Court File and Parties
COURT FILE NO.: CR-16-1-222 DATE: 2019-06-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - and - SHOU CHEN
Counsel: Monica Gharabaway and Karen Simone, for the Crown Gregory Leslie and Michelle Fernandes, for the accused
HEARD: June 24, 2019
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] On May 8, 2019, a jury convicted the accused, Shou Chen, of second-degree murder in connection with his brutal slaying of Ms. Xian Liu. The offence was committed on the morning of October 15, 2014, in the park outside the Wallace Emerson Community Centre, which is located near the intersection of Dufferin Street and Lappin Avenue in the city of Toronto. The accused and Ms. Liu, who were previously well-known to each other, coincidentally met up on a footpath in this park area. Ms. Liu was out for her daily walk, and the accused was riding his bicycle. For some reason, during the course of their ensuing conversation, the accused suddenly violently attacked Ms. Liu, took her physically to the ground, and ultimately beat her to death with a solid metal bar that he had with him on his bicycle.
[2] At the election of the accused, this matter proceeded as a bifurcated trial, recognized as available in R. v. Swain, [1991] 1 S.C.R. 933, where the Supreme Court of Canada concluded, at pp. 986-988, that an accused has the right to control the conduct of his or her own defence, which means that he or she may elect to: (1) raise the defence of mental disorder only after the trier of fact has concluded that the Crown has established the actus reus and mens rea of the alleged offence; or (2) assert at any point during the trial evidence of mental disorder or impairment that might impact on whether the accused had the necessary mens rea for the alleged offence, or lead to a verdict that the accused is not criminally responsible for the commission of the alleged offence on account of mental disorder.
[3] At the conclusion of the first stage of the bifurcated trial, during which defence counsel did not suggest that the accused suffered from any mental disorder but forced the Crown to establish its case against the accused beyond a reasonable doubt, the jury found the accused guilty of second-degree murder.
[4] Subsequently, in the second stage of the bifurcated trial, the defence sought to establish on a balance of probabilities that the accused suffered from a mental disorder to such an extent that, at the time he killed Ms. Liu, he was incapable of knowing that his conduct was wrong. Defence counsel called Dr. Mark Pearce, a forensic psychiatrist, in support of this defence. Dr. Pearce testified, however, that while he was satisfied that the accused suffered from late-onset schizophrenia, he was not convinced, on a balance of probabilities, that this mental disorder rendered the accused incapable of appreciating the nature and quality of his actions or knowing that his conduct was wrong. In other words, the expert opinion of Dr. Pearce did not, in fact, support the existence of the defence. In an earlier report, Dr. Pearce had expressed an opinion that supported the availability of the “not criminally responsible” defence, but when he subsequently learned that the accused appeared to be malingering and exaggerating the extent of the symptoms of this mental disorder, Dr. Pearce revised his opinion. In any event, at the conclusion of the second stage of the bifurcated trial, the jury confirmed their earlier verdict that the accused was guilty of second-degree murder.
[5] The accused now appears for sentencing. As a matter of law, the accused must be, and will be, sentenced to life imprisonment. This is the mandatory minimum sentence that must be imposed on all offenders guilty of second-degree murder, pursuant to s. 745(c) of the Criminal Code, R.S.C. 1985, c. C-46. The only discretionary aspect of this sentence is that, according to s. 745.4 of the Criminal Code, the court may order that the period of time for which the accused must remain ineligible for release on parole be increased from the mandatory minimum of 10 years, to a period of time between 10 and 25 years. In this case, the Crown contends that the accused’s parole ineligibility period should be increased to 12 years. Defence counsel argues, on the other hand, that there should be no increase in the mandatory minimum parole ineligibility period of 10 years.
[6] At the conclusion of the lengthy trial proceedings in this case, when the members of the jury were asked for their recommendations in this regard, pursuant to s. 745.2 of the Criminal Code, two jurors made no recommendation, nine jurors recommended the imposition of the minimum 10-year period of parole ineligibility, and one juror recommended that a 15-year period of parole ineligibility be imposed on the accused.
[7] According to s. 745.5 of the Criminal Code, in making this determination about the period of time the accused should remain ineligible for release on parole, the court must consider the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation, if any, made by the members of the jury that decided the case. The court must also, of course, consider all of the other relevant sentencing principles and all of the circumstances of the case. As to the judicial approach that should be taken to this assessment, in R. v. Shropshire, [1995] 4 S.C.R. 227, at p. 242, the Supreme Court of Canada stated that, as a “general rule” the period of parole ineligibility should be for 10 years, but that this general rule can be “ousted” by a determination by the trial judge that the offender “should wait a longer period before having his suitability to be released into the general public assessed.”
