COURT FILE NO.: CR-22-0091-00
DATE: 2023-10-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
K. van Kessel and D. Isbester, for the Crown
Crown
- and -
JESSIE ALLEN
G. Joseph, for the Accused
Accused
HEARD: August 23, 2023 at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton
Reasons for Sentence
Overview
[1] Following a trial by judge and jury, Jessie Allen was found guilty of second-degree murder in the stabbing death of his stepbrother, Wayne Allen.
[2] Section 235(1) of the Criminal Code, R.S.C. 1985, c. 46, requires that Mr. Allen be sentenced to life imprisonment for the second-degree murder.
[3] What remains to be determined is the period of parole ineligibility.
[4] The Crown submits that the period of parole ineligibility should be 18 years. Counsel for Mr. Allen submits that the period of parole ineligibility should be 10 years.
The Facts
Circumstances of the Offence
[5] At trial, it was admitted that Jessie Allen caused the death of Wayne Allen, then 18 and a half years old, by stabbing him with a knife. The issue for the jury was whether Jessie Allen had the state of mind required for murder – that is – was Jessie Allen guilty of second-degree murder or not guilty of second-degree murder but guilty of manslaughter?
[6] The only persons present immediately prior to the stabbing were Axton Tourout, a friend of Jessie Allen, and Glenn Allen, the father of both Jessie and Wayne. Mr. Tourout testified that Jessie got up from a table where he was seated and walked into the living room where Wayne was seated. He heard no conversation between Wayne and Jessie but saw Jessie overtop of Wayne, before Jessie struck Wayne over hand. Glenn Allen testified that Jessie “jumped out of his chair”, stood over Wayne, and stabbed Wayne twice over hand with both hands on the knife. Other witnesses testified about Jessie Allen’s behaviour immediately after the stabbing while police and EMS were present. There was some evidence of drug use. Jessie Allen did not testify.
[7] The jury concluded that Jessie Allen had the state of mind required for murder and, therefore, found him guilty of second-degree murder.
Circumstances of the Offender
[8] Jessie Allen is 40 years old, born November 24, 1982. Until his arrest, he resided in the Township of Manitouwadge.
The Pre-Sentence Report
[9] To prepare the pre-sentence report, the author spoke to Deborah Arola (Mr. Allen’s mother) and Charlene Luby (Mr. Allen’s friend) and conducted three interviews with Mr. Allen at the Thunder Bay Jail. His father, Glenn Allen, did not participate. The author also consulted Mr. Allen’s CPIC criminal record, his Probations and Parole Services records, his 2018 pre-sentence report from Kingston Probation and Parole Services, and the OPP Police synopsis.
[10] The PSR indicates that, despite his parent’s separation and the strained relationship he had with his father, Mr. Allen was reportedly raised in a supportive environment by his mother and stepfather. Mr. Allen seemed to have had positive relationships with his siblings and extended family; however, he described his relationship with his father as emotionally, mentally, and verbally abusive. Mrs. Arola recalls discovering that Mr. Allen and his siblings, while in their father’s care, were exposed to his alcohol use, drug use, and parties, which she believes had a negative and detrimental impact on Mr. Allen’s wellbeing.
[11] Mr. Allen is also the father to a 13-year-old son, and a 10-year-old daughter. Mrs. Arola stated that Mr. Allen “is a caring father that did all he could to be involved in the lives of his children”; however, his challenging relationships with each child’s mother led to loss of contact with both children, which also had a negative impact on his mental health and wellbeing. In more recent years, Mr. Allen and his son’s mother became more amicable, which led to more consistent contact.
[12] With respect to Mr. Allen, the PSR author wrote that during the interviews, he “presented as polite, cooperative and emotional”, and was forthcoming with his responses. Mr. Allen described how he dropped out of school after grade 10 when he felt hard done by his teacher, although he did not struggle with his academics. Nevertheless, Mr. Allen is a licensed Electrician and a Red Seal and has been able to maintain consistent employment throughout adulthood.
[13] Mr. Allen has also struggled throughout his life with substance use, addictions, and mental health issues. He first experimented with alcohol at the age of nine while in his father’s care and struggled with cocaine and cannabis in his adulthood. Sources also indicated that Mr. Allen struggled with anger and intimidation towards his partners, depression, hopelessness, and suicidal ideations. Mrs. Arola also described seeing Mr. Allen deteriorate, displaying distorted thinking, often being “erratic” with his emotions, and appearing “thin and exhausted".
[14] Mr. Allen’s relationship with the victim was described as a close one. He was 20 years old when the victim was born, and he took an active role in his younger brother’s upbringing. Mr. Allen recalled times he spent with his brother babysitting him, taking trips, and hunting and golfing together. He affirmed that he loved his younger brother, had no ill will towards him, and expressed deep remorse and full accountability for his actions. He has expressed self-loathing and guilt and understands the magnitude of harm his actions have caused.
