COURT FILE NO.: CR-17-0000422

DATE: 2019 01 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Esson and S. Ferrone for the Crown

• and -

HASSAN SALIFU

J. Kaldas and H. Wong for Mr. Salifu

HEARD: December 12, 2018

PAROLE INELIGIBILITY RULING

D.E. HARRIS J.

1Galina Alexander, 21 years old at the time, gave birth to a son she named Hassan on November 19, 1991 in Russia. Her marriage to her husband dissolved some years later. She brought up her son as a single mother. The two were extremely close. Twenty-three years after giving birth to him, in the apartment they shared in Brampton, Hassan killed his mother. She was only 44 years old; he was 23.

2In this two-stage trial, the jury first found Hassan Salifu guilty of second degree murder and then, in the second stage, rejected his claim that he was not criminally responsible (NCR).

3These are my reasons setting a period of parole ineligibility for Mr. Salifu under Section 745.4 of the Criminal Code. This must be one of the saddest cases that ever was. The evidence from the friends of the family and from Mr. Salifu were that mother and son adored each other. They loved each other intensely. They were a family. They had no one else close to them in the entire world. They were a team; a team against the world.

4There had been arguments in the past. Ms. Alexander had called 911 when she was in fear of her son on two occasions. Several times, out of anger, he had put his fist through the wall in the apartments they shared. He had broken the bannister once. There were verbal arguments between the two. Galina Alexander’s friend Nadira Dindyal, who testified at the trial, said that she witnessed Mr. Salifu calling his mother “stupid, unintelligent, a fucking bitch and a whore.” Ms. Dindyal told him to stop it. There were arguments about money. The mother and son relationship was somewhat volatile and troubled but overall it was a loving relationship.

5On August 15, 2015, over nothing of any real consequence, Mr. Salifu flew into a blind fury against his mother. As he said afterwards, he just snapped. He was totally out of control. Rage swept him from his moorings. He killed the person he loved the most in the world. It was a supremely self-destructive act.

6Section 744 of the Criminal Code governs parole ineligibility sentencing for second degree murder. It reads:

744. … the judge who presided at the trial of the offender ... may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission ... 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.

7Also pertinent is the leading case on parole ineligibility for second degree murder, the Supreme Court’s judgment in R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52. The position of the parties is, for the Crown, 12-13 years of ineligibility of parole. The defence argues that there is no reason to increase ineligibility over the 10 year minimum. The parties agree that there should be ancillary orders for a DNA databank order and a Section 109 weapons prohibition for life. I will make those orders.

Why did Mr. Salifu Kill his Mother?

8Why did Mr. Salifu kill his mother? This question is dictated by the reference in Section 744 to the “nature of the offence” and, in particular, the “circumstances surrounding its commission.” General sentencing principles and the fundamental requirement of proportionality reinforce this. The answer is central to Mr. Salifu’s moral blameworthiness.

9The motivation was not greed. It was not the rent or other money that he may have owed his mother. It was not a generally violent disposition. He had no criminal record and there was no history of violence against people with the possible exception of a relatively minor altercation he had with an uncle several weeks before. But there was violence brewing in Mr. Salifu.

10On the most surface level, the simple answer is that Mr. Salifu’s normal societal constraints gave way under the storm of an all-consuming anger. The respect for his mother, for her life, and the moral prohibition on harming another, particularly a parent, was overborne by the transfiguring emotional wave of rage which swept over him.

11But what caused this anger? According to his testimony and what he told Sgt. Quashie, the psychologist and the two psychiatrists who testified at trial, on the morning of the day she died, Ms. Alexander walked their two dogs. Upon returning, she boiled some eggs to feed the dogs. Mr. Salifu was hungry and wanted to have one of the eggs for himself. An argument ensued. They said horrible things to each other. Mr. Salifu said in his statement to the police that he called his mother a whore. He said that, “It just got too heated.” Part of it was about money. There were insults traded back and forth. His mother threatened that she would get gangsters after him; she knew people with guns. At one point she said that she should have choked him to death when he was born. She baited him and asked if he was going to hit her like her second husband Raymond did. Mr. Salifu said he walked away and was trying to remain calm.

