Court File and Parties

COURT FILE NO.: CR-21-73 DATE: 2023-01-05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King T. Schuck and R. Senior, for the Crown

- and -

Justin Desautels R. Amy and P. Olynik, for the Accused Accused

HEARD: October 18, 2022, at Kenora, Ontario

Mr. Justice J.S. Fregeau

Reasons for Sentence

Overview

[1] On August 15, 2022, following pleas of guilty, the accused was convicted of the following six offences, all related to events occurring on March 2, 2020:

1. The second-degree murder of Mervin Brownlee;
2. The second-degree murder of Dorothy Brown;
3. The aggravated assault of Hylas Larocque;
4. Break, enter and robbery at the home of Hylas and Esther Larocque, Unit #3, 638 McGogy Rd.;
5. Break, enter and robbery at the home of Norman Ames, Unit #2, 638 McGogy Rd.; and
6. Unlawfully cause bodily harm to Paul Howarth and Scott Silver, police officers with the Dryden Police Services, while they were engaged in the execution of their duties.

[2] At the sentencing hearing on October 18, 2022, Crown and defence counsel jointly submitted that the accused be sentenced to life imprisonment without eligibility for parole for 13 years on the two second-degree murder convictions.

[3] The narrow issue before me is whether the 13-year period of parole ineligibility, jointly proposed by Crown and defence counsel for the two second-degree murder convictions, is a sentence that would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.

[4] If I determine that the joint submission proposed by counsel would bring the administration of justice into disrepute or would otherwise be contrary to the public interest, I can reject the joint submission and impose a longer period of parole ineligibility. If I determine that it would not, I am required by law to accept the joint submission and impose a sentence of life imprisonment with a 13-year period of parole ineligibility for the two second-degree murder convictions.

The Facts

The Circumstances of the Offences

[5] Counsel have provided the court with an Agreed Statement of Facts which I will summarize for the purposes of this decision.

[6] All offences occurred on March 2, 2020, in three different residences located within the Arbourjade Trailer Park, a senior citizens’ mobile home park located at 638 McGogy Road, approximately 3.3 km north of the City of Dryden.

[7] On March 1, 2020, the accused was released from the Kenora District Jail after having served a provincial sentence for property related offences. Upon release, he travelled by taxi to a derelict, abandoned trailer across the road from Arbourjade Trailer Park in which the accused’s brother and Ms. Rae Dawn Kushner were “squatting”.

[8] At some point in time on March 2, 2020, the accused and his brother smoked an unknown quantity of methamphetamine at this trailer. Ms. Kushner injected methamphetamine and shared a needle with the accused.

[9] During the early evening hours of March 2, 2020, the accused’s brother and Ms. Kushner walked into Dryden. The accused remained behind in the trailer and later walked across the road to the Arbourjade Trailer Park.

[10] What followed was a series of random, unprovoked, vicious assaults on defenceless senior citizens residing in the comfort of their homes.

[11] Mervin Brownlee and Dorothy Brown resided at Unit 28. On March 2, 2020, they were 78 and 72 years of age, respectively. At approximately 9:30 pm that evening, the accused walked up the driveway and front steps of their property and into their home without pausing.

[12] Mervin Brownlee was attacked by the accused near the entrance to the residence and fell to the floor. While on the floor, the accused repeatedly struck Mr. Brownlee in the head, face and upper body. The accused stabbed Mr. Brownlee in the abdomen with a large kitchen knife believed to be from that residence. Mervin Brownlee sustained multiple fractures, including a fractured rib, collar bone, basal bone and upper dental plate. The force of the assault collapsed the centre of Mr. Brownlee’s face and detached his right eye from its socket. He was found by police with the knife protruding from a 9 cm deep wound in his abdomen.

[13] Dorothy Brown was attacked and fell to the floor by the couch in the living room. She suffered multiple blows to her head and face resulting in a displaced nasal fracture, a lacerated left ear and a large laceration across her throat.

[14] Mervin Brownlee and Dorothy Brown were discovered by police on the morning of March 3, 2020. Mervin Brownlee was deceased. Dorothy Brown was unconscious and was rushed to hospital. Sadly, she never regained consciousness. Dorothy Brown survived on life support until she passed away on March 25, 2020.

[15] The accused left Unit 28 approximately five minutes after entering. He then walked to Unit 3, the residence of Hylas and Esther Larocque, who were 81 and 78 years old, respectively. At the point in time when the accused broke into their home, Hylas Larocque had gone to bed for the night and Esther was sitting in an armchair in the living room.

