes was inside the home, in the darkened basement. Mrs. Fernandes went down to the basement. When she got to the bottom of the stairs, Mr. Fernandes grabbed her, then stabbed her several times, including in the neck and abdomen, with an unknown instrument. When he went upstairs, she was able to get out of the house and get assistance.
Mr. Fernandes came out of the house minutes later, holding a knife. He was bleeding from self-inflicted wounds to the stomach and neck areas.
Mr. Fernandes was charged with attempted murder and breach of recognizance. At some point following his arrest, he was found unfit to stand trial. He was confined at Waypoint Mental Health Centre (“Waypoint”) for three years until he was restored to fitness. He then pleaded guilty to aggravated assault, in June 2006. He received a suspended sentence and three years’ probation.
In or around the summer of 2007, he went to Portugal, which was his native country.
In January 2015, Mr. Fernandes returned to Bradford from Portugal temporarily, to deal with property issues. Mrs. Fernandes permitted him to come back into the matrimonial home, where she was living. He wanted to sell the house and return to Portugal with her. However, Mrs. Fernandes did not want to move to Portugal with him.
Mr. Fernandes brought with him a three month supply of medication. Some was labelled Diazepam and appeared to be from a Portuguese pharmacy. Some was unlabelled.
At some point after his return to Canada, he stopped taking his prescribed medication.
Mrs. Fernandes had an alcohol abuse problem. She suffered from various health issues related to alcohol consumption. Mr. Fernandes purchased and provided alcohol for her. The couple’s children saw little of them in the summer and fall of 2015, because they were frustrated with their mother’s failure to address her alcohol problem and upset with her decision to allow their father back into the matrimonial home.
Mr. Fernandes had a return flight to Portugal booked for November 24th, 2015. But, as of November 21st, 2015, the property issues were unresolved.
Early on the morning of November 21st, 2015, Mr. Fernandes went to the neighbouring home of Mr. and Mrs. Santos. He banged on the door loudly and said that he had hurt his wife. Mr. and Mrs. Santos dismissed his comments as being in relation to the assault in 2002. They did not let him into their home. Later, Mrs. Santos noticed what looked like blood smears on the front door. She decided to contact police.
Mr. Fernandes also went to a family friend, said that his wife was deceased, and produced money for her burial.
Around 10:30 a.m. a friend of Mrs. Fernandes, a Ms. Valente, stopped by the house, unannounced. She knew that Mrs. Fernandes had been unwell several days earlier. She spoke to Mr. Fernandes outside. He told her that he had killed his wife because he was sick and tired of watching her suffer. He repeatedly asked Ms. Valente if she would forgive him. She left the property. Before she could contact the police, they were phoned by the daughter of Mr. and Mrs. Santos, who told them of Mr. Fernandes’ visit to her parents’ home.
Police arrived at the Fernandes’ residence at 11:28 a.m. Initially, they got no response when they announced their arrival. Then they saw Mr. Fernandes move toward the door. He obeyed their commands to leave the house. When they asked where “Maria” was, he said, “Maria no more”. He was arrested for assault.
A police officer entered the house. He found Mrs. Fernandes laying on her right side on the bed in the master bedroom. Blood was pooling beneath her. The officer saw a large knife with blood on it, on the bed. The officer could not find a pulse on Mrs. Fernandes. He yelled out to another officer that Mrs. Fernandes was located, vital signs absent. That officer told Mr. Fernandes that he was under arrest for murder.
A Portuguese speaking police officer was summoned to the scene. He told Mr. Fernandes in Portuguese of his arrest and the reason for it, and gave him his rights to counsel. Mr. Fernandes said that he understood. He said that his wife was very sick, and that he was going to jail. The officer read him the caution. Mr. Fernandes responded, “I killed my wife at six thirty”.
When Mr. Fernandes was booked at the police station, he again said, as translated by the officer, that he had killed his wife. He added that she had asked for a glass of water so he went to the washroom, and then came up from behind her and stabbed her.
Mr. Fernandes spoke to a Portuguese speaking lawyer. While his clothing was collected and photographs taken, he made a number of comments, again translated by the officer. He said that they had no money, that he had killed his wife, that she was sick, had a fever and was suffering a lot, that she had been in bed when he killed her and she died quickly, and that she did not want to sell the house.
Mr. Fernandes had no injuries. There appeared to be blood on his shirt and on both hands.
