COURT FILE NO.: CR-20-50000299-0000
DATE: 20210111
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
lawrence fronczak
Sunita Malik, for the Crown
Alvin Shidlowski, K. Torrie and J. Jesin, for Mr. Fronczak
HEARD: November 26th and December 29th and 30th, 2020
FORESTELL J.
reasons for sentencing
Overview
[1] Lawrence Fronzak entered a not guilty plea before me on November 26, 2020 to a charge of manslaughter. Following that plea of not guilty, with the consent of Mr. Fronczak, the Crown read into the record an agreed statement of facts.
[2] The agreed facts described the discovery of the body of Helen Fronczak by Mark Fronczak, the son of Helen and Lawrence.
[3] Mark Fronczak entered his parents’ apartment with emergency medical personnel on March 18, 2019 after being unable to contact them. The door was locked and there was no sign of forced entry. The apartment was in darkness. Hearing faint sounds from a room at the back of the apartment, paramedics went to the room and found the lifeless body of Helen Fronczak. She had a belt and a coat hanger around her neck. Her body was in a state of rigor mortis.
[4] Lawrence Fronczak was on the floor next to his wife’s body. There was a knife and a hammer on the floor next to Mr. Fronczak. Mr. Fronczak was awake but not speaking. He was taken by stretcher out of the apartment and to the hospital. He was treated for superficial cuts on his abdominal area and a horizontal scratch on his throat. He received stitches to his abdominal wound. Mr. Fronczak was described as being “unresponsive” throughout the medical treatment.
[5] Mr. Fronczak was arrested. On his first appearance in court he was unresponsive. A court ordered assessment on March 19, 2019 by Dr. McMaster concluded that Mr. Fronczak was in a catatonic state.
[6] An assessment conducted in the summer of 2019 by Dr. Paul Benassi of the Centre for Addiction and Mental Health (“CAMH”) confirmed a diagnosis of Major Depressive Disorder. However, Dr. Benassi concluded that because of Mr. Fronczak’s lack of memory, there was insufficient evidence to support a finding of not criminally responsible on account of mental disorder with respect to the killing of Helen Fronczak.
[7] Mr. Fronczak had indicated that he could not remember anything with any sense of clarity from March 14th to his arrival at the Toronto South Detention Centre (the “TSDC”) on March 19th. It was opined by Dr. Benassi that a catatonic state could have occurred as a result of the trauma of the incident, thereby causing retrograde memory loss.
[8] The issues of malingering and false memory loss were directly considered during the assessment. The tests concluded a low likelihood of malingering. On the issue of memory loss, there was no clear scientific explanation to support the claim of memory loss. Nonetheless, Dr. Benassi offered the opinion that the trauma of the event and the subsequent realization of what had transpired could cause retrograde amnesia. Accordingly, Dr. Benassi could not conclusively rule out a depressive-inspired, momentary, violent act that, upon recovery, caused a traumatic catatonic state. Dr. Benassi also opined that it was possible that Mr. Fronczak, when committing the violent act, had no intent to kill or to cause grievous bodily harm.
[9] The history of the depressive episode experienced by Mr. Fronczak was set out in the agreed facts. That history is also detailed in the psychiatric reports filed on sentencing. Mr. Fronczak became depressed after the sudden and tragic death of one of his grandsons in late January 2019.
[10] By February 2019, Mr. Fronczak was described by family members as being depressed. He saw his family doctor, Dr. Taylor. Dr. Taylor prescribed antidepressants and sleeping medication. Mr. Fronczak returned to the doctor for a follow-up appointment a week later, reporting that he was unable to sleep despite taking the medications. The doctor increased the dosage. Mr. Fronczak reported to be feeling in a ‘zombie’ mood.
[11] Mark Fronzak and his sister, Catherine, described Mr. Fronczak to be declining in personal grooming and appearance. He appeared to lose weight and was “distant and withdrawn.” He did not appear to be interested in engaging in conversation in person or by telephone. According to his son Mark, since February of 2019, there was a palpable change in his father’s character. Mark noted that his father had lost 20-25 lbs., did not have an appetite, had become unusually quiet and withdrawn and “showed signs of not remembering or not associating with things…”.