[16] Upon entering Unit 28, the accused, with a knife in his hand and blood on his face, encountered Esther in her armchair and demanded her car keys. Hylas Larocque heard his wife shouting, ran from the bedroom, encountered the accused and diverted the accused’s attention from his wife. The accused attacked Hylas Laroque and stabbed him in the neck, head, chest, back and right ear. The two ended up on the porch of the residence. When Esther Larocque approached the screen door, the accused struck the door, causing the windowpane to pop out and strike and cut Esther Larocque on the bridge of her nose.

[17] The accused then travelled from the Larocque home to Unit 2, the home of Norman Ames. On March 2, 2020, Norman Ames was 80 years old. When the accused entered his home, Norman Ames was asleep in bed. The accused walked into Norman Ames’ bedroom and began to strike him in the head with an unknown object and demand the keys to his vehicle. After several blows to his head, Norman Ames lost consciousness. The accused then stole Norman Ames’ television and left Unit 2.

[18] Norman Ames was flown to Thunder Bay Regional Health Sciences Centre. He suffered a fractured skull, fractured jaw, a fractured orbital bone, a subdural hematoma and a tear to the retina of his left eye. Norman Ames suffered ongoing memory and vision issues until he passed away from other causes 17 months later.

[19] At approximately 9:54 pm on March 2, 2020, 911 received a call from an individual who was delivering pizza to a residence in the trailer park that night. This caller told the 911 operator that he had just seen a shirtless and possibly shoeless male with blood on his face carrying a large object in the trailer park. At approximately 10:00 pm that night, Esther Larocque also called 911 requesting police assistance as she could not tell if her husband was alive or not.

[20] Police attended the Larocque home within minutes of Esther’s Larocque’s 911 call and arranged for the Larocques to be transported to hospital. Shortly thereafter, numerous other police officers arrived on the scene. At this time, police were only aware of the attack on the Larocques. Police began patrolling the general area in search of the assailant.

[21] At approximately 10:56 pm, four Dryden Police Service (“DPS”) officers were flagged down by Ms. Kushner and told that the accused, covered in blood, was in the abandoned trailer in which she and the accused’s brother resided across the road from the Arbourjade Trailer Park.

[22] The four DPS police officers attended this trailer and the accused ran out the back door directly towards Officer Howarth. While fighting with the accused in an attempt to gain control of him, Officer Howarth’s nose was broken. He was later diagnosed with a deviated septum and crushed nasal passage, requiring surgery to correct.

[23] Sgt. Silver rushed to assist Officer Howarth. During this struggle, the accused bit Sgt. Silver’s thumb and refused to let go. Two more officers joined the struggle attempting to subdue the accused. The accused was tasered three times and struck several times on the head with a police baton in an attempt to have him relinquish his bite on Sgt. Silver’s thumb as officers feared he would bite the thumb off. The accused was eventually subdued and handcuffed.

[24] All four DPS officers who struggled with the accused testified at the preliminary hearing. Each of them described the accused as exhibiting extraordinary strength during the arrest. The physical efforts of four officers, who were forced to employ kicks and baton strikes to the head and three shocks from a taser, had little to no effect on the accused. Counsel agreed that the accused’s extraordinary strength during arrest resulted from the methamphetamine in his system. A search of the accused incident to arrest revealed a baggie of methamphetamine in his possession. After arrest, the accused was taken to hospital. A toxicology exam was positive for methamphetamines and amphetamines.

[25] Upon searching the derelict trailer from which the accused fled, police found a bloody knife and scissors on the floor of a closet, together with a cell phone and wallet. The knife and scissors were believed to be from the Brown and Brownlee residence. The cell phone belonged to Esther Larocque and the wallet to Norman Ames.

[26] At 1:45 am on March 3, 2020, police attended the residence of Norman Ames and discovered him severely injured. He was transported to local hospital and then flown to Thunder Bay in critical condition. Immediately thereafter, police checked all other residences in the Arbourjade Trailer Park. When attending Unit 28, police located Mervin Brownlee deceased and Dorothy Brown unconscious and in critical condition. As noted above, Dorothy Brown never regained consciousness, surviving on life support until she passed away approximately three weeks later.

The Circumstances of the Accused

[27] The accused was born in Dryden on March 1, 1984 and was 36 years old on March 2, 2020. His parents separated when he was about five years old after which he resided primarily with his mother. The accused did well academically until high school. In his early teenage years, he began to engage in significant substance and alcohol abuse which led to truancy and a general lack of motivation toward school or employment. He has completed only his Grade 9 education.

