COURT FILE NO.: 159/19
DATE: 20201203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
OLUWATOBI EMMANUEL BOYEDE
COUNSEL:
L. Ducharme and F. Ball, for the Crown
K. Mersereau, for the Defendant
HEARD: October 21, 2020
grace J. (orally)
A. Introduction
[1] Mr. Boyede was convicted of second-degree murder following his February 18, 2020 guilty plea. A mandatory sentence of imprisonment for life follows conviction.[^1]
[2] Two ancillary orders are required: a weapons prohibition order under s. 109 of the Criminal Code and a DNA order in Form 5.03 pursuant to ss. 487.04 and 487.051(1) of that statute. Those orders are hereby made.
[3] Parole ineligibility is the only discretionary part of the disposition. The period starts with the date of Mr. Boyede’s arrest on October 27, 2017 and runs for no less than ten (10) and no more than twenty-five (25) years: ss. 745(c) and 746.
[4] Generally, the ten (10) year period applies. However, the time can be increased if, having regard to the statutorily enumerated criteria, the court is of the view the offender should wait a longer period before his suitability for release into the general population is assessed: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at para. 27. The exercise has been described as “very fact-sensitive”: R. v. Shropshire, supra at para. 18. The range reflects the fact that there is a range of seriousness and varying degrees of moral culpability.
[5] The purpose and principles of sentencing set forth in ss. 718, 718.1 and 718.2 of the Criminal Code apply: R. v. Purdy, 2012 BCCA 272 at para. 21; R. v. McKnight, 1999 CanLII 3717 (ON CA), [1999] O.J. No. 1321 (C.A.) at para. 9. In addition, s. 745.4 of the Criminal Code sets out factors that are of particular importance to the question of parole ineligibility. I will refer to them in the order in which they will be dealt with in these reasons: (i) the nature of the offence and the circumstances surrounding its commission; and (ii) the character of Mr. Boyede.
[6] The Crown urges the court to impose a fifteen (15) year period of ineligibility, while the defence advocates a lower number of twelve (12) or thirteen (13) years.
B. The s. 745.4 Factors
1. The Nature and Circumstances of the Offence
[7] The Agreed Statement of Facts was read into the record following Mr. Boyede’s guilty plea. A much shorter summary will suffice for present purposes.
[8] While working at an adult massage parlour on October 22, 2017, twenty-six-year-old Josephine (“Josie”) Glenn exchanged text messages with the defendant. Ms. Glenn was willing to accept Mr. Boyede’s offer to pay $750 for two to three hours of sexual activity. Location was the initial sticking point. In the end, Ms. Glenn agreed to leave the massage parlour and travel to Mr. Boyede’s residence as he had asked.
[9] About ninety minutes after being dropped off by taxi, Ms. Glenn spoke to her co-worker by telephone and said that she was heading back. Tragically, Ms. Glenn never arrived.
[10] It was not long before Ms. Glenn was reported missing by her sister. In the subsequent investigation, police determined which cab company had been sent to pick up Ms. Glenn, where she had been taken and when she had exited. Some information concerning the person who had met her was also obtained.
[11] Soon afterward, a connection was made to Mr. Boyede’s cell phone. A February 2017 incident had brought him to the attention of the police. There was immediate – and as it turned out – well-founded concern for Ms. Glenn’s safety. Additional information was obtained including the defendant’s address.
[12] On October 27, 2017, members of the London Police Service’s Emergency Response Unit made a forced entry into the residence Mr. Boyede occupied. While he was located, Ms. Glenn was not. Almost immediately it became clear she would not be found alive. Alarmingly, officers noticed the odour of a decomposing body and evidence of a recent clean up.
[13] The residence was re-entered later that day. Although significant efforts had been made to ensure that no one would ever know what had happened to Ms. Glenn, a horrific discovery was made. In the garage, police officers found trash bags containing the young woman’s remains.
[14] Subsequent examinations were conducted. A forensic anthropologist described the tools that would have been used and the number of “sharp defects” occasioned to facilitate storage of Ms. Glenn’s body in that manner.