12He felt confused after the argument. He was doing too many things. He felt like he had worked a 16-hour shift and his mind was fatigued.

13One of the dogs grabbed an egg. Mr. Salifu went after the dog and he said his mother might have mistakenly assumed he was going to hurt the dog. Mother and son approached each other. She may have swung at him or he might have misperceived that she had. He hit her with a closed fist and she fell. He said it felt like a black void. He kicked her twice after she fell. She was unconscious. He then choked her with a belt. When asked about that by one of the psychiatrists, he said that he did not want to feel afraid. He had been afraid of his mother.

14The insults from his mother clearly played a role in the anger which descended upon Mr. Salifu. Amongst family members who have lived together for many years and know each other thoroughly, there is an uncanny intuitive sense of where the vulnerabilities and raw nerves are and how to trigger them. Ms. Alexander and Mr. Salifu did their utmost to push each other’s buttons that morning and they were probably expert at it.

15The insult that she should have choked him when he was a baby was one of the most hurtful things Ms. Alexander, as a mother, could have said to her son. The woman who had given him life and nurtured him into adulthood wished she had killed him in infancy. As an expression of hatred, there was no higher she could have gone. But of course she loved him, she did not hate him. Love is an intense emotion; whipped up, love became for a fateful few moments and for whatever reason, hatred of the most ferocious kind. That he choked her to death after she had said she should have choked him when he was born was not likely a coincidence. Afterwards, the fury dissipated as quickly as it had come.

16Mother and son had both been in a downward spiral for some time. Money troubles were part of it. Ms. Alexander had lost a considerable sum of money in a pyramid scheme and she had been audited by the CRA. There must have been other reasons as well. Two weeks before, mother and son had returned from a trip to Kazakhstan. They had gone to visit her family there. They were hoping to get some relief from their current stressful and unhappy situation in Canada. Neither of them were doing well and they had even talked about moving to Kazakhstan to get away from their life in Brampton. Ms. Alexander worked as a hair stylist out of her home and living expenses could not have been easy. Mr. Salifu was unemployed and did not seem to have much money either.

17Some insight into the state of mind of mother and son before their trip can be derived from Mr. Salifu’s email to his father in mid-May. His father had been, at best, a peripheral figure in his life. He told his father that his mother had decided to move to Kazakhstan but that she was changing her mind every day. She was not in a stable frame of mind and was not thinking properly. He said that he really did not have any friends anymore and his relationship with his mother was fading away. When asked about this by psychiatrist Dr. De Freitas after the offence, he said that at times he felt his relationship with his mother was good and at times he felt that she was part of a conspiracy against him. He added that he had nobody to talk to.

18The trip made matters worse, not better. They came back early. There was quite a bit of strife between the family members in Kazakhstan. Mr. Salifu got into an argument with his uncle and it came to physical blows. Mr. Salifu felt like he might be attacked in retribution but this feeling dissipated in a few days. He got into arguments with his mother. When they got back home, according to Mr. Salifu, his mother was depressed and suicidal. For his part, Mr. Salifu was paranoid and felt like he was being followed.

19The evidence of Jermaine Peters summarized some other causal factors, which Mr. Salifu later discussed with Dr. Gojer who testified for the defence on the NCR trial. Peters was a friend of Mr. Salifu’s, maybe his only friend. They hung out together in the days leading to the offence. Peters said that they consumed a substantial quantity of alcohol and marijuana. At this time in his life, this was unusual for Mr. Salifu. It could not have helped his frame of mind that fateful morning. Peters said that Mr. Salifu was cut off from his friends and quite paranoid.

20The short answer then is that this was a killing committed out of extreme anger but with other factors involved as well. Family arguments are of course very common. This was at the very extreme end but did not perhaps differ on the surface from a typical family argument. It just went way further and the anger that was produced was white hot, explosive. It was enough to shatter the boundaries of familial respect and affection.

What is the Importance of Mr. Salifu’s Remorse?