Criminal Record
[15] The following chart summarizes Mr. Allen’s criminal record:
| Level and Location of Court / Date (mmm-dd-yyy) | Offence(s) | Disposition(s) |
|---|---|---|
| 2003-04-04 Calgary ALTA |
(1) Mischief under $5000 s. 430(4) CC (2 chgs) (2) Poss of a schedule II substance s. 4(5) CDSA (3) Fail to comply with conditions of undertaking given by officer in charge sec. 145(5.1) CC |
(1-2) Susp sent & Probation 1 yr on each chg conc. (3) $150 on each chg |
| 2004-01-16 Grande Cashem ALTA |
Driving with more than 80 mgs of alcohol in blood sec. 253(b) CC | $750 & proh driv |
| 2007-01-16 Calgary, ALTA |
Unlawfully in dwelling house s. 349(1) CC | $350 1-D 8 days probation 1 year |
| 2010-01-11 Sault Ste Marie, ON |
Driving while ability impaired s. 253(1)(a) CC | 30 days intermittent & probation 12 months & prohibited from operating a motor vehicle s. 259(1) CC for 36 months |
| 2017-03-10 Brockville, ON |
Criminal harassment s. 264(2)(d) CC | Suspended sentence & probation 2 years & discretionary weapons prohibition s. 110 CC for 10 years |
| 2017-10-17 Brockville, ON |
(1) Poss. of a schedule I substance s. 4(1) CDSA (2) Driving while ability impaired s. 253(1)(a) CC (3) Fail to comply with probation order s. 733.1(1) CC |
(1) 1 day conc. & probation 12 months (2) 90 days intermittent & prohibited from operation a motor vehicle s. 259(1) CC for 5 years (3) 90 days intermittent conc. & probation 12 months. |
| 2018-07-09 Brockville, ON |
(1) Driving while ability impaired s. 253(1)(a) CC (2) Fail to attend court s.145(2)(b) CC (3) Fail to comply with probation order s. 733.1(1) CC |
(1) 6 months & probation 12 months & prohibited from operating a motor vehicle s. 259(1) CC for 10 years (2) 30 days consec & probation 12 months (3) 30 days conc. & probation 12 months |
Statement of Mr. Allen
[16] Mr. Allen made a lengthy statement to the court expressing remorse for his actions and apologizing to his and Wayne Allen’s family.
Impact on the Victim and/or Community
[17] The Crown submitted the victim impact statements of a number of Jessie and Wayne’s family members, including Stacey Charette (Wayne’s mother), Glenn Allen (Wayne and Jessie’s father), Debbie Rivers, Robin Marks, Branden Myatt, Madisen Chalmers, and Kaleb Charette. Amber Bassett appeared by zoom to provide her victim impact statement.
[18] All expressed their significant losses and the profound detrimental impact that this murder has had upon them.
[19] I am also mindful of the significant impact on the community of Manitouwadge where Wayne Allen resided and the community of Chemainus in British Columbia where Wayne Allen attended high school.
The Law
General Principles of Sentencing
[20] The applicable provisions of sentencing in the Criminal Code are:
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to 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 reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other Sentencing Principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(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 intimate partner or a member of the victim or the offender's family,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
Principles Applicable to Parole Ineligibility Determination
[21] Section 745(c) of the Criminal Code provides that upon 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.
[22] 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.
[23] Whatever minimum period of parole ineligibility I set, it is the Parole Board of Canada that will ultimately determine when parole is appropriate and on what conditions parole should be granted. Regardless of when he is paroled, Mr. Allen will remain under the supervision and control of correctional authorities for the rest of his life, including being subject to re-incarceration from parole should he breach any conditions or pose a threat to public safety.
[24] In exercising my discretion under s. 745.4 of the Criminal Code, I must consider the character of the offender and the nature of the offence and the circumstances surrounding its commission.
[25] In R. v. Shropshire[^1], 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 their 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.
[26] 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.
[27] 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.[^2]
The Crown’s Position
[28] In submitting that the appropriate period of parole ineligibility should be 18 years, the Crown relies upon the following decisions: R. v. Cunningham;[^3] R. v. Boukhalfa;[^4] R. v. Burke;[^5] R. v. Zaman;[^6] R. v. K.D.S.[^7] These cases emphasize that denunciation and deterrence are the paramount sentencing objectives when a family member is murdered.
[29] The Crown submits that applicable statutory aggravating factors include that Mr. Allen committed murder against a family member, being his younger half-brother, and as such, also abused a position of authority, thereby breaching ss. 718.2(a)(ii), 718.2(a)(iii) and 718.2(a)(iii.1). The Crown also submits that non-statutorily prescribed aggravating factors include that Jessie Allan has a criminal record; that the offence took place in the victim’s home; that the victim was 18 years old at the time; the victim was defenceless; the presence of the victim’s family friend and father at the time of the offence; that the victim was collateral damage to the problematic relationship between Mr. Allen and his father; and Mr. Allen’s post-offence conduct.
