COURT FILE NO.: CR-17-3996
DELIVERED ORALLY: March 14, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
John Wayne Pierre
Offender
Shelly McGuire and Eric Costaris, for the Crown
Kenneth S. Marley, for the Offender
REASONS FOR SENTENCE
1John Wayne Pierre was convicted by a jury of the second degree murder of Leslie Watterworth. At the time of the incident, Ms. Watterworth was his girlfriend. He attacked her with a knife in a jealous rage, inflicting 69 injuries. Wounds to her hands indicate that she was trying to defend herself and ward off the knife during the attack. Neighbours in the area heard her screaming. Blood spatter evidence revealed that many of the wounds were inflicted while Ms. Watterworth was low to the ground. The injury that caused death was a stab wound to her back, 15 cm deep, which penetrated her chest cavity.
2The Criminal Code provides that, upon conviction for second degree murder, a mandatory life sentence is to be imposed. The trial judge has a discretion to determine the number of years that the offender must serve before being eligible for parole. The period of parole ineligibility shall be no less than 10 years and no more than 25 years. In providing for this sliding scale, Parliament recognized that, within the category of second degree murder, there is a broad range of seriousness reflecting varying degrees of moral culpability. An increased period of parole ineligibility is warranted where there is a higher level of moral blameworthiness on the part of the offender, and a greater need for societal condemnation of the offence.
Positions of the Parties
3The Crown asserts that, given the brutality of the crime, and the domestic context in which it occurred, a parole ineligibility period in the range of 14-17 years should be imposed. The defence asserts that, given the mitigating factors, including Mr. Pierre’s drug use, and the abuse that he suffered as a child, a period in the range of 10-13 years is more appropriate.
Statutory Criteria
4The determination of the parole ineligibility period is governed by s.745.4 of the Criminal Code:
745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, 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 to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.
5This section dictates that the judge shall have regard to four factors: the character of the offender: the nature of the offence; the circumstances surrounding its commission; and the recommendation of the jury.
6I will deal with each in turn.
The Nature of the Offence and the Circumstances Surrounding its Commission
Domestic Homicide
7The murder in this case was a domestic homicide, arising out of an intimate relationship. In this context, the resort to violence represents a serious breach of trust. Ms. Watterworth ought to have been able to trust Mr. Pierre to care for her and keep her safe. Instead, he perpetrated the ultimate act of violence upon her.
8The offence took place in Ms. Watterworth’s home, a place that she had every right to feel secure in.
9The catalyst for the crime was jealousy. Mr Pierre believed that Ms. Watterworth had spent time with another man while he was in the Brentwood Recovery Home. Her reaction to a question about this caused him to explode into a rage, and to commence a frenzied attack upon her using a knife sitting on the stove. Ms. Watterworth was unarmed and posed no danger to Mr. Pierre.
10The attack did not involve an isolated or single blow – it consisted of 69 separate injuries. There was no evidence to indicate just how long it would have taken to inflict this number of wounds. It is not clear when the fatal stab wound was inflicted. What is apparent is that this was a terrifying ordeal for Ms. Watterworth. The screams that were heard by those in the neighborhood would support the conclusion that Ms. Watterworth was justly afraid for her life during the attack.
11The law is clear that domestic homicide will usually attract a parole ineligibility period above the 10 year minimum. The courts have long recognized the aggravated nature of homicide in the domestic context, and this principles has been codified in s. 718.2(a)(ii) of the Criminal Code.
12In the case of R. v. McKnight 1999 CanLII 3717 (ON CA), [1999] O.J. No. 1321 (QL), Laskin J.A. held that the range for “brutal second-degree murders of an unarmed wife or girlfriend” is one of 12 – 15 years. In that case, a sentence of 17 years parole ineligibility was found to be outside of the range. It was reduced to a period of 14 years.
13Since McKnight was decided, the top end of the range has expanded. This was made clear in the later case of R. v. Czibulka, 2011 ONCA 82 which recognized a range of 12 to 17 years:
67I do not accept the appellant’s contention. Admittedly, in R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 44 O.R. (3d) 263 (C.A.), the case relied on by the appellant, a majority of the panel held at p. 276 that “… 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.” However, that range is not cast in stone for all brutal spousal murders. Sentencing ranges “are guidelines rather than hard and fast rules”: see R. v. Nasogaluak 2010 SCC 6, 2010 S.C.C. 6 at para. 44. Sentencing remains an individualized process. The range stipulated in McKnight was driven by previous case law in this province and by several mitigating considerations in the case itself. These considerations included McKnight’s remorse, his many contributions to the community, and his mental illness, considerations absent in the present case.