21The overwhelming remorse which followed the murder is of some importance in characterizing this offence and attempting to determine why Mr. Salifu killed his mother. Expressions of remorse followed closely the killing. The timing cannot be determined with much precision but Mr. Salifu’s text to his friend Mr. Peters gives us some help. Mr. Salifu texted his friend at 11:02 a.m. that he had just killed his mother. Mr. Salifu then called 911 at 11:10 a.m.

22There is every possibility the text was sent quite soon after Ms. Alexander was killed. I suspect that the remorse itself was likely almost immediate. The exact amount of time does not matter, however. What is important is that expressions of remorse came not long after the killing.

23During the 911 call, Mr. Salifu could barely speak through his agonized wailing. When the police came to the door of the apartment, one of the officers heard the accused crying and screaming. Mr. Salifu said in his statement to the police that after the attack, his mother was lying face up. He did not want to look at her face which we know from the photographs was horrifically damaged. So he turned her face down. He then thought this was disrespectful and turned her face up but put a cloth over her face so he would not have to look at her. That is the way she was found by the first responders. While being led from the scene by the police, Mr. Salifu requested several times to go back and view the deceased one last time.

24In the police interview with Sgt. Quashie which followed, there were bouts of anguish and remorseful statements throughout. He said, amongst other things, “I lost my mom, she’s the only person I had”, “I wish I had a rewind button”, “She deserved to live her life man. She did, no matter what happened. She deserved to live. Oh my God. Oh my God” and “I wish she was still alive.” He told Sgt. Quashie that he was cowardly, he did not deserve to live, he was thinking of attacking the police upon their arrival at the apartment so he would be shot and killed.

25Although this remorse could not be disputed, it was suggested that there was little remorse expressed during this trial. I agree but do not make much of it. While it is true that there was an emotional flatness to Mr. Salifu’s testimony, it could not be expected that there would be a great outpouring of emotion. Mr. Salifu has been in jail for over three years. He was interviewed extensively by two psychiatrists and a psychologist. He testified by video feed from a cell due to his outburst in court. There was an enormous amount at stake for him. In the circumstances, it was not surprising that remorse was not readily apparent.

26Some reference was also made in this connection to Mr. Salifu’s attitude when he was cross-examined. This occurred after he was excluded from the courtroom due to his violent outburst during the Crown’s closing address on stage 1 of the trial. Because of the specifics of the video setup, he had to testify standing up. When asked in cross how he had strangled his mother, he became very agitated and sat down so we in the courtroom could no longer see him on the video feed. He appeared very resentful that this entirely reasonable question was asked. He said that others had done far worse things than he had done. He said he was tired of it.

27This was reminiscent of his behaviour during the outburst itself. I do not attribute his words or actions to a lack of remorse but instead to mental disturbance.

28As an aside, I would note that in his testimony, Mr. Salifu showed remarkable honesty and integrity. He was a likable and intelligent witness. If anything, he downplayed the delusions he had been experiencing. At no time, did he appear to be gilding the lily as would be reasonable to expect for a man with so much hanging in the balance.

Mr. Salifu is a Youthful First Offender

29Mr. Salifu was 23 years old at the time of the murder and having no criminal record of any type, was, in law a youthful first offender. This is a significant mitigating factor: R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at paras. 17-22, R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36, R. v. Brown, 2015 ONCA 361, [2015] O.J. No. 2655 at para. 2-5; R. v. Thurairajah, 2008 ONCA 91, [2008] O.J. No. 460, at paras. 41-44. So is the remorse summarized above. In addition, Ms. Dindyal and Ms. Cronin, friends of the deceased who testified at the trial, attested to Mr. Salifu’s good character.

30The lack of a record should also be factored into the question of why Mr. Salifu killed his mother. It is of some importance that Mr. Salifu had never inflicted violence on anyone before. The lack of a violent past is of assistance in getting to the bottom of why Mr. Salifu killed his mother. We know it was not a general violent disposition which led to the killing.

What Role did Mental Illness Play?

