Her Majesty the Queen v. Riley Kostuk

COURT FILE NO.: 375/20

DATE: 2022-01-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Tyler Shuster and Kevin Kim for the Crown

• and -

Riley Kostuk

Mary Cremer and Christian Steuart for Mr. Kostuk

HEARD: January 24, 25, 2022.

The Honourable Mr. Justice H. S. Arrell

REASONS FOR SENTENCE

INTRODUCTION:

[1] The accused was found guilty by a jury on December 8, 2021, of second-degree murder in the death of Jacob Peets on June 29, 2019, in the City of St. Catharines, contrary to section 235(1) of the Criminal Code of Canada.

[2] Mr. Kostuk is before me today for sentencing.

OVERVIEW:

[3] Mr. Kostuk, Jacob Peets and Emily Raymond had known each other for a number of years. Mr. Kostuk and Mr. Peets were best friends. In late February 2019 Ms. Raymond and Mr. Kostuk began an exclusive relationship. This did not last long as Mr. Kostuk assaulted Ms. Raymond in late March 2019 resulting in her attending hospital for treatment.

[4] In April Mr. Peets and Ms. Raymond began seeing more of each other and eventually on one occasion slept together. Mr. Kostuk found out and was supposedly upset about this.

[5] During the last week of June 2019 Ms. Raymond agreed to dog sit for Mr. Kostuk’s parents at their home located at 47 Plymouth Avenue in St. Catharines, while they were away. Mr. Kostuk started to hang around during that week and stayed at 47 Plymouth with Ms. Raymond.

[6] On June 28, 2019, Mr. Kostuk arranged for an evening at a pub with Mr. Peets, Ms. Martin, Ms. Raymond and himself. They were to first meet at 47 Plymouth and then to proceed to a downtown pub to meet other friends. Various levels of alcohol and marijuana were consumed at 47 Plymouth and later at the pub. However, impairment was never an issue before the jury, nor was it raised by counsel in their sentencing submissions regarding the length of sentence, only that Mr. Kostuk has an admitted substance abuse issue.

[7] Outside the pub Mr. Kostuk verbally assaulted Ms. Raymond and spit on her calling her a whore and slut.

[8] The four individuals then took a cab back to 47 Plymouth where a further verbal assault by Mr. Kostuk on Ms. Raymond took place in the kitchen at which time Mr. Peets intervened on behalf of Ms. Raymond leading to a shoving match between he and Mr. Kostuk. Mr. Peets then left and Mr. Kostuk followed him outside. Very shortly thereafter Mr. Peets was found in a pool of blood at the end of the driveway having suffered 12 stab wounds. He died within minutes from these wounds. Mr. Kostuk was charged with second degree murder in the early morning hours of June 29, 2019.

[9] The Crown theory was that Mr. Kostuk was jealous of Mr. Peets being with Ms. Raymond who he still considered his girlfriend. He was angry with her earlier in the evening at the pub and this anger escalated further in the kitchen at 47 Plymouth leading to the stabbing of Mr. Peets by Mr. Kostuk when he intervened on her behalf.

[10] Mr. Kostuk spoke to 911 and applied CPR to Mr. Peets pending the arrival of the ambulance. The murder weapon was never found. There was a knife missing from a set in the kitchen of 47 Plymouth Avenue which the pathologist opined was capable of causing the fatal wounds suffered by Mr. Peets.

[11] Mr. Kostuk insisted on his innocence to the police and attempted to shift the blame to the driver of the taxi that brought the four individuals back to 47 Plymouth Avenue. He also attempted to have Ms. Raymond indicate to the police his innocence, both at the scene and later while he was in custody.

RECOMMENDATIONS OF THE JURY:

[12] The jury recommended as follows regarding Mr. Kostuk’s opportunity to apply for parole:

1. 7 made no recommendation.
2. 2 recommended 10 years.
3. 1 recommended 15 years.
4. 1 recommended 20 years.
5. 1 recommended 25 years.

VICTIM IMPACT STATEMENTS:

[13] I received a number of victim impact statements from Mr. Peet’s father, grandfather, stepmother, aunt, cousin, and several close friends. All of course had a common theme of profound loss of a very loving, supportive, caring friend, son and grandson.

[14] Mr. Peets’ immediate family has been severely shaken by his sudden and brutal loss at such an early age. All are suffering significant sadness. His two little brothers miss him terribly as a good friend, mentor and role model. His father has lost his sense of humour and well being and regrettably he is consumed with hatred. All of the family speak of the “empty hole” left in the family that will never be filled.

