Court File and Parties

Court File No.: CR-22-4000011-00000 Date: 2023-10-12

Ontario Superior Court of Justice

Between: His Majesty the King And: Gary Junichi Nishikawara

Counsel: S. Rochelle Liberman, for the Crown D. Sid Freeman, for Mr. Nishikawara

Heard: August 24, 2023

M. Forestell J.:

Reasons for Sentence

I Overview and Circumstances of the Offence

[1] Sometime between September 20, 2020 and October 20, 2020, Mr. Nishikawara killed his 95 year old mother, Margaret Nishikawara. The autopsy revealed two stab wounds to Ms. Nishikawara’s chest, blunt force injuries to her head, and hemorrhagic rib fractures.

[2] After killing his mother, Mr. Nishikawara remained in the condominium unit with his mother’s dead body. He did not permit personal support workers or the building manager to enter the unit, saying that he and his mother were ill. Ultimately, complaints about the odour from the unit caused the condominium manager to insist on entering the unit on October 20, 2020. The body of Ms. Nishikawara was discovered that day in a decomposed state.

[3] Mr. Nishikawara was charged with first degree murder. On August 24, 2023, he pleaded not guilty to first degree murder but guilty to second degree murder. Sentencing submissions were made that day and I reserved my decision on sentencing until today.

II Positions of the Parties

[4] The mandatory sentence is one of life imprisonment. The issue before me is the period of parole ineligibility. Crown submits that a 16-year period of parole ineligibility should be imposed. Counsel for Mr. Nishikawara submits that the minimum 10-year period of parole ineligibility should be imposed.

III Circumstances of the Offender

[5] At the time of the killing, Mr. Nishikawara was 66 years old. His father died when he was young, and he has no siblings.

[6] Mr. Nishikawara was born in Toronto and obtained his high school diploma from Oakwood Collegiate. He worked in customer service and then in the insurance industry for about eight to ten years. He then worked in the courier industry and in market research for about eight years. He stopped working in the 1980’s when he received an inheritance. His marriage broke down around the same time. He has one son from his marriage. His son lives in Western Canada. Mr. Nishikawara does not have a close relationship with his son.

[7] Mr. Nishikawara moved into his mother’s condominium following his divorce. He paid rent to his mother, and they shared expenses.

[8] Mr. Nishikawara had no criminal record before this offence and there is no evidence of any conflict in Mr. Nishikawara’s relationship with his mother before this offence.

[9] Mr. Nishikawara has serious health issues. He was diagnosed with cardiomyopathy in 2013. In addition to the cardiomyopathy, his diagnoses in 2020 were: decompensated congestive heart failure and acute kidney injury. A discharge summary from a hospital admission shortly before the murder also notes pancreatic pseudocyst and a high cancer marker blood test.

[10] There is some history of mental health issues. This will be discussed in more detail later in these reasons.

IV Circumstances of Detention

[11] Mr. Nishikawara has been in custody at the Toronto South Detention Center (the “TSDC”) since his arrest for this offence. The harsh conditions of detention throughout the COVID-19 pandemic are well-documented. Mr. Nishikawara experienced frequent lockdowns when access to telephones, showers and programming was extremely limited. Mr. Nishikawara’s medical issues made him more vulnerable to serious consequences from contracting COVID.

[12] Mr. Nishikawara is now 69 years old. Counsel for Mr. Nishikawara has filed on this sentencing hearing the investigative report [1] from the joint investigation by the Office of the Correctional Investigator and the Canadian Human Rights Commission into the conditions of confinement of older individuals in federal custody. This report concludes, among other things, that Correctional Services Canada is failing to recognize older individuals as a vulnerable population and failing to adequately protect their health, safety, and dignity. The report offers these examples:

Older inmates, some of whom are past retirement age, are still expected, required or compelled to work only out of fear of the alternative — being isolated, locked up, or at risk of being put on a reduced allowance.