[8] For all of the following reasons, I have concluded that, in all of the circumstances of this case, the “general rule” ought to be followed, and that the mandatory minimum period of parole ineligibility of 10 years should not be increased. Accordingly, the accused will be sentenced to life imprisonment, without being eligible for release on parole until he has served at least 10 years of his sentence. The parties are agreed that there should be two ancillary sentencing orders: (1) a weapons prohibition order for life; and (2) a DNA databank order. Those orders will also be made.
B. The Character of the Offender
[9] Mr. Chen was born on February 28, 1944, in China. As an adult he worked there as a farmer. He and his family came to Canada in approximately the year 2000. He is now 75 years of age. At the time of the offence, in October of 2014, Mr. Chen was 70 years of age. He has no prior criminal record, or any history of violent or anti-social behaviour.
[10] Between approximately the years 2000 and 2009, Mr. Chen was employed in Toronto in a factory-type job in a food manufacturing plant. He retired from that job in approximately 2009. Since moving to Canada, Mr. Chen has lived with his family and been a productive member of society. Since his retirement, Mr. Chen and his wife have periodically been responsible for looking after their grandchildren.
[11] During the trial, the court heard testimony from the accused’s adult children – his son, Yuwen Chen, and his daughter, Wan Yu Chen. They testified as to their alleged observations of their father’s deteriorating mental health over the years. They both explained how their father, at some point, began to periodically talk to himself and claim to be speaking to “ghosts or evil spirits.” They also explained, however, that rather than take their father to a local medical doctor for assessment and treatment, their family decided that a better course of action was to periodically send money to some “witchcraft lady” in China, hoping that she would be able to help. This course of action was, needless to say, shockingly ill-advised and predictably did absolutely nothing to remedy or ameliorate Mr. Chen’s deteriorating mental condition or prevent his involvement in the commission of this offence.
C. Facts of the Offence and the Circumstances Surrounding its Commission
[12] On the morning of October 15, 2014, the accused went for a ride on his bicycle at the Wallace Emerson Community Centre. His arrival there, at approximately 9:55 a.m., was recorded on video surveillance cameras inside the facility. He rode his bicycle slowly along the open air “catwalk” beside the Community Centre, and then out onto a circular pathway around and through the adjoining park. A few minutes later, at approximately 9:57 a.m., the accused met Ms. Liu on this pathway.
[13] At the time, Ms. Liu was 65 years of age. She lived nearby in a house on Lappin Avenue, with her husband and other members of her family. She was retired and spent much of her time looking after her grandchildren. Quite often, in the mornings, she would walk in the park next to the Wallace Emerson Community Centre for exercise. Ms. Liu and Mr. Chen were well-known to each other. Prior to his retirement, Mr. Chen had worked together with Ms. Liu’s husband and her son, in the same food manufacturing plant, for close to a decade. Ms. Liu’s son often drove them all back and forth to work, as Mr. Chen lived nearby. Further, Mr. Chen had previously been to Ms. Liu’s house to visit her and her husband. Even after Mr. Chen retired, Ms. Liu, her husband and her son would see Mr. Chen in the neighbourhood, riding his bicycle, and Mr. Chen would still periodically visit with them in their Lappin Avenue home. In his trial testimony, Ms. Liu’s son (Wan Peng Mei) testified that neither he nor either of his parents ever had any problems or issues with Mr. Chen.
[14] There is no evidence to suggest that when they met each other on the pathway in the park on the morning of October 15, 2014, Ms. Liu and Mr. Chen were on anything but friendly terms. They had been travelling in opposite directions on the pathway that morning, but they stopped and engaged in a conversation that lasted seven minutes and 46 seconds. Near the outset of this interaction, Mr. Chen got off his bicycle and placed it on the kickstand. Later, Mr. Chen moved around his bicycle so that he and Ms. Liu were on the same side of his bicycle.
[15] This interaction between them which led, ultimately, to the murder of Ms. Liu was partially recorded. A fixed security camera at the Community Centre, which was focused on an emergency telephone, coincidentally captured the events that unfolded between these two people on the pathway, from approximately their knees down. The parties could be easily identified in the video recording from their footwear – Mr. Chen was wearing quite distinctive running shoes that day.