[15] When the basement of the home was examined, it was clear that blood had been spilled there.
[16] In the Agreed Statement of Facts, Mr. Boyede admitted that he choked Ms. Glenn. He acknowledged that he intended to cause her bodily harm that was likely to cause Ms. Glenn’s death and was reckless as to whether death ensued.
[17] I turn to Mr. Boyede’s character.
2. The Character of the Accused
[18] The biographical and medical information that follows is drawn from the September 20, 2020 report of Dr. Prakash. I recognize that Mr. Boyede’s counsel requested that the court treat the letter as confidential. With respect, I decline the invitation. A formal application was not brought. In my view, it is essential that the public have full information concerning the court’s disposition and the reasons for it. Submissions were made in open court. Defence counsel made frequent reference to the contents of the report.
[19] The defendant is twenty-eight (28) years-old.[^2] He was born in Nigeria and has three siblings.
[20] Mr. Boyede told Dr. Prakash that he was the victim of sexual abuse in his birth country at the age of 9. He maintained that his parents did not believe him when he told them what had occurred. That, he said, caused his relationship with them to be “distant”.
[21] Mr. Boyede emigrated to Canada in 2007. He was then fourteen (14) years old. His arrival predated that of his parents.
[22] The offender reported being academically gifted in elementary and secondary school. However, he said that he had no significant social connections because he then thought they were a waste of time. He told Dr. Prakash that friendships are now valued.
[23] Academic achievement led to Mr. Boyede’s admission to the University of Waterloo at a tender age. He reported entering an aviation program. Marks fell. A move to the economics program followed. It is not clear to me whether a degree was ever obtained.
[24] During his time in Waterloo, Mr. Boyede worked in the corporate office of a grocery store chain during a gap year and later at a restaurant. Use of controlled substances, including MDMA and cocaine, was said to have started in 2015.
[25] The defendant returned to London in 2016. An opportunity to repair his relationship with his father was one of the reasons Mr. Boyede gave for the relocation.
[26] The defendant was working for an internet company when he was arrested in February 2017.
[27] I have briefly mentioned Mr. Boyede’s family members. His siblings live in other parts of Ontario. All appear to be gainfully employed and doing well.
[28] The defendant’s parents are said to be university educated. The relationship with their son seems to be a complicated one, at least from Mr. Boyede’s perspective. He used the word “abusive” to describe his father’s past conduct although he said that they had started to get along in more recent times. “Pretty flat” was the descriptor used by Mr. Boyede when asked to explain the depth of the connection to his mother.
[29] Mr. Boyede discussed his sexual and romantic history with Dr. Prakash. He told the psychiatrist about events more proximate to his encounter with Ms. Glenn.
[30] September 2017 had been a difficult month for him. A short-term romantic relationship ended. Mr. Boyede’s admitted infidelity was the stated reason. He reported being hospitalized for approximately a week following an attempt at self-harm. Employment at a call centre was lost.
[31] At the time of his arrest the following month, the offender was living with his parents. He had recently begun working for an HVAC company. There was mention of ongoing use of controlled substances at the time Mr. Boyede engaged in criminal conduct.
[32] Dr. Prakash spent some time outlining the defendant’s psychiatric history. Struggles with mental health started at a young age. The onset of auditory hallucinations was said to correspond with Mr. Boyede’s arrival in Canada.
[33] Issues arose during the defendant’s university years. He met with a counsellor. However, Mr. Boyede did not receive a psychiatric referral. Involvement with the Canadian Mental Health Association started in December 2016.
[34] It was not until after Mr. Boyede’s arrest in February 2017 that psychiatric assistance was briefly provided. Anti-psychotic medication was prescribed. However, the defendant was, once again, untreated after being released on an interim basis. The onset of auditory and visual hallucinations with some delusions was reported.
[35] Mental health medications have been prescribed following Mr. Boyede’s arrest in October 2017. He has seen Dr. Prakash periodically from November 2017 onward.
