COURT FILE NO.: CR-22-00000702-0000
DATE: 2023 12 15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
KYLE GEMIN
Defendant
Robert Butler, for the Crown
David Newton, for the Defendant
HEARD: December 4, 2023
Justice G. d. LEMON
REASONS FOR SENTENCE
Overview
[1] On October 19, 2023, the jury found Mr. Gemin guilty of second-degree murder. As a result, he is to be sentenced to life in prison. The issue now before me is how long must he serve a custodial sentence before he is eligible for parole. I do not determine if Mr. Gemin will receive parole; it will be up to the parole board to determine when, if ever, he is released.
[2] The Crown submits that the fit time is 17 years.
[3] The defence submits that the correct time is 10 years, but that the appropriate range is 10 to 12 years.
[4] Nine members of the jury recommended twenty years, one recommended twenty-five years, one recommended ten years and one made no recommendation.
[5] For the following reasons, I find that Mr. Gemin should serve fifteen years until he is eligible to be considered for parole.
Legal Parameters
[6] To determine the proper length of time, section 745.4 of the Criminal Code, R.S.C. 1985, c. C-46 requires that I must consider the character of the offender, the nature of the offence, the circumstances surrounding its commission and any recommendation made by the jury. I am then to arrive at a figure of not less than ten years and not more than twenty-five years.
[7] Section 718.1 of the Code requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. That “personal responsibility” relates to aspects of the offender’s conduct or background that increases or decreases the offender’s responsibility for the crime. All cases turn on their own facts.
[8] Section 718.2(b) of the Code requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, I must consider the various reported cases on sentences for offences and circumstances like those for which Mr. Gemin is being sentenced.
[9] Counsel have been helpful in providing me with many cases with similar facts. Those cases have referred to others. I have reviewed R. v. Shropshire, 1995 CanLII 47 (SCC), 1995 SCC 47, [1995] 4 S.C.R. 227; R. v. LaPierre, 2018 ONCA 801, R. v. Dahr, 2012 ONCA 433, 249 O.A.C. 301; R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29; R. v. Nicholas Baig, 2019 ONSC 2713; R. v. Richmond, 2007 CanLII 1927 (ON SC); R. v. Chalmers, 2009 ONCA 268, 243 C.C.C. (3d) 338; R. v. Chen, 2015 ONSC 3759; R. v. Brooks, 2017 ONSC 439 and some of the cases referred to within those cases.
[10] I see no benefit in comparing and contrasting those cases in these reasons. That exercise has already been carried out within them. In practice, each case turns on the various factors within it. Sometimes, the facts of cases are hard to differentiate, but will lead to results that are significantly different. The actual figure in this case will depend on the facts found by me and the weight to be placed on the facts to be considered. It is accepted that this “sliding scale” of parole eligibility will vary along the range of seriousness of the offence and the degree of moral culpability of the offender. The caselaw is only important to see how other courts have dealt with the balancing of those various factors.
The Offence
[11] The events in this case are largely undisputed. There was no dispute that Mr. Gemin’s assault upon his grandfather caused his grandfather’s death. The issue for trial was whether Mr. Gemin had the necessary intent for second-degree murder or whether he was guilty of manslaughter for what he did. By their verdict, the jury found that Mr. Gemin intended to kill his grandfather.
[12] On the night of June 30, 2020, or very early July 1, 2020, Mr. Gemin caused his grandfather’s death by, in the words of the forensic pathologist, blunt force trauma to the head and ligature strangulation. The deceased’s skull had been fractured in two places and he was found with a dog leash around his neck. Either could have caused his death. There is no dispute that the skull fractures were caused by Mr. Gemin striking his grandfather with a ballpeen hammer.
[13] Mr. Gemin gave a statement to the police the following day. It was agreed at trial that his statement was voluntary. Mr. Gemin admitted, in detail, what he had done to his grandfather. The pathologist’s evidence at trial corroborated much of what Mr. Gemin said about what had happened to his grandfather, George Gemin. I need not set out any further detail in these reasons.
[14] In their submissions, each counsel submitted that I should focus on some parts of Mr. Gemin’s statement to the exclusion of other parts. The defence submitted that I should not determine Mr. Gemin’s motive for the murder but should focus on the evidence of Mr. Gemin’s delusions. The Crown submits that I should focus on the parts of the statement that are more inculpatory. I do not believe that it is necessary that I delve into the relative minutiae of those statements.
[15] On any view of the admitted facts of what occurred to George Gemin, the acts are horrendous. The jury found an intent to kill. Any other disputed facts make little difference to my analysis on this point.
[16] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14, McLachlin C.J., as she then was, articulated two principles governing the task of a sentencing judge as contemplated in s. 724(2):
[U]nlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.
[17] Since I am required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand, the question of Mr. Gemin’s motive or what other acts he may have perpetrated during the assault upon his grandfather are not necessary.
[18] The defence submits that, on the evidence, I should not find that Mr. Gemin had a motive to kill his grandfather. I agree that the evidence is difficult to parse on that issue. However, a lack of motive leaves this tragedy as a motiveless crime.
[19] Similarly, I do not have to decide the slim difference between if “elder abuse” was being perpetrated, as alleged by the Crown, or not. The important action here is the killing of Mr. Gemin’s grandfather who was allowing Mr. Gemin to stay at his home. Whether Mr. Gemin was involved in elder abuse is not additionally aggravating; each situation is equally aggravating.
