COURT FILE NO.: CR-21-10000515

DATE: 20230215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DAMIEN WARD ALLRED

M. Cantlon, A. Tenhouse and A. Serban, for the Crown

A. Furguiele and C. Barbisan, for Mr. Allred

HEARD: 6 January 2023

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] Damien Allred was convicted by jury of the offence of the second-degree murder of Teresa Santos, a 75-year-old resident of the apartment building situated at 24 Shaw Street in Toronto.

[2] Ms. Santos lived alone in unit 801 and had mobility difficulties needing a walker to move around the building.

[3] On 11 August 2020, another resident noticed a strong odour emanating from Ms. Santos’ unit. She called the authorities and notified the building superintendent who met her outside the unit. When he unlocked the door to Unit 801, Ms. Santos could be seen laying on the floor in a pool of blood. Her face was covered with a blood-stained pillow bearing the imprint of shoe marks whilst her body displayed visible signs of decomposition.

[4] On 12 August 2020, a CT scan and post mortem examination was conducted on Ms. Santos’s body which led to the discovery of a knife lodged inside her mouth. The attending pathologist concluded that Ms. Santos had been killed by the insertion of the knife through the back of her mouth, into her skull and brain stem. Ms. Santos’ body also bore the mark of numerous other injuries: a 1.3 cm incised wound on the forehead between the eyebrows; five dislodged teeth within the mouth; multifocal haemorrhage of the tongue; joint dislocation with surrounding haemorrhage on neck and face; and multiple fractures to Ms. Santos’ ribs consistent with someone stomping on her chest.

[5] When police investigated the scene, they found blood-stained footprints in Ms. Santos’ bathroom which bore the Puma brand name. Using a reagent, which reacted with blood to leave a fluorescent image, police followed a trail of bloodied prints, also apparently made by Puma shoes, from Unit 801 down the hallways finding that the prints stopped between Units 808 and 809. An additional fluorescent spot was found directly in front of Unit 809.

[6] Mr. Allred, the tenant living in Unit 809, became a suspect in proceedings after police reviewed a series of video clips showing him wearing what they believed to be Puma style sandals.

[7] After his arrest, police obtained samples of his DNA and prints of his feet. The Centre of Forensic Sciences advised the police that Mr. Allred’s DNA could not be excluded as the donor of samples taken from the fingernail clippings of Ms. Santos’ right hand and that it was one trillion times more likely if they originated from Ms. Santos and Mr. Allred than if they originated from Ms. Santos and another unknown person unrelated to Mr. Allred. Police experts also believed that the foot imprints taken from Mr. Allred after his arrest were consistent with bare footprints found near Unit 809. Video footage depicting Mr. Allred shortly after Ms. Santos was last seen alive in the building revealed that he had showered and changed his clothing. Mr. Allred was seen making numerous trips to the garbage bins outside his building, some of which were alleged by the Crown to be for the purpose of disposing of items of clothing and Ms. Santos’ keys.

[8] A jury found Mr. Allred guilty of second degree murder. Mr. Allred is, by the provisions of the Code, subject to imprisonment for life. However, the amount of time before which Mr. Allred may apply for parole must be set as part of his sentence.

[9] The Crown submits that the correct range for parole ineligibility is between 18-20 years. The defence, on the other hand, argue that the most appropriate range of sentence in this case is between 12-15 years.

Personal Circumstances

[10] Mr. Allred is 43 years old and was born in California. He moved and lived in Antigua before coming to Canada after returning to the United States.

[11] He is married with five children, two of whom are his biological children. He was employed in the construction industry, but was laid off as a result of the lockdowns resulting from the COVID-19 pandemic. At the time of the offence, he was unemployed.

[12] Mr. Allred has had mental health issues from a young age, as well as a drug addiction problem. Between 2006 and 2007, he was admitted on three occasions to the Crossroads Centre in Antigua. These hospitalisations were not voluntary: Mr. Allred suffered from drug addiction and has ADHD. After being hospitalised for 2 weeks, he was prescribed Seroquel to deal with attention deficit hyperactivity disorder and bipolar disorder.

[13] He has also spent time from April 2014 to July 2014, at the CRASH Recovery Program, a residential therapeutic community for the treatment of drug and alcohol abuse problems based in San Diego, California. After being successfully treated, he relapsed in October 2017 and was treated again by CRASH up to January 2018.

[14] There is no record of Mr. Allred engaging in violent behaviour after his arrival in Canada. In seeking to deal with his mental health issues, Mr. Allred sought help and began taking medication to deal with his depression and anxiety issues. One of the drugs he used was Sertraline, although he stopped taking that drug sometime in February 2020.

[15] Since his incarceration, he has been prescribed Sertraline and Trazodone to assist in his situation.

Section 745 of the Criminal Code

[16] Section 745(c) of the Criminal Code provides that on conviction for second degree murder, the mandatory sentence is that of life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years. Section 745.4 permits a sentencing judge to increase the parole ineligibility period from the minimum to an amount the judge decides to be appropriate, up to the maximum of 25 years.

