Court File and Parties
COURT FILE NO.: CR-19-0180 DATE: 2020-06-16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty The Queen Mr. Peter Léger, for the Crown
- and -
Ralph Rudowski Ms. Jill Gamble, for the Defence
HEARD: June 9, 2020
REASONS FOR SENTENCE Sproat J.
Introduction
[1] Mr. Rudowski was convicted of the second-degree murder of his next door neighbour Ms. Janice West. Mr. Rudowski had given a statement to the police admitting that he had killed Ms. West. At the outset of the trial he offered to plead guilty to manslaughter, however, the Crown would not accept the plea. There was, therefore, never any doubt about the fact that he had caused her death. The mandatory sentence for second-degree murder is life imprisonment so that the only issue is the period of parole ineligibility.
The Background
[2] The tragic fact is that Ms. West lived in deplorable conditions. That was certainly not her fault, nor do I attribute blame to anyone. That is not my role and a criminal trial does not hear the evidence that would be necessary to make that determination. I must, however, explain these conditions as they are relevant to the sentencing hearing.
[3] Ms. West, age 61, was approximately 4’ 10” and 75 pounds. She lived at 101 Division Street in Wiarton in a house that had no running water. The toilet bowl was found to be full of human feces. There were cat feces on the floor in various locations and on top of Ms. West’s bed. Loose clothing was piled on the floor. The upholstered furniture was ragged and heavily stained.
[4] Independent witnesses indicated that Mr. Rudowski and Ms. West appeared to have a friendly relationship. They would attend free lunches together and pick up food from a food bank. The evidence indicates that they were both alcoholics and would drink together.
[5] Mr. Rudowski gave a statement to the police in which he admitted killing Ms. West. I would accept as correct the following statements made by Mr. Rudowski to the police:
(a) Pages 24 – 25 – he called municipal officials and mental health caseworkers to help Ms. West. He has helped her for two years. (b) Page 27 – he believes the two houses are cursed by the devil. (c) Page 29 – Ms. West wasn’t having a good life and she wasn’t healthy. (d) Page 30 – he washed her home with bleach and laundry soap a few times. (e) Page 34 – 36 – he would clean and fill Ms. West’s toilet with water but she would not flush it. In his mind, “She was like purposely pissing me off.”
Circumstances of the Offence
[6] On March 6, 2018 a friend came to take to Ms. West to an appointment and found her on her couch dead. Ms. West had 23 fractured bones caused by multiple blunt force trauma. Her larynx was fractured which would be consistent with her being strangled. She had various contusions and abrasions on her body. She had blunt force injuries to her vaginal area although it was agreed at trial that there was no evidence that there was a sexual aspect to the assault by Mr. Rudowski.
[7] I would accept the following aspects of Mr. Rudowski’s statement to police:
(a) Page 48 – 49 – on the evening of March 5, 2018 he had 3 to 4 beer and shots of Jägermeister. He said that alcohol set off the demons that night and it makes your feelings come out. (b) Pages 54 – 56 – he and Janice were victims of the system and “she’s a victim of maybe I grabbed her too hard”. Something snapped that night. (c) Page 58 – when he finally snapped something had stimulated his subconscious mind. (d) Page 70 – 71 – “She upset me, it’s her fault, everything.” (e) Pages 76 – 77 – What killed Ms. West was the “power of the tongue” and the life force just went out of her.
[8] I do not accept that Mr. Rudowski attempted CPR. The jury concluded that he intended to kill Ms. West and her injuries were extensive and inflicted over a considerable period of time. It, therefore, does not make sense to me that Mr. Rudowski would then have a sudden change of heart and try to revive Ms. West. The notion that he tried to revive her is also inconsistent with his comment about thinking that in death she was in a better place and with her late husband.
Circumstances of the Offender
[9] Mr. Rudowski has an extensive criminal record dating back to 1979. He had convictions registered on 20 different dates. Eight of the conviction dates appear to relate to driving including dangerous driving, failing to stop at the scene of an accident and impaired driving and driving while disqualified. Eight of the offence dates relate to assaults and uttering threats. In 2010 Mr. Rudowski was convicted of driving while impaired, mischief under $5,000 and mischief endangering life. He received a 38-month sentence and was not released prior to the completion of his sentence as he was assessed to be a high-risk individual.
