COURT FILE NO.: CR-21-00000097-0000 DATE: 2023-05-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Katrina Van Kessel and Kevin Regimbal, for the Crown

• and -

COURTNEY LABELLE Gil Labine and Brooke Rogers, for the Defendant

HEARD: April 6, 2023 at Thunder Bay, Ontario Mr. Justice J.S. Fregeau

REASONS ON PAROLE INELIGIBILITY DETERMINATION

INTRODUCTION

[1] During the early morning hours of January 1, 2020, Courtney LaBelle (“Ms. LaBelle”) stabbed her 11-year-old son, K.L.M., 31 times, causing his death. On September 22, 2022, a jury convicted Ms. LaBelle of second-degree murder in relation to the death of K.L.M.

[2] Section 235(1) of the Criminal Code, R.S.C. 1985, c. C-46 requires that Ms. LaBelle be sentenced to imprisonment for life and that is the sentence that I will impose on her today.

[3] The only issue for me to decide is the period of custody that Ms. LaBelle must serve before she is eligible to apply for parole. The Crown submits that Ms. LaBelle should serve 18 years in custody before being eligible for parole. Ms. LaBelle submits that her parole ineligibility period should be the minimum period of 10 years.

THE PRINCIPLES GOVERNING THE PAROLE INELIGIBILITY DETERMINATION

[4] Section 745(c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment, without eligibility for parole for a fixed period from a minimum of 10 years to a maximum of 25 years.

[5] Section 745.4 of the Criminal Code empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the sentencing judge sees fit in the circumstances, up to a maximum of 25 years.

[6] In exercising my discretion under s. 745.4 of the Criminal Code, I must consider the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury.

[7] Pursuant to s. 745.2 of the Criminal Code, where a jury finds an accused guilty of second-degree murder, the jury is asked if they wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole. The jury is not required to make any recommendation.

[8] Following the guilty verdict in this case, three jurors made no recommendation, three jurors recommended a 10-year period of parole ineligibility, two jurors recommended a 15-year period of parole ineligibility, one juror recommended a 20-year period of parole ineligibility and three jurors recommended that Ms. LaBelle serve the maximum 25 years before being eligible to apply for parole.

[9] In R. v. Shropshire, [1995] 4 S.C.R. 227, the Supreme Court observed that the determination of the parole ineligibility period is a very fact sensitive process. Unusual circumstances are not required for a sentencing judge to exercise his/her discretionary power to increase the period of parole ineligibility from the 10-year minimum. The Court observed, at para. 29, that in permitting a sliding scale of parole ineligibility, Parliament intended to recognize that within the offence of second-degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability.

[10] In Shropshire, at para. 27, the Court stated the following:

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. 745.4, 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.

[11] When assessing the s. 745.4 criteria and in deciding whether to increase the period of parole ineligibility beyond the 10-year minimum, appropriate weight must also be placed on the fundamental purpose and principles of sentencing and on all relevant objectives of sentencing, as set out in s. 718 of the Criminal Code (R. v. McKnight, [1999] O.J. No. 1321, R. v. Arashvand, 2012 ONSC 5852, para. 9, R. v. Keene, 2020 ONCA 635, para. 69).

THE POSITIONS OF THE CROWN AND DEFENCE

The Crown

[12] The Crown submits that the current range of the parole ineligibility period for second-degree murder in which a parent takes the life of a child is 17 to 22 years. The Crown contends that given the nature and circumstances of this offence, the background circumstances of Ms. LaBelle, the recommendations of the jury and the application of the primary sentencing objectives of denunciation and deterrence, Ms. LaBelle should serve 18 years in custody before being eligible to apply for parole.

[13] The Crown contends that because the jury convicted Ms. LaBelle of second-degree murder, this court must accept as proven that Ms. LaBelle meant to cause K.L.M. bodily harm that she knew was likely to cause his death and that she was reckless whether K.L.M. died or not.

[14] The Crown submits that this offence was a brutal attack on a defenceless child. The Crown suggests that the level of violence inflicted on K.L.M. was excessive and gratuitous. K.L.M. suffered 31 stab wounds, a significant number of which damaged multiple vital organs. The Crown notes that 10 of the 31 stab wounds were defensive-type wounds. The Crown submits that this court must therefore conclude that K.L.M. was conscious during at least part of the attack and was aware that his mother was attacking him. The Crown submits that K.L.M. died trying to protect himself from his own mother.

[15] The Crown emphasizes this offence represents a shocking and egregious breach of the sacred trust between a mother and child.

[16] The Crown acknowledges that Ms. LaBelle is a 37-year-old Indigenous female without a criminal record. The Crown accepts that Ms. LaBelle’s background circumstances as an Indigenous person are relevant to the determination of the parole ineligibility period. The Crown does not dispute that Ms. LaBelle’s background circumstances as an Indigenous person contributed to her criminal offending in this case.

[17] The Crown submits, however, that the application of Gladue principles is circumscribed when an accused is being sentenced for a very serious, violent offence and facing a mandatory life sentence together with a lengthy period of parole ineligibility.

[18] The Crown suggests that the application of Gladue principles in this case does not displace the application of the primary sentencing objectives of denunciation and deterrence. The Crown submits that the application of Gladue principles instead serves to ensure that the required balancing of the relevant sentencing objectives and principles includes a very careful consideration of Ms. LaBelle’s level of moral blameworthiness because of her circumstances as an Indigenous offender.

[19] The Crown further submits that the application of Gladue principles must be balanced against the particular circumstances of this case and be tempered by the fact that the murder victim was a young, vulnerable Indigenous child. Violence against Indigenous children must always be severely condemned and deterred, according to the Crown.

[20] The Crown submits that the entire character of Ms. LaBelle, including but not limited to her circumstances as an Indigenous offender, must be considered when determining the appropriate period of parole ineligibility. The Crown notes the following:

1. Ms. LaBelle has a long history of substance abuse that has negatively impacted her education, employment opportunities and her family and domestic relationships;

2. Ms. LaBelle lacks consistent insight into her substance abuse and its impact on her life and behaviour;

3. Ms. LaBelle did not attend substance abuse treatment or counselling prior to the date of the offence, despite such programs being readily available to her;

4. Although Ms. LaBelle does not have a criminal record, she does have a history of aggressive and violent behaviour, dating back to her youth, toward classmates, authority figures, her parents, her domestic partner and her son, K.L.M.;

5. Ms. LaBelle has not availed herself of the opportunity to engage in substance abuse treatment or mental health counselling while incarcerated over the last three years and has, in fact, displayed behavioural concerns while incarcerated; and

6. Ms. LaBelle has not expressed remorse for the offence.

[21] The Crown accepts that Ms. LaBelle’s lack of remorse is not an aggravating factor. The Crown submits, however, that in the circumstances of this case her complete lack of remorse represents the absence of an important mitigating factor.