[15] It is clear to this court that Mr. Peets was loved deeply by his family and friends. It appears that in turn he loved them and was always available to provide support when needed. It is also clear to this court from reading these various victim impact statements that Mr. Peets is missed terribly and all those affected by his senseless death have suffered immeasurably and I fully understand that suffering will never disappear.

PRESENTENCE REPORT:

[16] Mr. Kostuk confirmed to this court the accuracy of the presentence report. It says he is currently 24 years of age. He was 21 when this incident occurred. His parents separated when he was two years of age. He was raised mostly by his mother and a stepfather. He had regular contact with his biological father. He describes a very happy childhood. He stated to the author of the presentence report that he is close to his large extended family.

[17] Significantly Mr. Kostuk reported to the author of this report being in a 5-year relationship with the mother of his 3-year-old son. He described that this was a great relationship and that he and the mother never fought. However, the records before the court indicate a conviction of threatening in January 2020 against this woman and threatening to “beat her face in” and kill her.

[18] The offender was diagnosed with ADHD at an early age. His mother, in a 2015 presentence report, described a somewhat volatile young man growing up who could be manipulative to get his way and had poor impulse control. In her most recent interview for the current presentence report, the author indicated she tried to minimize her previous statements and claims her memory of those days to now be foggy.

[19] In 2018 the offender’s best friend was killed in an accident and according to his mother this started his downward spiral with heavy drinking and avoiding the family. He was diagnosed with a mental health issue in March 2019 and was prescribed medication which he stopped taking prior to this murder. According to his mother and his brother, the offender appeared depressed in the months leading up to the murder.

[20] Mr. Kostuk has limited education dropping out of school without completing grade 10. It appears he may have been a discipline problem in school being suspended on a number of occasions. He has taken some schooling while incarcerated and his teacher reported him a good student who is doing well in completing several high school credits. She reported him being polite, respectful, mild mannered and dedicated to his schoolwork when with her. She was well aware of his institutional infractions, which I will speak of later in this decision.

[21] It appears that the offender has very limited work experience. Alcohol is a serious issue according to Mr. Kostuk causing work and relationship problems for him. He described himself as an abusive “drunk” getting violent and angry when intoxicated. He blames alcohol for his current problems. Likewise, Mr. Kostuk believes drug abuse is also a problem for him.

[22] Mr. Kostuk reported being diagnosed with schizophrenia while voluntarily hospitalized in March 2019. He reports currently taking Lyrica, Abilify, and Clonazepam for the schizophrenia. Such a diagnosis is refuted in the medical records of the Niagara Detention Centre where he is diagnosed with a borderline personality disorder, depression (likely related to grief) and psychosis related to past substance abuse, according to the author of the presentence report. There are no medical records by either party before the court.

LETTERS OF SUPPORT FOR MR. KOSTUK:

[23] I have heard from Mr. Kostuk’s mother and the difficult family issues she has dealt with over the past number of years from the loss of a niece, her husband who was very close to Mr. Kostuk, and this conviction. Clearly these losses in her view have had a significant and negative impact on her son. He has mental health issues that she says have been outstanding without proper treatment for a long time. She confirms his substance abuse issues. She confirms much of what was said in the presentence report.

[24] I also heard from Mr. Kostuk’s biological father and the mother of his 3-year-old son. They are both extremely supportive in their love for the offender. They speak passionately about how much his young son means to him and how much the boy loves his dad even though he has not seen him other than brief visits at jail. His grandmother speaks fondly of the offender and how supportive he has been to her. She also speaks of how much he is missed, and the hole left in his young son’s life now and into the future growing up without a father. Similar comments are expressed by his grandfather and aunt.

[25] The offender’s 11-year-old cousin speaks of how much she misses her older cousin who she considered a good friend that she spent much time with. She confirms the agony the family has gone through over this tragic event. Chris and Christine Lentz have known the offender since he was 18 months old. They also are very supportive and speak passionately that he needs medical help. Hopefully that will occur now that he will be in a structured setting without the ability to abuse alcohol and drugs.

POSITION OF THE PARTIES:

[26] The parties believe the range of sentence in a case such as this is 10-15 years of parole ineligibility. The defence at 10-13 years and the Crown at 12-15 years.

The parties have presented to me a joint submission of 13 years as meeting the ends of justice and being within the range of similar cases.

CRIMINAL RECORD:

[27] I acknowledge that much of Mr. Kostuk’s criminal record occurred while he was a youth at the age of 15. One of those convictions being a robbery, involved a knife, as well as convictions for threats of violence against a domestic partner, and breach of court orders. He also made threats against peers at that time while in an open custody facility. Subsequent counselling and programming while on probation on four separate occasions as a youth appears to have had little positive effect. As an adult he has convictions for uttering threats against a domestic partner and for possession of cocaine. He was, as well, on bail and a weapons prohibition order when he committed the subject offence.