Older inmates voluntarily request to be placed in segregation more frequently and most commonly out of fear for their personal safety.

Some use of force incidents and physical restraint methods (e.g. wristlocks and ankle shackles) involving older inmates seem disproportionate and not appropriately adjusted for use on older individuals and the risk they present.

The incidence of bullying, victimization, intimidation and assaults on older inmates appears commonplace. Incidents went largely unreported and were therefore rarely investigated or addressed.

There is a need for reasonable access to dignity aids and comfort items for older inmates (e.g., medical mattresses, pillows, and orthopedic shoes)

[13] The investigative report also notes that the infrastructure of penitentiaries lacks accessibility features and medical equipment. I accept that Mr. Nishikawara, because of his age and health issues, will experience greater hardship from his imprisonment than other offenders sentenced for similar offences.

V Analysis

[14] In determining the period of time for which Mr. Nishikawara will be ineligible for parole, I must consider the factors set out in section 745.4 of the Criminal Code, R.S.C., 1985, c. C-46: the nature of the offence of second-degree murder, the circumstances surrounding the commission of this offence and the character of Mr. Nishikawara. I must also consider the general principles of sentencing.

[15] All sentencing objectives are relevant to the period of parole ineligibility. They include the maintenance of public safety, the separation of Mr. Nishikawara from society, denunciation, general deterrence, specific deterrence and rehabilitation. However, in sentencing for second degree murder, rehabilitation has less weight than in sentencing for other offences. [2]

[16] I must consider aggravating and mitigating circumstances related to the offence and the offender in arriving at the appropriate period of parole ineligibility.

[17] There are significant aggravating factors in this case. The victim, Ms. Nishikawara, was vulnerable as a result of her age and frailty. She was killed in her home by a person who was in a position of trust. Several injuries were inflicted on the victim to cause her death — stab wounds and blunt force injuries. Mr. Nishikawara took steps to conceal the killing, leaving the body to decompose. The indignity to the body of the victim is an aggravating factor.

[18] Homicides in the domestic context generally attract parole ineligibility periods beyond the minimum ten-year period because of the breach of trust inherent in these cases. [3]

[19] Counsel for Mr. Nishikawara submits that because the victim was not an intimate partner, the same level of aggravation is not present. She points to Harris J.’s reasons in R. v. Salifu, 2019 ONSC 483, [4] in which Justice Harris drew a distinction between matricide and other domestic violence cases. Harris J. observed that intimate partner violence was statutorily aggravating while violence against other family members was not included in the Criminal Code as a statutorily aggravating factor. Harris J. concluded, however, that there is some aggravation in any familial homicide.

[20] When Salifu was decided, the Criminal Code provided, in s. 718.2 (a)(ii), that:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner.

The subsection was amended in 2019 and now provides that it is an aggravating factor that an offender “in committing the offence abused the offender’s intimate partner or a member of the victim or the offender’s family ”. [Emphasis added] The current subsection recognizes the aggravating nature of violence against a family member. This is grounded in a concern for the vulnerability of family members and the breach of trust inherent in offences that victimize family members, particularly in their own homes.

[21] Even without the statutory amendment, I would have concluded on the basis of the common law that the domestic context of the offence before me was a significantly aggravating factor. The vulnerability of the victim, the breach of trust and the violation of the sanctity of her home are inherently aggravating features of every domestic homicide, including the one before me. The age and frailty of the victim are further aggravating factors.

[22] There are also mitigating factors. Mr. Nishikawara entered a guilty plea and exhibited remorse for his actions. He is a first offender. He is an older individual with failing health. He has experienced hardship in his presentence detention and will experience further harsh conditions in the penitentiary as a result of his age and health problems.

[23] Mr. Nishikawara experienced a mental health crisis just prior to the murder. The parties in this case disagree on whether, or to what extent, Mr. Nishikawara’s mental health issues should mitigate the sentence.