Mr. Fernandes was interviewed by a detective with another Portuguese speaking officer present who translated. Mr. Fernandes said that he stabbed his wife and left her in bed. She asked him to take her to the bathroom. She had a large pain and when he stabbed her she started spitting out blood. He stabbed her once in the stomach as she lay in bed. He had retrieved the knife from the kitchen and taken it into the bedroom. She had been asleep when he stabbed her, but she woke up and asked, “What did you do?”. She asked for some water after he stabbed her. He stabbed her at six thirty in the morning. She was hungry and thirsty and was suffering. She lived for approximately five minutes after she was stabbed. He hugged her after he stabbed her and remained with her until she died. He did it with love. He had attempted to get someone to help them, but no one did. He did not attempt to call 911 at any time.
Although there was no landline telephone in the house, Mrs. Fernandes had a cell phone.
A post-mortem examination determined that the cause of death was a single stab wound to the abdomen. The wound was about 20 centimetres deep. There were no defensive wounds or other injuries.
No Victim Impact Statements were provided on the sentencing hearing. Crown counsel advised that the exercise of preparing statements was too difficult for the Fernandes children and for Mrs. Fernandes’ sister.
The Character of the Offender
The defence specifically declined preparation of a pre-sentence report. Mr. Dos Santos provided information about Mr. Fernandes’ background. In addition, two psychiatric reports prepared primarily to address the issue of fitness to stand trial were filed as exhibits.
There is no issue that Mr. Fernandes is fit. There is no issue that the defence of not criminally responsible on account of mental disorder is not available to him.
Mr. Fernandes is now 58 years old. He was born in Portugal. He grew up in a large family. He completed Grade 4, then left school to work on a farm. He has only limited ability to read and write Portuguese, and no ability to do so in English.
Mr. Fernandes and his wife married in Portugal. They immigrated to Canada in 1985. He worked in Canada for a paving company. When he returned to Canada from Portugal in 2015, he returned to work with that paving company.
The couple had four children. Eventually, the Children’s Aid Society became involved with the family. Mrs. Fernandes’ abuse of alcohol, along with reports of domestic violence and physical abuse of the children were of concern.
Mr. Fernandes has a criminal record for theft under in 1999, the aggravated assault of his wife and fail to comply with recognizance for which he received a suspended sentence and probation in 2006, and fail to comply with probation in 2007 for which he received a jail term of 17 days after credit for pre-sentence custody.
The agreed facts include that Mr. Fernandes has suffered with mental health issues since at least 2002, that he has not remained consistently under the care of a mental health professional, nor has he consistently taken medications as they have been prescribed to him for his mental health issues, and that he has never been formally diagnosed as suffering from a specific mental health issue.
I note, however, that testing completed at CAMH in the summer of 2005 indicated that Mr. Fernandes was functioning in the mildly mentally retarded or borderline range intellectually. Dr. Woodside, a forensic psychiatrist, believed that Mr. Fernandes was at that time suffering from a mental illness, likely in the psychotic spectrum. In April 2007, a Portuguese speaking psychiatrist who was seeing Mr. Fernandes noted that he had delusions of persecution, although Mr. Fernandes did not believe that he suffered from any mental health problems or that he needed medication. Mr. Fernandes remained delusional in August 2007. In December 2015, having been charged with his wife’s murder, he was assessed for fitness and subsequently found unfit to stand trial. After another assessment in May 2016, he was found fit. It appears that he was being treated with antipsychotic and antidepressant medications. In August 2018, Mr. Fernandes was admitted to Waypoint for yet another fitness assessment. Although there was no issue about his fitness from a psychiatric perspective, Dr. Eayrs, a forensic psychiatrist, noted that Mr. Fernandes presented with features consistent with a diagnosis of schizophrenia and suggested that a diagnosis of schizoaffective disorder was another possibility.
The Positions of the Parties
On behalf of Mr. Fernandes, Mr. Dos Santos seeks a parole ineligibility period of 10 to 12 years. He contends that there were no elements of planning and deliberation involved in the offence. The stabbing was not preceded by an argument or a struggle. There was no desecration of the body afterward, or other demonstration of animosity or callousness toward the deceased. Mr. Fernandes went to a neighbour’s soon after the stabbing, and later to a family friend with money for his wife’s burial. Mr. Fernandes told the police that the deceased was a good woman and also a good mother. He said that he killed her because she was sick and suffering and he wanted to end her suffering. He told the police that he was sorry he stabbed her, but that he did it with love.
Mr. Dos Santos submits that the professional reports filed show that Mr. Fernandes has suffered from significant mental health issues for some time, although psychiatrists have had trouble identifying the precise nature of his illness. Mr. Dos Santos contends that Mr. Fernandes’ mental illness is a mitigating factor and that it also reduces his moral blameworthiness. It is not surprising that he has trouble recognizing that he is mentally ill.