INSTITUTIONAL INFRACTIONS:

[28] The offender has been incarcerated since June 29, 2019. He has been involved in 17 separate incidents all involving some degree of violence against other inmates and on one occasion against a staff member.

AGGRAVATING FACTORS:

[29] There are a number of aggravating factors in the case at bar which I find to be as follows:

1. The offender’s criminal record, being bound by a bail order on another offence when the murder occurred, as well as a weapons prohibition order, and post offence institutional misconduct.
2. The brutal nature of the murder of 12 stab wounds of varying severity, four of which were fatal.
3. The domestic nature of the murder regarding Emily Raymond.
4. A breach of trust as the deceased was the offender’s best friend.
5. The offender’s post offence conduct of disposing of the murder weapon, lying to police, attempting to have Emily Raymond lie to police.
6. The devasting effect this has had on the victim’s family.

MITIGATING FACTORS:

[30] I find the following to be mitigating factors which I must and have considered:

1. The relative youth of the offender.
2. The unconditional support of his family and the mother of his child.
3. The positive steps he has taken in prison towards his education and such limited counselling programs as are offered in a provincial setting while on remand awaiting trial.

THE LAW:

[31] Section 745(c) C.C.C. specifies that:

In respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefore pursuant to section 745.4.

Section 745.4 provides, in turn, that the trial judge:

... may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation if any, made [by the jury] pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances.

[32] The sole issue before me is therefore whether parole ineligibility should be increased beyond the minimum 10-year period. In exercising my discretion, I must take into account:

• The character of the offender;
• The nature of the offence;
• The circumstances surrounding the commission of the offence; and
• Any recommendations of the jury.

See S. 745.4 C.C.C.; R. v. McBride [2005] O.J. No. 1043 at para 4; R. v. Shropshire 1995 CanLII 47 (SCC), [1995] S.C.J. No. 52 at para.18.

[33] In R v. Shropshire, (1995) 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193, the Supreme Court identified the objective of s. 745.4 and outlined the approach a trial judge should take in determining parole ineligibility in paragraphs 27 and 33 as follows:

[27] In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner:

“as 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 [now745.4], 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.”

[33] If the objective of s. 744 [now s. 745.4] is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness" being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.

[34] A judge must consider the jury recommendation, while recognizing that the jury is unschooled in the law of sentencing. S. 745.2 C.C.C.; R. v. Mafi (2000), 2000 BCCA 135, 142 C.C.C. (3d) 449.

[35] As was stated in R. v. Hoang 2002 BCCA 430, [2002] B.C.J. No. 1613 (BCCA) “… a jury recommendation is to be considered a serious communication from the jury and may not be easily discounted, even though it is not binding on the trial judge and is made without the benefit of evidence or instructions on sentencing.”

[36] In R. v. Chalmers, 2009 ONCA 268 at para. 115¸ the Ontario Court of Appeal stated as follows:

[115] …Jury recommendations, however, are just that: recommendations. They are not particularly well-informed, are generally made without any appreciation of the wider sentencing context, and need not be slavishly followed: see e.g. McKnight, at p. 278 (per Laskin J.A.), citing Watt J. with approval in R. v. Barry, [1991] O.J. No 2666 (Ont. Gen. Div.), aff’d R. v. Barry (Ont. C.A.)…”

[37] It is trite law to indicate that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. See: s. 718.1 C.C.C.

[38] Proportionality is the cardinal principal which must guide the fitness of the sentence imposed. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.

COVID-19:

[39] The highly transmissible Omicron variant, at this point in time in Ontario, has caused significant closures. The infections are increasing at an alarming rate. The courts have taken judicial notice that incarceration during COVID is problematic for inmates as well as staff because of the inability to separate, vaccinate, isolate, test, properly distance and have ready access to proper PPE. Numerous lockdowns are an ongoing concern as is an absence of staff due to illness. Judges have reduced the length of time served in custody in a number of cases. However, COVID is not a “get out of jail free card”. COVID is a serious consideration and may reduce a sentence, but it cannot make an unfit sentence fit. It permits some deviation from proportionality but cannot sanction that which is truly disproportionate. See Doering, at para. 82.

ANALYSIS:

[40] This court has taken into account the principle of totality of sentence, the need to protect society from this offender, denunciation of this horrific crime, and deterrence to Mr. Kostuk, and others, that this court will not sanction such terrible and despicable acts of violence being inflicted on members of the public.