31It is indisputable that Mr. Salifu’s suffers from a mental illness. Although the jury rejected his not criminally responsible plea made under Section 16 of the Criminal Code, plainly, this does not mean that Mr. Salifu is not mentally ill. It only means that he was either not suffering from a “disease of the mind”—in this case said to be schizophrenia or 1. He was capable of appreciating the nature and quality of his act—he knew he was killing a human being, or 2. He knew it was morally wrong. There is no way to tell which of the two Section 16 elements, or both, the jury found not proven by the defence.

32The defence urges me to find that Mr. Salifu was suffering from schizophrenia at the time of the offence as was the expert opinion of psychologist Dr. Pomichalek and psychiatrist Dr. Gojer, defence witnesses on the second NCR stage of this trial. Although not precluded by the jury findings, I do not intend to delve into the question. It is too fraught with uncertainty and is, furthermore, unnecessary.

33While the defence experts concluded that it was schizophrenia, Dr. De Freitas, who testified for the Crown, criticised that finding. Some of what she said was quite persuasive, some of it less so. On the other hand, her finding of traits of a paranoid disorder, although not the disorder itself, seemed to fall significantly short of explaining the full range of Mr. Salifu’s symptomology. I suspect the accurate diagnosis of Mr. Salifu’s disorder is not a simple matter.

34The Crown at no time during the trial or this sentencing hearing argued that Mr. Salifu is not mentally ill. The evidence is incontrovertible that he is.

35There was evidence of paranoia developing in Mr. Salifu’s teenage years. At age 16 or so, he was bullied. Together with being stabbed when he was 18 years old and warned not to go to court, Mr. Salifu felt that he was being followed at times. He did not go outside for a few months after the stabbing and became withdrawn.

36When he was 21 years old, he heard voices on one occasion. It was like someone calling from a distance. He thought it was just a coincidence the first time. When he was 22 years old, there was a time when it seemed like satellite radio was broadcasting his thoughts. He was thinking about something and then instantly they started talking about it on the radio. These were the only two times Mr. Salifu could distinctly remember hearing voices but he testified that there were other times as well.

37Mr. Salifu worked as a security guard and also delivered furniture. He then worked mainly as a truck driver for several different companies. He worked long hours. He had work troubles that arose because of how hard he was working and problems getting along with other workers, some of whom were racist. Mr. Salifu’s skin is brown as his father is from Ghana and his mother from Russia. There was some fear and paranoia. He believed he was being sabotaged at work, he was given faulty equipment and health benefits were withheld from him. When asked about whether the voices were a problem leading up to the incident, he said they were not. The sense of being followed was a problem. He felt like his friends had orchestrated an attack on him. Mr. Peters commented that this was absurd and I believe him without reservation. Mr. Salifu heard people mocking him concerning what he had talked to a girlfriend about the night before.

38Dr. Gojer testified that Mr. Salifu’s delusions were not single delusions, they were multiple delusions such as believing his prison food was poisoned, supposed conspiracies against him at work, a co-worker knowing what he had been talking to his girlfriend about the night before and other matters as well. These were delusions of persecution and other delusions with a paranoid cast.

39The same was true about the people against him because of his Muslim name and the colour of his skin. So too the negative experiences in Kazakhstan not long before the homicide and the idea that his mother wanted to harm him.

40Some of this evidence arose post-offence, in the jail environment, surely one of the worst possible places for a person who suffers from mental illness. The delusions greatly increased in jail. Hearing voices became a daily occurrence. Ms. Cronin who was a friend of the deceased and has befriended Mr. Salifu since the offence, attested to this as well. There was a strong continuity between the delusions before and the delusions after the offence. It is a reasonable conclusion that whatever he has now, he had then, albeit now more pervasive and consistent.

41In concluding that Mr. Salifu was not suffering from schizophrenia, Dr. De Freitas testified that the delusions were not sufficiently consistent or frequent and were not so deeply entrenched that Mr. Salifu was convinced that they were real. He could reason through them as false at times. She also explained some or even most might have been real, not imagined, such as the racism or bullying from his co-workers. This methodology might be open to question. In any case, although some of Mr. Salifu’s thoughts might have been based on real events albeit significantly exaggerated, in totality, there is no doubt that the delusions firmly establish a mental illness of some kind.