[12] The post-mortem report was also filed at the trial. It disclosed that ligature strangulation from the belt caused the death of Ms. Fronczak. In addition to the injuries from the belt ligature, there were ligature markings from the coat hanger and numerous blunt force injuries, including multiple lacerations to the scalp, a superficial chipped skull fracture and bruises and abrasions to the back, abdomen and chest.
[13] Mr. Fronczak agreed that the facts as read into the record could be proven by the Crown. On the basis of those uncontested facts, I found Mr. Fronczak guilty of manslaughter in the killing of his wife, Helen Fronczak.
[14] Sentencing was adjourned until December 29 and 30, 2020 to allow counsel for Mr. Fronczak to obtain a further psychiatric report addressing the risk posed by Mr. Fronczak.
Background and Character of the Offender
Background
[15] Mr. Fronczak is now 82 years-old. He was 80 years-old at the time of the offence. He was born in Canada and lived most of his life in the Toronto area. He has a high school education. He graduated from high school when he was 18 or 19 years old. He was hired out of high school to work as a drafter. He worked at the same company for 33 years, working his way up to the position of President of the company’s Canadian operations. When he left that company, he then worked for the next 17 years for the Canadian Automatic Sprinkler Association.
[16] Mr. Fronczak met his wife Helen in high school. They began dating in grade 11 or 12 and married in 1960. Mr. Fronczak has three children born in 1962, 1964 and 1970. The Fronczaks lived in Toronto but moved to Collingwood when Mr. Fronczak retired. They moved back to Toronto in 2014 after Helen Fronczak experienced medical issues.
[17] There was no history of domestic abuse in the relationship of Helen and Lawrence Fronczak before the homicide.
[18] Mr. Fronczak has no criminal record. He has no history of physical aggression and no history of substance abuse.
Psychiatric History
[19] Mr. Fronczak had no history of psychiatric illness until just prior to this offence. That history has already been described. Reports by forensic psychiatrists, Drs. Pearce and Benassi were filed at sentencing. A psychological report by Dr. Percy Wright was also filed.
[20] The opinion of Dr. Benassi is that Mr. Fronczak meets the criteria for a Major Depressive Disorder.
[21] Both Dr. Pearce and Dr. Benassi expressed the opinion that Mr. Fronczak was experiencing a major depressive episode at the time of the offence. He is no longer experiencing depressive symptoms.
[22] Dr. Pearce assessed the risk presented by Mr. Fronczak. His report indicates that Mr. Fronczak’s scores on actuarial clinical risk assessment tools suggest a low risk of reoffence.
[23] Dr. Wright, in his report, points out that the psychological testing and clinical interview of Mr. Fronczak uncovered longstanding anger issues along with personality traits characterized by anger, resentment and impulsiveness which could have contributed to the offence.
[24] Dr. Benassi, Dr. Pearce and Dr. Wright all opined that Mr. Fronczak’s memory loss with respect to the event was atypical. The reports suggest a willful component to the memory loss — that Mr. Fronczak, does not want to remember.
Community Support
[25] Mr. Fronczak’s son Mark and his daughter Catherine are supportive of Mr. Fronczak. Upon release from custody, Mr. Fronczak expects to live near his son. Mark Fronczak is prepared to support his father in the community although it is not feasible for Mr. Fronczak senior to live in Mark Fronczak’s house.
[26] Mr. Fronczak’s eldest daughter, Laura, has no contact with Mr. Fronczak. She was contacted in relation to the sentencing and indicated that the offence had taken a toll on her and that she did not wish to have any further involvement.
[27] The material filed at sentencing also includes letters of support from four friends and one former colleague. Mr. Fronczak’s friends have been unable to keep in contact with him while he has been incarcerated but expressed a willingness to offer support to Mr. Fronczak upon his release.
