R. v. Soederhuysen, 2020 ONSC 6666

COURT FILE NO.: CR-20-82

DATE: 2020-10-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KENNETH JOHN SOEDERHUYSEN

Kelly Frew, for the Crown

Lindsay Daviau, for Mr. Soederhuysen

HEARD: October 30, 2020

REASONS FOR DECISION ON SENTENCING

Conlan J.

I. Introduction

The Conviction

1Mr. Kenneth John Soederhuysen (“Mr. Soederhuysen”) has entered a guilty plea to and been found guilty and convicted of second degree murder. He intentionally caused the death of Laura Grant (“Ms. Grant”), contrary to section 235(1) of the Criminal Code.

The Mandatory Minimum Sentence and the Ancillary Orders

2This Court hereby sentences Mr. Soederhuysen to the mandatory minimum sentence provided for by our law – life imprisonment.

3Further, without any comment from the defence, the following ancillary Orders are hereby issued: (i) a Primary DNA Order, (ii) a section 109 Criminal Code firearms and weapons prohibition Order for life, and (iii) a forfeiture Order for certain firearms and related items.

The Issue on Sentencing

4The only issue for this Court to determine is the period of parole ineligibility for Mr. Soederhuysen, which period shall be between ten (10) and twenty-five (25) years.

The Positions of the Crown and the Defence

5The Crown submits that the appropriate period of parole ineligibility should be sixteen (16) to seventeen (17) years, while the defence suggests that it should be twelve (12) to thirteen (13) years.

A Brief Sketch of the Facts

6The following is taken from the Agreed Statement of Facts, Exhibit 1.

7Ms. Grant was 57 years old when she was killed. She was working as an Emergency Medical Services Dispatcher for the Ministry of Health. Mr. Soederhuysen was the same age at the time of the homicide, and he was working for a security company owned by him and Ms. Grant. The two were domestic partners, living as a couple at a rural property in Burlington, Ontario. They had met in 2013 and had no children together as both were previously married and had older children from those prior relationships.

8Mr. Soederhuysen has no prior criminal record.

9Like many couples, Mr. Soederhuysen and Ms. Grant had their ups and downs. It was more than that, however, in that their relationship was quite volatile. Alcohol abuse by both of them, particularly Ms. Grant, was one factor that contributed to that volatility.

10By a couple of days before the homicide, Mr. Soederhuysen clearly wanted out of the relationship. He was texting intimate and sexual messages with a former partner, a woman named Christine Bender.

11Just after 3:00 p.m. on August 21, 2019, thirty minutes after the surveillance cameras at the Burlington property had been turned off, Mr. Soederhuysen called 911 and confessed to having just shot and killed his wife in the backyard of their home.

12Police arrived on scene within minutes. Mr. Soederhuysen met them at the bottom of the driveway with his hands open. He was cooperative except that he refused to identify himself. He had no injuries.

13Ms. Grant was found dead at the rear of the house, lying on her stomach, a gunshot wound to her back. The murder weapon, a shotgun lawfully possessed by Mr. Soederhuysen, was found by the authorities with the help of Mr. Soederhuysen.

14During a police interview later that same day, Mr. Soederhuysen repeated his confession. He denied any alcohol consumption on his part that day. According to Mr. Soederhuysen, Ms. Grant was drinking alcohol in the backyard. He went to his office and retrieved the shotgun from the safe. He loaded it and walked to the backyard. He fired a shot into the air, and then he fired a shot at Ms. Grant as she sat in a chair. The shot hit her, and she stood up to try to escape. He then shot her again in the back.

15After the killing, Mr. Soederhuysen contemplated suicide in the basement of the home. He soon after called 911, the recording of which is Exhibit 2 in this proceeding.

16The pathologist determined that Ms. Grant died from shotgun wounds to her back and right arm. She had alcohol in her system at the time of her death.

17In his statement to the police, Mr. Soederhuysen spoke of Ms. Grant’s behaviour in the days leading up to the homicide, including what he described as her heavy drinking of alcohol, her constant verbal abuse of him, and her general volatile demeanour.

II. Analysis

The Offender

18The defence filed twelve highly laudatory letters (Exhibit 4) describing the general character of Mr. Soederhuysen, authored by family members (Mr. Soederhuysen’s mother and sister), a former partner, friends and neighbours, and work colleagues.

19There is no question that the letters describe someone who nobody would have predicted was capable of killing another human being. The letters are commensurate with a man with no prior criminal history and with years of experience working in the investigative and security industry.