42Lastly, the jury and Dr. De Freitas could not use Mr. Salifu’s outburst in court as evidence but nothing prevents me from doing so in this sentencing. The outburst was clearly indicative of mental illness. Mr. Salifu totally lost control. It was exceedingly irrational not to say scary and violent: see a fuller summary in the ruling denying a mistrial, R. v. Salifu, 2018 ONSC 6750.

43Above all else, besides the violence of the outburst, Mr. Salifu was clearly delusional. In his tirade, he alleged that the police had killed his mother. This was not feigned. Perhaps the terrible guilt of his own actions weighed so heavily on him that, in his agitated flailing, he needed to push the guilt away and blame someone else. Similarly, on a much smaller scale, the agitation during the Crown’s cross-examination again seemed to be delusional and directed to averting his guilt. In any case, in my view, together with the other evidence, the outburst helped establish that Mr. Salifu suffers from a mental illness complete with delusions, the hearing of voices, hallucinations, paranoia and conspiratorial ideation.

CONCLUSION: MENTAL ILLNESS PLAYED A CENTRAL CAUSAL ROLE IN THIS MURDER

44Mr. Salifu’s frenzied, unbridled fury on August 15, 2015 was without real warning. The wave of remorse which engulphed him suggested something fleeting and explosive which he could not fully control. There had been significant family discord but nothing presaging Mr. Salifu’s level of rage unleashed against his mother.

45In the end, only Mr. Salifu’s mental illness can explain what happened here. To be clear, the basis for this finding is the lack of a significant previous history of violence, the inability to fully explain this homicide based on the history between Mr. Salifu and his mother, the circumstances which led Mr. Salifu to snap and the indisputable evidence of mental illness adduced in this proceeding.

46In my opinion, without the mental illness, this homicide would not likely have occurred. Justice Dickson, as he then was, said in Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120, at p. 138:

There rests now, at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected to punishment, unless the commission of the crime was voluntarily directed by a willing mind.

47This crime was voluntary and it was directed by free will. However, Mr. Salifu’s state was deeply affected by his mental illness. The mental and act elements of murder were formed under the influence of delusions and an explosive anger, both the product of mental illness.

48Although the mental illness does not negate the act or mental elements of second degree murder, it does substantially diminish Mr. Salifu’s responsibility and moral blameworthiness. Besides this, the mental illness substantially reduces the sentencing principles of general deterrence and specific deterrence, central in the vast majority of murder sentencings. Justice Strathy (as he then was) said in R. v. Ellis 2013 ONCA 739, [2013] O.J. No. 5583, leave refused [2014] S.C.C.A. No. 53,

117 There is no doubt that an offender’s mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender’s culpability may be diminished, punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations. As this court explained in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 (Ont. C.A.), at para. 38:

... here the appellant’s mental health problems played a central role in the commission of the offence. In such circumstances, deterrence and punishment assume less importance. As this court emphasized in R. v. Robinson (1974), 1974 1491 (ON CA), 19 C.C.C. (2d) 193, at p. 197, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive: see also R. v. Hiltermann (S.G.) (1993), 1993 16387 (AB CA), 141 A.R. 223 (C.A.), and R. v. Peters (D.A.) (2000), 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184 (Nfld. C.A.), at paras. 18-19.

118 In Batisse, Gillese J.A. found that the appellant’s mental health issues played a central role in the commission of the offence. She was described as having serious mental health challenges, which were the product of “an atrocious childhood and an abusive early adulthood” (at para. 39). The court found that these mental health challenges led to the commission of the offence. The appellant was remorseful and pleaded guilty.

49D.A. Thomas in his book Principles of Sentencing (Heinemann, 1973) is of the same view (p. 25),

It is a fair generalization to say that in this context [the mentally disordered offender] individualization has come to dominate the situation, to the virtual exclusion of deterrence, even in the case of the most serious offences. Treatability has replaced responsibility as the effective criterion…

What are the Aggravating Features of this Murder?