[22] The Crown acknowledges that the mental health of an accused person can be a mitigating factor in sentencing and therefore relevant to the determination of the period of parole ineligibility. The Crown further concedes that Dr. Kravtsenyuk’s expert evidence at trial included her opinion that Ms. LaBelle was suffering from a drug induced psychosis when she stabbed her son.

[23] However, the Crown submits that Dr. Kravtsenyuk further testified that psychosis exists on a spectrum of severity. Given that the jury concluded that Ms. LaBelle had the requisite intent for second-degree murder, the Crown submits that this court should find that Ms. LaBelle’s mental health issues were on the less severe end of the spectrum and therefore not a significant mitigating factor in the determination of the period of parole ineligibility.

[24] The Crown suggests that this position is further supported by evidence that Ms. LaBelle had an operating mind when she stabbed her son, including:

1. Ms. LaBelle was able to get to and inside 212 Victoria Ave. on the night of the murder;

2. Ms. LaBelle was observed by her father, Eugene LaBelle, to be in what he believed was an ordinary state of mind when she arrived at 212 Victoria Ave.;

3. Ms. LaBelle went from the living room of 212 Victoria Ave., into the kitchen where she retrieved a knife and back into the living room where she attacked K.L.M.;

4. Ms. LaBelle knew that it was her son she was stabbing, as evidenced by the fact that she corrected Ms. Hackworth’s error as to K.L.M.’s age during Ms. Hackworth’s call to the 911 operator;

5. Dr. Kravtsenyuk’s opinion that Ms. LaBelle, when stabbing K.L.M., appreciated the nature, quality and lethality of her actions; and

6. Ms. LaBelle appreciated the penal consequences of her actions shortly after the stabbing, as evidenced by her utterance to police officers that they were “going to lock [her] up forever now”.

[25] The Crown therefore submits that minimal weight should be given to Ms. LaBelle’s mental health issues as a mitigating factor in the determination of the parole ineligibility period.

[26] The Crown submits that the jury’s recommendations are but one factor among many to be considered by a sentencing judge when determining the period of parole ineligibility. The Crown submits that the court should accept the jury’s recommendations as an indication to the trial judge of the jury’s view, and by extension the community’s view, of the seriousness of this particular second-degree murder.

[27] The Crown submits that the weight of the jury’s recommendations in this case is that Ms. LaBelle be required to serve well in excess of the 10-year minimum period of parole ineligibility. The Crown contends that this clear direction from the jury must be given due weight in the court’s decision-making process.

[28] The Crown submits that the law clearly establishes that this court must give primary consideration to the sentencing objectives of denunciation and deterrence when determining the period of parole ineligibility for Ms. LaBelle. The Crown suggests that this position is in fact mandated by ss. 718.01 and 718.04 of the Criminal Code. These provisions both require a sentencing judge to give “primary consideration” to the objectives of denunciation and deterrence when imposing a sentence for an offence that involved the abuse of a person under the age of 18 years (s. 718.01) and for an offence that involved the abuse of a vulnerable person, including an Indigenous person (s. 718.04).

[29] Given that K.L.M. was an 11-year-old Indigenous child, this court is statutorily required to give primary consideration to the sentencing objectives of denunciation and deterrence when determining the period of parole ineligibility, according to the Crown.

[30] The Crown submits that requiring Ms. LaBelle to serve 18 years in custody before being eligible to apply for parole properly reflects the primacy of the sentencing objectives of denunciation and deterrence, affords due weight to Ms. Labelle’s circumstances as an Indigenous offender and the role that her mental health played in the commission of the offence.

The Defence

[31] Ms. LaBelle submits that this court should decline to exercise its discretion to increase the period of her parole ineligibility beyond the 10-year minimum as set out in s. 745(c) of the Criminal Code.

[32] Ms. LaBelle suggests that in Shropshire, the Supreme Court expressly acknowledged Parliament’s recognition that within the category of second-degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. Ms. LaBelle submits that her background circumstances as an Indigenous offender, together with the condition of her mental health at the time of the offence, substantially reduce her level of moral blameworthiness, such that this court should apply the “general rule” referred to in Shropshire and impose a 10-year period of parole ineligibility.

[33] Ms. LaBelle acknowledges that the jury’s guilty verdict on the charge of second-degree murder requires this court to accept as proven that she had the requisite intent for murder when she stabbed K.L.M. on January 1, 2020. However, Ms. LaBelle submits that pursuant to s. 724(2)(b) of the Criminal Code, this court may also find any other relevant fact that was disclosed by the evidence at trial to be proven.

[34] Ms. LaBelle submits that the verdict of guilty to second-degree murder does not preclude a finding that she was suffering from a drug induced psychosis at the time of the offence. Ms. LaBelle contends that the evidence of Dr. Kravtsenyuk, who was qualified as an expert witness entitled to provide opinion evidence as to her state of mind when committing this offence, clearly established that she was suffering from a drug induced psychosis when she stabbed K.L.M. Ms. LaBelle submits that Dr. Kravtsenyuk’s evidence was neither challenged nor contradicted on this important issue.

[35] Ms. LaBelle submits that this court’s consideration of the circumstances surrounding the commission of the offence when determining the period of parole ineligibility pursuant to s. 745.4 of the Criminal Code must include the fact that she was suffering from a drug induced psychosis on January 1, 2020, and that her mental health contributed to the commission of the offence. It is settled law that an offender’s mental illness is a factor to be considered when assessing an offender’s degree of responsibility on sentencing, according to Ms. LaBelle.

[36] Ms. LaBelle reminds this court that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Giving due regard to this fundamental principle of sentencing requires this court to accept that her moral culpability was diminished because of her mental health and, as a result, that the sentencing objectives of denunciation and deterrence assume less importance, according to Ms. LaBelle.

[37] Ms. Labelle submits that her background circumstances as an Indigenous offender further diminish her level of moral blameworthiness for this offence. Ms. LaBelle notes that an Indigenous offender is not required to establish a causal link between their background circumstances and the commission of an offence. However, Ms. LaBelle contends that such a link is present in this case and that it has been acknowledged by the Crown.

[38] Ms. LaBelle submits that her formative years were spent in a home significantly impacted by the intergenerational trauma of the residential school system and the misery that this intergenerational trauma is now known to cause, including but not limited to domestic violence and alcohol and substance abuse. Ms. LaBelle contends that the Pre-Sentence Report and the Gladue Report confirm that she also experienced sexual violence at ages 4 and 17 and developed a serious substance abuse problem as early as her teenage years.

[39] Ms. LaBelle contends that her long-term domestic relationship with K.L.M.’s father was characterized by mutual domestic violence and substance abuse, a manifestation of inter-generational trauma. The sudden and premature death of her mother, a significant support person for her, just months prior to the offence had a profound negative impact on her and led to a substantial increase in her substance abuse in the period of time prior to January 1, 2020, according to Ms. LaBelle.