[36] According to the psychiatrist, Mr. Boyede likely suffers from Schizoaffective Disorder. The symptoms include auditory and visual hallucinations, delusions and consecutive days of elevated mood and sleep deprivation.
[37] With respect to management, Dr. Prakash wrote in part:
The mainstay of psychiatric treatment for this illness is…antipsychotic pharmacology. As well, mood-stabilizing medication (to prevent episodes of mania or depression) is also frequently added…Once antipsychotic medication has had the opportunity to achieve its desired effect, then inter-professional psychosocial rehabilitation is usually instituted in order to treat possible diminishments in social and occupational competence, motivation, cognition, and self-care.
[38] Dr. Prakash thought the need for anti-psychotic medication would be lifelong. The offender must also abstain from taking non-prescription drugs for all time. The extent of the affliction would require that Mr. Boyede be followed by a psychiatrist. While he did not believe the defendant suffers from a substance abuse disorder, drug use counselling was recommended too.
[39] The defendant did not have a criminal record at the time of this offence. A conviction for assault was entered in February and three more were added in March 2020 (assault, sexual assault and forcible confinement).
[40] Counsel for the defendant submits these convictions are not admissible for any purpose in relation to the issue currently before the court. I disagree.
[41] The offender’s character is a statutorily mandated consideration. The Oxford English Dictionary defines “character” as “the mental and moral qualities distinctive to an individual”. A holistic assessment is required; one that involves consideration of all that is known about Mr. Boyede. It is not an artificial exercise that involves freezing the wheels of time the moment the offence is committed or even when the plea was entered.
[42] The issue arose in R. v. Roberts.[^3] In addressing the period of parole ineligibility following a conviction for second degree murder, the trial judge admitted evidence of two prior acts of pointing a firearm, even though Mr. Roberts was never charged in connection with either incident. The Alberta Court of Appeal concluded the evidence was admissible. While the accused could not be punished for those other acts, the incidents were relevant to the offender’s background and character.[^4]
C. Analysis and Decision
[43] I turn to the question at hand.
[44] Sex workers have, appropriately, been recognized as a group of persons who are engaged in a dangerous activity. Those involved in the profession are vulnerable people: R. v. Dunlop, 2015 ABQB 770 at para. 88; Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 63.[^5] Mr. Boyede’s counsel fairly acknowledged the appropriateness of that characterization in her submissions.
[45] Ms. Glenn was especially exposed to risk on October 22, 2017. Despite an expectation that she would remain in the relative safety of her workplace during her shift, Ms. Glenn ultimately made the decision to travel by taxi to meet the defendant.
[46] She was unaccompanied. She was taken to Mr. Boyede’s home: his environment, not hers. It appears that any contact between the two was entirely transactional. She offered services. He agreed to utilize them for a fee.
[47] The victim may well have known she had made a risky decision. Until it was too late, she could not possibly have been aware that it was a deadly one.
[48] Mr. Boyede was subject to the terms of a recognizance at the time this offence was committed. The charges he already faced involved the forcible confinement of and non-sexual and sexual violence to another woman engaged in the sex trade. That could not possibly have been known by Ms. Glenn.
[49] Unsurprisingly, as a condition of his release on the February 2017 charges, Mr. Boyede was prohibited from communicating with such persons. This horrible crime extinguished the life of someone the defendant had promised the court he would have absolutely no connection with.
[50] Mr. Boyede violated the integrity of Ms. Glenn’s person in a most profound way. Even after she lost consciousness forever, Ms. Glenn was entitled to the dignity of her person: R. v. Barton, 2019 SCC 33 at para. 83. That too, was desecrated in a way that was horrifying and repugnant. That brutality occurred for one purpose, to avoid detection.