[16] Mr. Chen’s attack on Ms. Liu took place at approximately 10:05 a.m. and lasted a total of about 22 seconds. First, the accused suddenly lunged at Ms. Liu, taking her to the ground. As revealed by the video recording, Ms. Liu ended up on her back on the ground next to the footpath. The toes of her shoes were pointing upwards. Mr. Chen was on top of her. The toes of his shoes were pointing downwards. From the video recording, there appeared to be a lot of movement of their bodies on the ground, although the camera did not record the details of the actual assault, which took place just off camera. The first portion of the assault lasted approximately 9 seconds.
[17] The accused then rolled off of Ms. Liu, got up from the ground and walked the very short distance back to his bicycle, while Ms. Liu remained in her same position on the ground. When the accused returned to Ms. Liu, the security camera recorded her body “shudder” or “jump” or “bounce up” slightly from its position on the ground. It is apparent that this involuntary body movement was caused by the force and ferocity of the impact of the blow or blows administered by the accused.
[18] Mr. Chen then returned to his bicycle, took it off its kickstand, and left the scene. Ms. Liu remained motionless and alone on the ground in this same location until approximately 10:28 a.m., when someone else arrived on the scene, and the unsuccessful efforts at her resuscitation began.
[19] After his killing of Ms. Liu, Mr. Chen left the area of the park and the Community Center. As he did, he disposed of the metal bar that he had used to kill Ms. Liu. It was subsequently found by the police nearby in a pile of mulch, covered in Ms. Liu’s blood. The bar was solid and made of machined metal, it was nearly a foot long, with a metal flange at one end, and had the weight and heft of a “household hammer.” Mr. Chen then left his bicycle next to the building that housed the Community Centre swimming pool. When the police found this bicycle, they discovered Mr. Chen’s palm print, in Ms. Liu’s blood, in a red stain on the seat of the bicycle. Finally, before he left the area entirely, Mr. Chen went inside the Community Centre, and into a washroom, no doubt to wash his hands of Ms. Liu’s blood. This attendance in the washroom was recorded on a security camera located inside the facility.
[20] The forensic pathologist, who subsequently examined the body of the deceased, testified that Ms. Liu died from multiple “blunt force injuries to her face and head.” The three major injuries to her head were likely caused, according to the forensic pathologist, by “heavy and repeated blows from a long and linear, rod-like instrument,” and were of sufficient force that they caused skull fractures beneath the injuries. When shown the solid metal bar found by the police, the forensic pathologist testified that it “fit the bill” as to the instrument that could have caused these fatal injuries. Other lesser injuries suffered by the deceased could have been caused by fist punches.
[21] There can be no question that the unprovoked attack by Mr. Chen, on the unarmed, defenceless Ms. Liu, was one of great violence and that the accused forcefully inflicted lethal blows, multiple times, with a solid hammer-like metal instrument to the deceased’s head and face. In so doing, the accused could only have intended to cause her death.
D. The Victim Impact Evidence
[22] At the sentencing hearing in this matter, the Crown provided the court with a compelling body of evidence showing the profound impact that the death of Ms. Liu has had on her family.
[23] From this evidence, it is clear that Ms. Liu was a wonderful, caring, and compassionate woman, who worked hard all of her life, and selflessly devoted herself to providing a warm and nurturing home environment for her family. Her tragic and violent death has left her surviving family members filled with great sadness, depression, anger and fear. All of their lives, as well as the life taken from Ms. Liu, have been irreparably and substantially diminished by the violent, senseless, criminal conduct of the accused. Family members have forever lost a loving spouse, mother, grandmother, sister, aunt, cousin and friend.
[24] While all of this poignant victim impact evidence must be appropriately and dispassionately considered in the sentence to be imposed upon the accused, the unfortunate reality is that no sentence now imposed upon the accused, regardless of its legal or practical duration, can ever return Ms. Liu, or in any way serve to compensate her family and friends for their immeasurable loss.
E. The Role of Mental Disorder in the Sentencing Process
[25] One of the most important factors, if not the determining factor, in considering whether the period of parole ineligibility should be increased in this case, is the role mental disorder played in the commission of this offence.
