COURT FILE NO.: CRIM(P) 1929/19
DATE: 2021 07 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
K. Holmes, for the Crown
- and -
MARKO TUBIC
R. MacDonald, for the defendant
HEARD: May 28, 2021, in Brampton
REASONS FOR SENTENCE
André J.
[1] I convicted Mr. Marko Tubic on March 12, 2021, of second degree murder in the death of Mr. David Fiedler on or about December 2, 2017. Ms. Holmes seeks a period of parole ineligibility of sixteen years while Mr. MacDonald counters that a period of parole ineligibility of ten to twelve years is appropriate in this case.
BACKGROUND
[2] Forty-five year old Mr. Tubic and an associate, Kenneth Clifford, were originally charged with the first degree murder of Mr. Fiedler. The Crown’s case against the two was largely based on the testimony of Abdul-Aziz Ahmed, an erstwhile associate of Mr. Tubic and part-time driver. Mr. Ahmed testified that he drove the two men around to various commercial establishments where they stole items for resale to finance their drug habit. Mr. Fiedler attended at Mr. Tubic’s residence to purchase drugs. At one point an altercation, ensued between Mr. Tubic and Mr. Fiedler. Following the altercation Mr. Tubic asked Mr. Ahmed to open the trunk of his car. He later drove Mr. Tubic to a bank where Mr. Tubic was captured on video surveillance unsuccessfully trying to withdraw money from Mr. Fiedler’s account. Mr. Ahmed testified that Mr. Tubic then directed him to drive to Bracebridge where they met an associate of Mr. Tubic who led them to a bridge over a hydro facility. Thereupon, Mr. Tubic and Mr. Clifford went to the trunk of the car and after Mr. Ahmed opened the trunk of his car at Mr. Tubic’s request, the two men picked up Mr. Clifford, walked to the edge of the bridge, and threw him into the water below.
[3] Unfortunately for Mr. Tubic, there was independent forensic evidence, telephone records and surveillance evidence that significantly corroborated Mr. Ahmed’s trial testimony. A blood sample forensically linked Mr. Fiedler to the trunk of his car. Surveillance evidence revealed Mr. Tubic’s repeated attempts to withdraw money from Mr. Fiedler’s account. Mr. Ahmed’s testimony that Mr. Tubic purchased bleach to clean his residence after they returned from Bracebridge was corroborated by an agreed statement of facts which stated that a friend of Mr. Fiedler’s mother visited Mr. Tubic’s house on or about December 3, 2017, where persons were cleaning the residence. Similarly, Mr. Ahmed’s testimony that following the altercation, Mr. Tubic broke down some furniture and burnt them in his backyard was corroborated by reports from the local fire service about attending at the home on December 8, 2017, to extinguish a fire in the backyard. Additionally, cell tower evidence revealed that Mr. Tubic’s cellphone was in the vicinity of the area where Mr. Ahmed’s car had been abandoned. Finally, Mr. Tubic’s friend testified that had Mr. Tubic visited him for the first time and wanted to know a place where he could get rid of something. I convicted Mr. Tubic of second degree murder rather than first degree murder because of some doubt about whether Mr. Fiedler was alive when he was thrown over the bridge. I acquitted Mr. Clifford of the first degree murder charge.
THE CROWN’S POSITION
[4] The Crown submits that the following factors justify that a period of parole ineligibility which exceeds the statutory minimum of ten years is justified in this case:
The impact of Mr. Fiedler’s murder on his mother.
Mr. Tubic’s extensive criminal record.
The elaborate efforts by Mr. Tubic not only to hide the fact of Mr. Fiedler’s death but to hide any evidence of his involvement in it.
Mr. Tubic’s attempts to rob Mr. Fiedler after their physical altercation.
The manner in which Mr. Tubic disposed of Mr. Fiedler which has denied closure to Mr. Fielder’s mother.
The applicable jurisprudence.
THE DEFENCE POSITION
[5] Mr. MacDonald submits the following:
There is nothing exceptional or egregious about the facts of this case.
Mr. Tubic has had a difficult childhood and his life deteriorated in the fall of 2017 after losing his best friend to cancer.
Mr. Tubic enjoys a wide degree of support in the community evidenced by the many letters of support filed on his behalf.
The cases relied on by the Crown contain facts that are significantly more serious than that in this case.
Parity of sentence which is statutorily mandated require a period of parole ineligibility in the range of ten to twelve years.
ANALYSIS
[6] The sentencing of Mr. Tubic raises the question concerning the factors a sentencing judge should consider in deciding whether a period of parole ineligibility in excess of ten years should be imposed on an offender convicted of second degree murder.
[7] Section 745.4 of the Code indicates that a sentencing judge should consider the nature of the offence, the circumstances surrounding the commission of the offence, the character of the accused and the general principles of sentencing in determining the period of parole ineligibility.
[8] In R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] S.C.J. No. 52, the Supreme Court of Canada stated at para. 18 that these factors are:
a) the character of the offender;
b) the nature of the offence; and
c) the circumstances surrounding the commission of the offence.