Time in Pre-sentence Custody
[28] At the time of sentencing on January 11, 2021, Mr. Fronczak will have spent 666 days in pre-sentence custody. Records from the TSDC indicate that from March 18, 2019 until December 20, 2020 Mr. Fronczak was subject to 229 full or partial lockdowns. During lockdowns, inmates are locked in their cells. When they have cellmates, they are locked in with their cellmates. There is no privacy, including while using the toilet. They are released from the cell for 30 minutes to use the shower, telephone, and in some cases, the yard.
[29] Mr. Fronczak testified and indicated that he had a cellmate for part of his time at the TSDC, but he has been alone in a cell for several months recently. There have been increased lockdowns in the past months since the global pandemic began. Not all of the lockdowns are captured by the records from the TSDC. It was agreed by both counsel that an additional 21 days of lockdowns should be added to the total from the records.
[30] Mr. Fronczak testified that he has felt very isolated and lonely. He has had limited contact with his children and no contact with friends. He agreed that he has had access to medical care.
Positions of the Parties
[31] The Crown submits that the appropriate range of sentence is 8-10 years before credit for pre-sentence custody. The Crown argues that a significant penitentiary sentence is necessary to further the sentencing objectives of general deterrence and denunciation. The Crown agrees that Mr. Fronczak should receive credit of 1.5:1 for his pre-sentence custody. She concedes that he should additionally receive enhanced credit for the time spent in lockdown but submits that the enhanced credit should be limited to 10 months for the approximately 8 months of lockdown time. The Crown is opposed to any additional reduction in sentence to reflect the collateral consequences of COVID-19.
[32] Counsel for Mr. Fronczak submits that a sentence in the range of 5 years would have been appropriate if not for the global pandemic. Counsel submits that enhanced credit for lockdown time should be calculated on a 2 for 1 basis. With credit at this rate, Mr. Fronczak would be credited for 1,499 days of pre-sentence custody or just over 49 months. Counsel’s position is that Mr. Fronczak should not spend any further time in custody. His sentence should be reduced as a result of COVID and he should be given a sentence of one day with time served of 49 months and with three years’ probation or, a suspended sentence with three years’ probation. Counsel submits that a suspended sentence would enable the Court to impose a sentence if Mr. Fronczak breached any conditions of his probation.
Issues
[33] There are three issues for me to determine:
What is the appropriate sentence for this offender and this offence?
What credit should Mr. Fronczak receive for his pre-sentence custody? and,
Should there be a reduction in his sentence to reflect the collateral consequences of serving that sentence during the global pandemic?
1. What is the appropriate sentence for this offender and this offence?
[34] In determining an appropriate sentence, there are principles and objectives established by the Criminal Code, R.S.C., 1985, c. C-46 and the caselaw that I must consider.
[35] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to “contribute …to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.
[36] Deterrence and denunciation are generally the dominant sentencing objectives in sentencing for manslaughter. Denunciation and deterrence are also dominant sentencing objectives in crimes of domestic violence.
[37] In determining an appropriate sentence, I must consider any relevant aggravating and mitigating circumstances.
[38] Aggravating factors in this case are:
(a) Helen Fronczak was a vulnerable victim by virtue of her age (79 years-old) and her medical issues;
(b) this was a domestic homicide;
(c) weapons were used; and,
(d) there were multiple injuries.
[39] Mitigating factors are:
(a) Mr. Fronczak’s remorse as demonstrated by his admission of the facts and his acceptance of responsibility;
(b) Mr. Fronczak’s prior good character as evidenced by his lack of any criminal record and his history of employment;
(c) Mr. Fronczak’s mental illness at the time of the offence and the fact that the illness contributed to the offence;
(d) the low risk of reoffence; and,
(e) the considerable community support available to Mr. Fronczak.
[40] Courts must impose similar sentences for similar offenders and offences.[^1] However, sentencing is a highly individualized process. It will be rare for a sentencing court to have the benefit of a prior identical case. The circumstances of offenders and offences vary widely. This is particularly true in sentencing for manslaughter because manslaughter can occur in a broad range of circumstances.