[28] The accused’s mother passed away in 2009. Her death precipitated a noticeable decline in his mental health and an increase in his substance abuse and criminal behaviour. As a young adult, the accused has abused cannabis, alcohol, cocaine, opiates and stimulants. He has struggled with opioid dependency throughout his adult life and has sought and required medical attention on numerous occasions to manage withdrawal. The accused has had a limited number of short-term employment positions.

[29] The accused’s criminal record dates back to 2000 when he was a young offender. Between 2000 and 2020, the accused accumulated approximately 40 criminal convictions. The convictions are primarily for minor property offences and breaches of court and probation orders. Of note, none of the convictions involved physical violence or weapons.

[30] Approximately three months after his arrest in March 2020, the accused was ordered to undergo a psychiatric assessment to determine his fitness to stand trial. The July 10, 2020, psychiatric report of Dr. M. Kravtsenyuk, Forensic Psychiatrist with the Thunder Bay Regional Health Science Centre, was filed as an exhibit at this sentencing hearing.

[31] Dr. Kravtsenyuk noted that the accused had no history of previously diagnosed mental illness or psychiatric treatments. Dr. Kravtsenyuk further noted that the accused had attended hospital emergency departments in Kenora and Dryden on numerous occasions over the last 15 years as a result of either opioid abuse and/or opioid withdrawal.

[32] Dr. Kravtsenyuk diagnosed the accused as suffering from Stimulant Use Disorder (methamphetamines, cocaine) and Cannabis Use Disorder. She concluded that the accused’s “behavioral difficulties” over the years have been exacerbated by a pattern of substance abuse, homelessness and a transient lifestyle in northwestern Ontario. Dr. Kravtsenyuk opined that the accused was fit to stand trial.

Impact on the Victims, Families and the Community

[33] Heartbreaking Victim Impact Statements were provided to the court by the children, children-in-law, grandchildren and family members of Dorothy Brown and Mervin Brownlee. Hylas and Esther Larocque also provided a Victim Impact Statement, as did Norman Ames.

[34] It is impossible to convey the sorrow, agony and profound sense of loss and insecurity experienced by those related to or close to the victims of the accused. All parties who provided statements to this court have been deeply and severely impacted by these senseless acts of extreme violence visited upon their elderly loved ones.

[35] Being awoken in the middle of the night and told that your elderly and much-loved mother or mother-in-law or grandmother or brother has been brutally assaulted and rushed to hospital is surely everyone’s worst nightmare. Then attending hospital and seeing that same loved one unconscious and suffering day after day for weeks is horrifying. Each and every one of them has been traumatized by these events and each and every one of them will be impacted by their loss for the rest of their lives.

[36] Further, I take judicial notice of the impact these vicious crimes have had on the small, relatively isolated community of Dryden, a town where “everyone knows everyone”. The victims were well-known and loved by community members.

[37] Opioid-fueled, violent homicidal rage, previously thought to occur only elsewhere, has now been brutally experienced locally, in a quiet and peaceful retirement community, previously believed to be safe and secure. This incident has sent shock waves through the community and will have significantly diminished, if not eliminated, community members’ sense of security and well-being in the community at large and in the comfort of their own homes.

Legal Parameters

[38] Pursuant to section 235(1) of the Criminal Code of Canada (the “Criminal Code”), a person convicted of second-degree murder must be sentenced to imprisonment for life. That will be the sentence in this case.

[39] The Court’s next task is to decide how long the accused must serve before he is eligible for parole. The law provides that the accused must serve at least 10 years, but no more than 25 years, before he is eligible for parole. As I indicated earlier, the Crown and defence jointly proposed that the accused should only be eligible for parole after serving 13 years of his sentence.

[40] I pause to emphasize that eligibility for parole is not the same as parole. A person eligible for parole is entitled to appear before the Parole Board. The Parole Board will then decide whether or not it will be granted.

[41] In any event, because the accused will have been sentenced to life imprisonment, he will remain subject to parole supervision and oversight for the rest of his life.

[42] In determining the period of parole ineligibility for a person convicted of second-degree murder, a judge is required to consider the character of the accused, the nature of the offences and the circumstances surrounding the commission of the offences.

[43] By operation of law, the sentences for the two second-degree murder convictions in this case, including the parole ineligibility periods, will run concurrently with each other. In addition, the sentences imposed for the other four offences which the accused has been convicted of will run concurrently with the sentences of life imprisonment imposed for the second-degree murder convictions.