50As I understand it, the Crown argues two main aggravating features: 1. The brutality and violence of the murder; and 2. This murder was domestic in nature and is analogous for sentencing purposes to the voluminous case law with respect to men killing their domestic partners.

51With respect to the violence, there can be no dispute. The injuries to the deceased were horrific. The cause of death was blunt force trauma and neck compression. Many of the bones in Ms. Alexander’s face were broken and in multiple places. Ms. Alexander was strangled to death probably with a belt according to Mr. Salifu’s admissions to the mental heath professionals. The photograph of Ms. Alexander’s face taken at the scene was ghastly and gruesome. It had to be kept from the jury in order to protect Mr. Salifu’s fair trial interests. Furthermore, the Crown is correct that Mr. Salifu was a young, powerful man, trained in the martial arts, while his mother was smaller and much weaker.

52The defence argues that all murders are brutal and so the brutality of this murder ought not to be aggravating. He relies on R. v. Pabani 1994 8723 (ON CA), [1994] O.J. No. 541, 17 O.R. (3d) 659, 23 W.C.B. (2d) 75, 29 C.R. (4th) 364, 89 C.C.C. (3d) 437 at para. 30 (O.J.), leave refused on other grounds [1994] S.C.C.A. No. 294 and R. v. Chen 2015 ONSC 3759, [2015] O.J. No. 3134 at para. 25. It is true that murder is always a very serious criminal offence and often exceedingly brutal. Victims of murder never meet their end in a pleasant way. However, it would be a mistake to regard all means of killing in murder cases as equal for sentencing purposes. This murder was more vicious and terrible than most. The pathology is evidence of that. The horrible pain and indignities that Ms. Alexander suffered at the hands of her own son are too atrocious to contemplate. If there is any saving grace, I believe the horror she endured was probably mercifully short.

53The aggravation normally allocated to this factor, however, is largely subsumed by the mental illness mitigation which pervades this sentencing proceeding. The salient sentencing principles applicable to second degree murder are significantly attenuated by the mental illness. I have referred above to the Ellis decision of the Court of Appeal.

54With respect to the parallel with domestic violence cases drawn by the Crown, I disagree with both the factual premise and the reasoning leading to a conclusion that this ought to stand in aggravation. There was perhaps some evidence that the relationship between son and mother had elements of that of a husband and wife. It was said that they functioned as equals. Perhaps that is not so unusual with respect to adult children and their parents. But the evidence of a spousal type relationship was very thin. Furthermore, there were many other angles to their relationship. Needless to say, this trial was not geared towards an extensive examination of the relationship and any conclusions in this area would be quite unreliable. In the end, I do not accept that the two lived anything like husband and wife.

55Aside from this, even if the facts were otherwise, the aggravation on sentence in domestic assault cases stems from the pervasive problem of domestic violence in our society: R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, S.C.J. No. 36, at para. 36, R.v. Persaud 2018 ONSC 4668, [2018] O.J. No. 4103 at para. 46. Aggravation in spousal or common law assault is codified in Section 718.2(a)(iii) of the Code. That cannot and should not be extended to a vague assertion that the relationship between mother and son exists on the same plane. The prime movers of general deterrence and denunciation are completely different in the present context. Matricide is an exceedingly unusual crime, in contrast to domestic homicide which constitutes a disturbingly high proportion of homicide cases.

56It must be acknowledged that there is some aggravation in any familial homicide. That is the case here too. As I am sure Mr. Salifu is acutely aware, he had a duty to protect and care for his mother. But again, the mental illness largely swallows up what would otherwise be aggravating.

What Weight Should the Jury Recommendation Have?

57I would put significant reliance on the unanimous jury recommendation in this case. All 10 jury members recommended no increase in parole ineligibility. They were instructed using the wording of Section 745.2 of the Criminal Code, which reads,

Recommendation by jury

745.2 Subject to section 745.3, where a jury finds an accused guilty of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.