[41] In the caselaw, there is considerable support for the position advanced by the Crown, that the range of sentence for an offender who kills a domestic partner is 8-12 years. This is true even when the offender has a mental illness that played a role in the offence.[^2]
[42] Counsel for Mr. Fronczak argues that this case is exceptional and justifies a sentence below the usual range. Mr. Fronczak is now 82 years-old and any time in prison is particularly onerous. Sentences well outside the range of 7-12 years have been imposed on offenders, like Mr. Fronczak, who are elderly first offenders and where mental illness contributed to the offence.[^3]
[43] I find that specific deterrence is not a significant objective in light of Mr. Fronczak’s remorse and the circumstances of the offence. The protection of the public similarly plays a minor role in sentencing given the low risk presented by Mr. Fronczak. However, these do remain valid objectives in this case because of Mr. Fronczak’s limited insight into his actions.
[44] Counsel for Mr. Fronczak argues that general deterrence should not be a significant factor in this case because potential offenders similarly situated to Mr. Fronczak — with serious mental illness — would not be deterred by any sentence imposed.
[45] I find that general deterrence remains an important sentencing objective in this case. Mr. Fronczak has not been found not criminally responsible. He is presumed to have had the capacity to appreciate the nature and quality of his actions and to have had the capacity to know that those actions were wrong. A person similarly situated to Mr. Fronczak, depressed but capable of knowing what they are doing and knowing the wrongfulness of the acts, would be capable of being deterred by the prospect of a prison sentence.
[46] I also find that denunciation is an important sentencing objective in this case. Counsel for Mr. Fronczak argues that the time that Mr. Fronczak has already spent in custody meets the sentencing objective of denouncing the conduct. He submits that the period of custody, while lower than the usual period of incarceration for this type of offence, has had a disproportionate impact on Mr. Fronczak because of his age and his mental illness.
[47] I do not agree that the 22 months spent in custody is sufficient to advance the objectives of deterrence and denunciation.
[48] I have concluded that a sentence of 5 years’ imprisonment before credit for presentence custody is appropriate in this case. This sentence, in my view, meets the objectives of deterrence and denunciation but takes into account the disproportionate impact of imprisonment on Mr. Fronczak given his age and health. This sentence is below the usual range for a domestic homicide, but the circumstances of this case are exceptional.
[49] In arriving at this sentence, I have considered Mr. Fronczak’s age and the isolation that he will continue to endure while incarcerated. I have taken into account that programming will be less available because of the global pandemic. These factors cause me to conclude that a sentence outside the usual range of 8-10 years is appropriate. This sentence also takes into account Mr. Fronczak’s remorse and his low risk of reoffence.
[50] A sentence below five years would be inadequate to denounce the conduct in this case. A vulnerable victim was killed in her home in an extremely violent manner. Domestic violence is a serious problem in our community and the sentences imposed by our courts must reflect the condemnation of the offence of domestic homicide.
2. What credit should Mr. Fronczak receive for his pre-sentence custody?
[51] The next issue that I must consider is the credit that Mr. Fronczak should receive for presentence custody.
[52] Mr. Fronczak has served 666 actual days. Credited at 1.5:1 pursuant to s.719(3.1) of the Criminal Code, that is the equivalent of 999 days.
[53] In R. v. Duncan,[^4] the Court of Appeal found that, in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 day credit set out in s. 719(3.1) of the Code. The Court of Appeal held that “in considering whether any enhanced credit should be given the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused”.
[54] I am satisfied that the conditions of Mr. Fronczak’s pre-sentence incarceration were particularly harsh. Mr. Fronczak has been subject to many periods of lockdown. Through part of his incarceration, he shared a cell with another inmate and endured the loss of privacy and loss of dignity inherent in the sharing of an open toilet in a very small cell.
[55] Even when has had a cell to himself, Mr. Fronczak, like every other inmate, had very limited access to telephones, shower and exercise.