Mr. Dos Santos emphasizes that Mr. Fernandes pleaded guilty after a limited scope discovery style preliminary hearing. Mr. Dos Santos points out that Mr. Fernandes has poor intellectual functioning, and because of the language barrier, custody sometimes has been difficult for him.
On behalf of the Crown, Ms. Saunders seeks a parole ineligibility period of 17 years. She also seeks a DNA order and a lifetime weapons prohibition order. She emphasizes that this was a domestic murder, and that it carries a high degree of moral blameworthiness. The offence involved an additional breach of trust, in that the deceased was killed in her own home, while she was asleep and unable to defend herself. She awoke to find herself stabbed, which would have been terrifying.
Ms. Saunders submits that there were elements of at least planning, in that Mr. Fernandes had to retrieve a knife from the kitchen. There also were elements of callousness, in that he did nothing to help his wife and remained in the house with her dead body for some time.
It is highly aggravating that he committed a serious assault on the deceased previously when he stabbed her multiple times in 2002. It can be inferred that the murder has had a monumental impact on the couple’s children, who have lost their mother.
While Ms. Saunders concedes that Mr. Fernandes has had mental health issues for many years, she argues that there is no evidence of a causal link between those mental health issues and the murder, such that his mental health can be considered a mitigating circumstance. Further, the fact that he did not take steps to manage his mental health issues and to mitigate his risk is an aggravating factor in determining his parole ineligibility.
Ms. Saunders submits that aside from his guilty plea, there are really no mitigating factors as there is no evidence of a solid work history, family support, or community involvement.
Parole Ineligibility Parameters
In McKnight, the Court of the 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 or even beyond on occasion, where there are particularly aggravating considerations. For example, in R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 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 for Ontario 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. In R. v. Hindessa, 2011 ONCA 477, the Court of Appeal upheld a parole ineligibility period of 18 years for a domestic homicide it found was characterized by gratuitous violence and mutilation.
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. Ultimately, sentencing is an individualized process: see Czibulka, at para. 67.
Analysis
While I will not reference each one, I have reviewed and considered all of the authorities provided by Crown and defence counsel.
Murdering one’s spouse or domestic partner is an extreme breach of trust, if not the most extreme breach of trust, as the jurisprudence makes clear. This is underscored by section 718.2(a)(ii) of the Criminal Code, which specifies that the abuse of a spouse or common-law partner in the commission of an offence is an aggravating circumstance. In this case, an additional aggravating circumstance is that Mr. Fernandes attacked his wife in the home she shared with him, while she was in bed. She was unarmed, vulnerable, and defenceless, as the absence of defensive wounds evidences.
While this is not a case of first degree murder, there was an element of planning, in that Mr. Fernandes went to the kitchen to retrieve the knife and brought it to the bedroom where the stabbing occurred. This, too, is an aggravating circumstance: see R. v. A.(T.S.), 1995 CanLII 1570 (ON CA), [1995] O.J. No. 535 (C.A.), at paras. 17 to 21.
Mr. Fernandes waited until his wife was dead before taking any steps to get assistance. Even then, he went to a neighbour’s residence and spoke to a friend, rather than calling 911. As a result, several hours passed before the police came to the house.
Of particular significance as an aggravating factor is that Mr. Fernandes has a prior criminal record that includes a very serious offence of violence against his wife. It, too, involved catching her by surprise and stabbing her.
No Victim Impact Statements were provided, but it is a reasonable inference, and one that I draw, that the loss of their mother at the hands of their father has been traumatic for the couple’s children.
Before turning to mitigating factors, I acknowledge the absence in this case of certain circumstances that are generally regarded as aggravating. Mr. Fernandes did not inflict additional gratuitous violence to the deceased, as did the offender in Hindessa. He did not try to clean up the scene to conceal the crime, as did the offender in R. v. Boukhalfa, 2017 ONCA 660. He did not conceal the victim’s death, fail to disclose the location of the body, or desecrate the body: see, for example, Wristen, and R. v. Teske, 2005 CanLII 31847 (Ont. C.A.). He did not demean his wife after the murder, as did the offender in Czibulka.
The primary mitigating factor is that Mr. Fernandes pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for his actions. It also is mitigating that he did not flee the scene after the murder. He responded to the police when they arrived at the house, and he was arrested without resistance.
I am urged by Mr. Dos Santos to treat Mr. Fernandes’ mental health as a mitigating circumstance. Crown counsel acknowledges that Mr. Fernandes has had mental health issues since 2002, but disputes that there was a causal link between those mental health issues and the commission of the murder, and disputes that his mental health is a mitigating circumstance. Crown counsel also argues that Mr. Fernandes did not take steps to mitigate his risk by remaining under the care of a mental health practitioner and consistently taking his medication, and that this is an aggravating factor. Parenthetically, I query whether this latter submission is consistent with the contention that there is no causal link between the mental health issues and the murder.