[17] Section 745.4 requires the sentencing judge to consider the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury.

[18] The determination of the parole ineligibility period has been described as “a very fact-sensitive process”: R. v. Shropshire, 1995 SCC 47, [1995] 4 S.C.R. 227, at para. 20. The flexibility of discretion regarding parole ineligibility accorded to a sentencing judge reflects the fact that “within second degree murder there is both a range of seriousness and varying degrees of moral culpability”: Shropshire, at para. 33.

[19] An increased parole ineligibility period does not require unusual circumstances: Shropshire, at paras. 28 to 29.

[20] In R. v. McKnight (1999), 44 O.R. (3d) 263 (Ont. C.A.), the court held that in assessing an increase in parole ineligibility, a court must take into account all of the objectives of sentencing. Those objectives, as set out in s. 718, are denunciation of unlawful conduct, deterrence (both general and specific), the separation of offenders from society where necessary, rehabilitation, reparation for harm done to the victim or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[21] The court observed in McKnight, however, that the statutory ten-year minimum ineligibility period limits the weight that can be accorded to the offender’s prospects of rehabilitation.

[22] After announcing their verdict in this case, the jurors made the following recommendations with respect to Mr. Allred’s parole ineligibility period: two jurors made no recommendation as to the parole ineligibility period that Mr. Allred should serve, one juror recommended 10 years, another 15 years, four recommended 20 years, one recommended 24 years, and three believed that 25 years was the most appropriate period.

[23] When the jury recommendations are considered, it is clear the jury viewed the nature and the circumstances surrounding the offence as grave. However, I am cognisant of the observation of the Ontario Court of Appeal in R. v. Chalmers, 2009 ONCA 268, at para. 115, that jury recommendations are just that: they are recommendations, not binding instructions to be slavishly followed.

The Range of Sentencing

[24] Here, as noted, the parties differ on the range of parole ineligibility applicable to this case.

[25] The Crown relies on the following cases:

R. v. Agate, 2003 ABCA 183, where the offender received a 20-year parole ineligibility period after beating and killing an elderly wheelchair bound acquaintance in his own home. There was a substantial amount of violence used in the killing including choking, kicking, stomping, stabbing, and strangulation.

R. v. Isaac, 2020 ONSC 7882, the sentencing judge imposed an 18-year parole ineligibility period where the offender killed the victim by stomping her to death in her own apartment. Unlike the case before me, the offender had a series of convictions for violence and breaching court orders. There was also evidence of after-the-fact conduct which included the offender’s attempts to dispose of the evidence and trick the victim’s father into believing she was still alive.

R. v. Marshall, 2020 ONSC 5360, a 25-year-old indigenous offender broke into an 82 year old woman’s home and killed her when she went to investigate. The offender broke every rib in the victim’s body as part of his murderous assault. He received the equivalent of 18 years. However, he had a serious criminal record including convictions for aggravated assault and a history of breaching court orders. In mitigation, he was an Indigenous person subject to the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688, and had a history of mental illness. Moreover, prior to trial, he had spent two years in segregation.

R. v. Jarvis, 2017 ONSC 6405, an 18-year parole ineligibility period was imposed when a 48-year-old offender killed a 62-year-old woman in her home after she demanded repayment of monies owed to her. This, like the instant case, involved a violent attack with blunt force injuries to the face and head as well as the offender slashing the victim’s throat.

Other courts have also imposed similar sentences with analogous facts: R. v. Van Osselaer, 2004 BCCA 3 (18 years); R. v. LaPierre, 2018 ONCA 801, where on a guilty plea, the offender received a 17-year parole ineligibility period after stabbing the elderly victim in the head and face approximately 40 times.

Other cases cited by the Crown have resulted in a 15-year parole ineligibility period being imposed in cases where an elderly victim was involved: R. v. Hamade, 2015 ONCA 802; R. v. Brunet, 2010 ONCA 781.

[26] The defence, on the other hand, points to cases where the range is lower and in the range of 12-15 years:

R. v. Arashvand, 2012 ONSC 5852, where the offender was given an increased parole ineligibility period of 15 years after he, along with two others, was convicted of stabbing the victim to death and then burning his body. The offender had previously been found guilty of an assault but received a conditional discharge.

R. v. Boukhalfa, 2017 ONCA 660, where the offender killed his mother by hitting her on the head with a baseball bat and then repeatedly stabbing her.

[27] Defence counsel also refers this court to the decision in R. v. Borbely, 2021 ONCA 17, where the offender killed his common law wife, dismembered her body, and buried it under a cottage in the Bracebridge area of Ontario. He received an increased parole ineligibility period of 17 years. The defence argues that the facts in that case are far more egregious than Mr. Allred’s.

[28] In R. v. Chang, 2021 ONSC 7954, the trial judge imposed a parole ineligibility of 14 years after she found the offender guilty of second degree murder of his girlfriend by shooting her in the neck, back, and abdomen. The offender had a dated record of assault with a gap of 18 years between his prior conviction and the murder. The judge found him to be suffering from a mental illness because of his drug use. There was also evidence of the offender suffering harsh conditions in custody during the pandemic which was taken into account as mitigation.

