Court File and Parties

Court File No.: 4689/19 Date: December 18, 2019

Ontario Superior Court of Justice

Between: Her Majesty the Queen

And: James Dylan Osborne

Counsel: Patricia Vadacchino, for the Crown Attorney Bobbie A. Walker, for Mr. Osborne

Heard: October 28, 2019

Reasons for Sentence

The Honourable Mr. Justice H. S. Arrell

Introduction

[1] James Dylan Osborne was charged that between January 29, 2018 and February 3, 2018, in the region of Niagara, he did commit first degree murder on the person of Michael Osborne, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Michael Osborne, age 62, was the father of James Dylan Osborne. Mr. Osborne pleaded guilty to second degree murder on October 28, 2019, which the Crown accepted. He is before me today for sentencing.

Facts

[3] James Dylan Osborne was 32 years of age at the time he killed his father. He was unemployed.

[4] Mr. Osborne was evicted from his apartment in the City of Niagara Falls on January 2, 2018 and went to reside with his father. His father resided in a rural property which was quite dilapidated, without electricity or running water, in the Fort Erie area.

[5] On February 3, 2018, Mr. Osborne met a neighbor and advised him that he had shot his dad and burned his body in a fire after they had gotten into a "shooting match". He further advised this neighbor that his father had shot him in the foot first. The police were called, and Mr. Osborne was arrested.

[6] Initially, Mr. Osborne indicated to the police that he shot his father after his father had shot him in the foot. Later, during the interview, he admitted that he shot his father and then he shot himself in the foot, and subsequently burned his father's body.

[7] There is little doubt that the Crown had a strong case of second degree murder.

The Pre-Sentence Report

[8] Mr. Osborne is the oldest of three children born to Michael and Jill Osborne. The parents separated when he was approximately 8 years of age and he was raised primarily by his mother. The pre-sentence report indicates a somewhat dysfunctional home and upbringing, with both parents living with alcoholism, according to Mr. Osborne.

[9] Mr. Osborne has a criminal record from 2008 for assault, possession of a weapon, and assault with intent to resist arrest. The assault was on Mr. Osborne's brother. He was further convicted of assault and attempt to break and enter his grandfather's home in 2015. He had lived with his grandfather for over five years after leaving his mother's home.

[10] The pre-sentence report recites a history of violence between Mr. Osborne, his mother and his younger brothers.

[11] Mr. Osborne has limited education, having stopped at grade 8. He appears to have some learning disabilities, according to his mother. He was diagnosed with attention deficit disorder and was prescribed Ritalin at the age of 9. In September 2014, he was admitted to St. Joseph's Healthcare where it was concluded that he did not have a primary mental disorder but demonstrated "oppositional behavior, irritability, emotional lability related to his personality, and also has a cannabis use disorder (severe)."

[12] According to Mr. Osborne's mother, he did not have a problem with alcohol but did use chemical drugs for some time. She indicated that the chemical drug use stopped approximately four or five years ago and that thereafter, he only smoked marijuana, albeit somewhat regularly.

Victim Impact Statements

[13] No victim impact statements have been filed, however, it is clear to this court that this offence has caused significant grief to Mr. Osborne's family. This was a tragic and senseless murder that I know effects all of the family members and will continue to do so.

Letters of Support

[14] It is acknowledged by the Crown that Mr. Osborne has done well since his incarceration almost two years ago. I have received glowing letters of support from the Rehabilitation Officer at the detention center where Mr. Osborne has spent most of his time. He has remained free of any misconduct or disciplinary issues. He has worked throughout his incarceration at various jobs in the institution and regularly moved on to jobs involving additional aspects of trust. He has, as well, participated in the education programs offered and has completed grade 9 and 10. He continues to improve his high school credits having achieved 18 since his incarceration.

[15] I have also received a letter from the Chaplain who speaks highly of Mr. Osborne and confirms he has voluntarily taken advantage of all available resources to actively engage in learning opportunities with the goal of improving his functioning and addressing areas of personal interest and concern. The Chaplain indicates Mr. Osborne presents as respectful, engaging and attentive. He appears to have taken some 20 different courses and counselling sessions within the institutions that he has been incarcerated in over the past two years.

