COURT FILE NO.: 394/21
DATE: 2023-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Crown
T. Shuster, for the Crown
- and -
Gregory Tkachyk
Defendant
J. Berkes, for the Defendant
HEARD at St. Catharines, Ontario: January 26, 2023
REASONS FOR SENTENCE
(Second-Degree Murder)
The Honourable Justice J. R. Henderson (orally)
INTRODUCTION
[1] After a focused judge alone trial, I found the defendant, Gregory Tkachyk, guilty of second-degree murder regarding the death of his wife, Joanne Hampson. For reasons that I explained in court, I found that on May 27, 2020, Mr. Tkachyk assaulted Ms. Hampson with a heavy metal mallet, and that the consequent blunt force injuries, primarily to Ms. Hampson’s face and head, caused her death.
[2] Mr. Tkachyk is now before me for sentencing.
[3] The Criminal Code of Canada (“Criminal Code”) provides that a conviction for second-degree murder carries a mandatory sentence of imprisonment for life. Section 745(c) of the Criminal Code provides that a person who has been convicted of second-degree murder will not be eligible for parole until he/she has served a minimum of 10 years of the sentence. However, pursuant to Section 745.4, the sentencing judge may increase the number of years of parole ineligibility to a maximum of 25 years “as the judge deems fit in the circumstances.”
[4] Therefore, Mr. Tkachyk will be sentenced to life imprisonment for this offence; the remaining issue is to determine the period for which he will be ineligible for parole.
[5] The position of the defendant is that I should not increase the period of parole ineligibility from the minimum, and therefore I should order parole ineligibility for 10 years. The position of the Crown is that the appropriate range of parole ineligibility is 12 to 17 years.
[6] The Crown also requests a number of ancillary orders that are not opposed by the defendant.
THE CIRCUMSTANCES OF THE OFFENCE
[7] I wish to briefly review the circumstances of the offence. I will not repeat all of the findings of fact that I made in my reasons for finding Mr. Tkachyk guilty of the offence.
[8] In summary, the circumstances of Ms. Hampson’s death were violent and brutal. The offence arose out of the domestic relationship between Mr. Tkachyk and Ms. Hampson, and the offence occurred in the context of Mr. Tkachyk’s mental health issues.
[9] I found that in 2019, at approximately the time of his retirement, Mr. Tkachyk began to show signs of mental and physical deterioration that caused Ms. Hampson and other family and friends to become concerned. Over the next year, Ms. Hampson, who had worked as a nurse for many years, attempted to help Mr. Tkachyk by taking him to several medical professionals for assessment and treatment. All of those professionals generally agreed that Mr. Tkachyk was suffering from a Major Depressive Disorder with psychotic features.
[10] By May of 2020 Ms. Hampson became concerned about Mr. Tkachyk’s capacity to manage his financial affairs. Therefore, she arranged for Dan Silver, a capacity assessor, to assess Mr. Tkachyk. On May 22, 2020, Mr. Silver concluded that Mr. Tkachyk was incapable of managing his financial affairs.
[11] On May 27, 2020, Ms. Hampson drove her Honda Accord from the Tkachyk residence to Walmart to pick up a grocery order. When she returned home, Ms. Hampson entered the side door of the residence at which time Mr. Tkachyk assaulted her with a metal mallet.
[12] I found that Ms. Hampson attempted to flee, but she was unable to get out of the house. Both parties ended up in the basement where Mr. Tkachyk continued to strike Ms. Hampson with the mallet. This assault by Mr. Tkachyk caused the death of Ms. Hampson.
[13] Two days later Mr. Tkachyk called his friend, Mike Turnbull, and asked him to come to his house. At the Tkachyk residence, Mr Tkachyk told Mr. Turnbull that he had “done something really bad” and that he had killed Ms. Hampson. He said that he believed that Ms. Hampson was trying to put him in an old age home and take everything he had. When police arrived on the scene, Mr. Tkachyk admitted to a police officer that he had killed his wife with a hammer.
[14] The pathology report concluded that Ms. Hampson suffered multiple overlapping blunt force injuries, including 28 separate identifiable injuries to her head and face.