[24] Mr. Nishikawara was admitted to the hospital on September 1, 2020 because of a deterioration in his physical condition. He spent 12 days in the hospital. During that time, he was seen by a psychiatrist because of what was described as a chronic decreased mood. The discharge summary filed on sentencing also notes a possible adjustment disorder. Two days after his discharge, Mr. Nishikawara was involuntarily admitted to the hospital, having expressed suicidal and homicidal thoughts in the course of an attendance at the emergency department for leg edema. He told medical personnel that he wanted to end his life and the life of his mother. He was discharged four days later when he said that he could not recall voicing those thoughts. He was adamant that he would not harm his mother. His diagnosis was adjustment disorder with low mood and anxiety. The murder occurred sometime shortly after his discharge.

[25] Although Mr. Nishikawara was to be discharged with a prescription for Lorazepam, this medication was not prescribed on discharge. Counsel for Mr. Nishikawara argues that the mental health issues of Mr. Nishikawara should be held to have played a role in the offence and should significantly mitigate the sentence. Crown counsel submits that there is no evidence of a causal connection between the offence and the undefined mental health concerns of Mr. Nishikawara.

[26] As MacDonnell J. wrote in R. v. Haly, 2012 ONSC 2302: [5]

No doubt, mental illness falling short of a defence under s. 16 of the Criminal Code may lessen the moral blameworthiness of an offender and in that manner it may mitigate sentence, but whether it will do so will depend on all of the circumstances. Generally speaking, ‘for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct’: R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.), at paragraph 11; R. v. Shahnawaz (2000), 149 C.C.C. (3d) 97 (Ont. C.A.). Even where a link is established, if the offender's mental illness makes him or her a continuing danger ‘[the illness] is not necessarily a reason to reduce what would otherwise be an appropriate sentence’: R. v. Corpus, [2000] O.J. No. 549 (C.A.) at paragraph 8; see also R. v. Worth (1995), 98 C.C.C. (3d) 133 (Ont. C.A.).

[27] Mr. Nishikawara has not been diagnosed with a major mental illness. He is not under treatment for a mental illness. In this case, at its highest, I can find that Mr. Nishikawara had some mental health concerns prior to the murder. I cannot find a causal link between the identified mental health concerns and the murder.

[28] I do accept that Mr. Nishikawara was under considerable stress arising from his health issues and his caregiving responsibilities. I accept that his mood was decreased at the time. Although not rising to the level of a mental illness with a causal connection to the offence, there is some mitigation from the existence of the stress of caregiving and its impact on Mr. Nishikawara.

[29] I recognize that sentencing is fact-specific and individualized. [6]

[30] I conclude that the significant aggravating factors of the vulnerability of the victim and the breach of trust take this case out of the lower range of parole ineligibility for second degree murder. However, Mr. Nishikawara’s failing health, the serious hardships he has endured in custody, and the prospective hardships to be faced when he serves his penitentiary sentence weigh against a sentence of parole ineligibility in the 16-year range.

[31] Having considered all of the circumstances, I have concluded that the period of parole ineligibility should be 13 years.

VI Conclusions

[32] I therefore sentence Mr. Nishikawara to life imprisonment with no eligibility for parole until he has served 13 years of that sentence. In addition, there will be a s. 109 weapons prohibition for life and a DNA order.

M. Forestell J.

Released: October 12, 2023

Footnotes:

[1] Aging and Dying in Prison- An Investigation into the Experiences of Older Individuals in Federal Custody, February 28, 2019 [2] R. v. McKnight, [1999] O.J. No. 1321 (C.A.), at para. 39 [3] R. v. Praljak, [2013] O.J. No. 269 (S.C.J.), at para. 17 [4] 2019 ONSC 483, [2019] O.J. No. 414 (QL) [5] 2012 ONSC 2302, at para. 34 [6] R. v. Lacasse, 2015 SCC 64