Positions of the Crown and Defence

The Crown

[44] The Crown submits that its initial position on sentence, prior to hearing the evidence at the preliminary hearing, was that the accused be required to serve 18-20 years imprisonment before being eligible for parole. The Crown re-assessed its position after the preliminary inquiry as a result of evidence as to the possible extreme drug induced intoxication of the accused, evidenced in part by his drug consumption and by the incredible strength and bizarre behaviour exhibited by the accused when being taken into custody by four DPS officers. The Crown also weighed the contents of the psychiatric report of Dr. Kravtsenyuk.

[45] The Crown submits that it considered its choices very carefully:

1. If it proceeded to trial and the accused was convicted of two counts of second-degree murder, it would be open to the Crown to ask for a period of parole ineligibility of between 10 and 25 years;
2. If it proceeded to trial and the Crown was not able to satisfy 12 jurors beyond a reasonable doubt that the accused had the required state of mind for second degree murder due to drug induced intoxication, the accused would be found not guilty of second-degree murder but guilty of manslaughter which does not carry with it a mandatory sentence of life imprisonment. Further, if the accused was convicted of the lesser offence of manslaughter instead of second-degree murder, the Crown could not be assured of a custodial sentence in the 13 year range; and finally
3. If the Crown proceeded to trial and the accused persuaded a jury that he was probably in a state of non-mental disorder automatism at the time of the murders due to drug consumption, the accused would be found not guilty of all charges.

[46] I am advised by counsel that the defence of non-mental disorder automatism, which if successful results in a complete acquittal, did not factor significantly, if at all, in plea resolution discussions.

[47] The Crown submits that it made a difficult and carefully considered decision to accept the joint submission proposed. It will result in two convictions for second-degree murder together with an automatic sentence of life imprisonment with the result that the accused will serve a minimum of 13 years in a federal penitentiary before being eligible for parole. The alternate choice was to proceed to trial and “roll the dice” in an attempt to secure a longer period of parole ineligibility, if the accused was convicted of second-degree murder by a jury after trial. This latter choice ran the unacceptable risk of the accused being convicted not of second-degree murder, but of manslaughter, according to the Crown.

The Defence

[48] The accused concedes that it was never in issue that he caused the deaths of Mervin Brownlee and Dorothy Brown on March 2, 2020. The issue was whether the Crown could prove beyond a reasonable doubt that he had the necessary state of mind to be found guilty of second-degree murder.

[49] The accused submits that changes in the relevant law after March 2020 also came into play in this case. In R. v Bissonnette 2022 SCC 23 the Supreme Court of Canada declared unconstitutional the provision of the Criminal Code which allowed sentencing judges to make periods of parole ineligibility consecutive in the case of multiple murders.

[50] Secondly, as a result of the Supreme Court’s decisions in R. v. Sullivan 2022 SCC 19 and R. v. Brown 2022 SCC 18, the common law defence of non-mental disorder automatism became available to the accused. As noted, if the accused successfully advanced this defence, he would be entitled to an acquittal on the second-degree murder charges and all other charges.

[51] Finally, the accused submits that if he was unsuccessful in establishing non-mental disorder automatism resulting in an acquittal, he may very well have been successful in raising a reasonable doubt as to whether he had the requisite state of mind for second degree murder. If successful in doing so, he would have been convicted only of manslaughter which would not have resulted in a life sentence and which very well may not have carried with it a custodial sentence of 13 years.

[52] In any event, the accused contends that if this matter had proceeded to trial, his mental state on March 2, 2020 would have been a live issue for the jury, given his psychiatric history, the evidence as to his drug consumption and his bizarre physical presentation. The accused submits that by entering into this joint submission and pleading guilty to two counts of second-degree murder, he has given up his right to a trial together with his right to argue that he should be found not guilty of second-degree murder but guilty only of the lesser and included offence of manslaughter due to drug induced intoxication.

[53] The accused submits that his guilty pleas have eliminated the need for a month-long jury trial and secure for the Crown convictions on the two second-degree murder charges and a resultant life sentence. If and when paroled after a minimum of 13 years incarceration, he would remain subject to supervision and parole conditions for the rest of his life, according to the accused.

The Law Pertaining to Joint Submissions

[54] In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada comprehensively explained the practical advantages of joint submissions as to sentence and provided detailed guidance to sentencing judges who are faced with the responsibility of deciding whether to accept a joint submission.