[40] Ms. LaBelle submits that this court’s consideration of her character and the circumstances surrounding the commission of the offence must have due regard to her background circumstances as an Indigenous offender, her long-term substance abuse issue, the fact that her long-term substance abuse issue was a direct cause of her mental health condition at the time of the offence and that her mental health condition at the time of the offence contributed to the commission of the offence. Ms. LaBelle contends that this direct causal link substantially reduces her level of moral blameworthiness for the offence.

[41] Ms. LaBelle further submits that despite her very tragic life circumstances, she has nonetheless made concerted efforts during her adult years to overcome her dependency issues, to educate herself and to obtain and maintain employment. These efforts include applying for residential treatment programs, obtaining her GED, pursuing educational opportunities at both Confederation College and Lakehead University and attending psychological counselling. Ms. Labelle also notes that she has no criminal record.

[42] Ms. LaBelle submits that the jury’s recommendations as to the parole ineligibility period are simply one factor the court is required to consider. When making their recommendations, the jury in this case would have been inordinately influenced by the horrific circumstances of the offence while at the same time having no information whatsoever as to her tragic background circumstances, according to Ms. LaBelle.

[43] Ms. LaBelle submits that when this court gives appropriate consideration to the fact that her background circumstances as an Indigenous offender led to her substance abuse issue which in turn contributed to the commission of the offence, the inevitable conclusion is that her moral culpability is diminished to such a degree that her case falls within the “general rule” of a 10-year period of parole ineligibility recognized by the Supreme Court in Shropshire.

THE JURY’S VERDICT

[44] At trial, it was not in issue that Ms. LaBelle unlawfully caused K.L.M.’s death. The jury was therefore instructed that to convict Ms. LaBelle of second-degree murder, the Crown had to prove beyond a reasonable doubt that Ms. Labelle meant to cause K.L.M. bodily harm that Ms. LaBelle knew was likely to kill K.L.M. and that she was reckless whether K.L.M. died or not.

[45] In considering Ms. LaBelle’s state of mind, the jury was instructed to consider, among other things, Ms. LaBelle’s evidence, including her evidence about drug consumption on the night of the murder and her lack of memory about the offence. The jury was also instructed to consider Dr. Kravtsenyuk’s evidence as to Ms. LaBelle’s state of mind on January 1, 2020.

[46] The jury was then instructed that if they were not satisfied beyond a reasonable doubt that Ms. LaBelle had the state of mind required to make her unlawful killing of K.L.M. murder, they must find Ms. LaBelle not guilty of second-degree murder but guilty of manslaughter.

[47] Exemption from criminal responsibility due to mental disorder was not in issue at trial.

[48] It is incumbent upon me to make the necessary findings of fact to determine the appropriate period of parole ineligibility in this case. In R. v. Ferguson, 2008 SCC 6, at paras. 17-18, the Supreme Court outlined two principles required to settle the factual record when sentencing an offender after a jury trial:

(1) The sentencing judge is bound by the express and implied factual implications of the jury’s verdict;

(2) Where the factual implications of a jury’s verdict are ambiguous, the sentencing judge “should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts”.

[49] A sentencing judge must find only those facts necessary to permit the proper sentence to be imposed. The Court in Ferguson emphasized that it is an error for a sentencing judge to rely on facts that are not express or implied in the jury’s verdict, but that are based on the sentencing judge’s belief of what the jury must have decided: “It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts” (Ferguson at para. 22).

[50] To rely on an aggravating fact, the sentencing judge must be convinced of its existence beyond a reasonable doubt. To rely on any other fact, the sentencing judge need only be persuaded on a balance of probabilities (Ferguson at para. 18).

[51] It is implicit in the jury’s verdict that they were satisfied beyond a reasonable doubt that Ms. LaBelle meant to cause K.L.M. bodily harm that she knew was likely to kill K.L.M. and that she was reckless whether K.L.M. died or not (s. 724(2)(a) Criminal Code).

[52] Pursuant to s. 724(2)(b) of the Criminal Code, where the court is composed of a judge and jury, the court may find any other relevant fact that was disclosed by the evidence at the trial to be proven. Ms. LaBelle’s mental health on January 1, 2020, is argued to be a mitigating factor and therefore relevant to the determination of the period of parole ineligibility.

[53] At trial, Ms. LaBelle testified that she smoked almost an “8-ball” sized quantity of crack cocaine in the hours before the stabbing. An “8-ball” is a 3.5-gram measurement of powdered cocaine. Ms. LaBelle further testified that she did not recall how she got to 212 Victoria Ave. and that she has no memory of stabbing K.L.M., but for a recollection of being restrained by her father and then arrested.

[54] Dr. Kravtsenyuk, a defence witness at trial, was qualified as an expert entitled to provide opinion evidence as to the state of mind of Ms. LaBelle on January 1, 2020. Dr. Kravtsenyuk testified that psychosis is a mental disorder that exists on a spectrum from mild, where a person has some ability to appreciate reality, to severe, where a person completely departs from reality.

[55] Dr. Kravtsenyuk opined that Ms. LaBelle, on January 1, 2020, was under the influence of substances, likely stimulants, resulting in a drug-induced psychosis which affected her ability to appreciate her actions at the time of the murder. On cross-examination, Dr. Kravtsenyuk was not challenged on her opinion that Ms. LaBelle was suffering from a drug-induced psychosis at the material time. However, on cross-examination Dr. Kravtsenyuk also testified that it was her opinion that Ms. LaBelle nonetheless retained the ability to appreciate the nature and quality of her actions and the ability to understand that her actions had the capacity to cause death.

[56] Dr. Kravtsenyuk further testified that the fact that Ms. LaBelle corrected Ms. Hackworth’s error as to K.L.M.’s age during Ms. Hackworth’s conversation with the 911 operator in the moments immediately following the stabbing indicated that Ms. LaBelle appreciated what was being asked and understood the conversation was about K.L.M.

[57] On cross-examination, Dr. Kravtsenyuk agreed with the suggestion that Ms. LaBelle’s ability to remember being held down by her father on January 1, 2020, confirmed that she was cognizant of who her father was at the time. Finally, Dr. Kravtsenyuk testified that there was no indication that Ms. LaBelle was suffering from specific delusions in relation to K.L.M. at the time of the stabbing.

[58] I accept the submission of the Crown that Ms. LaBelle also appreciated the penal consequences of her actions very shortly after the stabbing, as evidenced by her utterance that the police were going to “lock [her] up forever now”.

[59] The condition of Ms. LaBelle’s mental health at the time she stabbed K.L.M., and to what extent it contributed to her actions, are relevant factors on sentencing. I am therefore required to make findings of fact as to her state of mind, consistent with the jury’s verdict, as are necessary to deal with this issue on sentencing (R. v. Arashvand, 2012 ONSC 5852, at para. 15).

[60] Dr. Kravtsenyuk testified that Ms. LaBelle retained the ability to appreciate the nature and quality of her actions and the ability to understand that her actions had the capacity to cause death. It is implicit in the jury’s verdict that the jury found that Ms. LaBelle had the required state of mind for second-degree murder. For the purpose of determining the period of parole ineligibility, I accept the unchallenged expert opinion of Dr. Kravtsenyuk that Ms. LaBelle was suffering from a drug-induced psychosis when she stabbed and killed K.L.M. on January 1, 2020.