[30] The Crown also submits that the PSR outlines some mitigating factors, namely that Mr. Allen is remorseful; he was exposed to domestic violence and substance abuse; and that he has supportive people in his life. With respect to character, however, the Crown argues that Mr. Allen’s criminal record demonstrates that he lacks pro-social behaviour and presents a threat to personal safety, particularly in the context of familial relationships.
[31] The Crown’s position is that it is of absolute necessity to separate Mr. Allen from society, and that a lengthier period of parole ineligibility is required. The Crown submits that an 18-year parole ineligibility period reflect his moral blameworthiness and vindicates the paramount sentencing principles of denunciation and deterrence.
The Defence’s Position
[32] The defence submitted the case of R. v. Labelle[^8], a recent decision of Justice Fregeau who sentenced a mother to life imprisonment with no eligibility for parole for 15 years for the second-degree murder of her 11-year-old son who she had stabbed 31 times. Ms. Labelle had not expressed remorse for her actions. Counsel for Mr. Allen characterized the Labelle case as more egregious.
The Jury
The Jury’s Recommendation
[33] Section 745.2 of the Criminal Code permits the jury, after finding an accused guilty of second-degree murder, to make a recommendation to the court with respect to the number of years that the accused must serve prior to being eligible for release on parole. The jury’s recommendation is one factor for me to consider.
[34] The jury made the following recommendations:
i. 2 jurors made no recommendation;
ii. 6 jurors recommended 10 years;
iii. 1 juror recommended 11 years;
iv. 2 jurors recommended 15 years;
v. 1 juror recommended 20 years.
Reasons
[35] I agree with the Crown’s description of the aggravating and mitigating factors. I agree also that the relevance of the relationship to the victim is an important factor in setting the period of parole ineligibility. As Justice Forestell noted in Boukhalfa, the relevance of the relationship is that it leaves the victim vulnerable to the offender. In Boukhalfa, the victim was murdered by her son. In that case, a period of parole ineligibility of 15 years was deemed fit.
[36] The Labelle case relied upon by counsel for Mr. Allen is similar to, and different from, the present situation. Ms. Labelle had no criminal record and had significant Gladue factors. It was a murder of a child by a parent. In that case, the fit period of parole ineligibility was deemed to be 15 years.
[37] Mr. Allen murdered his half-brother in his home, and in the presence of his father. Wayne Allen was just 18 and a half years old and was defenceless when murdered.
[38] I note Mr. Allen’s criminal record, which discloses two prior convictions for family related incidents.
[39] I accept that Mr. Allen is remorseful and that he struggles with substance abuse.
Sentence
[40] Mr. Allen, please stand.
[41] Mr. Allen, you have been convicted of second-degree murder in relation to the death of Wayne Allen. For this offence, I sentence you to life in prison. After considering all relevant factors, 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
[42] As a further consequence, ancillary orders are mandated by the Criminal Code for this conviction. Pursuant to section 109(1)(a), you are prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. Further, you are required to submit a sample of your DNA to the DNA Data Bank pursuant to section 487.051.
[43] Pursuant to s. 743.21 of the Criminal Code I order that you are prohibited from communicating with the following individuals for the duration of the custodial period of your sentence: Glenn Allen; Debbie Rivers; Stacey Charette; Amber Bassett; Robin Marks; Branden Myatt; Madisen Chalmers; and Kaleb Charette.
[44] Thank you counsel for your helpful submissions.
[45] Thank you to all of Wayne Allen’s family members for sharing your victim impact statement with me, and for helping me understand, to the extent that I am able, your loss and suffering.
“Original signed by”
The Hon. Mr. Justice W.D. Newton, R.S.J.
Released: October 27, 2023
COURT FILE NO.: CR-22-0091-00
DATE: 2023-10-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
- and –
JESSIE ALLEN
Accused
REASONS FOR SENTENCE
Newton R.S.J.
Released: October 27, 2023
[^1]: 1995 47 (SCC), [1995] 4 S.C.R. 227 [Shropshire].
[^2]: R. v. McKnight, 1999 3717 (ON CA), [1999] O.J. No. 1321; R. v. Arashvand, 2012 ONSC 5852, para. 9; R. v. Keene, 2020 ONCA 635, para. 69.
[^3]: 2023 ONCA 36 [Cunningham].
[^4]: 2013 ONSC 1255 [Boukhalfa].
[^5]: 2022 ONSC 6083 [Burke].
[^6]: 2020 ONSC 7823 [Zaman].
[^7]: 2021 ABQB 934 [KDS].
[^8]: 2023 ONSC 2854 [Labelle].