THE PERSONAL CIRCUMSTANCES OF MR. TKACHYK
[15] Mr. Tkachyk was 60 years old as of the date of the offence and is currently 63 years of age. He has an old criminal record for impaired driving that I consider to be insignificant for this sentencing hearing.
[16] He had a long exemplary career as a firefighter in Toronto. He retired from that career in 2019, in part because of mental health issues.
[17] Regarding Mr. Tkachyk’s health, based on the evidence at the trial I found that he was suffering from a mental disorder as of the date of the offence. I accepted the evidence that he had a Major Depressive Disorder with psychotic features. For sentencing purposes, I accept Dr. Ferencz’s evidence that Mr. Tkachyk has received treatment for his cognitive deficits since his arrest, and that he now only has mild cognitive impairment. Therefore, I find that Mr. Tkachyk’s mental health has improved since the offence occurred.
[18] I also accept defence counsel’s statement that Mr. Tkachyk’s physical health has declined since he has been incarcerated, although I find that any physical health problems now are modest.
VICTIM IMPACT STATEMENT
[19] Before I turn to the legal principles, I wish to acknowledge the effect that this offence has had on Ms. Hampson’s friends and family.
[20] At the sentencing hearing I heard and received victim impact statements of eight people, including Ms. Hampson’s daughters, her granddaughter, her sisters, and her brother, as well as her co-workers.
[21] It is clear to me that Ms. Hampson was an outgoing, supportive, lovely person who was an integral part of the lives of her family, friends, and coworkers. She was well-loved by friends and family, and she enriched the lives of most of those who had the good fortune to know her.
[22] Her immediate family, and in particular her daughters and granddaughters, continue to suffer from Ms. Hampson’s death and the manner in which it occurred. Collectively, they used phrases such as being “haunted” and being “traumatized” by the events of May 27, 2020. I accept that to be true.
[23] So, to Ms. Hampson’s family and friends, I want you to know that I now have some understanding of what Ms. Hampson meant to you. I recognize that she will be deeply missed. In my view, the loss of a life through the commission of a criminal offence is one of the most profound tragedies one can imagine. No sentence that I can impose can possibly provide compensation for the loss of a life. I can only state, in passing sentence, that I feel the utmost sympathy for you. I do hope that the fact that we are bringing this matter to a conclusion will provide some relief for you.
LEGAL PRINCIPLES
[24] I now turn to the legal principles that apply. Section 745.4 of the Criminal Code states that the sentencing judge may substitute for 10 years a number of years of imprisonment (being more than 10 but not more than 25) without eligibility for parole, as the judge deems fit in the circumstances. That section provides four criteria for consideration by the judge, three of which apply to this case, namely the character of the offender, the nature of the offence, and the circumstances surrounding its commission.
[25] In R. v. Shropshire, 1995 47 (SCC), [1995] 4 SCR 227, the Supreme Court of Canada held, at para. 29, that as a general rule, the period of ineligibility shall be for 10 years, but this can be ousted by a determination by the trial judge that, according to the criteria enumerated in the subsection, the offender should wait a longer period before having his suitability to be released into the general public assessed.
[26] I note that it is not a proper approach to start with the minimum period of parole ineligibility of 10 years, and only increase the period of ineligibility in unusual circumstances. See Shropshire at para. 33 and R. v. McKnight, 1999 3717 (ON CA), [1999] O.J. No.1321 (Ont.C.A.) at para. 10.
[27] Further, it is clear from the McKnight decision, at para. 9, that the judge must, in addition to the criteria in s.745.4, consider the purpose and objectives of sentencing as set out in the Criminal Code.
[28] The fundamental purpose of sentencing, as set out in s.718 of the Criminal Code, is “to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.” There are six specific sentencing objectives set out in that section of the Criminal Code.
[29] In my opinion, in a serious violent offence such as the case before me today, the sentencing objectives of denunciation, individual deterrence, and general deterrence are the most important.
[30] Specifically, the sentence should act as a statement by the court, on behalf of all members of the public, that expresses society's collective condemnation or denunciation of the criminal conduct of the offender. Moreover, it is important to impose a sentence that is significant enough to deter other persons who might be tempted to commit a similar offence in the future.