[61] I further accept Dr. Kravtsenyuk’s evidence that psychosis is a condition that exists on a spectrum of severity, from mild to severe. For the purposes of assessing Ms. LaBelle’s degree of responsibility when deciding on the period of parole ineligibility, it is necessary to approximate where on this spectrum of severity Ms. LaBelle’s psychosis was on January 1, 2020. Dr. Kravtsenyuk was not asked her opinion on this issue.

[62] Given Dr. Kravtsenyuk’s evidence that Ms. LaBelle was aware that Ms. Hackworth’s conversation with the 911 operator was about K.L.M., that Ms. LaBelle was cognizant of who her father was, that Ms. LaBelle was not suffering from delusions in relation to K.L.M. at the time of the stabbing and that Ms. LaBelle appreciated the penal consequences of her actions, I find that Ms. LaBelle’s drug-induced psychosis, at the point in time when she stabbed K.L.M., was not on the severe end of the spectrum. It cannot be said that Ms. Labelle had completely departed from reality.

[63] In other words, Ms. LaBelle’s appreciation of reality was diminished but sufficient, to not only form the required intent for second-degree murder, but to also be cognizant that it was her son that she was stabbing and to appreciate the penal consequences of her actions. I further find that Ms. LaBelle’s drug-induced psychosis contributed to her commission of this horrific stabbing.

[64] It is difficult to determine with certainty the extent to which Ms. LaBelle’s mental illness may have contributed to the commission of the offence. The jury was persuaded that Ms. LaBelle retained an ability to form the requisite intent to commit murder despite suffering from drug-induced psychosis. After careful consideration of all the evidence, I find that Ms. LaBelle’s mental illness contributed beyond de minimis to the commission of second-degree murder of K.L.M.

[65] In my view, this conclusion is consistent with the jury’s verdict and with the evidence of Dr. Kravtsenyuk.

THE NATURE OF THE OFFENCE AND THE CIRCUMSTANCES SURROUNDING ITS COMMISSION

[66] K.L.M. was attacked during the early morning hours of January 1, 2020, in his aunt’s home while either asleep or having just awoken. K.L.M., at 11 years of age, died as a result of being stabbed 31 times by his mother with a kitchen knife. The stabbing occurred in the presence of K.L.M.’s three-year-old sister.

[67] Ms. LaBelle’s stabbing of K.L.M. was brutal and the violence inflicted on this 11-year-old child was horrific. Of the 31 stab wounds suffered by K.L.M., 11 entered his chest cavity, five impacted his lungs, six entered his abdominal cavity through the diaphragm and two directly impacted K.L.M.’s heart.

[68] Dr. von Both performed the post-mortem examination on K.L.M. Dr. von Both testified that 10 of the wounds suffered by K.L.M. were defensive-type wounds. The graphic conclusion to be drawn from this evidence is that K.L.M. was conscious during the attack and physically struggling to stop his mother from stabbing him. Ms. LaBelle’s attack on her child stopped only as a result of the intervention of her father, Eugene LaBelle.

[69] Dr. von Both concluded that a cluster of stab wounds to the centre of K.L.M.’s chest, or the “cardiac box”, were the most significant. Dr. von Both described these wounds as the fatal wounds that would have caused the death of K.L.M. relatively quickly due to internal and external bleeding.

THE BACKGROUND AND CIRCUMSTANCES OF MS. LABELLE

[70] Ms. LaBelle was born on June 14, 1985. She was 34 years of age on January 1, 2020, and is now almost 38 years old. Ms. LaBelle has no prior criminal record.

[71] Ms. LaBelle is Indigenous and the middle child of three children born to her parents. Her home community is Ginoogaming First Nation, a small Ojibway First Nation located approximately 40 kilometres east of Geraldton, Ontario.

[72] Ginoogaming First Nation and its members have for generations suffered historical trauma as a result of the Residential School System, Indian Day Schools and the “60’s Scoop”. These traumas have resulted in generations of community members suffering from loss of culture, alcohol and substance abuse, domestic and sexual violence, inappropriate parenting models and family breakdown and dysfunction. Ms. LaBelle’s maternal and paternal grandparents were residential school survivors, having been taken to St. Joseph’s Residential School in Thunder Bay. Ms. LaBelle and her immediate family have, unfortunately, suffered deeply from the traumas noted above.

[73] Ms. LaBelle’s family relocated to Thunder Bay when she was approximately six years old. According to the Pre-Sentence Report, an otherwise healthy family environment was deeply impacted by intermittent domestic violence, alcohol abuse and the verbal and physical abuse of the children by their father. Ms. LaBelle’s parents separated approximately three years after the family moved to Thunder Bay. Ms. Labelle remained in the care of her mother and had little contact with her father following the separation.

[74] Ms. LaBelle and her siblings were exposed to parental alcohol abuse while growing up and all have suffered from addiction issues themselves. Ms. LaBelle’s alcohol and substance abuse issues began when she was an adolescent and started with experimentation with marijuana products. It progressed to include crack cocaine and oxycodone. By her early 20’s, Ms. Labelle had developed a serious substance abuse issue with her “drugs of choice” being stimulant based, including cocaine, crack cocaine and crystal methamphetamine.

[75] When Ms. LaBelle was four years old, she was molested by a 12-year-old male. When she was 17 years old, she was sexually assaulted by a relative while she was intoxicated.

[76] Ms. LaBelle attended elementary and high school in Thunder Bay. She attained average marks and received occasional disciplinary sanctions. Ms. LaBelle dropped out of high school in Grade 11 due to a lack of interest related to her increasingly serious substance abuse issue. Ms. LaBelle returned to school after K.L.M. was born. This included enrolling in Lakehead University through the Indigenous Transition Year Program. It is reported that Ms. LaBelle succeeded in obtaining her General Education Diploma and that she was thereafter accepted into the Bachelor of Arts program at L.U. Unfortunately, she dropped out in the first semester.

[77] When Ms. LaBelle was in her early 20’s, she began a domestic relationship with Kevin Moore. Their relationship lasted approximately 11 years and resulted in the birth of K.L.M. in 2008 and another child in 2016. Mr. Moore also struggled with substance abuse. The relationship was volatile and included reciprocal domestic violence and multiple separations. Eventually, Ms. LaBelle reported resembling her mother: “I looked like my mom when she had to go out in public. I remember when my dad would brutally beat her up and stuff like that”. Ms. Labelle would sneak off to her brother’s house, “so my son wouldn’t see how I looked”.

[78] According to Ms. LaBelle, the volatility of her relationship with Mr. Moore and his opposition to her regular attendance at school were the primary reasons for lack of educational achievement as a young adult. Ms. LaBelle and Mr. Moore separated for the final time in 2017 and Ms. LaBelle assumed the primary care of their children.