Remorse

[16] Mr. Osborne admitted his remorse to the author of the pre-sentence report. He presented to the probation officer as serious and thoughtful. He struggled to explain his actions at the time of his offence, however, the author felt he expressed only slight emotion and found the offence difficult to talk about. That is somewhat understandable to this court. He did, however, readily admit "I made a terrible mistake" and "I messed up large." He further indicated "I have to accept responsibility."

[17] Mr. Osborne expressed his remorse to this court and his family in a tearful and emotional manner. I accept that his remorse as genuine.

[18] Mr. Osborne has pleaded guilty without a joint submission by counsel. He has saved the state an expensive trial and saved various witnesses from having to testify and relive this tragedy. Most importantly, he has acknowledged responsibility for his horrendous actions.

Positions of the Parties

[19] The Crown argues that there are aggravating factors that must be considered in this case; such as the attempt to destroy the body by burning it; the initial attempts to deflect culpability by claiming he was first shot by his father; the use of a gun; the fact that he killed his father, a man who was helping him by providing food and lodging; the killing of his father in his own home; the lack of any evidence of provocation; Mr. Osborne's criminal record which includes an assault on his brother and an attempt to break into his grandfather's home.

[20] The Crown argues that given the undisputed facts set out above, the moral blameworthiness of Mr. Osborne is exceedingly high, and the sentence should reflect this. The Crown recommends that a proper disposition is 15 years before Mr. Osborne can apply for parole from his life sentence.

[21] The Crown states it has considered Mr. Osborne's remorse and the guilty plea in its recommendation of a parole ineligibility period of 15 years. It further argues that the courts have considered deterrence to be of paramount importance recently and are viewing these types of cases more strictly when they involve a domestic killing in the victim's home.

[22] The defence argues that the early guilty plea, which was agreed upon almost immediately after the preliminary inquiry, indicates significant remorse and acceptance of responsibility, an indicator that rehabilitation is a real possibility and should weigh heavily in favour of Mr. Osborne.

[23] Further, the defence says Mr. Osborne admitted his guilt to the police within 24 hours of being arrested and clearly accepted responsibility for his actions from the beginning.

[24] The defence also argues that although Mr. Osborne has a record, it is relatively modest in comparison to many this court sees.

[25] Finally, it is suggested on behalf of Mr. Osborne, that his remarkable efforts in custody by improving his education, taking numerous sessions for self-improvement, and his constant employment, must weigh heavily in his favour.

[26] As well, the increased positions of trust and responsibility that prison authorities have allowed him should indicate to this court a real desire by Mr. Osborne to move forward in a positive way with his life.

[27] The defence suggests that given Mr. Osborne's relatively young age of 32, the positive results of his incarceration to date, and his guilty plea—which all bode well for his rehabilitation—a parole ineligibility period of 12 years is an appropriate disposition.

The Law

[28] Section 745(c) of the Criminal Code specifies that:

In respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefore pursuant to section 745.4.

Section 745.4 provides, in turn, that the trial judge:

... 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 [by the jury] 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.

[29] The sole issue before me is therefore whether parole ineligibility should be increased beyond the minimum ten year period. In exercising my discretion, pursuant to s. 745.4, I must consider:

• The character of the offender;
• The nature of the offence; and
• The circumstances surrounding the commission of the offence

[30] In R. v. Shropshire (1995), 102 C.C.C. (3d) 193 (S.C.C.), the Supreme Court identified the objective of s. 745.4 and outlined the approach a trial judge should take in determining parole ineligibility. At paragraphs 27 and 33, the Court said:

In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: 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 [now745.4], 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.

If the objective of s. 744 [now s. 745.4] is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness" being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.

Analysis

[31] It is trite law to indicate that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender": see s. 718.1 of the Criminal Code.

[32] In Shropshire, the Supreme Court of Canada re-instated the trial judge's sentence of 12 years of parole ineligibility on a 23 year old who shot the deceased three times during a drug transaction where there appeared to be no motive. He gave himself up two days later and pleaded guilty and professed remorse.

[33] The Court of Appeal for Ontario in R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), set out the appropriate range for parole ineligibility in a "brutal" domestic homicide of an "unarmed" spouse as between 12-15 years.