20Today, Mr. Soederhuysen is 58 years old. He has four siblings and children and other devoted family members, all of whom are left to deal with the shock of what has occurred.

The Principles of Sentencing

21Sentencing is a highly individualized exercise, and the penultimate goal is to craft a penalty, in this case a period of parole ineligibility, that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

22A period of parole ineligibility can have denunciatory and deterrent effects, while one that is not unduly lengthy can also contribute to the rehabilitation of the offender, especially a first offender like Mr. Soederhuysen. These are the principles of sentencing that are most germane to this case – denunciation, deterrence (both general and individual), and rehabilitation.

The Impact on the Victims

23Exhibit 3 comprises the statements of Deborah Grant (the victim’s sister), Michele Jeffers (the victim’s sister), and Savannah Bischoff (the victim’s daughter).

24As the two sisters so eloquently state, “her loss leaves a huge emptiness in my life” (Deborah Grant), and the whole experience has been “unimaginably painful” (Michele Jeffers).

25Ms. Bischoff cannot be blamed for commenting on her observations of home life with her mother and the offender, however, I have not considered the impugned portion of her statement on the final page as it falls outside the permissible content of a proper victim impact statement as delineated in subsection 722(1) of the Criminal Code.

26Nevertheless, I have gained great insight from reading the words of Ms. Bischoff. “Empty, only with leftover feelings of all I loved”, she wrote. How moving.

The Aggravating and Mitigating Factors

27I agree with the Crown that there are several aggravating factors present here, and they include (i) the domestic nature of the crime and the enormous breach of trust that it entails, (ii) the use of a firearm, (iii) the firing of multiple shots by Mr. Soederhuysen, (iv) the failure of Mr. Soederhuysen to do anything to try to assist Ms. Grant as she lay on the ground after the shooting, and (v) that the homicide does not appear to have been a spur of the moment, but still intentional, killing.

28I agree with the defence that there are also several mitigating factors present here, including (i) the guilty plea and the remorse that it signals by itself, which remorse was reinforced when Mr. Soederhuysen addressed the Court today, (ii) the lack of any prior criminal history of any kind, (iii) Mr. Soederhuysen’s cooperation with the authorities from the very outset, and (iv) the offender’s general good character as exemplified by Exhibit 4.

The Caselaw Relied Upon by the Crown and the Defence

29To determine the appropriate range of parole ineligibility in this case, I have looked mainly to the following decisions: R. v. McKnight, 1999 CanLII 3717 (ON CA), R. v. Czibulka, 2011 ONCA 82, and R. v. French, 2017 ONCA 460.

30I have certainly considered all of the authorities filed by both sides, but these three decisions from our Court of Appeal I have found to be the most helpful in reaching my decision.

31In my view, the 12-15 years’ range established by the Court of Appeal for Ontario in McKnight was not overruled by the subsequent decision of that Court in Czibulka. A careful reading of paragraphs 65 through 73 of Czibulka supports that conclusion.

32That said, the Court was careful in Czibulka, and again more recently in French, to caution sentencing judges against employing McKnight’s 12 to 15 years as firm yardsticks for every domestic second degree murder case to be measured by.

33In some instances, a brutal spousal second degree murder conviction can rightly attract a period of parole ineligibility as high as 17 years, particularly where there is an absence of mitigation and/or remorse (see paragraph 31 of the Court’s decision in French).

34This homicide was indeed brutal, but the numerous mitigating factors outlined above suggest that the period of parole ineligibility for this offender on these facts should fall within the range of 12 to 15 years.

A Fit Period of Parole Ineligibility for Mr. Soederhuysen

35This is a tragic case. Ms. Grant did not deserve to have her precious life snuffed-out at the hands of her trusted partner and in the sanctity of her own backyard. It is a truly heartbreaking case. One lady is dead. One man is headed to prison for a long time. What a colossal waste.

36What I would really like to do is turn back the clock and restore Laura Grant to the lives of those who loved her most. Of course, I cannot do that.

37Considering all of the circumstances, for the second degree murder of Laura Grant, I have decided that Mr. Soederhuysen’s sentence of life imprisonment shall be accompanied by a period of parole ineligibility of fourteen (14) years. That is the sentence of this Court.

38I sincerely thank Ms. Frew and Ms. Daviau for their very able assistance.

(“Original signed by”)

Conlan J.