[56] I accept and adopt the reasons of my colleague, Schreck J. in R. v. Persad.[^5] The number of lockdowns as a consequence of staff shortages at the TSDC remains a significant problem. I do not agree, however, with the submission of counsel for Mr. Fronczak, that the amount of credit for lockdown time must be increased from the level of 1.5:1 granted by Schreck J. in Persad. Credit of 1.5 days for every day of lockdown reflects the impact on the offender and also communicates the court’s condemnation of inhumane treatment of prisoners.
[57] I therefore conclude that Mr. Fronczak should be credited an additional 375 days for the 250 days of lockdown.
3. Should there be a reduction in Mr. Fronczak’s sentence to reflect the collateral consequences of serving that sentence during the global pandemic?
[58] I have considered counsel’s submission, that the sentence should be further reduced to time served because of the global pandemic.
[59] I do not agree that Mr. Fronczak should receive a further reduction in his sentence to reflect the collateral consequence of serving this sentence during the pandemic.[^6]
[60] A reduction in sentence for collateral consequences is meant to reflect the additional hardship that will be experienced by an offender while serving the sentence. I acknowledge that Mr. Fronczak’s age clearly puts him at heightened risk in the jail setting. I have considered Mr. Fronczak’s age and vulnerability and the hardship of imprisonment in arriving at the sentence of five years. As I have already indicated, this is a lenient sentence.
[61] I have concluded that any further reduction would render the sentence unfit. Domestic homicide is a profoundly serious offence. I recognize Mr. Fronczak’s vulnerability in a custodial setting, but the sentence to be imposed must also recognize the vulnerability of the victim in this matter. It must express the community’s condemnation of the offence. A sentence reduced below five years in the circumstances of this case would fail to reflect the gravity of this offence. Mr. Fronczak’s age and vulnerability and the collateral consequences of imprisonment were factors that caused me to impose the low sentence of 5 years. I decline to reduce the sentence further.
Conclusion
[62] Therefore, I impose a sentence of 5 years (or 60 months) before credit for pre-sentence custody. With credit of 1,374 days or 45 months and 5 days for pre-sentence custody, the sentence remaining to be served is 14 months and 26 days’ imprisonment.
[63] In order to ensure the protection of the public, I am also placing Mr. Fronczak on probation for a period of three years. The conditions of the probation order will be that he:
• Keep the peace and be of good behaviour;
• Report to a probation officer upon release and thereafter as required;
• Not possess any weapons as defined by the Criminal Code;
• Live at an address approved by the probation officer;
• Report to his probation officer any new intimate relationship and provide contact information for any new partner; and
• Take such counselling for anger management as recommended by the probation officer and sign any consent forms necessary for the probation officer to monitor attendance at such counselling.
[64] There will be a s. 109 order prohibiting Mr. Fronczak from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[65] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Fronczak provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.
Forestell J.
Released: January 11, 2021
COURT FILE NO.: CR-20-50000299-0000
DATE: 20210111
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
LAWRENCE FRONCZAK
reasons for sentencing
Forestell J.
Released: January 11, 2021
[^1]: Section 718.2(b) of the Criminal Code; R. v. Devaney, 2006 33666 (ON CA), [2006] O.J. No. 3996 (C.A.)
[^2]: R. v. Gray, [1995] O.J. No. 236 (Gen. Div.); R. v. Perrambalam, [2001] O.J. No. 3520 (S.C.); R. v. Turosky [2013] O.J. No.355 (S.C.); R. v. Kimpe, 2010 ONCA 812
[^3]: R. v. Marceau, [1978] O.J. No. 1688 (P.C.); R. v. Chan, [2006] O.J. No. 4565(O.C.J.); R. v. Hardy, 1976 Q.J. No. 183 (S.C.); R. v. Hagen, 2003 MBCA 107; R. v. Shorty, 1993 Y.J. No. 101(S.C.)
[^4]: 2016 ONCA 754
[^5]: 2020 ONSC 188
[^6]: R. v. Hearns, 2020 ONSC 2365; R. v. Studd, 2020 ONSC 2810; R. v. Steckley, 2020 ONSC 3410