[31] As a final legal principle, I want to confirm that by imposing a period of ineligibility for parole I am not setting a date for Mr. Tkachyk’s release from prison. Ultimately, that decision will be made by the Parole Board. The Parole Board has a number of factors that will be considered at the appropriate time. My decision today will simply set the earliest date for Mr. Tkachyk to apply for parole.
ANALYSIS
[32] I now turn to my analysis of the factors that apply to this case. I am going to review the criteria set out in s.745.4 and the aggravating and mitigating factors.
[33] Regarding the character of the offender, I find that Mr. Tkachyk has been of good character for almost his entire life up until the events of May 2020. He had a good career as a firefighter, and he was well-respected by his coworkers.
[34] Further, he had a long-term stable relationship with Ms. Hampson. They lived together for 23 years starting with their cohabitation as common law partners in 1997. They were married in 2014. There is no evidence of any prior domestic assault or abuse.
[35] Mr. Tkachyk’s friend and coworker, Mike Turnbull, said that he had never observed Mr. Tkachyk to be violent with anyone. Dan Silver, the capacity assessor, noticed cognitive impairments, but stated that there was no evidence that Mr. Tkachyk was a violent person, or that he was even capable of violence. In my view, Mr. Tkachyk’s otherwise good character is a mitigating factor.
[36] On the other hand, the nature of the offence and the circumstances surrounding its commission are both aggravating factors that favour the Crown’s position for a longer period of parole ineligibility.
[37] The brutal nature of the offence is obvious. Ms. Hampson was beaten to death with a heavy mallet. Mr. Tkachyk inflicted multiple violent blows causing 28 separate injuries to Ms. Hampson’s head and face, as well as fractures to her neck, ribs, and forearm. She was left bloodied and disfigured.
[38] Further, I find that the post-offence conduct of Mr. Tkachyk is an aggravating factor. Mr. Tkachyk left Ms. Hampson’s body lying in a pool of blood in the basement for two days. He also made an attempt to hide the murder weapon and he removed his bloody clothing. The indignity to Ms. Hampson’s body, the attempt to cover up the crime, and the fact that Mr. Tkachyk did not reach out or call for any assistance suggest that a longer period of ineligibility is appropriate.
[39] On that point, I accept the defence position that the circumstances surrounding the offence must be viewed through the lens of Mr. Tkachyk’s mental health issues. I accept that immediately after the offence Mr. Tkachyk was probably uncertain or confused as to what he should do next, and that his mental health issues likely contributed to his actions or inactions. However, as I indicated in my earlier decision, the fact that he attempted to hide the murder weapon suggests that he had a level of understanding as to what had occurred, and that he was attempting to hide evidence of what he had done.
[40] Therefore, I find that the circumstances surrounding the commission of the offence are aggravating, but perhaps not as aggravating as they would be if Mr. Tkachyk did not have mental health issues.
[41] I now turn to what I consider to be the most aggravating factor; that is the fact that the offence constituted a violent attack on Mr. Tkachyk’s domestic partner. Section 718.2(a)(ii) specifically states that it is an aggravating factor if the offender, in committing the offence, abused the offender’s intimate partner. Section 718.201 states that if the offence involves the abuse of an intimate partner the court shall consider the increased vulnerability of female persons who are victims.
[42] I find that both of those sections apply in the present case. Although there was no history of domestic violence between Ms. Hampson and Mr. Tkachyk, I find that the brutal death of Ms. Hampson would not have occurred if she had not been the intimate partner of Mr. Tkachyk.
[43] Moreover, Ms. Hampson’s role in the domestic relationship was that of a caregiver. Because of her intimate relationship with Mr. Tkachyk, Ms. Hampson assumed the care of her husband when his condition deteriorated. She also took on the task of trying to get help for him. It was Ms. Hampson’s devotion to her caregiving role that ultimately led to Mr. Tkachyk making the senseless decision to kill her.
[44] Further, I accept that as a female, Ms. Hampson was vulnerable to an attack by her partner. Mr. Tkachyk was armed with a weapon, and he attacked her by surprise as she entered the home with the groceries. Ms. Hampson was indeed vulnerable.
[45] I find that these statutory aggravating factors set out in s.718 of the Criminal Code that reference the domestic relationship, on their own, justify an increased period of parole ineligibility.
[46] There are some other factors in this case that I consider to be mitigating factors.