[9] In R. v. Arashnand, 2012 ONSC 5852, [2012] O.J. No. 5255, Fuerst J. noted at para. 9 that, in deciding whether to increase the period of parole ineligibility all the sentencing objectives set out in s. 718 of the Code, such as denunciation of unlawful conduct, general and specific deterrence, the separation of offenders from society where necessary, rehabilitation, reparation for harm done to the victim or to the community, promotion of a sense of responsibility in offences and acknowledgement of harm done to victims and to the community should be considered.
CHARACTER OF THE OFFENDER
[10] Mr. Tubic is forty-five years old and of Serbian heritage. He got married in 2005 but got divorced in 2012. A number of supportive letters filed on his behalf indicate that he is gregarious, kind and very supportive of others.
[11] The end of Mr. Tubic’s marriage placed him into an emotional tailspin which significantly robbed him of his self-esteem. The loss of a close friend in 2017 exacerbated his fragile emotional state thereby causing him to lose his job. In October and November, he found himself living in a shelter and stealing items in drug stores to support his drug habit. He was using drugs heavily at the time of the commission of the offence.
CRIMINAL RECORD
[12] Mr. Tubic has a lengthy criminal record from 1995 to 2018, with twenty six findings of guilt. The majority of convictions are for property-related offences such as possession of property obtained by crime, theft under $5,000, possession of break in instruments and break, enter and theft. In December 2008, he was convicted of forcible confinement and assault and received a six-month conditional sentence and two years probation. The record clearly indicates that Mr. Tubic’s criminal antecedents predate 2017 when he claimed to have suffered an emotional meltdown following the death of his close friend.
THE NATURE OF THE OFFENCE
[13] Mr. Tubic was convicted of a very serious offence which involved the intentional taking of someone’s life. It is unknown whether a weapon was involved in the altercation at the home. However, Mr. Tubic clearly got the better of Mr. Fiedler and then took significant steps to hide Mr. Fiedler’s body.
THE CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCE
[14] The circumstances surrounding the commission of the offence are quite egregious. Mr. Fiedler had earlier called his mother to ask her permission to withdraw money from her account. Mr. Tubic unsuccessfully tried to withdraw money from the account after the altercation at the home. The only reasonable inference which could have been drawn from the circumstantial evidence is that Mr. Tubic used force to obtain Mr. Fiedler’s PIN to gain access to the account.
[15] Mr. Fiedler’s personal circumstances also made the offence more egregious. He was recovering from a bout of cancer and had just stopped receiving chemotherapy. He had, shortly before his murder, stopped using a cane to get around. Tall and lanky, he would have been no match for the shorter but stockier Mr. Tubic.
[16] Furthermore, and as already indicated, Mr. Tubic went to great lengths to first get rid of Mr. Tubic and second, to interfere with the administration of justice by destroying any evidence linking him to Mr. Fiedler’s death. Additionally, Mr. Tubic conscripted a number of persons including Mr. Clifford, Mr. Ahmed and his friend in Bracebridge in his plan to dispose of Mr. Fiedler’s body. Additionally, Mr. Tubic went to great lengths to disguise himself to avoid detection when he tried unsuccessfully to withdraw money from Mr. Fiedler’s bank account.
SAMPLE OF CASES RELIED UPON BY THE CROWN
[17] In R. v. Tutiven, 2017 ONSC 6689, the accused who had fatally struck a gas attendant and dragged him after stealing gas received a period of parole ineligibility of sixteen years. The aggravating factors included the fact that Mr. Tutiven killed the gas attendant while committing another offence, was on probation at the time of the offence, had a lengthy criminal record, had evaded arrest for three years and that the gas attendant was a vulnerable victim due to the nature of his employment (at para. 21).
[18] In Arashnand, the court fixed the period of parole ineligibility for the accused at fifteen years based on the fact that Mr. Arashnand and two others had stabbed the victim fifteen times in the chest and upper abdomen and had then slit his throat. They had then transported the deceased’s body to a deserted area where it was incinerated. The accused had also fled to Western Canada but had returned a few weeks later. He was also on probation at the time of the offence. He was also bound by three separate recognizances of bail at the time of the murder. Additionally, Mr. Arashnand had engaged in assaultive behaviour on six separate occasions in jail while awaiting the outcome of his murder trial (at para. 38).
[19] In R. v. Peever, [2005] O.J. No. 5267, the accused beat the victim with his fists, transported him alive in the trunk of a car and threw the victim into a river. It was unclear whether the victim was alive or dead when thrown into the river. The first offender confessed to the police and pled guilty to second degree murder. He received a period of parole ineligibility of twelve years.
[20] In R. v. Wristen, 1999 CanLII 3824 (ON CA), [1999] O.J. No. 4589, the accused was convicted of second degree murder of his wife whose body was never found. The trial judge fixed the period of parole ineligibility at seventeen years, a decision upheld by the Court of Appeal. The Court of Appeal noted at para. 75 that:
[I]n our view, the appellant's hiding of the body and refusal to disclose its whereabouts were "circumstances" to be considered by the trial judge.