[29] In R. v. French, 2017 ONCA 460, the Court of Appeal upheld a 17-year parole ineligibility period imposed on an offender who had strangled the victim with his hands and a bathrobe. The defence in this case argues that this case was akin to a first degree murder because of evidence of planning and deliberation which increased what would otherwise have been a lower parole ineligibility period.

[30] In R. v. Kostuk, 2022 ONSC 560, the offender was given a 13-year parole ineligibility period. The victim was stabbed to death after an argument over the offender’s girlfriend with whom the victim had been intimate. The cause of death was 12 stab wounds. The judge found it to be a brutal murder which had a domestic context. There was some evidence of post offence conduct through disposal of the murder weapon and a criminal record. There were some mitigating factors to be considered such as the offender’s youth and rehabilitative steps taken in prison.

[31] The cases of R. v. Chen, 2019 ONSC 3952; and R. v. Chen, 2015 ONSC 3759, do not provide much assistance in this case. The minimum parole ineligibility imposed by the sentencing judges in those cases were a result of a finding that the murders were caused by the offenders’ mental illness.

Victim Impact Statements

[32] The court received a number of Victim Impact Statements from Ms. Santos’ friends and family outlining the devastation felt since her death. Letters received from her husband, Joao Paulo Juliao, her daughters Maria Regina dos Santos Juliao Oliveira and Teresa Juliao, her granddaughter Tania Santos Martins, and other friends who were resident at 24 Shaw Street detailed the loss felt by Ms. Santos’ passing.

[33] It is clear and understandable that Ms. Santos’ murder had a profound impact on each of these persons.

Aggravating and Mitigating Features

[34] The clearest aggravating feature in this case is the brutality of the attack, and the manner in which Ms. Santos was murdered.

[35] Ms. Santos was at first beaten severely, suffering wounds to her face, losing her teeth, and having her ribs broken by Mr. Allred stomping on her chest. The ferocity of the attack is reflected in the fact that post mortem, her spine was fractured as she lay on the floor of her apartment. In addition, Mr. Allred covered Ms. Santos’ face with a pillow and stomped on it at least twice. The most chilling aspect of the attack was the cause of Ms. Santos’ death: the insertion of a knife into her mouth, through her skull, and into her brain, an act that required a considerable amount of force. The knife was buried so deeply it could not be seen when Ms. Santos was first found and was only detected after a CT scan.

[36] As the Crown points out, the pathologist found a cup of Ms. Santos’ own blood in her stomach indicating, beyond a reasonable doubt, that she had been alive for at least part of the attack.

[37] Ms. Santos was a vulnerable 75-year-old woman with walking disabilities. She was attacked in her home, a place that she had every right to feel safe and secure. When police searched Mr. Allred’s apartment, they found no incriminating evidence - a clear indication that Mr. Allred meticulously disposed of incriminating items including what must have been his own bloodied clothing and shoes. I find beyond a reasonable doubt that Mr. Allred must have cleaned his residence to remove any trace of forensic material linking him to the murder.

[38] In mitigation, Mr. Allred has no prior criminal record. He has the support of his family as evidenced by the letters from his wife, Michelle Choy, who describes him as a loving husband and father. I have also reviewed letters from his mother, Sonia Allred, brothers, and cousin who describe him as a good and loving man.

[39] In addition, I have already described Mr. Allred’s mental health difficulties.

[40] Mr. Allred has not shown any remorse for his actions. I recognise that a denial of the offences is not an aggravating feature and will not be treated as such in this case. However, the lack of remorse and acceptance for his actions disentitles Mr. Allred to the significant discount that would be otherwise afforded. It also speaks to the lack of his rehabilitative prospects.

What Is the Appropriate Period of Parole Ineligibility?

[41] By any stretch of the imagination, this was an horrific attack. An elderly vulnerable woman was beaten, broken, stabbed, and killed in the confines of her own home, the one place in which she was entitled above all others to feel safe. The motive for the murder remains a mystery and may do so forever. The trauma felt by Ms. Santos’ family might diminish in time but will not vanish.

[42] In light of the factors previously set out, and particularly those of denunciation and deterrence, I find that Mr. Allred will be sentenced to imprisonment for life and be unable to apply for parole for a period of 17 years. There will also be an order for a DNA sample to be taken from Mr. Allred pursuant to s. 487.051 of the Criminal Code, a s. 109 order prohibiting Mr. Allred from carrying any weapons for life, and an order that Mr. Allred be prohibited from communicating with any members of Ms. Santos’ family.

S.A.Q. Akhtar J.

Released: 15 February 2023

COURT FILE NO.: CR-21-10000515

DATE: 20230215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DAMIEN WARD ALLRED

REASONS FOR JUDGMENT ON PAROLE INELIGIBILITY PERIOD

S.A.Q. Akhtar J.