[51] The acts of dismembering and hiding a victim’s body are aggravating factors: R. v. McLeod, 2016 MBCA 7, at para. 23; R. v. Pernosky, 2018 BCSC 1252 (S.C.) at para. 43; R. v. Boukhalfa, 2017 ONCA 660; R. v. Teske, 2005 CanLII 31847 (Ont. C.A.) at para. 100; R. v. Sodhi (2003), 2003 CanLII 52179 (ON CA), 179 C.C.C. (3d) 60 (Ont. C.A.) at paras. 130-131, leave to appeal dismissed, [2004] S.C.C.A. No. 31; R. v. Dunlop, 2015 ABQB 770 at para. 91; R. v. Borbely, 2013 ONSC 3355 at paras. 51, 64 and 67.
[52] The fact the defendant prolonged the worry and pain of Ms. Glenn’s loved ones by hiding her remains is too: R. v. Panghali, 2011 BCSC 421 at para. 45.
[53] Conduct in the hours and days following the killing bear on the offender’s character. As Holmes J. wrote in R. v. Panghali, supra at para. 28:
It has value in revealing not [the offender’s] personality but rather his attitude, at the time, toward the offences. The evidence indicates a chilling deliberateness in his words and conduct seemingly out of accord with any real understanding of the appalling nature and consequences of his actions.
[54] Denunciation, deterrence and rehabilitation are important and relevant sentencing objectives. However, that does not mean that they always stand on the same footing. As Laskin J.A. explained in R. v. McKnight, supra at para. 37:
… depending on the facts of the case, the trial judge is entitled to give different weight to the various objectives.
[55] For the offence of second-degree murder, the objectives of denunciation and deterrence are particularly important: R. v. Panghali, supra at para. 9.[^6] A statutory minimum before eligibility for parole can be considered, necessarily limits the weight that is to be applied to the offender’s potential for rehabilitation: R. v. McKnight, supra at para. 39.
[56] The court is also required to consider any statement of a victim when determining the sentence to be imposed on an offender; s. 722(1). For that purpose, the word “victim” includes a person who has suffered physical or emotional harm as a result of the commission of an offence against any other person: s. 2.
[57] In her victim impact statement, Ms. Glenn’s mother, Patricia, spoke of overwhelming grief, frustration and depression. She said her comments were provided in the aftermath of a horror story. In part she wrote:
I fake being happy around others. I will never be what I was before Josie’s murder. I feel guilty that I could not protect her.
[58] She said Ms. Glenn’s grandmother was devastated too.
[59] Patricia Glenn offered a brief description of her daughter: her sense of adventure, her gift of song and the love Ms. Glenn shared with her dog Luna. She never saw the Christmas surprise her daughter promised shortly before she died.
[60] There is no sentence the court can ever impose which would do the only thing that would truly be fair: return Ms. Glenn to those who love her. Nor can the court do what some members of the public will undoubtedly demand. Impose a penalty that is harvested from a field called vengeance.
[61] However, the fact the offence had a significant impact on a victim, considering their age and personal circumstances, is an aggravating circumstance: s. 718.2(a) (iii.1).
[62] Crimes such as murder also have a chilling effect on our society. In R. v. Panghali, supra at para. 35, the court said:
…the larger community loses and suffers too. Murder is among the most serious offences known to our law…Murder not only destroys an individual life, with immediate effects on the individuals around that person; it also attacks the welfare and security of the community in general by reducing the trust and confidence that members of the community have in each other.
[63] A sentence must resemble those imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b). A significant body of case law was provided to me by counsel on both sides.
[64] I have reviewed all the decisions, as well as the helpful summaries provided.[^7] Each case is unique: R. v. McKnight, supra at para. 48. The factual matrix of one simply cannot be laid on top of any other, let alone this case. There are simply too many permutations and combinations of circumstances and factors for any prior decision to be any more than somewhat analogous. It is clear, however, that each side has a foundation for the position they advocate.
[65] As mentioned, rehabilitation is a noteworthy consideration when considering the period of parole ineligibility but it does not have the importance that it would in other sentencing situations: R. v. A. (T.S.), 1995 CanLII 1570 (ON CA), [1995] O.J. No. 535 (C.A.), leave to appeal refused November 16, 1995.