[10] The presentence report reflects that Mr. Rudowski reported that both of his parents were alcoholics. He left school in grade 11. In 1989 he suffered a workplace accident and has not been employed since that time.
[11] The author of the presentence report noted that Mr. Rudowski “displayed a distorted course of thought”. He did not express any remorse. Mr. Rudowski made reference to the fact that the “devil works on me” and he described himself as being like “Jesus”.
[12] Mr. Rudowski addressed the court and emphasized the extent to which he tried to help Ms. West, by carrying water to her house, attempting to make major plumbing repairs and taking Ms. West to try to get help from mental health professionals. He also made the point that the conditions inside Ms. West’s home were so revolting that he could hardly stand it. He said that he just “snapped”.
[13] The Ontario Provincial Police prepared a “Threat Assessment – Potential for Violence” report taking account of Mr. Rudowski’s criminal record, various psychological and psychiatric reports prepared over the years by correctional authorities and previous threat assessment reports.
[14] The conclusion of the author of the Threat Assessment, with which I agree, is as follows:
Ralph RUDOWSKI is a 62-year-old male who has a chronic history for violent and anti-social behaviours. His violence, as illustrated by the index offence, has been impulsive in nature and directed against any individual who he holds a grievance against and / or perceives as having wronged him; including acquaintance, friends, and intimate partners. Mr. RUDOWSKI holds attitudes that support his use of violence as an acceptable manner to resolve his perceived injustice(s); violence that has been severe in the past and has now become lethal. He has been indifferent to the consequences of his actions, takes little to no responsibility, and blames his victims and others for the violence he has perpetrated. Nothing in the material provided suggests that his long-standing violence will not continue, outside of periods where he is incarcerated.
Critical in assessing Mr. RUDOWSKI’s risk for violence is his alcohol abuse. As mentioned, the majority of Mr. RUDOWSKI’s violent offending has occurred at times when he was under the influence of alcohol. His use of various other illicit substances and how they relate to his violence is less clear, but substances he has admitted to using in the past may also have similar disinhibiting effects. Despite some recognition that his alcohol use has been detrimental to his circumstances and is related to his violent offending, Mr. RUDOWSKI is not known to have ever made an effort to address this while in the community, and instead has returned to a cycle of alcohol abuse and violence. Efforts to prevent his further use of alcohol must be part of any future management plan.
Also critical in assessing Mr. RUDOWSKI’s risk for violence are diagnosed Antisocial and Paranoid Personality Disorders. Aspects of these disorders (as addressed earlier) substantially increase Mr. RUDOWSKI’s propensity to perceive situations as hostile and where he is likely to act out with violence. Furthermore, he appears to have little insight into his personality disorders to recognize behaviours that have repeatedly had a detrimental effect on his life and the lives of others. The behaviours of a person diagnosed as being personality disordered are difficult to change, as personality disorders are chronic, lifelong and treatment resistant. They can be somewhat managed through strict and structured environments, such as is afforded through incarceration.
While in the community, Mr. RUDOWSKI has repeatedly violated supervisory conditions and release conditions aimed at mitigating his violence risk, including conditions prohibiting his use of alcohol. There is nothing to suggest that this pattern of behaviour would not continue if he were to return to the community. Mr. RUDOWSKI has also failed to benefit from treatment during his past federal incarceration addressing his violence risk, and has engaged in further substance abuse and more frequent violence since that time. Treatment failures may be related to cognitive deficits that Mr. RUDOWSKI presents with. Exacerbating his management while in the community has been his lack of support and lack of apparent willingness to engage support services to assist him in pro-social and risk-reducing behaviours and treatment.
At this time, Mr. RUDOWSKI continues to present a High Risk for violence while in the community. The nature of the risk factors related to his violence suggests that he requires a strict, sustained and structured environment where expectations and boundaries, and the consequences for failing to abide by these, are made clear. To date, incarceration has been the only effective measure that provides him with such an environment and where Mr. RUDOWSKI’s violent and anti-social behaviours have been managed effectively.
Aggravating Circumstances
[15] Ms. West was frail and defenceless.
[16] Ms. West suffered devastating and extensive injuries which took considerable time to inflict and which must have caused her great pain.
[17] Mr. Rudowski attempted to clean up the crime scene and disposed of evidence in an attempt to avoid detection.