58The instructions put to the jury tracked Section 745.2 of the Code and did not inject any additional elements as is sometimes done. Doing so may well be an error of law: R. v. Poirier, 2005 3583 (ON CA), [2005] O.J. No. 590, 193 C.C.C. (3d) 303 (C.A.), at paras. 18-21, R. v. Nepoose 1988 ABCA 382, [1988] A.J. No. 1115, (1988), 46 C.C.C. (3d) 421 (Alta. C.A) at C.C.C., pp. 424-425.

59It is evident that the jury recommendation following on a Section 745.2 instruction is a very limited sentencing tool. In order for it to be used effectively by a trial judge, this must first be recognized. The jury knows absolutely nothing about the law of second degree murder sentencing to assist them in making their recommendation. Judges at least have the general assistance of the three criteria from Section 744 of the Code. The jury does not even have this most basic direction. The charge with respect to Section 745.2 is simply read to them, with no adornment. The jury is not directed to any criteria to guide their discretion in recommending a period of parole ineligibility.

60This subsection is open to criticism on these grounds. However, at least in some cases, this is a strength, not a weakness. The trial judge receives gut instinct recommendations from laypeople, unadulterated by the complications or refinements of the law. General and specific deterrence and denunciation will not likely be on the minds of the jury. The jury will naturally gravitate to the circumstances of the offence and the offender. It may be that in most instances the recommendations will be more responsive to the offence than to the offender. That was slightly different in this case because, due to the NCR second stage, the jury learned quite a bit about Mr. Salifu’s life and history both from him and from the mental health professionals who testified.

61A jury recommendation must be considered on sentence. It need not be slavishly followed. How much weight a trial judge will give a recommendation depends on the individual case: R. v. Pasqualino 2008 ONCA 554, [2008] O.J. No. 2737 at para. 77, R. v. McKnight (1999), 135 C.C. (3d) 41 (Ont. C.A.) at para. 55.

62The salient facts in this trial would have been uppermost in the jurors’ minds. That is, the viciousness of the killing, Mr. Salifu’s remorse, the evidence of his mental illness and his love for his mother. It was open to the jury to focus on the horror of this killing and, based on the strong emotion which no doubt would have been generated, bring back a recommendation for ineligibility at least in the Crown’s suggested range if not higher. That the jury did not take this course is important.

63Between a sentence responsive to the terrible violence of the killing and a compassionate sentence focusing on the causal factor of Mr. Salifu’s mental illness, the jury chose the latter. This jury recommendation accords with my conclusion of a reduced degree of moral blameworthiness on account of Mr. Salifu’s mental illness. The unanimity of the recommendation is a powerful statement in favour of Mr. Salifu. Having sat through both the first and second stages, the profound sadness of this trial and Mr. Salifu’s plight weighed heavily on the jury as it weighed on the lawyers, the staff and on me. The jury understood the killing was caused to a large extent by mental illness. They saw the more or less immediate outpouring of anguish and remorse. They understood that Mr. Salifu loved his mother deeply. They understood the tragedy of this case.

CONCLUSION ON PAROLE INELIGIBLITY

64In summary, applying the three categories from Section 744, the nature of the offence was a tremendously violent attack in which Mr. Salifu brutally killed his mother. The circumstances of the offence encompassed the aggravating factor of the familial relationship between mother and son. However, of paramount importance, at the time he killed his mother, Mr. Salifu was a sick man. If he had not been sick, he would not have killed her.

65Lastly, with respect to the character of the offender, Mr. Salifu was a youthful first offender. He had been a hard worker and, as the Crown pointed out during the trial and on sentencing, he had accomplished quite a lot for a young man. While he was in despair at the time of the killing, viewed from a distance and apart from his mental illness, he had good prospects. Mr. Salifu’s remorse is encapsulated by what he asked his counsel to convey during the sentencing hearing: he loves his mother and he misses her. I do not doubt the genuineness of this.