[21] In R. v. Keene, 2020 ONCA 635, [2020] O.J. No. 4299, the Ontario Court of Appeal upheld a period of parole ineligibility of seventeen years in circumstances where the accused murdered his female victim and distributed parts of her body around Barrie, Ontario. The police conducted a “Mr. Big” operation and later charged the accused with the murder. In its decision, the Court of Appeal noted at para. 71 that:
The evidence in relation to the dismemberment of Ms. Flanagan’s body and the disposal of her remains about Barrie, coupled with the victim impact statements from her family (parents, sisters, and aunt), speak to the horrific nature of the appellant’s crimes. The recommendation of nine jurors that the appellant be subjected to a 25-year period of parole ineligibility reflects their assessment of the brutal and shocking nature of the appellant’s actions.
CASES RELIED UPON BY THE DEFENCE
[22] In R. v. Beam, [1994] O.J. No. 1359, the accused who had pleaded guilty to second degree murder in the fatal stabbing of a 19-year-old homeless man, was sentenced to life imprisonment without parole eligibility for 10 years. He had an extensive criminal record and had encouraged another male to clean up the murder scene and to move the body to another part of the premises.
[23] In R. v. Brown, 2017 ONSC 1441, [2017] O.J. No. 1257, the accused who had fatally stabbed the victim thirty times received a term of life imprisonment and 13 years parole ineligibility despite a unanimous jury recommendation of 10 years’ parole ineligibility. He had a criminal record, was the aggressor and had taken a number of steps to avoid detection.
[24] In R. v. Garnier, 2018 NSSC 196, [2018] N.S.J. No. 328, a jury convicted Mr. Garnier of second degree murder and of improperly interfering with the human remains of the deceased. Mr. Garnier punched the female victim in the face, breaking her nose, had then strangled her, placed her body in a green bin, dumped it down a cliff and took further steps to hide her body. Four jurors recommended a 10-year period of parole ineligibility, one recommended 12 years while 7 made no recommendation. Mr. Garnier was sentenced to life in prison with a 13.5 year period of parole ineligibility.
[25] In R. v. Kavanagh, [1994] O.J. No. 2697, the Ontario Court of Appeal reduced a period of parole ineligibility on an accused who had been convicted of second degree murder to 10 years minimum parole ineligibility. The appellant had been convicted of fatally striking the victim multiple times with a claw hammer. At para. 18, the Court of Appeal noted that it reduced the period of parole ineligibility because it appeared that the jury found the appellant guilty as an aider or an abettor rather than as a principal and that it would be unfair to increase the minimum period of parole ineligibility, thereby increasing the disparity between her sentence and that of the co-accused who had pled guilty to manslaughter and who had received a sentence of seven years imprisonment.
[26] Finally, in R. v. Nayotchekeesic, [1995] O.J. No. 1916, the accused pleaded guilty to second degree murder in the death of a young woman who had died from a hatchet blow to her head. The court concluded at para. 5, that: “Oddly enough there is nothing about the background of this particular case which according to the case law, requires imposition of a period of parole ineligibility beyond the minimum prescribed by statute.”
ANALYSIS
[27] I agree with Mr. MacDonald that the facts in many of the cases Ms. Holmes relies upon, such as Tutiver, Peever, Keene and Wristen are more egregious than the facts in the instant case. That said, the cases relied upon by Mr. MacDonald do not have as many of the aggravating factors in this case. For example, in Beam, the accused pled guilty. In Kavanagh, the jury found the accused guilty of second degree murder, but as an aider and abettor. On the other hand, in Brown, the victim had been stabbed thirty times by the accused who had been the aggressor, had a criminal record and had taken a number of steps to avoid detection. Garnier involved the strangulation of a female victim and an accused who had taken elaborate steps to conceal his involvement in her death.
[28] This case has many egregious aspects. Mr. Tubic was convicted of second degree murder in the death of Mr. Fiedler. After the altercation at the Mississauga residence, Mr. Fiedler was placed into the trunk of Mr. Ahmed’s car and Mr. Tubic made unsuccessful attempts to withdraw money from his account. Mr. Tubic hatched an elaborate scheme to dispose of Mr. Fiedler and to get rid of any evidence linking him to Mr. Fiedler’s disappearance. But for the thorough investigation conducted by the Peel Regional Police Force, what happened to Mr. Fiedler would never have come to light. But for the wide support Mr. Tubic enjoys in the community, and the tentative steps he has taken while incarcerated to rehabilitate himself, the appropriate period of ineligibility would have been fifteen years. Taking these factors into consideration, the period of parole ineligibility in this case is thirteen and a half years.
[29] Mr. Tubic is therefore sentenced to life imprisonment with a 13.5 year period of parole ineligibility.
ANCILLARY ORDERS
[30] DNA Order (primary designated offence).
[31] Section 109(1)(b) order for life.
André J.
Released: July 19, 2021
COURT FILE NO.: CRIM(P) 1929/19
DATE: 2021 07 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MARKO TUBIC
REASONS FOR SENTENCE
André J.
Released: July 19, 2021