[79] Ms. LaBelle had various employment positions after she dropped out of high school. However, all were relatively short in duration as a result of her substance abuse and as she described, the controlling nature of her relationship with Mr. Moore.

[80] In 2017, following her final separation from Mr. Moore, Ms. LaBelle pursued clinical counselling. She attended a total of eight one-hour psychotherapy sessions. Significant trauma, both in her formative years and in her interpersonal relationships were noted, as were substance abuse and addiction issues. Unfortunately, Ms. LaBelle terminated counselling in early 2018.

[81] Ms. LaBelle’s substance abuse increased during the summer of 2019, including smoking crack cocaine and crystal methamphetamine. On August 19, 2019, Ms. LaBelle’s mother and stepfather were killed in a motor vehicle accident. Ms. LaBelle was very close to her mother and was devastated by her sudden death. Ms. LaBelle is reported to have stated to the author of the Gladue Report that “whatever fucked up shit I was going through got worse after she died. I didn’t have my mom. I didn’t have her to argue with or get mad or I couldn’t call her to get her to help me”.

[82] Ms. LaBelle obviously lost a crucial support figure when her mother died. It is reported that Ms. LaBelle’s substance abuse increased following her mother’s death, to the point of daily use up until December 31, 2019.

[83] The Pre-Sentence Report notes that Ms. LaBelle reported receiving methadone treatment multiple times. However, no drug treatment, counselling or support group involvement was reported. The Pre-Sentence Report also indicates that Ms. LaBelle has not, during the three years she has been incarcerated following the offence, accessed mental health resources or any other “institutional support”. I assume the latter to include substance abuse counselling and therapy.

[84] The author of the Pre-Sentence Report stated that “remorse for the current offence was difficult to ascertain” as Ms. LaBelle at times was emotional and reported being devastated and at other times avoided the subject and/or focused on her lack of memory. The author of the Gladue Report stated that Ms. LaBelle chose not to comment about the offence. When speaking to the court at the sentencing hearing, Ms. LaBelle expressed no apparent remorse.

THE RECOMMENDATION OF THE JURY

[85] Pursuant to s. 745.2 of the Criminal Code, the jury made the following recommendations about Ms. LaBelle’s parole ineligibility period:

1. 3 jurors recommended a 10-year period of parole ineligibility;

2. 2 jurors recommended a 15-year period of parole ineligibility;

3. 1 juror recommended a 20-year period of parole ineligibility;

4. 3 jurors recommended a 25-year period of parole ineligibility; and

5. 3 jurors made no recommendation.

[86] The jury’ recommendations as to the period of parole ineligibility must be considered by the sentencing judge. However, the determination of the parole ineligibility period is very fact-sensitive, and a sentencing judge can therefore choose to apply some, little or no weight to the jury’s recommendations.

[87] In this case, the jury was obviously aware of the nature of the offence and the circumstances surrounding the commission of the offence. As Ms. LaBelle testified at trial, the jury became aware of some of her background circumstances. The jury also heard Dr. Kravtsenyuk’s evidence. However, a jury is not aware of the principles and objectives of sentencing or of Gladue principles. This jury also could not have been aware of the role that the mental health of Ms. LaBelle plays in the decision as to the parole ineligibility period.

[88] As can be seen, three jurors made no recommendation. Six of the nine jurors recommended periods of parole ineligibility well in excess of the minimum 10 years, including one juror recommending a 20-year period and three jurors recommending the maximum 25-year period of parole ineligibility.

[89] I accept the submission of the Crown that the weight of the jury recommendations is that Ms. LaBelle should serve well in excess of the 10-year minimum period of parole ineligibility. I further accept that this is an attempt by the jurors to convey to the sentencing judge the community’s shock and horror in reaction to the circumstances of the offence and the need for the court to strongly denounce what Ms. LaBelle has done.

[90] However, at the end of the day, it is the trial judge, not the jury, who must impose a fit period of parole ineligibility. The recommendations of the jury are but one factor for me to consider when doing so.

THE VICTIM IMPACT STATEMENTS

[91] K.L.M.’s father, his paternal grandmother, a paternal great aunt and Eugene LaBelle, K.L.M.’s paternal grandfather provided Victim Impact Statements for the court to consider.

[92] K.L.M.’s father suffers from depression and anxiety. He perceives that others blame him for what happened to his son. He also assumes partial blame for Ms. LaBelle’s actions. Mr. Moore lives in constant fear for his other child’s safety because she is in the care of Eugene LaBelle, whom he also blames for failing to protect K.L.M.

[93] K.L.M.’s paternal extended family speak collectively of the initial shock and disbelief they experienced upon being told of K.L.M.’s death and how it occurred. As described by Ms. L. Moore, the day that K.L.M. died “is a day that will forever be ingrained in our hearts and memory”. The Moore and Fisher families speak of the horror they continue to experience on a daily basis when thinking about how K.L.M. was attacked and murdered by his own mother. They are understandably angry, not only with Ms. LaBelle, but with her family who they feel failed to protect K.L.M.

[94] Eugene LaBelle is attempting to deal with his feelings of loss and anger and to move on with his life. He empathizes for K.L.M.’s younger sister, whom he describes as, “through her eyes” having lost her dad. He wonders if he will ever be able to trust his daughter again. Mr. LaBelle blames “the system” for failing to deal with “the issues that needed to be dealt with”, with the result being the death of his grandson at the hands of his daughter. He is aware that others blame him for the death of his grandson and he is stoically trying to rise above that. Admirably, he is attending counselling, “trying to make sense of things and trying to figure out what is the lesson in life that [he is] supposed to have learned as a result of this tragic loss of life”.

ANALYSIS

[95] The fundamental principle of sentencing is proportionality. A sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender (s. 718.1 Criminal Code).

[96] The objectives of sentencing, as prescribed by s. 718 of the Criminal Code, are:

a) To denounce unlawful conduct and the harm done to victims and the community that is caused by unlawful conduct;

b) To deter the offender and other persons from committing offences;

c) To separate offenders from society, where necessary;

d) To assist in rehabilitating offenders;

e) To provide reparation for harm done to victims or to the community; and

f) To promote a sense of responsibility in offenders, and the acknowledgement of the harm done to victims or the community.

[97] Pursuant to s. 718.01 of the Criminal Code, when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[98] Section 718.04 of the Criminal Code also requires that a court, when imposing a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[99] R. v. Lis, 2020 ONCA 551 was a sentence appeal brought by the Crown in the case of an accused who pleaded guilty to, among other offences, failing to provide the necessaries of life to a nine-year-old child. In Lis, at para. 57, Watt J. held that the term “abuse” in s. 718.01, is not limited to sexual abuse. Watt J. concluded that there is “no principled reason [that] would exclude the offence of failing to provide the necessaries of life from its reach”.