[41] I am of the view that the predominant principles that must govern the sentence in this case are denunciation, general deterrence and specific deterrence. Rehabilitation of this offender must occupy a secondary place given all the facts of this crime, however, given the offenders young age and his extensive family support, this court has certainly not disregarded rehabilitation. See R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (OCA) at para. 37.

[42] The facts of this murder are particularly disturbing. A sharp-edged pointed instrument, likely a knife, was used to savagely inflict fatal injury to Mr. Peets. He was unarmed. It would have been unknown to him that his best friend was going to suddenly stab him mercilessly for no reason that this court can discern other than some misguided jealousy and uncontrolled rage. It is accepted by the court that this murder was a spontaneous act of aggression and anger, perhaps caused by jealousy, as argued by the Crown, by Mr. Kostuk and appears not to have been planned in any way.

[43] I have considered the grief and horrific sadness and despair of Mr. Peets’ family and friends. I am well aware and accept that their deep-felt loss will be with them for ever.

[44] I am also mindful of the support of the offender’s family and friends and their grief over this senseless tragedy. It is obvious that Mr. Kostuk’s young son will grow up without the physical presence of his father for most of his childhood and teenage years. I am also aware of his substance abuse issues and reported mental health issues.

CONCLUSION:

[45] I have reviewed all of the cases presented by both the Crown and defence. I have concluded that the appropriate range of sentence for parole ineligibility in a case such as this is between 11-15 years.

[46] I accept that there has been no remorse shown, although it is difficult to express remorse after a plea of not guilty as pointed out in R. v. Valentini, 1999 CanLII 1885 (ON CA), [1999] O.J. No. 251 (O.C.A.) at page 22. I also acknowledge Mr. Kostuk’s expression of sympathy in court through his lawyer for the loss to Mr. Peets’ family.

[47] I am mindful of the recommendations of the jury. They are 12 members of this community who heard all of the evidence regarding the facts and background of all those involved. They sat in judgment on this case and their opinions are a valuable insight into the degree of this offender’s moral culpability, as seen by this community. I am also well aware that the majority of jurors made no recommendation regarding parole ineligibility. I do not accept the defence argument that no recommendation by a juror means by default they were agreeing that 10 years of parole ineligibility is appropriate. I am more inclined to the view expressed in R. v. Cerra, 2004 BCCA 594 at para. 14, that no recommendation means the jury has decided to leave it up to the judge.

[48] This community will not sanction anyone taking the life of another in such a senseless fashion as this, nor will this court. The brutality and unprovoked nature of this merciless killing by one friend on another for no plausible reason deserves serious denunciation by this court. The nature and circumstances of this offence as well as the character of Mr. Kostuk clearly justifies and warrants an increase to the minimum parole ineligibility permissible by the Criminal Code of 10 years.

[49] I acknowledge the joint submission of counsel as to their recommendation on a period of parole ineligibility. I have a great deal of respect for their opinions as experienced and senior members of the criminal bar. Their opinions on sentence are taken very seriously by me, as I must, pursuant to the direction of the Supreme Court of Canada in R. v. Cook, 2016 SCC 43 at para 32.

[50] 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 the Criminal Code requires. I am also of the view that such a sentence will not bring the administration of justice into disrepute nor is such a sentence contrary to the public interest. Cook, at para. 33, 34 and 42.

[51] No sentence that I impose can restore Jacob Peets to where he should be as a living, breathing, contributor to his family, friends and society. It should be remembered that a period of parole ineligibility is no guarantee of parole, especially in these circumstances.

[52] Riley Kostuk, I sentence you to imprisonment for life without eligibility for consideration for release on parole until you have served at least 13 years of your sentence. By statute that period commences on the date of your arrest. The date on which you are first eligible to apply for release on parole, which I am by statute required to advise you, is June 29, 2032.

[53] In addition, there will be an order that you will provide to the authorities samples of bodily substances suitable for DNA analysis and inclusion in the National DNA Data Bank.

[54] There will as well be an order under s. 109 of the Criminal Code prohibiting you from having in your possession any firearms, ammunition, explosive substances or any other items mentioned in that section for the balance of your life.

[55] There will also be a no contact order pursuant to s. 743.21 of the Criminal Code for those individuals listed on page 4(4)(c) of the Crown’s factum filed as exhibit 1 on this sentencing hearing.

Arrell J.

Released: January 25, 2022

COURT FILE NO.: 375/20

DATE: 2022-01-25

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Riley Kostuk

REASONS FOR SENTENCE

Arrell J.

Released: January 25, 2022