[26] As I have indicated, Dr. Pearce diagnosed Mr. Chen as suffering from late-onset schizophrenia, a psychotic disorder. In his trial testimony, Dr. Pearce explained that psychosis is a loss of contact with reality that has four main symptoms: (1) perceptual anomalies, such as hearing voices or having visual hallucinations; (2) delusional beliefs, which are false, fixed, illogical beliefs; (3) disorganized thinking; and (4) disorganized behavior. As Dr. Pearce explained, to be considered “psychotic,” a person need not manifest all four of these conditions. Dr. Pearce also observed that schizophrenia is the most common type of psychotic disorder. Dr. Pearce testified that he thought that Mr. Chen had exhibited at least two of these four symptoms. While ultimately he could not support, on a balance of probabilities, the conclusion that Mr. Chen was not criminally responsible for his killing of the deceased, Dr. Pearce testified that he still “suspected” that Mr. Chen may not have been criminally responsible, and he believed that “untreated psychosis possibly played a significant factor” in the killing of Ms. Liu.
[27] The existence of a mental disorder in the accused can play a significant role in mitigation of sentence. As MacDonnell J. stated in R. v. Haly, 2012 ONSC 2302, at para. 34:
No doubt, mental illness short of a defence under s. 16 of the Criminal Code may lessen the moral blameworthiness of an offender and in that manner it may mitigate sentence, but whether it will do so will depend on all of the circumstances. Generally speaking, “for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct.” ….. Even where a link is established, if the offender’s mental illness makes him or her a continuing danger “[the illness] is not necessarily a reason to reduce what would otherwise be an appropriate sentence.” [citations omitted]
[28] Where the evidence establishes that the accused suffered from a mental disorder causally linked to the commission of the offence, an application of the general principles of sentencing suggest that: (1) denunciation and deterrence (both general and specific) may play a somewhat reduced role in sentencing; and (2) that the rehabilitation of the accused and the need to protect the public may play a somewhat increased role in sentencing. See R. v. Wallace (1973), 11 C.C.C. (2d) 95 (Ont.C.A.), at pp. 96-100; R. v. Robinson (1974), 19 C.C.C. (2d) 193 (Ont.C.A.), at pp. 196-199; R. v. Worth (1995), 98 C.C.C. (3d) 133 (Ont.C.A.), at pp. 144-145; R. v. Shahnawaz (2000), 149 C.C.C. (3d) 97 (Ont.C.A.), at paras. 29-34; R. v. Corpus, [2000] O.J. No. 549 (C.A.), at paras. 7-8; R. v. Batisse, 2009 ONCA 114, at para. 38; R. v. Prioriello, 2012 ONCA 63, at para. 11; R. v. Ellis, 2013 ONCA 739, at paras. 53-54, 107-122; R. v. Hart, 2015 ONCA 480, at para. 6; R. v. D.D., 2018 ONCA 134, at paras. 8-15.
[29] In the present case the Crown fairly conceded that, in all of the circumstances of this case, there is a compelling and, indeed, “irresistible inference” that the accused attacked and killed the deceased as a result of his mental disorder, schizophrenia. There is simply no other explanation. The then 70-year old accused and the 65-year old deceased were well-known to each other. Mr. Chen and Ms. Liu’s husband used to work together, and travel back and forth to work together, being driven by Ms. Liu’s son. Even after his retirement, Mr. Chen periodically visited with Ms. Liu and her husband. They seemed to be on friendly terms. There is no evidence that suggests that the accused had any animosity or ill-will toward Ms. Liu, her husband, or her family. They had never argued, and never appeared to have any personal problems or issues with each other. Further, Mr. Chen had no prior criminal record and was not known to be a violent man ever before in his life. Yet, something caused Mr. Chen to spontaneously, violently attack Ms. Liu, during the course of their conversation, during their chance meeting on the morning of October 15, 2014, and quickly beat her to death with a metal bar. In the absence of any other potential rational explanation or motive for the offence, I am driven to conclude that the murder was causally connected to the mental disorder suffered by the accused. This is not to say that the accused was so affected by his mental disorder that he was incapable of appreciating the nature and quality of his actions or knowing that his actions were wrong. Dr. Pearce rejected that notion and, more importantly, so did the jury. I conclude only that the murder was causally connected to the mental disorder. Nevertheless, this factual conclusion is a significant factor in mitigation of the sentence to be imposed in this case.
[30] The Crown’s position, that the accused should be given a 12-year parole ineligibility period, was effectively premised on acceptance of the factual foundation that any mental disorder suffered by the accused was not causally connected to the murder of the deceased. While the Crown argued that the objective evidence in support of a conclusion to the contrary was weak, the Crown could offer no alternative reason for the commission of the offence. On the Crown’s theory of the case, this was a simply an unprovoked, senseless, and spontaneous act of extreme violence, by a 70-year old man with no prior criminal record or known violent tendency, against an elderly woman who appeared be his friend. I cannot accept that as the appropriate factual basis upon which to sentence the accused. As I have indicated, I have concluded that the murder of Ms. Liu was causally connected to the mental disorder suffered by Mr. Chen. Accordingly, I must reject the sentencing position advanced by the Crown.