The evidence of Mr. Fernandes’ mental health issues that is before me, including by way of psychiatric assessment reports, is as follows:
Mr. Fernandes was found unfit at some point after the commission of the 2002 offence against his wife and remained unfit for a period of years.
No psychiatric assessment of his mental state at the time he assaulted his wife was provided to me.
The August 2018 Waypoint report notes that in 2007, a Portuguese speaking psychiatrist found that Mr. Fernandes manifested thought disorder and, in particular, delusions of persecution. It was suggested then that he was suffering from schizoaffective disorder or schizophrenia. He was prescribed an antipsychotic, but there was some question about his compliance with medication. The psychiatrist opined that Mr. Fernandes posed an ongoing risk to his family and others because of his lack of insight and poor judgement.
When Mr. Fernandes returned from Portugal, he brought with him medication labelled as Diazepam and other medication that was not labelled. Soon after he returned to Canada, he stopped taking his medication.
The August 2018 Waypoint report indicates that Mr. Fernandes told Dr. Eayrs that he was not under the care of a psychiatrist while he was in Portugal. Dr. Eayrs noted that it was not known whether Mr. Fernandes continued to take antipsychotic medication while he lived in Portugal.
No psychiatric assessment of Mr. Fernandes’ mental state at the time he murdered his wife on November 21st, 2015 was provided to me.
Mr. Fernandes underwent a fitness assessment in early December 2015, was found unfit, and a treatment order was made. He was found fit in May 2016. He received psychotropic medication at the jail in the months that followed.
He was assessed for fitness in August 2018. He was determined fit from a psychiatric perspective. However, he was found to suffer from a persistent thought disorder, and presented with features consistent with schizophrenia. A possible diagnosis of schizoaffective disorder also was suggested by Dr. Eayrs. Mr. Fernandes was willing to continue taking the medication he was receiving at the jail.
In R. v. Al-Masajidi, 2018 ONCA 305, the Court of Appeal treated the offender’s mental illness as a mitigating circumstance where it found that the illness was a major factor in the commission of the offence. Similarly, in McKnight, evidence that the offender would not have killed his wife but for his mental illness was considered in mitigation.
I accept that Mr. Fernandes has a long history of what has been described as thought disorder or delusional thinking, consistent with schizophrenia or schizoaffective disorder, and that that was his mental state at the time of the Waypoint assessment in the summer of 2018. However, on the evidence before me, I cannot find, even on a balance of probabilities, that Mr. Fernandes’ mental health issues were a major factor in the commission of the offence, or that he would not have committed the murder but for his mental illness.
That said, I do take into account in considering Mr. Fernandes’ character that he is not a person with an intact mental state. He has long-standing mental health issues, he has been in and out of fitness, and he is likely suffering from schizophrenia or schizoaffective disorder. This is mitigating to a limited degree as in R. v. Kairi, 2015 ONCA 279.
I also accept that Mr. Fernandes is low-functioning intellectually. This combined with his limited ability to communicate in English will, in all likelihood, make incarceration in a penitentiary a more isolated experience for him than for an offender who does not have these deficits.
Conclusion
Denunciation and general deterrence are particularly important in setting the parole ineligibility period for an offender who murdered a spouse or partner. Notwithstanding many judicial pronouncements that domestic abuse cannot be tolerated and must stop, homicides of one spouse or partner by another unfortunately persist. Courts must continue to send the message that those who perpetrate domestic homicides will face life sentences with significantly elevated periods of parole ineligibility.
This is a serious instance of second-degree murder. Mr. Fernandes’ moral blameworthiness is substantial. Having regard to the criteria in section 745.4 and the significant aggravating factors, even after the mitigating circumstances are taken into account, a parole ineligibility period at the high end of the range identified in McKnight is warranted.
Mr. Fernandes, I sentence you to life imprisonment with no eligibility for parole for 15 years.
I order you to provide bodily fluid samples for DNA analysis.
I impose a weapons prohibition order under section 109 for life.
The warrant of committal will be endorsed to reflect that the life sentence began to run on November 21st, 2015.
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. Jose Fernandes in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on December 10, 2018 taken from Recording No. 4911_401_20181210_
090057_10_FUERSTM.dcr which has been certified by N. Crouse in
Form 1.
Tracey Beatty, ACT ID#7742785329
January 30, 2019
Transcript Ordered: December 12, 2018
Transcript Completed: January 30, 2019
Ordering Party Notified: January 30, 2019
(*this certification does not apply to these Reasons for Sentence which were judicially edited)