[100] In Lis, at para. 47, Watt J. observed that Parliament, by enacting s. 718.01, “prioritized denunciation and deterrence for offences that involve the abuse of children. The words “primary consideration” prescribe a relative ordering of sentencing objectives, a feature that does not appear in their listing in s. 718”. At para. 48 of Lis, Watt J. further noted that s. 718.01 “confines the sentencing judge’s discretion from elevating other sentencing objectives to an equal or higher priority. However, the sentencing judge retains the discretion to assign significant weight to other factors, such as rehabilitation, in giving effect the fundamental principle of proportionality”.

[101] It follows, in my view, that there is also “no principled reason” why the second-degree murder of an Indigenous 11-year-old child would not fall within the scope of ss. 718.01 and 718.04 of the Code.

[102] In Lis, at para. 55, Watt J. observed the following:

Parliament’s choice to prioritize denunciation and deterrence as the sentencing objectives for offences involving the abuse of children reflects a reasoned response to the inherent wrongfulness of these offences, the enhanced moral blameworthiness, and the serious harm that these offences cause to the most vulnerable in our community. A sentence that expresses denunciation condemns the offender for encroaching on our society’s basic code of values. As an objective of sentencing, deterrence refers to the imposition of a sentence for the purpose discouraging the offender and others from engaging in criminal conduct. When general deterrence is factored into the determination of a fit sentence, an offender is punished more severely…because the court decides to send a message to others who may be inclined to engage in similar criminal activity.

[103] In R. v. Cunningham, 2023 ONCA 36, the Ontario Court of Appeal allowed a Crown appeal on sentence in a case of attempted murder. The Court held that the most significant error made by the sentencing judge was his failure to give effect to the primary sentencing principles of denunciation and deterrence for attempted murder in a domestic context. The Court observed, at paras. 23 and 24, that the moral blameworthiness for attempted murder is the same as for murder and that the objectives of denunciation and deterrence address the moral blameworthiness inherent in these offences.

[104] I accept the submission of the Crown that the circumstances of this offence and the application of ss. 718.01 and 718.04 of the Criminal Code preclude me from elevating other sentencing objectives to equivalent or greater priority than denunciation and deterrence when determining the period of parole ineligibility for Ms. LaBelle.

[105] Pursuant to s. 718.2 of the Criminal Code, it is also a principle of sentencing that a sentence should be increased to account for any relevant aggravating factors relating to the offence or the offender.

[106] Section 718.2(a) of the Criminal Code lists several statutorily prescribed aggravating factors, the following of which are relevant in this case:

1. (ii) evidence that the offender…abused…a member of the offender’s family;

2. (ii.1) evidence that the offender…abused a person under the age of 18 years; and

3. (iii) evidence that the offender…abused a position of trust in relation to the victim.

[107] The offence before the court was an unprovoked, vicious killing of a defenceless 11-year-old child by his mother. I personally cannot envision a more horrifying breach of the sacred trust between a mother and child. Such an offense is shocking by any community standards. I note the impact of the circumstances of the offense on the police officers, firefighters and paramedics who arrived at the scene on January 1, 2020. I know these first responders will be burdened by the memory of this night for a very long time.

[108] In addition to the statutorily prescribed aggravating factors, I find the following to be aggravating circumstances related to the offence:

1. K.L.M. was attacked in the presence of his three year-old sister;

2. K.L.M. was murdered in a brutal manner; the violence inflicted upon him was excessive;

3. K.L.M. suffered 10 defensive wounds, indicating that he was conscious during at least part of the attack and died knowing that it was his mother stabbing him;

4. Ms. LaBelle would have been aware that K.L.M. was attempting to stop her, yet she continued her attack until physically thrown off of K.L.M. by her father.

[109] It is not an aggravating factor that Ms. LaBelle pleaded not guilty to the charge against her and had a trial. However, she cannot benefit from the mitigation that flows from a plea of guilty and the expression of remorse it carries.

[110] Section 718.2 of the Criminal Code also requires that a sentence account for any relevant mitigating circumstances. I find the following to be relevant mitigating circumstances in this case:

1. Ms. LaBelle has no prior criminal record, despite her unfortunate background and long-term substance abuse issues;

2. Ms. LaBelle was suffering from serious mental health issues at the point in time when she stabbed her son and I have found that her mental health issues contributed to the commission of the offence; and

3. Ms. LaBelle is an Indigenous offender whose background circumstances mitigate her moral culpability.

[111] In addressing the issue of Ms. LaBelle’s mental health at the time of the offence, I accept the submission of Ms. LaBelle that in these circumstances, her moral blameworthiness and degree of responsibility are reduced. In such circumstances, deterrence and denunciation assume diminished importance (R. v. Batisse, 2009 ONCA 114, at para. 38).

[112] In R. v. Ellis, 2013 ONCA 739, at para. 117, the Ontario Court of Appeal endorsed its earlier comments in Batisse:

There is no doubt that an offender’s mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender’s culpability may be diminished, punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations.

[113] In R. v. Badhesa, 2019 BCCA 70, a sentence appeal on a manslaughter conviction, the British Columbia Court of Appeal framed the issue on appeal as being the weight to be given to mental illness and intoxication in the assessment of an offender’s moral culpability.

[114] In Badhesa, the accused, with a history of serious depression but no history of violence, caused the death of his mother as a result of blunt force head trauma and blunt force injuries to her body inflicted by his fists and feet. Police had to use a taser to subdue the accused. While being transported to cells, the accused went from being sad and crying, to yelling and upset, to happy and talkative. The accused had little or no memory of the day in question. A forensic psychiatrist opined that the accused, at and around the time of the offence, suffered from a serious mental illness which resulted in depressive episodes accompanied in their acute stages by major psychotic features.

[115] The trial judge in Badhesa accepted that the accused’s mental illness contributed to the commission of the offence and concluded that the accused’s mental illness was a mitigating factor on sentencing. However, the trial judge held that the accused’s mental illness did not significantly lessen his moral blameworthiness.

[116] In granting the appeal and reducing the sentence imposed by the trial judge, the British Columbia Court of Appeal found that the sentence imposed did not, despite the brutality of the offence and the vulnerability of the victim, properly reflect the accused’s moral culpability. At para. 42, the Court stated the following:

When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender’s moral culpability is attenuated. In these circumstances, general deterrence is a less weighty consideration because a mentally ill offender is not an appropriate medium for making an example to others. Nor does specific deterrence or severe punishment play a significant role in the determination of a fit sentence. The former is meaningless when an offender is out of touch with reality and the latter may be disproportionate to the offender’s degree of responsibility.

[117] In R. v. Pereira, 2019 ONSC 6751, the accused was convicted of second-degree murder in relation to the stabbing death of a 58-year-old female friend of the accused in the basement of his home. The trial judge described the murder as “ruthless, savage and cruel” and a “shocking breach of trust”. The single mitigating factor on sentencing was that the accused was severely mentally ill at the time of the offence.

[118] Citing Batisse, Ellis and other authorities, Harris J., at para. 36, held as follows:

As [the accused] was mentally ill at the time [of the offence] and the mental illness had a causal relationship to the offence, Mr. Pereira’s moral blameworthiness for the murder he committed is lowered from what it would otherwise be.