Positions of the Parties
[20] As set out above, it is the Crown’s position that Mr. Gemin should serve a custodial sentence of seventeen years before being eligible for parole.
[21] The Crown also seeks an order:
pursuant to s. 487.051 of the Criminal Code to take DNA samples from Mr. Gemin;
pursuant to s. 109 of the Code, prohibiting Mr. Gemin from possessing weapons for life;
[22] Mr. Gemin submits that he should serve a period of 10 years before being eligible for parole. The defence takes no issue with the requested ancillary orders.
Circumstances of the Offender
[23] Mr. Gemin is 34 years of age. In July of 2020, he was 31. He is not married. He has a Grade 10 education. At the time of the offence, Mr. Gemin was unemployed and assisted by the Ontario Disability Support Program. He has had some work as a general labourer. He had no criminal record.
[24] Mr. Gemin has abused alcohol and cannabis such that he has been hospitalized for treatment. He was diagnosed with a “psychotic disorder, not otherwise specified” in 2011.
[25] There was no expert evidence at trial as to Mr. Gemin’s mental health, but it is not disputed that he has some mental disorder. The trial evidence and defence sentencing materials show that at the time of the offence, Mr. Gemin had untreated mental health issues. He has significant delusions.
[26] Mr. Gemin was assessed by Dr. Hofkirchner in September of 2022. At the time, he was on medications for treatment of “schizophrenia characterized by hearing voices.” It was opined that:
[H]e remains an individual in need of psychiatric and social support to remain well. Absent a stable living situation, ongoing psychiatric support, and abstinence from substances of abuse (including alcohol and cannabis), Mr. Gemin’s prognosis is guarded.
Mitigating and Aggravating Factors
[27] I received victim impact statements from Mr. Gemin’s grandchildren, daughters, and sons-in-law. Those statements do their best to describe the indescribable loss of their beloved family member. Clearly, George Gemin was an exceptional man. Not surprisingly, the statements read as if the family’s grief, loss, sadness, and anger started only the day before; not more than three years ago. They have lost money in counselling and taking time off work to attend the trial.
[28] Members of the family were left to clean up the bloodied house in which George Gemin lived and died.
[29] It must be remembered that their loss occurred early in the COVID-19 lockdown; their ability to seek support or be distracted from their loss was likely extremely difficult.
[30] This offence was senseless and, as I have found, without explanation. There was no apparent rationale for Mr. Gemin to have killed his grandfather.
[31] I know little about Mr. Gemin or his chances of rehabilitation. Given this act, I have little reason to be optimistic.
[32] In mitigation, Mr. Gemin is relatively young, and I should not rule out any chance of rehabilitation.
[33] Mr. Gemin exercised his right to leave sentencing submissions to his counsel without comment and he did not testify at trial. I can find no fault in that; however, there is no indication of remorse in this case as there is in some others.
[34] The Crown agrees that whatever Mr. Gemin’s mental health issues may be, they do invite restraint that might otherwise support a longer term without parole eligibility.
[35] In R. v. Chen, MacDonnell J. said (para. 21):
Recommendations of the jury are simply that: recommendations. However, seeking the input of the jury is not a mere exercise in public relations. As the 12 members of the community selected to sit in judgment in this case, their opinions are a valuable insight into the degree of Mr. Chen’s moral culpability and I am statutorily bound to take those opinions into account.
[36] However, the jury does not have the instruction I must take from the Court of Appeal and applicable caselaw. The jury did not have the evidence related to Mr. Gemin’s mental health issues. The jury was not given the opportunity to consider whether to leave the question of parole eligibility to the parole board. I must be mindful of the jury’s recommendations, but I agree with Mr. Gemin that I have more information than they had, both good and bad, and I am to be guided by the legal parameters that they did not have to consider.
Analysis
[37] One needs to start with the realization that Mr. Gemin is receiving a life sentence and at least 10 years without parole; that is, of course, a significant sentence.
[38] The case law confirms that no sentence can be expected to repair the damage to the deceased’s family, nor should a sentence be compared to their loss.
[39] I have applied the principles set out in the case law provided by counsel and as referred to above. I have considered the sentencing principles set out in the Code at s. 718 and the subsequent sections.
[40] The caselaw supports the range put forward by the parties, although few as low as 10 years, as suggested by the defence. There are none that would allow me to set a time longer than 17 years, the amount suggested by the Crown.
[41] I acknowledge the strong argument that, given Mr. Gemin’s mental health issues, I should leave his parole date to those who will have greater psychiatric expertise. However, given the aggravating factors in this case, and considering the jury’s recommendations, I find that Mr. Gemin should serve fifteen years until he is eligible for parole.
Result
[42] Accordingly, Mr. Gemin shall serve a sentence of life imprisonment with no eligibility for parole for fifteen years.
[43] There shall be an order pursuant to the mandatory requirements of s. 487.051 of the Code for the taking of DNA samples.
[44] Pursuant to s. 109 of the Code, Mr. Gemin is prohibited from possessing weapons for life.
G. D. Lemon, J.
Released: December 15, 2023
COURT FILE NO.: CR-22-0702
DATE: 2023 12 15
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
KYLE GEMIN
REASONS FOR sentence
Justice G.D. Lemon
Released: December 15, 2023