[55] At para. 25, the Court noted that “it is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty”. Such agreements “are commonplace and vitally important to the well-being of our criminal justice system”.

[56] However, joint submissions are not sacrosanct. Occasionally a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and sentencing judges are not obliged to accept joint submissions. For such situations, the Court in Anthony-Cook provided a test against which a sentencing judge is to measure the acceptability of joint submissions.

[57] At para. 32 of Anthony-Cook, the Supreme Court directed that a sentencing judge should not reject a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

[58] At para. 33, the Court explained that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system. Further, when assessing a joint submission, sentencing judges should avoid making a decision that causes an informed and reasonable public to lose confidence in the institution of the courts.

[59] In considering these directions, the Supreme court is clearly emphasizing that a joint submission should not and cannot be rejected lightly. At para. 34 of Anthony-Cook, the Court further explained that “rejection denotes a joint submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”.

[60] At paras. 35-44 of Anthony-Cook, the Supreme Court went on to explain why this high threshold for rejecting a joint submission is necessary. Both the Crown and defence rely heavily on the certainty of joint submissions. Accused persons will not give up their right to a trial on the merits unless they have a high degree of assurance that trial judges will accept agreements entered into by the Crown.

[61] The Crown also relies on the certainty of joint submissions. The conviction that follows from a guilty plea makes resolution desirable. The Crown’s case may suffer from flaws – problems that may lead to an acquittal. By agreeing to a joint submission in exchange for a guilty plea, the Crown avoids the risks associated with a trial. Further, when an accused pleads guilty in exchange for a joint submission on sentence, victims, witnesses and family members are spared the emotional costs of a trial and a possibly uncertain outcome.

[62] The Court also appropriately acknowledged, at para. 44 of Anthony-Cook, that Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused. Crown and defence counsel are generally highly knowledgeable about the circumstances of the accused and the offence and, more importantly, about the strengths and weaknesses of their respective positions. Crown and defence counsel are, generally speaking, entirely capable of arriving at resolutions that are fair and consistent with the public interest. In my view, these observations apply to Crown and defence counsel in this case.

[63] However, the Supreme Court in Anthony-Cook, at para. 43, cautioned that certainty of outcome is not the ultimate goal of the sentencing process. Certainty must yield where, in a particular case, the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result.

Discussion

[64] On August 15, 2022, the day the accused entered pleas of guilty to six charges on the indictment, I put Crown and defence counsel on notice that I was concerned that the proposed joint submission as to the suggested period of parole ineligibility, namely 13 years, was unduly lenient given the horrific circumstances of this case.

[65] At the sentencing hearing on October 28, 2022, Crown and defence counsel made detailed submissions as to why this joint submission is appropriate from the perspective of the state and the accused. I have given a great deal of thought to those submissions over the last several months. I have done so from the perspective of a both a trial judge and a sentencing judge.

[66] From the perspective of a trial judge potentially presiding over this jury trial, I want to explain to the family members of the victims how this may have played out at trial, bearing in mind the concept of certainty.

[67] As noted, at trial it would not have been in issue that the accused caused the deaths of Mervin Brownlee and Dorothy Brown, or that he viciously assaulted Hylas Larocque and Norman Ames. As I have been advised that the defence of non-mental disorder automatism, which if successful would result in an acquittal, did not factor into plea negotiations, I will omit that consideration from this discussion.

[68] Causing the death of a person is one element of the offence of second-degree murder. It does not, in and of itself, make a person guilty of second-degree murder. In order to be found guilty of second-degree murder, it must also be proven that the accused unlawfully caused that death. Again, for the sake of this discussion, I will assume that the Crown would have been able to prove that the accused unlawfully caused the deaths of Mervin Brownlee and Dorothy Brown.

[69] Once again, the Crown is required to prove more in order to secure a conviction for second-degree murder. The Crown must also prove that the accused, when he unlawfully caused the deaths of the victims, had one of two required states of mind. For an unlawful killing to be second-degree murder, Crown counsel must prove beyond a reasonable doubt that the accused either meant to kill Mervin Brownlee and Dorothy Brown or meant to cause them bodily harm that he knew was likely to kill them and was reckless whether they died or not.

[70] All accused persons are innocent until their guilt is proven beyond a reasonable doubt. In this case, to secure convictions on the murder charges the Crown would have been required to prove beyond a reasonable doubt, to 12 jurors, that the accused had one of the two states of mind described above. That is the issue that this trial would have turned on.

