R. v. Burke, 2022 ONSC 6083

Court File and Parties

COURT FILE NO.: CR-1258/22

DATE: 2022-10-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Kerry Burke

Accused

Counsel:

T. Waltenbury, for the Crown

G. Sandberg, for the Accused

HEARD orally: October 26, 2022

REASONS FOR DECISION ON SENTENCE

CULLIN, J. (orally)

Factual Background to Conviction

1On May 10, 2022, Kerry Burke pled guilty to the offence of second-degree murder. This charge arose from the death of Mr. Burke’s younger brother, Brant Burke.

2The offence occurred just over two years ago, on October 19, 2020, on a trail in the Wiikwemkoong Unceded Territory lands near Killarney. While Mr. Burke was hunting with his brother, he shot him twice in the back. Brant bled to death, on the ground, in the middle of the bush. His body was found almost a week later.

3Following the murder, Mr. Burke returned to the residence that he had been sharing with his brother at the Wikwemikong First Nation on Manitoulin Island. It was Brant’s home, and Brant and Mr. Burke had been residing there together since Brant had separated from his wife, Melissa Sheridan. Mr. Burke would later allege that the murder plan was concocted by Ms. Sheridan.

4Almost immediately after the murder, Mr. Burke began to behave erratically. He was reported missing by his family. When he was eventually located by the police, he told them that he missed his brother. He subsequently admitted himself for treatment.

5Shortly after Brant’s body was found, Mr. Burke admitted to committing his murder. On November 24, 2020, he provided a cautioned statement to the police. It was also discovered that he had written a letter in which he confessed to the offence.

6Mr. Burke’s confessions alleged that he had plotted his brother’s murder with Melissa Sheridan. He alleged that he and Melissa had become involved in an intimate relationship, that she did not want Brant to take her business in their divorce proceedings, and that she had offered Mr. Burke ownership of their house in Wikwemikong and $10,000.00 to kill Brant. He advised police that he had shot his brother with a rifle supplied to him by Melissa, and that she had taken the rifle from him after the murder. A rifle was later found in a waterway near the site of the murder which matched the description provided by Mr. Burke; a forensic examination could not exclude it as the murder weapon.

7Mr. Burke was charged with both first degree murder and second-degree murder. Pursuant to a plea agreement, he entered a plea of guilt to the charge of second-degree murder.

8Ms. Sheridan was also charged as a result of Mr. Burke’s allegations against her in his confessions. I have been advised by the Crown that they withdrew the charges against Ms. Sheridan following the commencement of her preliminary inquiry after advising the court that there was no reasonable prospect of a conviction against her.

Principles of Sentencing

9Pursuant to s. 235 of the Criminal Code, every person who commits first or second-degree murder is subject to life imprisonment; this is considered to be a minimum sentence for the purpose of Part XXIII of the Criminal Code.

10Part XXIII of the Criminal Code establishes the rules and principles to be applied by the court when imposing sentence.

11Section 745(c) of the Criminal Code provides that a person who has been convicted of second-degree murder shall be eligible for parole after the person has served at least 10 years, and not more than 25 years, of the sentence.

12A parole eligibility date is the earliest date upon which an individual may apply for parole. When an individual is to be released and upon what terms will be determined by the Parole Board of Canada. They may decide that he will be released when he becomes eligible, however, they may also decide that he will never be released. Their decision will be governed by several factors, with public safety being a paramount consideration.

13The determination of the date of parole eligibility is an exercise of discretion by the judge imposing sentence. Pursuant to s. 745.4 of the Criminal Code, a judge may consider the character of the offender and the nature and circumstances of the offence to extend the date of parole eligibility beyond 10 years. In cases involving juries, the judge may also consider the recommendations of the jury.

14As noted by Molloy J. in R. v. Hindessa, [2009] O.J. No. 6412, at para. 26:

It is also well settled that a consideration of the character of the offender, nature of the offence and circumstances surrounding the offence will inevitably draw the trial judge into consideration of all of the traditional factors relevant in sentencing, such as punishment, deterrence, denunciation, potential for rehabilitation, the protection of society and parity of sentence: Shropshire at paragraphs 19, 20, 21 and 23; McKnight at paragraph 37.

15Section 718 of the Criminal Code identifies principles which the court is to apply when imposing a sentence following a criminal conviction. Those principles include: the denunciation of unlawful conduct; the deterrence of the offender and other potential future offenders; the separation of offenders from society; the rehabilitation of offenders; the provision of reparations for harm done to victims; and the acknowledgment of the harm done to victims.

16Another guiding principle for sentencing is proportionality. Section 718.1 of the Criminal Code notes that a sentence must be proportionate to the gravity of the offence. This requires that the court have regard to the particular facts of the case - the imposition of sentence must reflect the circumstances of the specific offence and the attributes of the specific offender.

17The principle of parity requires that a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances.

18A sentence may be increased or reduced having regard to any relevant aggravating or mitigating circumstances related to the offence or the offender. The Criminal Code contains a non-exhaustive list of examples of aggravating and mitigating factors to consider. Section 718.2(e) of the Criminal Code requires the Court to pay particular attention to the circumstances of Indigenous offenders.