66With respect to Ms. Alexander, unfortunately no victim impact statement from friends or family was filed. We learned about Ms. Alexander from the trial testimony of her friends Ms. Dindyal and Ms. Cronin and from her son. Judging from everything we heard, she was a good friend and a good mother. The two friends made a very good impression on the jury and on me. Ms. Alexander did not have an easy life. Life as a hairstylist did not earn her a lot of money at least in later years. She was defrauded of a significant amount of money which was obviously very distressing to her and to her son. There were two failed marriages, the second to a man who abused her. The relationship with her son was loving but it was troubled. Ms. Alexander was only 44 years old when she died.

67When it is said that this case is a tragedy, this is true from both Mr. Salifu’s standpoint and of course from his mother’s. She was a relatively young woman with a good deal of her life in front of her. My impression is that she was tough and persistent and would have pulled through the difficult and sad times she was going through.

68On the salient question of the effect on parole ineligibility committed under the influence of mental illness, defence counsel relied on R. v. Chen per Justice MacDonnell, at paras. 26-30 and R. v. Levy, 1997 4462 (ON CA), [1997] O.J. No. 3505, 103 O.A.C. 135 (C.A.). Justice Finalyson said in the latter case (para. 13),

It is clear that the facts of this case are very serious and tragic and that they give rise to the need to protect the public. However, it is equally clear that whatever danger the appellant may pose is largely the result of his mental condition. In these circumstances, we are of the view that the question of parole ineligibility on the murder charge is more appropriately left to the relevant correctional authorities. It is also noteworthy that the jury made no recommendation with respect to parole ineligibility. We would therefore reduce the period of parole ineligibility on the charge of murder to the statutory ten year minimum.

(Emphasis Added

69This case is the same. The interests of the public and of Mr. Salifu dovetail into an almost perfect confluence. If Mr. Salifu can be successfully treated, it will be the best protection available for the public. The Crown is undoubtedly correct that at this point in time, Mr. Salifu remains a substantial danger. The outburst in court is conclusive evidence if any is needed. Treatment is a necessity from the public perspective.

70From the offender’s perspective, treatment is Mr. Salifu’s best option as well. Treatment will enable him to demonstrate that he is no longer a danger and is a safe risk to be released on parole. From both societal and individual perspectives, treatment should be the focus.

71In Shopshire, Justice Iacobucci held that the general rule is parole ineligibility of the minimum of 10 years but it is not difficult to displace this general rule. He said:

29 … 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 suitability 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.

72I have no hesitation in this case in coming to the conclusion, for the reasons stated, that the general rule of the minimum of 10 years ineligibility of parole should prevail. The lower moral blameworthiness and the reduced importance of deterrence and denunciation necessitate this result.

73At the 10 year mark—given the time served since arrest, 6 and a half years from now--the parole authorities will be in an ideal position to determine if the mental illness behind this offence has abated and if it is safe to release Mr. Salifu.

74Building on what Justice Gileese said in Battisse and adopted by Justice Strathy in the quote from Ellis above, “a lengthy prison term may be regarded as counterproductive” with respect to treating Mr. Salifu’s mental illness. In a murder case, the mandatory life imprisonment makes a lengthy prison term unavoidable. The “counterproductive” and inimical environment of jail makes it even more important that there be treatment of Mr. Salifu.

75The sentence then for the offence of second degree murder will be the mandatory life imprisonment. The eligibility for parole will be the minimum of 10 years. I strongly recommend that the penitentiary authorities ensure that Mr. Salifu receives psychiatric and psychological treatment beginning at the earliest opportunity and continuing as needed. I have endorsed the indictment to this effect.

76I further order that to facilitate this, the reports of Dr. Pomichalek, Dr. Gojer and Dr. De Freitas and these reasons be attached to the paperwork which will accompany Mr. Salifu.

77I cannot leave this case without thanking counsel for their work on this trial. It was an exceedingly difficult road for everyone. The emotional intensity was exhausting for counsel, for the staff and for me. Thank you to everyone.

78And Ms. Esson, the very best of luck in your retirement. You should be proud and comforted to know that in your last case you prosecuted effectively, as always, but maybe of greater importance in a case like this, with a good balance between your adversarial obligations and your duty of fairness to the accused. Thank you.