[119] Having found that Ms. LaBelle was suffering from a mental illness at the time of the offence and that her mental illness contributed to the commission of the offence beyond de minimis, it follows that Ms. Labelle’s culpability is diminished to a modest extent.

[120] This is a factor that must be taken into consideration in determining the period of parole ineligibility. The fundamental principle of sentencing requires that a sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

[121] Section 718.2(e) of the Criminal Code and R. v. Gladue, [1999] 1 S.C.R. 688, further require this court to pay particular attention to Ms. LaBelle’s circumstances as an Indigenous offender when determining the period of time she must serve in custody before being eligible for parole.

[122] In R. v. Ipeelee, 2012 SCC 13, at para. 83, the Supreme Court noted as follows:

Systemic and background factors do not operate as an excuse or justification for the [Indigenous offender’s] criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence…Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.

[123] In R. v. Elliot, 2015 BCCA 295, Donald J.A., in considering Gladue principles, stated that in every case, the sentencing judge must create a fit sentence for this particular offender committing this particular crime. He summarized as follows at para. 17:

A sentencing judge must consider [Gladue factors] when determining a fit sentence. To fail to consider these factors is a legal error that may lead to a disproportionate sentence. However, once a judge has considered these factors, a fit sentence is still in his or her discretion. Gladue does not impose a particular result; it imposes a particular process. Aboriginal offenders are not expected to receive a diminished sentence in every case.

[124] In the recent case of R. v. Mercier, 2023 ONCA 98, at para. 18, the Ontario Court of Appeal concisely stated the application of Gladue principles as follows:

Gladue and Ipeelee require trial judges to make two separate inquiries when sentencing Indigenous offenders. First, whether systemic and background factors have affected the degree of responsibility of the offender, and second, whether different or alternate sanctions are appropriate to fulfill the principles of sentencing.

[125] The Court in Mercier found the latter concern irrelevant on the facts before it, as it is in regard to the period of parole ineligibility. That being so, the Court in Mercier stated that the material issue before them was whether systemic and background factors have affected the accused’s degree of responsibility for the offences they committed and the impact, if any, this should have on their sentences.

[126] The application of s. 718.2(e) of the Criminal Code and Gladue principles in the case of Ms. LaBelle therefore requires me to determine if systemic and background factors bear on Ms. LaBelle’s culpability, to the extent that they shed light on her level of moral blameworthiness. If so, I must determine the impact this should have on the period of parole ineligibility imposed on her.

[127] As is the case with the mental health of an offender, the determination of the degree to which Gladue factors impact the moral culpability of an offender is entirely consistent with the fundamental sentencing principle of proportionality, which requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[128] In the tragic circumstances of this case, Ms. LaBelle’s background circumstances as an Indigenous offender contributed to her chronic and serious substance abuse issues which in turn led to her suffering a “drug-induced” psychosis on January 1, 2020. In the midst of the “drug-induced” psychosis, Ms. LaBelle murdered her 11-year-old child. Ms. LaBelle’s level of moral blameworthiness, or her degree of responsibility, is therefore reduced.

[129] The very difficult issue for me is how to balance Ms. Labelle’s diminished level of moral blameworthiness with the gravity of the offence and the need to place primary emphasis on the sentencing objectives of denunciation and deterrence when determining the period of parole ineligibility. In other words, how to apply the fundamental principle of proportionality in the particular circumstances of this case.

[130] The Crown has referred me to a series of cases in support of its position that the period of parole ineligibility in this case should be set at 18 years.

[131] In R. v. Dewald, [2001] O.J. No. 1716 a father with no previous criminal record pleaded guilty to two counts of second-degree murder for drowning his 10 and 12-year-old children. The trial judge rejected a joint submission recommending a 12-year period of parole ineligibility and imposed a period of 23 years. The Ontario Court of Appeal reduced the period of parole ineligibility to 17 years, finding that the trial judge failed to give adequate weight to the accused’s remorse and the fact that he was suffering from depression at the time of the offence.

[132] In R. v. Fatima, 2007 ONCA 779, the Ontario Court of Appeal rejected the sentence appeal of a stepmother convicted of second-degree murder as a party to her husband’s murder of his daughter. The Court of Appeal, in upholding the 15-year period of parole ineligibility imposed by the trial judge noted that this was “a brutal crime committed on a helpless child [which] involved a gross breach of trust”. The Court of Appeal also found that the jury recommendations on parole ineligibility (four recommended 15 years, four recommended 20 years and two recommended 25 years) clearly reflected “the community’s sense of horror and the need to denounce crimes of this nature in the strongest possible terms”.

[133] In R. v. Boudreau, 2009 NSSC 30, a 34 year-old mother with no prior criminal record pleaded guilty to the second-degree murder of her 12 year-old daughter. The accused did not suffer from mental health or substance abuse issues. The trial judge accepted a joint submission recommending a 20-year period of parole ineligibility.

[134] In R. v. Day, 2010 ONSC 1874, a young Indigenous male pleaded guilty to the second-degree murder of his son and the attempted murder of his common-law spouse. The accused had an insignificant criminal record. The sentencing judge considered s. 718.2(e) of the Criminal Code and concluded that it was a “neutral factor” in sentencing because “the offence is so horrific it offends our societal beliefs at the very core including the societal beliefs of the native communities”. The court imposed a 15-year period of parole ineligibility.

[135] In R. v. Turcotte, 2018 QCCA 1076, the accused was convicted of two counts of second-degree murder for the stabbing deaths of his two children, 6 and 3 years old. The trial judge fixed the period of parole ineligibility at 17 years. The Quebec Court of Appeal dismissed the accused’s sentence appeal, noting the tender age of the two victims, the vicious manner in which they were murdered, the presence of two statutorily mandated aggravating factors (ss. 718.2(ii.1) and 718.2(iii) of the Criminal Code) and the absence of any significant mitigating factors.

[136] In R. v. A.(J.), 2017 ONSC 525, the jury found the accused guilty of the second-degree murder of his six year-old daughter and the attempted murder of his seven year-old son. The accused was 38 years old with no prior criminal record. The court described denunciation and general deterrence as “the overriding principles of sentence in [the case] and found that parole ineligibility set at or near the 10-year minimum would “fail to reflect the gravity of [the] offences”. The court imposed an 18-year period of parole ineligibility.

[137] In R. v. Monckton, 2017 ONCA 450, the Ontario Court of Appeal dismissed the sentence appeal of an accused who had been convicted of second-degree murder for killing the two-and-a-half-year-old son of his girlfriend. A 15-year period of parole ineligibility had been imposed following the trial. The Court of Appeal considered the accused’s Indigenous status on appeal, a factor not placed before the sentencing judge. The Court of Appeal found that there was insufficient information about the accused’s Indigenous circumstances before it to enable the court to determine if his background circumstances impacted culpability.