Case Law

19The Supreme Court of Canada in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 SCR 227 discussed the exercise of the court’s discretion in determining an appropriate period for parole eligibility. At para. 18 of that decision the court noted:

The determination under s. 744 is thus a very fact-sensitive process. The factors to be considered in fixing an extended period of parole ineligibility are:

(1) the character of the offender;

(2) the nature of the offence; and

(3) the circumstances surrounding the commission of the offence;

all bearing in mind the discretionary power conferred on the trial judge.

20In discussing the imposition of a period of parole eligibility beyond 10 years in second-degree murder cases, the court observed the following at paras. 27 and 29:

[27]…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, 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.

[29]… the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole "until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years...In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is "unusual".

21In Shropshire, the accused’s period of parole eligibility was increased from 10 years to 12 years, considering factors including: (1) the unusual circumstances of the offence and the accused’s refusal or inability to explain why it had occurred; (2) the fact that the murder was committed during the course of committing another offence (a drug transaction); and (3) the accused’s prior criminal record for narcotic offences and violence.

22In R. v. McKnight, 1999 CanLII 3717 (ON CA), the Ontario Court of Appeal considered the appropriate range for parole eligibility in what it described as, “brutal second-degree murders of an unarmed wife or girlfriend”. While the case before me does not completely fit within this description, I view the present case, which involves the brutal second-degree murder of a close and trusting family member, to be sufficiently similar as to make the range in McKnight a relevant consideration for the purpose of my decision.

23In McKnight, the Court of Appeal overturned the trial judge’s decision to impose a parole ineligibility term of 17 years and substituted a period of 14 years. The facts in that case were particularly brutal – the accused, a doctor with no prior criminal record, murdered his wife by stabbing her over a period of 15 minutes, leaving her with over 50 defensive wounds. At the time of the offence, the accused had been suffering from a major depression; he had attempted to kill his wife on one previous occasion during a depressive episode. It was also noted that he had spent 15 months in pretrial custody and that he was deeply remorseful for his crime.

24The court in McKnight noted that the appropriate parole ineligibility range in such cases was 12 to 15 years.

The Parties’ Positions

Crown

25The Crown and the defence propose a joint submission of life imprisonment without eligibility for parole for a period of 15 years. They are also consenting to ancillary orders prohibiting Mr. Burke’s communication with specified individuals during the custodial term of his sentence, a mandatory firearms prohibition, and an order requiring Mr. Burke to submit his DNA following his plea to a primary designated offence.

Victim Impact Statements

26The court received a written Victim Impact Statements from the following people:

a. Sherry Bernier, who is Brant and Kerry Burke’s niece; b. Hannah Burke, who is Brant and Kerry Burke’s niece; c. Jamie Burke, who is Brant and Kerry Burke’s brother; d. Lee-Ann Burke, who is the daughter of Brant Burke; e. Melanie Burke, who is the daughter of Brant Burke; f. S.B., who is the minor daughter of Brant Burke; g. T.B., who is the minor son of Brant Burke; h. Rose Duhaime, who is Brant and Kerry Burke’s sister; i. Lucy St. Amant, who is Brant and Kerry Burke’s sister; and j. Melissa Sherridan, who is Brant Burke’s former wife, the mother of two of his children, and who was implicated by Kerry Burke in his confession.

27I thank everyone for the time and the emotional effort that was required to prepare very compelling Victim Impact Statements. I know that it was difficult to relive your experiences through your statements. I have listened to what you have said, and I have considered it in determining an appropriate sentence for Mr. Burke. I would note that I have not considered the victims’ statements regarding the facts of the case, derogatory statements about Mr. Burke, or any statements regarding the wrongdoing of others. I would also note that I have not and cannot consider the victims’ suggestions as to sentence; in that regard, I am guided solely by the law.

Analysis

Circumstances of the Accused

28The court had the benefit of a Gladue Report, prepared by Pamela McNeill, dated October 20, 2022, as well as correspondence from Shirley Hay, a Native Inmate Liaison Officer at the Central North Correctional Centre.

29Mr. Burke is 60 years of age and is about to turn 61; at the time of the offence, he was 58 years of age. He is a person of Indigenous ancestry; he is a registered band member of the Wikwemikong First Nation.

30The Gladue Report indicates that Mr. Burke presents to the court as a first-time offender with no criminal record and no history of violence prior to the incident which brings him before the court. During the proceeding, counsel noted that this information was not correct, and that Mr. Burke did, in fact, have a criminal record which was considered by them in arriving at their joint submission regarding sentence; it was filed with the court as an exhibit in this sentencing hearing.

31Mr. Burke is described by his mother in the Gladue Report, and indeed by all of the extended family members who provided Victim Impact Statements, as being one of the cornerstones of his family before this incident. In describing her son to Ms. McNeill, Elva Burke indicated, “Of my nine children, my son, Kerry, is the one everyone in our family turned to when they wanted anything. He would help them. He was the one everyone turned to.” He was described by his brother, Jamie, as his mother’s “Golden Boy”.