[66] If a major factor in the commission of the offence, the offender’s mental health is a mitigating circumstance: R. v. Al-Masajidi, 2018 ONCA 305. In this case, however, there was no suggestion that Schizoaffective Disorder played a role in the conduct that led to Ms. Glenn’s untimely and tragic death. Absent such a connection, the fact the offender’s mental state is not “intact” is only extenuating to a limited degree: R. v. Fernandes, supra at p. 20; R. v. Kairi, 2015 ONCA 279.
[67] I have not mentioned Mr. Boyede’s guilty plea before now. However, I have not forgotten its existence or importance. The trauma of a trial was not layered onto the burden Ms. Glenn’s supporters or the justice system must bear. The plea demonstrates an acceptance of responsibility and provides some optimism that Mr. Boyede is dedicated to finding answers and solutions to the deep-rooted and exceedingly troubling mental health issues he faces: R. v. Forster, 2012 BCSC 1682 at para. 55; R. v. Fernandes, 2018 ONSC 7784 at p. 17.
[68] Questions abound in this case that seem unlikely to ever be answered. Only Mr. Boyede knows what happened that caused the interruption in Ms. Glenn’s stated plan to return to her workplace and then, tragically, the violence that followed. The imagination wants to but cannot be allowed to swirl. What can be said is that the unimaginable happened to an entirely undeserving young victim. Hers is not the only life that has been irreversibly and permanently damaged in a fundamental and profound way. The senselessness of what transpired is maddening.
[69] Despite significant troubles and challenges of his own, Mr. Boyede showed great promise at one time. Somehow, somewhere and some time it was lost. By 2017, Mr. Boyede had become a young man who had a very dark, deeply disturbing and profoundly dangerous side. Bluntly, he had become a real-life example of a person fashioned in a nightmare.
[70] Psychiatric involvement seems like a welcome although long overdue development. The assessment, diagnosis, current treatment and recommendations for the future offer a sliver of hope that in time a corner will be turned. It will take significant effort by Mr. Boyede and health professionals to escape from the spiral that led the defendant to the life he must now endure.
[71] For now, Ms. Glenn’s family, friends and the rest of society are left reeling, trying to make sense of the senseless and to rationalize conduct that defies explanation.
[72] After carefully considering the purpose of sentencing, the statutorily mandated principles, objectives and factors and the decisional law, I have concluded that a fair and just result is this: Mr. Boyede shall be without eligibility for parole for a period of fourteen (14) years following his arrest on October 27, 2017.
“Justice A.D. Grace”
Grace J.
Delivered orally: December 3, 2020
COURT FILE NO.: 159/19
DATE: 20201203
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
OLUWATOBI EMMANUEL BOYEDE
Decision
Justice A.D. Grace
Released: December 3, 2020 (Orally)
[^1]: Criminal Code, s. 235(1)
[^2]: His date of birth is September 23, 1992.
[^3]: (2006), 2006 ABCA 113, 208 C.C.C. (3d) 454 (Alta. C.A.)
[^4]: At para. 28, leave to appeal refused (2007), 218 C.C.C. (3d) vi (S.C.C.). The Ontario Court of Appeal reached the same conclusion in R. v. Edwards (2001), 2001 CanLII 24105 (ON CA), 155 C.C.C. (3d) 473 at paras. 4 and 63. A residual discretion to exclude such evidence remains. See, too, R. v. Shaikh, 2020 ONSC 438 (S.C.J.) at paras. 26-33 and the authorities mentioned there including R. v. Andrade, 2010 NBCA 62.
[^5]: Section 718.04 specifically mentions victims who are vulnerable because of their personal circumstances.
[^6]: See, too, R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at para. 21.
[^7]: In addition to the decisions mentioned elsewhere in these reasons, I also reviewed R. v. Lalonde, 2013 BCSC 1349 which the defendant’s counsel filed to supplement those that had been initially provided.