68Moreover, a few months after McKnight was decided, in R. v. Wristen (1999), 41 1999 CanLII 3824 (ON CA), 47 O.R. (3d) 66 (C.A.), another case where an accused was convicted of the brutal second degree murder of his spouse, this court imposed a period of parole ineligibility of 17 years. The panel referred to McKnight, yet said at para. 76 “But in McKnight, there were several significant mitigating circumstances that justified reducing the period of parole ineligibility and that have no counterpart in the present case.” [emphasis added].
69In the case before us, the trial judge took Wristen to reflect the upper end of the range, and I do not see how he can be faulted for doing so. At trial, both Crown and defence accepted a range of 12 to 17 years.
14A term of 16 years was recently upheld in R. v. Thomas, 2018 ONCA 694, a case in which the offender killed his common law spouse fueled by jealousy and anger. There had been earlier episodes of violence and a prior conviction for an assault in which the offender threatened to kill the victim.
15The relationship between Mr. Pierre and Ms. Watterworth is a significant aggravating factor, as is the level of brutality and violence that accompanied the murder.
The Offender’s Mental State
16At trial, the jury heard evidence about Mr. Pierre’s level of intoxication at the time of the offence. The jury also heard evidence from Dr. Fabian that Mr. Pierre suffers from a variety of mental disorders. This evidence was led in order to negate the mental intent for murder. It is clear from the jury’s verdict that they rejected this evidence as it relates to the mental element of the crime. In convicting Mr. Pierre of second degree murder, the jury found that Mr. Pierre either intended to kill Ms. Watterworth or intended to cause serious bodily harm which could result in death, while being reckless about whether death ensued.
17While the evidence was rejected on the issue of culpability, it may have some bearing on the issue of penalty.
18Mr. Pierre testified about the consumption of drugs and alcohol at the time of the offence. He testified that he and Ms. Watterworth had been on a three day bender, taking various drugs and drinking alcohol when the fatal incident occurred.
19The defence argues that there is some evidence to support Mr. Pierre’s account of intoxication, such as the video of Mr. Pierre in the beer store shortly after the offence. It is difficult to gauge just how intoxicated Mr. Pierre was. I must sentence on the basis that his ability to form the requisite intention for murder was not impaired. I accept that he did consume intoxicating substances. He was not stone cold sober at the time of the crime. However, nor is it apparent that his intoxication was a prominent influence. Footage from video surveillance cameras depicts him walking down the street after the crime with no apparent difficulty. Employees in the beer store did not perceive him to be intoxicated shortly after the offence. In fairness, upon reviewing the whole video of the beer store visit, those employees testified that he was more intoxicated than they thought. They agreed that they probably should not have sold Mr. Pierre alcohol in that state. He is seen to stumble and grip the counter for support. It is difficult to assess the level of intoxication at the time of the crime because on Mr. Pierre’s own evidence, he consumed marijuana and beer immediately after the murder.
20Viewed against the backdrop of the jury verdict, I do not see intoxication as a particularly significant factor on sentence. Self-induced intoxication, leading to a lessening of inhibitions, does not tend to mitigate the circumstances of a violent crime.
21I will deal with Mr. Pierre’s mental health issues when I address the issue of the offender’s character.
Conduct after the Crime
22The offender’s conduct after the murder suggests a callous indifference to the well-being of Ms. Watterworth. He acted out in a jealous rage, but even after the rage had subsided, he did nothing to render assistance to Ms. Watterworth, or allow others to assist. To the contrary, Mr. Pierre actively prevented concerned neighbours from intervening, insisting that nothing was wrong. After stabbing Ms. Watterworth over and over again, he went to sit in the living room. He drank a beer and smoked a marijuana cigarette. He then went to various locations. First he went to purchase beer. He went to his friend Willie Border’s house. He went to The Keg restaurant. He went to the casino. The prevalence of video surveillance cameras allowed for much of this activity to be recorded. He is seen calmly ordering drinks in The Keg restaurant, and calmly ordering and eating a ribs dinner at the casino. Mr. Pierre is seen to be going about his business, apparently untroubled by the death of Ms. Watterworth and the extraordinary violence that he had just perpetrated.
23Some of Mr. Pierre’s conduct is unusual. Rather than remove his bloody overalls, he covered them with a business suit. The Crown argues that it is not so unusual if one assumes that Mr. Pierre was either actively seeking to conceal the crime, or unperturbed by its commission. While at his friend’s house he tried, unsuccessfully, to confess, writing a note and giving his friend a baseball. He ordered food at restaurants that he knew he could not pay for. Mr Pierre is seen in the cell at the police station engaging in strange behaviours, such as jumping on top of the commode.