32Since his confession and his incarceration, Mr. Burke has become estranged from most of his family. He continues to communicate with his daughter, Corissa. His mother expresses hope that she will be able to see him again before she moves on. He expressed frustration to Ms. McNeill that he needs support from his family while he is in custody but is not receiving it; he blamed his brother Jamie for the estrangement.

33The Gladue Report described Mr. Burke’s increasing use of alcohol as a coping mechanism following a series of tragedies and losses. His brother Raymond committed suicide in 1999, his father died following an accident in 2018, two close friends died, and his long-term partner Carmen left him in or around 2019.

34Mr. Burke described alcohol as the catalyst that led to Brant’s murder. He advised Ms. McNeill that his stepson overdosed on October 8, 2020. To cope with the pain of his loss, he stopped eating and turned to alcohol. He described that, “When I pulled the trigger – I had been drunk for two weeks and hadn’t eaten after Joey died…I didn’t properly deal with my grief. It was the booze talking.”

Observations and Conclusions

35In my view, the principles of denunciation and deterrence must be paramount in imposing sentence in this case. The sentence should also acknowledge the harm done not only to Brant Burke, but to the extended members of his family whose lives have been forever changed by Kerry Burke’s crime.

36Mr. Burke, the crime that you have committed here is incomprehensible. It is clear from the Victim Impact Statements and even from some of the statements that you made to the Gladue writer that you had a good life and a family that loved you and one another. They do not understand what happened here and, quite frankly, neither do I.

37You murdered your brother, your best friend, in cold blood. You were on your ancestral lands, engaged in an activity that your brother loved, hunting. You shot him in the back and left him in the woods to die. You left your family, your mother, his children, frantic for over a week wondering where he was and what had happened to him when you, and you alone, knew exactly where he was and what had happened.

38The Victim Impact Statements paint a picture of Brant as a man who loved and was loved – your actions have taken him away from his children and grandchildren, from his siblings – your siblings - your mother, and extended family members and friends too numerous to mention. You have committed a crime that has broken your family and will continue to impact them not just now but for generations.

39I recognize that there are mitigating circumstances that I must consider in imposing sentence. As a result of your Indigenous heritage, you were vulnerable to dysfunctional coping mechanisms, including the abuse of alcohol that you say set the stage for your crime. Your already fragile coping skills were challenged by a series of personal losses and trauma. I have also considered your early guilty plea, with the necessity of a preliminary inquiry or a trial, which has spared your family the added trauma and grief of a trial.

40There are also, however, aggravating circumstances which I must consider. The clear planning and deliberation which preceded this murder. The brutal and callous circumstances of this murder, including your reliance on the loving, trusting relationship that your brother had with you as a means of luring him to his death. When I weigh these aggravating circumstances against your mitigating circumstances, I agree that the term of parole eligibility proposed in the joint submission, 15 years, is reasonable and appropriate. It is at the highest end of the range stipulated by the Court of Appeal in McKnight.

Sentence

41I hereby sentence Kerry Burke to life imprisonment, without eligibility for parole for a period of 15 years.

42I would further indicate for the record that Kerry Burke has been found guilty of second-degree murder and sentenced to imprisonment for life. Mr. Burke is not eligible for parole until November 24, 2035. However, after serving at least 15 years of the sentence, Mr. Burke may apply under s. 745.6 of the Criminal Code for a reduction in the number of years of imprisonment without eligibility for parole. If the jury hearing the application reduces the period of parole ineligibility, Mr. Burke may then make an application for parole under the Corrections and Conditional Release Act at the end of that reduced period.

43In addition, there shall be the following ancillary orders and orders of prohibition:

a. Pursuant to s.743.21(1) of the Criminal Code that Kerry Burke is prohibited from communicating with the following individuals for the duration of the custodial period of his sentence:

i. Sherry Bernier; ii. Hanna Burke; iii. Kelly Burke; iv. Karen Burke; v. Lee-Ann Burke; vi. Melanie Burke; vii. Rose Duhaime; viii. Erica Lamarche; ix. Carmen Sampson; x. Melissa Sheridan or members of her immediate family; xi. Amy Skilling; xii. Ashley St. Amant; xiii. Lucy St. Amant; and, xiv. Ryan St. Amant.

b. Kerry Burke shall be subject to a lifetime weapons prohibition order, pursuant to s. 109 of the Criminal Code. This is a mandatory order.

c. Kerry Burke shall be subject to a warrant issued pursuant to s. 487.051(1) of the Criminal Code authorizing the taking of samples of bodily substances for the purpose of forensic DNA analysis. This order follows Mr. Burke’s conviction for the primary designated offence of murder.

44Finally, I note the recommendation of Shirley Hay, the Native Inmate Liaison Officer at the Central North Correctional Centre, that Mr. Burke be transferred to a federal institution where a Pathways program would be available to him following his sentencing. I agree that this is an appropriate recommendation, and one which I hereby make to The Correctional Service of Canada.

The Honourable Madam Justice K.E. Cullin