Mitigating Circumstances
[18] Mr. Rudowski had a generally friendly and supportive relationship with Ms. West. He brought her water to enable her to flush the toilet and he attempted to repair the plumbing at her house. He made efforts to try to secure help for her from the authorities.
[19] Mr. Rudowski has a skewed sense of reality. While I have no details, I am aware of the fact that he was assessed to determine if there was a viable defence of not criminally responsible. As a result of that assessment that defence was not raised. It remains, however, that he has made numerous statements that can only be described as bizarre. As detailed in the OPP Threat Assessment he has diagnosed personality disorders that have contributed to him offending.
[20] While completely misguided, Mr. Rudowski held the belief that the deplorable conditions in which Ms. West lived made her life not worth living. As such, he believed he was doing her a favour by ending her life.
Position of the Parties
[21] Mr. Rudowski was arrested March 10, 2018. As such, the minimum period of parole ineligibility of 10 years will end March 10, 2028 at which time he will be 70 years old.
[22] The Crown submitted that the period of parole ineligibility should be 15 years. Ms. Gamble submitted that the period of parole ineligibility should be 10 years.
The Law
[23] In R. v. McKnight, 1999 ONCA 3717, [1999] O.J. No. 1321 (C.A.) Justice Laskin stated:
8 Section 745.4 of the Criminal Code (s. 744 at the time the appellant was sentenced) gives the trial judge discretion to increase the period of parole ineligibility from the minimum ten years up to 25 years and requires the trial judge in exercising that discretion to take into account the following four considerations:
- the character of the offender;
- the nature of the offence;
- the circumstances surrounding the commission of the offence; and
- any recommendation made by the jury under s. 745.2 of the Code.
9 In assessing these considerations and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. In R. v. Shropshire, 1995 SCC 47 , [1995] 4 S.C.R. 227 at pp. 241-42, 102 C.C.C. (3d) 193 at p. 204, the Supreme Court of Canada held that the British Columbia Court of Appeal had erred by isolating denunciation and future dangerousness as the only relevant criteria. Iacobucci J. wrote at pp. 240-41 S.C.R., pp. 203 C.C.C.:
The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility. This clearly indicated that parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy. As such, it must be concerned with deterrence, whether general or specific. The jurisprudence of this court is clear that deterrence is a well-established objective of sentencing policy. In R. v. Lyons (1987), 1987 SCC 25 , 37 C.C.C. (3d) 1 at p. 22 . . . La Forest J. held:
In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.
Section 744 must be concerned with all of the factors cited in Lyons . In R. v. Luxton (1990), 1990 SCC 83 , 58 C.C.C. (3d) 449 . . . the importance of structuring sentences to take into account the individual accused and the particular crime was emphasized. This is also a factor that any order made pursuant to s. 744 ought to take into consideration.
10 Iacobucci J. also rejected the notion that the period of parole ineligibility should only be increased in unusual circumstances (at p. 242 S.C.R., p. 204 C.C.C.):
[A]s 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.
[24] In R. v. Osborne, 2019 ONSC 6299 the offender pleaded guilty to the second-degree murder of his father. After shooting his father to death the offender shot himself in the foot and claimed that his father had shot him first. The offender had a minor criminal record compared to Mr. Rudowski. There had been a history of violence among family members. The offender had taken steps to rehabilitate himself and expressed remorse. In concluding that a 13 year period of parole ineligibility was appropriate Justice Arrell stated:
[33] The Court of Appeal for Ontario in R. v. McKnight (1999), 1999 ONCA 3717 , 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), 2005 ONCA 31847 , 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), 2003 ONCA 4393 , 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.
[25] In R. v. Pereira, 2019 ONSC 6751 Justice Harris stated:
[2] These reasons are for the purpose of setting parole eligibility pursuant to Section 745.4 of the Criminal Code. [1] The general range for a murder in a domestic situation has been repeatedly stated by the Ontario Court of Appeal to be between 12 and 15 years: R. v. McKnight (1999), 1999 ONCA 3717 , 44 O.R. (3d) 263 , 135 C.C.C. (3d) 41 (Ont. C.A.) at para. 48 ; R. v. Bajrangie-Singh, (2003) 2003 ONCA 47384 , 174 C.C.C. (3d) 351 (C.A.) , [2003] O.J. No. 1166 at para. 42 ; R. v. Teske, (2005) 2005 ONCA 31847 , 32 C.R. (6th) 103 , [2005] O.J. No. 3759 (C.A) at para. 104 . In this instance, the defence requests the minimum of 10 years; the Crown requests 14 years.