24It is difficult to know what to make of this strange conduct. Mr. Pierre was himself at a loss to explain the note and the baseball that he gave to Willie Borders. Mr. Pierre testified that he ordered food that he could not pay for because he wanted to get caught. He testified that, after leaving The Keg restaurant, he went to the riverfront and decided that he would either turn himself in or commit suicide.
25The Crown argues that Mr. Pierre’s actions after this alleged contemplation belie the truth of it. Mr. Pierre did not turn himself in. Rather, he went to the casino for a meal. Significantly, he had to walk by Windsor police headquarters to get to the casino. Mr. Pierre testified that he ordered food that he could not pay for because he anticipated that he would be apprehended by authorities and could tell them of the murder.
26Clearly, it would have been a much simpler matter to go directly to the police station. However, it is not clear to me that Mr. Pierre was acting in any kind of rational fashion after the murder. It did not make sense for him to walk right by the police station. But nor did it make sense to engage in food fraud if he was trying to escape detection. I find that Mr. Pierre was intent on being apprehended, even though he went about it in an indirect and unusual way. This is consistent with his efforts to confess to Mr. Borders, and his statements to the police after being apprehended at the casino. Of course, by this time, it was far too late to save Ms. Watterworth’s life.
VICTIM IMPACT
27I have considered the Victim Impact statement read by Ms. Watterworth’s mother. It is clear that Ms. Watterworth’s family has experienced a tremendous loss, which they will never understand. Ms. Watterworth’s mother spoke in court to express her grief, loss, sadness, and confusion over how the offender could have done what he did. I note that Ms. Watterworth’s family was in court each day of the trial, without exception. Whatever sentence I impose today, I cannot give Ms. Watterworth’s family and other loved ones what they most desire. Nothing that I do today can bring this vibrant young woman back to life.
The earlier altercation
28There is some question about whether Mr. Pierre had, on an earlier occasion, assaulted Ms. Watterworth.
29On September 4 2016, Ms. Watterworth called 911 to report that she had been assaulted. Mr. Pierre was charged with the assault. In his testimony he denied that he had assaulted Ms. Watterworth.
30The fact that he was charged was before the jury as a part of the narrative. It explained why there was an outstanding warrant for his arrest when he was apprehended at the casino. It also spoke to the nature of the relationship between Mr. Pierre and Ms. Watterworth. It disclosed that there was a history of turbulence and volatility. There was other evidence to indicate that the two argued a lot.
31I did not permit the jury to hear the 911 call, or view the videotaped statement of Ms. Watterworth. I found that the prejudicial effect of that evidence outweighed its probative value. I did however allow an agreed statement of facts to be presented, setting out the fact of the 911 call, and the fact that Mr. Pierre was charged. It was not agreed that the assault had actually occurred. I instructed the jury on the limited use that could be made of this evidence.
32The fact of a prior assault would be relevant to the sentencing hearing. However, I am not satisfied that I can make a proper determination of whether or not the assault happened. Ms. Watterworth’s out of court statements are hearsay – they were not subject to cross examination. Mr. Pierre testified that he did not assault Ms. Watterworth. It is well settled that the Crown must prove disputed aggravating factors beyond a reasonable doubt. During submissions, the Crown fairly advised that it is not asking the court to find that the earlier assault took place.
CHARACTER OF THE OFFENDER
33Mr. Pierre is 49 years old.
34He has a criminal record, with prior convictions for various offences including two assaults and one robbery. Many of the convictions date back to the 1990s. There is a gap in the record, with no convictions between 1995 and 2009. In 2009, Mr. Pierre was convicted in Edmonton of the offences of mischief, fail to appear times three (3), theft under, escape lawful custody and assault a peace officer, for which he received a suspended sentence and 18 months probation. In 2012, in Quebec, he was convicted of impaired over 80 and possession of a controlled substance for which he received a fine and a driving prohibition.
35Mr. Pierre experienced a challenging, difficult and traumatic childhood. As a young person, he lived in various foster homes. It was during this period that he was the victim of sexual abuse in one home, and verbal emotional abuse in another. He lived with his mother from time to time, but this too was a violent environment after his mother remarried an abusive partner.
36Mr. Pierre has long struggled with addiction issues. At the time of the offence, his drug of choice was crystal methamphetamine. His substance abuse escalated after his mother passed away in 2016. He was deeply distraught by the loss, and turned to drugs as a way to cope with his grief. His addiction had a significant impact on his relationship with the victim. It also curbed his employment prospects, preventing him from holding any jobs for a lengthy period of time.