[34] McKnight was convicted by a jury of the second degree murder of his wife. McKnight murdered his wife in their bedroom with a 10-inch serrated bread knife. He was 52 years old and had been married to his wife for 20 years. He had both a law degree and a medical degree and no previous criminal record. He suffered from depression. The Court of Appeal found that the appropriate period of parole ineligibility was 14 years (reduced from 17 years).

[35] The decision in McKnight also confirmed that both denunciation and rehabilitation are relevant factors in fixing the period of parole ineligibility. The Court also acknowledged, at paragraphs 99 to 101, that evidence of planning and deliberation can be considered as an aggravating circumstance of second degree murder which adds to the gravity of the offence. In Mr. Osborne's case, there is no such evidence. This appears to have been a sudden and random lapse in judgment during the heat of an argument.

[36] This court has taken into account the principle of totality of sentence, the need to protect society from the offender, to denounce this horrific crime, and to deter Mr. Osborne and others by demonstrating that this court will not sanction such terrible and despicable acts of violence being inflicted on anyone, no matter their background.

[37] I am of the view that the predominant principles that must govern the sentence in this case are denunciation and general deterrence. Rehabilitation of Mr. Osborne must occupy a secondary place given the circumstances of this crime. However, rehabilitation is still an important factor in my analysis given the progress that Mr. Osborne has made while being incarcerated.

[38] In R. v. Ghadban, 2015 ONCA 760, [2015] O.J. No. 5824, the Court of Appeal reduced the trial judge's sentence where the offender had made significant strides towards rehabilitation between the time of sentence and time of appeal. This despite a finding that the sentence was fit at the time of sentencing. The Court of Appeal stated that the failure to do so might deter others from attempting to make such strides. I find that the same conclusion can be drawn in the case at bar, where the rehabilitation between the date of the crime and the date of the sentence, has been significant and impressive.

[39] I have reviewed the cases submitted by counsel. I have concluded that the range of sentence for this type of crime is between 12 and 15 years, as they both suggest.

[40] I further confirm the overwhelming evidence of the offender attempting to cover up the crime by shooting himself in the foot and attempting to burn the body. This conduct can be considered an aggravating factor as stated in R. v. Teske (2005), 202 O.A.C. 239 (Ont. C.A.) at para. 100. There, the court set 13 years as the appropriate period of parole ineligibility for a 41 year old offender with no criminal record.

[41] In the case of R. v. Sauve, 2018 ONCA 813, [2018] O.J. No. 5826, the 62 year old offender shot his wife in their home while she slept, after 40 years of happy marriage. He went to elaborate lengths to cover up his culpability by blaming others to the police and at trial. He showed no remorse and there was some planning and deliberation. He was convicted of second degree murder. At paragraph 16, the Court of Appeal stated it could find no error in the trial judge's sentence of 12 years of parole ineligibility.

[42] In R. v. McLeod (2003), 177 O.A.C. 385 (Ont. C.A.), the offender was convicted of second degree murder after trial. He had stabbed his girlfriend many times, cut up her body and hid it in a suitcase. He had no record and had been a model inmate. The court considered this a domestic murder which was an aggravating factor as were the indignities to the body after the murder. The Court of Appeal increased the trial judge's parole ineligibility from 10 to 12 years.

[43] I have concluded that 13 years of parole ineligibility reflects the appropriate governing principles and is within the range of sentence imposed in similar offences, committed by similar offenders, in similar circumstances, as required by the Criminal Code.

[44] No sentence that I impose can restore Michael Osborne to where he should be, as a living, breathing, member of society living quietly with his few friends. It should be remembered that a period of parole ineligibility is no guarantee of parole thereafter, especially in these circumstances.

[45] James Dylan Osborne, I sentence you to imprisonment for life without eligibility for consideration for release on parole until you have served at least 13 years of your sentence. By statute, that period commences on the date of your arrest. The date on which you are first eligible to apply for release on parole, which I am by statute required to advise you, is February 3, 2031.

[46] In addition, there will be an order that you provide to the authorities samples of bodily substances suitable for DNA analysis and inclusion in the National DNA Data Bank.

[47] There will also be an order under s. 109 of the Criminal Code prohibiting you from having in your possession any firearms, ammunition, explosive substances or any other items mentioned in that section for the balance of your life.

[48] There will also be a communication ban between you and your mother, and between you and your two siblings, except with their express written consent.

Arrell, J.

Released: December 18, 2019