[138] In R. v. Batstone, 2022 BCCA 171, the British Columbia Court of Appeal dismissed the sentence appeal of a young mother convicted of second-degree murder for smothering her eight-year-old daughter. The trial judge imposed a 15-year period of parole ineligibility.

[139] The sentencing judge had identified the central question on sentencing as “whether Ms. Batstone’s mental health problems [made] her less morally blameworthy”. The sentencing judge concluded that the accused’s mental health issues played only a minor role in her commission of the offence and did not mitigate to any significant degree her moral culpability.

[140] The British Columbia Court of Appeal held that the trial judge had properly considered expert evidence about the causal connection between Ms. Batstone’s mental disorders and her conduct and considered the contribution of mental illness to lessen moral culpability. The court found that the trial judge “simply concluded Ms. Batstone’s mental disorders did not have an appreciable effect on her decision to kill” her child.

[141] The British Columbia Court of Appeal declined to interfere with the trial judge’s exercise of discretion and further found the sentence of 15 years of parole ineligibility to be a fit sentence.

[142] In R. v. Berry, 2019 BCSC 2362, a jury convicted the accused of two counts of second-degree murder for the stabbing deaths of his two daughters, ages six and four. The accused struck the six-year-old on the head with an object and stabbed her 26 times and had stabbed the four year-old 32 times. The court found that the accused’s motivation for murdering his children was to keep his wife from having the children after he had killed himself, which he obviously did not do.

[143] The accused was 45 years old, did not suffer from any mental illness and did not have a criminal record. The court noted the presence of two statutorily aggravating factors – the victims were under 18 years of age and the accused was in a position of trust in relation to them. The court further noted the “extreme gravity” of the offences and the primacy of denunciation and deterrence as sentencing objectives. The court found that the accused had “engaged in conduct demonstrating the highest order of moral culpability”. A 22-year period of parole ineligibility was imposed on each count, to be served concurrently.

[144] To this list of authorities provided by the Crown, I would add R. v. Sunshine, 2010 BCSC 578, upheld R. v. Sunshine, 2014 BCCA 318, leave to appeal to the SCC refused. In Sunshine, the Indigenous accused was convicted of second-degree murder for causing the death of the two-and-a-half-year-old child of his common-law partner by punching her in the stomach. There was also evidence of previous abuse of the child.

[145] A fresh Gladue Report was filed on appeal. The British Columbia Court of Appeal stated that this report evidenced shocking abuse having been suffered by the accused during his upbringing. However, the appeal court nonetheless upheld the 15-year period of parole ineligibility imposed by the trial judge.

[146] In my view, there is no clear appellate authority establishing a range for the period of parole ineligibility to be imposed on an accused convicted of the second-degree murder of a child or stepchild. The unfortunately wide variety of circumstances in which such an offence is committed, together with the need to weigh all relevant aggravating and mitigating circumstances and relevant systemic and background factors in a particular case, appear to me to make both the establishment and utility of a range for the period of parole ineligibility less than useful.

[147] In the very tragic circumstances of this case, I accept the Crown’s submission that ss. 718.01 and 718.04 of the Criminal Code require that the sentencing objectives of denunciation and deterrence must be the primary considerations in determining the period of parole ineligibility for Ms. LaBelle.

[148] As noted by Watt J. in Lis in reference to s. 718.01, “Parliament’s choice to prioritize denunciation and deterrence as the sentencing objectives for offences involving the abuse of children reflects a reasoned response to the inherent wrongfulness of these offences, the enhanced moral blameworthiness, and the serious harm that these offences cause to the most vulnerable in our community”. These comments are equally applicable to s. 718.04 of the Code and, in my view, resonate in the case of the brutal murder of an 11 year-old Indigenous child.

[149] The fact that Ms. LaBelle took the life of her own 11 year-old child is a statutorily aggravating factor, as is her grossly abusive breach of the sacred trust between a mother and child. I accept the Crown’s submissions that the degree of gratuitous violence inflicted on this defenceless child is also an aggravating factor.

[150] Proportionality in sentencing, however, requires that the degree of responsibility of a particular offender be balanced against the gravity of the offence. Ms. LaBelle’s background circumstances as an Indigenous offender and her mental health at the time of the offence are mitigating circumstances that bear on her degree of responsibility.

[151] The Crown has persuasively and emphatically articulated the need for denunciation and deterrence in this case. However, I respectfully conclude that the Crown’s position does not place sufficient weight on the relevant mitigating circumstances and, in turn, does not properly assess Ms. LaBelle’s level of moral blameworthiness. As a result, I find that the Crown’s position that Ms. LaBelle serve 18 years in custody before being eligible for parole is unduly harsh and excessive.

[152] The mental health of Ms. LaBelle at the time of the offence mitigates the deterrent impact of the period of parole ineligibility imposed and reduces her degree of responsibility. Ms. LaBelle’s background circumstances as an Indigenous offender, in the particular circumstances of this offence, diminish her level of moral blameworthiness and require that I exercise restraint in determining the period of parole ineligibility to be imposed.

[153] However, I also reject the defence suggestion that the minimum 10-year period of parole ineligibility is appropriate. This position, in my view, places inordinate weight on the Gladue factors and Ms. LaBelle’s mental health and, essentially displaces the application of the sentencing objectives of denunciation and deterrence.

[154] Ms. LaBelle’s Indigenous background and mental health at the time of the offence are relevant in determining the appropriate period of parole ineligibility, but they are not determinative. They are two factors which are, in my view, collectively a single, complex mitigating factor that must be considered in the context of all other relevant factors and circumstances. As noted above, they require me to exercise restraint when balancing the gravity of the offence with the degree of responsibility of Ms. LaBelle.

[155] Ms. LaBelle’s apparent lack of remorse is not an aggravating factor. However, the absence of this important mitigating factor, three years after the commission of the offence, coupled with her choice not to pursue either mental health counselling or substance abuse counselling while incarcerated over the last three years, are components of her character that I have taken into consideration in exercising my discretion under s. 745.4 of the Code.

[156] In my view, a consideration of all the above leads me to conclude that a period of parole ineligibility at or near the minimum does not sufficiently account for the aggravating factors in this case nor does it adequately address the gravity of the offence and the primary sentencing objectives of denunciation and deterrence.

[157] Ms. Labelle, please stand.

[158] Ms. LaBelle you have been convicted of second-degree murder in relation to the death of K.L.M. on January 1, 2020. For this offence, I sentence you to life in prison. I further order, pursuant to s. 745.4 of the Criminal Code, that you serve 15 years in custody before being eligible to apply for parole.

ANCILLARY ORDERS

[159] Pursuant to s. 487.04 of the Criminal Code, second-degree murder is a primary designated offence. Pursuant to s. 487.051 of the Code, you will be required to provide a DNA sample.

[160] I further order, pursuant to s. 109 of the Code, that you be prohibited from possessing any weapon or ammunition as defined in the Code, for life.

The Honourable Mr. Justice J.S. Fregeau Released: May 18, 2023