37Mr. Pierre has also suffered from a range of mental health issues. According to the author of the Pre-sentence Report, he began to experience depression after being sexually assaulted in his youth. He attempted suicide on more than one occasion. He was described by the probation officer as emotionally fragile.
38This is consistent with the testimony of Dr. Fabian, who was called by the defence at the trial. On the basis of a seven hour interview of Mr. Pierre, Dr. Fabian arrived at several diagnoses. These were based on what Mr. Pierre told him, and the tests he performed. Dr. Fabian testified that Mr. Pierre was suffering from a stress disorder that was something short of post traumatic stress disorder, a moderate depressive disorder, a mild neurocognitive disorder due to traumatic brain injury, antisocial personality disorder, various substance abuse disorders and that Mr. Pierre experiences borderline intellectual functioning. He described these conditions and his opinion about the potential impact of alcohol and drugs on someone with Mr. Pierre’s mental conditions.
39Again, I note that the jury was satisfied beyond a reasonable doubt that, despite these conditions, Mr. Pierre had the requisite intent for murder at the time of the crime. I also note that some of these diagnoses are ambiguous, such as a stress disorder that falls short of post traumatic stress disorder. All of that said, I do accept that Mr. Pierre has had many challenges in his lifetime. He has been subjected to the brutality and violence of others and carries the trauma associated with that. His victimization as a young man has pervaded his life.
40This does not excuse his own brutality on the night he murdered Ms. Watterworth. A troubled past does not offer a licence to harm others. Nonetheless, Mr. Pierre’s struggles with past trauma, addiction, mental health issues, and cognitive limitations are relevant factors.
41So too is Mr. Pierre’s remorse. I accept that Mr. Pierre is remorseful for his actions. I believe that he is genuinely shocked that he was capable of violence that he inflicted. I believe that he deeply regrets what he has done. His regret cannot undo the consequences of his actions, but it is of some mitigating effect in determining the period of parole ineligibility
JURY RECOMMENDATION
42In this case, six (6) jurors declined to make a recommendation; five (5) recommended a period of parole ineligibility of 20 years and one (1) recommended 25 years.
43The recommendation of the jury is one of the statutorily mandated factors to be considered. The jury had the benefit of hearing the whole of the evidence in this case. The recommendations reflect their collective view of the gravity of the offence.
44At the same time, I must recognize the inherent limitations on such recommendations. In R. v. Barry [1991] O.J. no.2666; aff’d [1993] O.J. No.3955 Watt J. (as he then was) observed at p.5:
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 issue. 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 at least to endeavour 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 then thereafter told it is but a recommendation. They receive no further evidence concerning, for example, the likelihood of recividism, future danger to society or other matters which might logically bear upon the issue other than what they can recall was given at trial.
The recommendation, to be certain, is a factor to be considered in determining parole ineligibility. It ought, however, to be considered for what it is and weighed accordingly. It ought not to be viewed,unless the circumstances warrant, as a considered, fully informed assessment based on a consideration of the relevant authorities, for it is manifestly not so.
45In attaching less than full weight to the jury recommendation, I should not be taken as disparaging the role of the jury in this case. The jury discharged its duties throughout the trial in a diligent and conscientious fashion. The issue is not the dedication of the jury, it is the dearth of information provided to the jury to help them with their decision. The jury received little in the way of instruction and nothing in the way of evidence. Therefore, while I have certainly considered the juror recommendations, I have been cautious to recognize the proper limitations on this factor in the equation.
CONCLUSION
46Mr. Pierre is to receive a life sentence. In determining the parole ineligibility period, I must strive for proportionality: a sentence that reflects the gravity of the crime and the moral culpability of the offender. The sentence must reflect the community’s condemnation of the offence. Domestic murders, by their very nature, attract shock and horror. In this case, the level of violence and brutality – the infliction of 69 knife wounds – calls for additional denunciation. Some mitigation is warranted by Mr. Pierre’s life circumstances and his level of remorse. However, these factors do not take the range down to that urged by the defence. I do not believe that a parole ineligibility period of 10 to 13 years would adequately capture the serious nature of the crime in this case. I find that a parole ineligibility period of 15 years would best reflect the whole of the circumstances and the balancing of the statutory factors.
47Therefore, Mr. Pierre, I sentence you to life imprisonment, with a period of parole ineligibility of 15 years.
48There will be a DNA order for blood to be taken for purposes of the DNA data bank.
49A s.109 order shall be imposed for life.
Original signed by “Pomerance J.”
Renee M. Pomerance
Madam Justice
Delivered orally: March 14, 2019