Analysis and Conclusion
[26] Mr. Rudowski is an alcoholic which was a factor in many of his criminal offences. He also has diagnosed personality disorders and a skewed sense of reality that no doubt made him prone to taking offence where none was intended or acting in a manner to provoke and antagonize others. These characteristics were probably a factor in the commission of other offences. Mr. Rudowski’s lengthy criminal record must, however, be taken into account in determining his sentence.
[27] Mr. Rudowski had a generally friendly and supportive relationship with Ms. West. In desperate conditions he tried to help her such as by bringing her buckets of water to flush the toilet. In my opinion Ms. West’s murder was brought about by a toxic combination of Mr. Rudowski’s skewed sense of reality, his alcohol consumption and Ms. West’s deplorable living conditions which triggered him to murder Ms. West.
[28] While Mr. Rudowski has an extensive criminal record, murder is by far the most serious offence for which he has been convicted. What drove Mr. Rudowski to commit this most serious of offences were the deplorable conditions Ms. West had to live in.
[29] Mr. Rudowski has a history of violence toward domestic partners. On the evidence it is unclear whether Ms. West was a domestic partner or a dating partner. In Pereira Justice Harris referred to these relationships as involving intimacy, love, affection and interdependence. I see Mr. Rudowski more as having the not uncommon relationship of a neighbour having a friendly relationship with, and helping to care for a neighbour. There was, however, some evidence of Mr. Rudowski treating Ms. West as a girlfriend and expressing jealousy if others showed interest in her. In any event, I accept completely that Ms. West was extremely vulnerable physically and emotionally. So, whether or not she could actually be characterized as a domestic partner would not alter my determination.
[30] I think it not only possible but probable that Ms. West would not have been killed if she had been living in suitable accommodation. If that stressor and aggravating circumstance was removed from the equation, I can certainly see Mr. Rudowski and Ms. West could get into an argument and that Mr. Rudowski could be physically aggressive. The sustained attack and the intent to murder were, however, to a large extent the result of Mr. Rudowski’s misguided and depraved notion that Ms. West’s life was not worth living and that she would be better off dead.
[31] Six members of the jury recommended parole ineligibility for 15 years. I take that into account but reduce it somewhat on account of the unusual circumstance that the deplorable living conditions of Ms. West, something beyond the control of Ms. West and Mr. Rudowski, were a significant factor contributing to the murder.
[32] Section 745.4 of the Criminal Code requires that I consider the character of the offender, the nature of the offence and the circumstances surrounding its commission. Taking these factors into account as well as Mr. Rudowski’s extensive criminal record, the brutal assault on Ms. West and the need for denunciation and deterrence, persuades me that more than the 10 year mandatory period is required. Taking into account that Mr. Rudowski had over a significant period of time assisted Ms. West, under horrendous conditions, I am satisfied that a 12 year period of parole ineligibility is appropriate. Mr. Rudowski will not be eligible for release until he is 72 years old.
[33] In addition, I make the mandatory DNA order and lifetime weapons prohibition under s. 109 of the Criminal Code.
[34] I would like to thank Mr. Leger who presented this case professionally and efficiently on behalf of the Crown. I would also like to thank Ms. Gamble who similarly presented the defence in a professional manner and highlighted any and all evidence that might assist Mr. Rudowski.
[35] I also note that the period of parole ineligibility I set does not mean that Mr. Rudowski is automatically released at that point. It will be up to the parole authorities, to consider all of the circumstances, including Mr. Rudowski’s conduct while incarcerated and any treatment programs he completes in order to determine whether he should be released.
[36] I am not aware of whether, or in what detail, local authorities were aware of Ms. West’s situation. I am, therefore, directing the court staff to forward a copy of these reasons to officials at the Town of South Bruce Peninsula and the Grey Bruce Branch of the Canadian Mental Health Association. I do so in the hope that some lessons can be learned from the situation and tragic death of Ms. West. I forward these reasons solely for information purposes and, as such, no response is requested or expected.