[71] At trial, the jury would have heard evidence about the accused’s drug consumption on March 2, 2020, and evidence from the police officers and the 911 caller about his bizarre behaviour and extraordinary strength when four police officers attempted to subdue him. There was also toxicology evidence confirming the presence of opioids in his system. Based on this evidence, defence counsel would have argued to the jury that the Crown could not and did not prove beyond a reasonable doubt that the accused had the required state of mind to be convicted of second-degree murder.

[72] Once all evidence had been heard, I would have provided legal instructions to the jury to guide them in their deliberations. I would have instructed the jury that if they had a reasonable doubt as to whether the accused had the state of mind required for second-degree murder, they must find the accused not guilty of second-degree murder but guilty of manslaughter.

[73] If even one juror was not satisfied beyond a reasonable doubt that the accused had the state of mind required for second-degree murder, a hung jury and mistrial would have resulted and the whole trial would have to be repeated.

[74] If all jurors agreed that the Crown had failed to prove beyond a reasonable doubt that the accused had the state of mind required for second-degree murder, they would have found him not guilty of second-degree murder but guilty of manslaughter in the deaths of Mervin Brownlee and Dorothy Brown.

[75] Finally, juries are unpredictable. A jury brings to the decision-making process the collective minds and reasoning processes of a diverse group of 12 people. I personally have seen juries convict when I would have acquitted. I have seen juries acquit when I would have convicted. Very few jury trials are a “slam dunk” for the Crown.

[76] As a sentencing judge, I would have passed sentence on the accused after the jury delivered its verdict. If the jury had found the accused guilty of second-degree murder in the deaths of Mervin Brownlee and Dorothy Brown, I would have imposed the mandatory sentence of life imprisonment and exercised my discretion in determining the custodial period the accused would serve prior to being eligible for parole. I generally agree with the Crown’s initial assessment that this may have been in the 18-20 year range.

[77] If the jury had found the accused not guilty of second-degree murder but guilty of manslaughter, he would not have received a sentence of life in prison. I think it is reasonable to assume that the accused would have been sentenced to a custodial period of somewhere between 10 and 15 years, concurrent on all offences. However, this would have been reduced on a 1:5 to 1 basis as a credit for time served in custody prior to trial. For example, if he was convicted of manslaughter in March 2023, the accused would receive a total credit for time served of approximately 6 years and his sentence therefore reduced by 6 years.

[78] This summarizes the considerations that went into these plea negotiations. The Crown secured the certainty of convictions on the two second-degree murder charges and the other 4 charges together with the certainty of a sentence of life imprisonment being imposed. The accused gave up his right to a trial on all charges, including the right to argue that he should not be convicted of second-degree murder but of manslaughter. He achieved the certainty of being able to apply for parole after serving 13 years of his life sentence.

[79] In my view, in all the circumstances of this case, this joint submission reflects a proper and appropriate functioning of the criminal justice system and I therefore accept the joint submission. It is not the sentence I would have imposed if the accused had been convicted of two counts of second-degree murder after trial. However, as I have explained, that is not the test to be applied when determining if a joint submission should or should not be accepted.

[80] I find that the period of parole ineligibility proposed by the Crown and defence is proportionate to the character of the offender, the nature of the offences, and the circumstances surrounding the commission of the offences: Criminal Code s. 745.4.

Mr. Desautels Please Stand

[81] You have been convicted of second-degree murder in the deaths of each Mervin Brownlee and Dorothy Brown, counts 1 and 2 on the indictment. On each of these convictions, I sentence you to life imprisonment in a federal penitentiary. You shall be ineligible to apply for parole until you have served 13 years of those life sentences.

[82] On counts 2, 3, 4, 5 and 6, I sentence you to two years custody, to be served concurrently to each other and concurrently to the life sentences imposed on counts 1 and 2.

[83] Counts 7, 8, 9 and 10 are withdrawn.

Ancillary Orders

[84] Finally, you are ordered to provide a sample of your DNA for the purposes of forensic analysis and retention.

[85] Pursuant to s. 109 of the Criminal Code, you are prohibited for life from possessing any firearm or weapon as defined in the Criminal Code.

[86] Counsel, thank you for your helpful submissions in this terribly tragic case.

[87] To those of you who provided victim impact statements, I wish to thank you for helping me understand the toll that the events of March 2, 2020 has taken on your lives.

The Honourable Mr. Justice J.S. Fregeau Released: January 5, 2023 /dg