F. Final Analysis and Conclusions
[31] According to s. 745.5 of the Criminal Code, the three main considerations in determining the specific duration of the parole ineligibility period that should be imposed upon an accused convicted of second-degree murder are: (1) the character of the offender; (2) the nature of the offence and the circumstances surrounding its commission; and (3) the recommendations, if any, made by the members of the jury that decided the case.
[32] In my view, all three of these statutory factors support the position of defence counsel that the “general rule” should operate and that there should be no increase in the mandatory minimum 10-year period of parole ineligibility. First, the accused is an elderly man, with no criminal record, who led a productive and non-violent life prior to his inexplicable commission of this offence. Second, the murder of the deceased, while marked by sudden and shocking violence by the accused and resulting in the tragic loss of the beloved Ms. Liu, was linked, in a causal way, to the mental disorder of schizophrenia. Third, a solid three-quarter majority of the members of the jury that heard this case and who learned first-hand about the details of the killing of the deceased and the nature of the mental disorder suffered by the accused, recommended that there be no increase in the parole ineligibility period imposed upon the accused.
[33] In all of the circumstances of this case, in my view this is simply not a case in which the time period for which the accused should remain ineligible for release on parole should be increased beyond the 10-year mandatory minimum term. The “general rule” should be applied, leaving the question of the potential release of the accused to the parole authorities. In reaching this conclusion, I note that there are a number of factually similar judicial authorities where courts have reached this same conclusion. See, for example, R. v. Levy, [1997] O.J. No. 3505 (C.A.), at paras. 13-14; R. v. Chen, 2015 ONSC 3759, at paras. 24-29; R. v. Salifu, 2019 ONSC 483, at paras. 44-48, 64-65.
[34] I wish to note that, in reaching this conclusion, I have given no weight to the comments made personally by Mr. Chen at the end of the sentencing hearing, when he finally admitted his involvement in the commission of this offence and apologized to the family of the deceased for his killing of Ms. Liu. I watched Mr. Chen carefully as he made these few brief comments, and they struck me not as any sincere expression of remorse and genuine apology to the family of the deceased, but rather as merely the final, desperate, tactical step by the accused to try to minimize his punishment.
[35] In my view it is important to place these comments in their proper context. Those comments were made at the very end of a lengthy, bifurcated trial process. During the first stage of that process, Mr. Chen advanced the position, through counsel he instructed, that he was not the person physically responsible for causing the death of the deceased. Mr. Chen advanced this position in the face of truly overwhelming evidence to the contrary. The video recording evidence, the fingerprint evidence and the DNA evidence established, clearly and conclusively, that it was indeed Mr. Chen who murdered Ms. Liu. Defence counsel was ultimately forced to concede, during his closing address, that it would be “foolish” for him, and an “insult to [the jury’s] intelligence,” to suggest that Mr. Chen had not killed the deceased. Further, during the second stage of that bifurcated trial process, Mr. Chen advanced the position, again through counsel he instructed, that he was not criminally responsible for that murder, and he advanced that position even though he knew that the forensic psychiatrist that would be called by the defence, would not support the defence, as he had learned that Mr. Chen had been malingering and exaggerating the severity of this mental disorder.
[36] The few brief words of remorse and apology by Mr. Chen, at the end of a lengthy trial where he sought, at every turn, to avoid his responsibility for the murder, could not help but ring hollow and self-serving.
G. The Sentence Imposed
[37] Mr. Chen, you now stand convicted of the second-degree murder of Ms. Xian Liu. I hereby sentence you to imprisonment for the rest of your life. Further, I order that you shall not be eligible for release on parole until you have served at least 10 years of that life sentence.
[38] In addition, you will be subject to the following two ancillary sentencing orders which where jointly recommended by the parties and which are, in my view, appropriate in the circumstances of this case.
[39] First, pursuant to ss. 109(1)(a) and 109(3) of the Criminal Code, you are prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for the rest of your life.
[40] Second, as you have been found guilty of committing a “primary designated offence,” pursuant to s. 487.051(1) of the Criminal Code, I make an order to have samples of bodily substances taken from you for purposes of forensic DNA analysis.
Kenneth L. Campbell J.
Released: June 27, 2019