[47] It was not contested that Mr. Tkachyk had a mental disorder as of the date of the offence, namely a Major Depressive Disorder with psychotic features. I found that Mr. Tkachyk’s mental disorder did not meet the threshold for a finding that he was not criminally responsible pursuant to s.16 of the Criminal Code. But, I do find that his mental health issues influenced his actions.
[48] The Crown and the defence counsel agree that Mr. Tkachyk’s mental health issues constitute circumstances that the court must consider when tailoring an appropriate sentence. That is, it is appropriate for this factor to be considered when the court applies the principles of individualization and parity. See R. v. Pham, 2013 SCC 15 at para. 11.
[49] As to whether Mr. Tkachyk’s mental health is a mitigating factor, I reject the Crown’s submission that it is not, and I accept the defence position that Mr. Tkachyk’s mental health is a mitigating factor as it reduces the moral blameworthiness of his actions. I emphasize that it does not eliminate moral blameworthiness, but it mitigates blameworthiness.
[50] Specifically, I found that Mr. Tkachyk falsely believed that Ms. Hampson was attempting to confine him to a seniors’ home, and that this was the motive for his actions. Such a false belief, of course, would not in any case justify a violent assault, or any assault, but it indicates a certain state of mind. I found that Mr. Tkachyk had a level of knowledge and awareness of his actions such that he was criminally responsible, but I accept that his thought process as to his motive was likely compromised by his mental health. This, in my view, is a mitigating factor.
[51] I also find that the manner in which the trial was conducted is a mitigating factor. I do not find that Mr. Tkachyk truly expressed remorse, and clearly Mr. Tkachyk did not enter a guilty plea. However, from the moment that the police officers arrived on the scene Mr. Tkachyk admitted that he had killed Ms. Hampson. He never denied that fact. The trial itself was focused only on the mental health issues. Further, a lengthy detailed agreed statement of fact was filed with the consent of all parties at the start of the trial. Thus, the family, friends, and witnesses were relieved of their responsibility to testify at the trial, although most of them testified at the preliminary hearing. This is a mitigating factor.
[52] Finally, I take into account Mr. Tkachyk’s age. He is now 63 years old. Regardless of the period of parole ineligibility that I impose today, he will not be eligible to apply for parole until he is in his mid-to-late 70s. This is a modest mitigating factor.
RANGE OF SENTENCE
[53] I repeat that it is not proper to start with the minimum period of parole ineligibility of 10 years, and only increase the period of ineligibility if there are unusual circumstances.
[54] In Ontario, in the McKnight case, at paras. 7 and 48, the Ontario Court of Appeal provided a range of parole ineligibility for second-degree murder cases that involve the violent death of an unarmed domestic partner. The court in that case set the range at 12 to 15 years. Accordingly, the appellate court in McKnight reduced the parole ineligibility imposed by the trial judge from 17 years to 14 years.
[55] However, the range was adjusted upward in the case of R. v. Wristen, 1999 3824 (ON CA), [1999] O.J. No. 4589 (Ont.C.A.). At paras. 76-77 the Court of Appeal noted that there were several significant mitigating circumstances in the McKnight case, including the fact that the offender had no prior criminal record, the offender suffered from severe depression, the offender expressed sincere remorse, and the offender had positive potential for rehabilitation. The court found that Mr. Wristen could claim few, if any, mitigating circumstances, and accordingly the court upheld the parole ineligibility period of 17 years that had been imposed by the sentencing judge.
[56] In R. v. Czibulka, 2011 ONCA 82, the Court of Appeal upheld the parole ineligibility period of 15 years that had been imposed by the trial judge. At paras. 67-70 the court confirmed that the range of parole ineligibility for a second-degree murder that involved a violent killing of a domestic partner was 12 to 17 years. This range was later confirmed in the case of R v. French, 2017 ONCA 460 at para. 31.
[57] Therefore, based on this case law, I accept that the period of parole ineligibility in this case should fall within the range of 12 to 17 years as suggested by the Crown.
THE SENTENCE
[58] If the range of parole ineligibility in the present case is 12 to 17 years, I find that the aggravating and mitigating factors, as well as the criteria in s.745.4, establish that Mr. Tkachyk’s sentence should be in the middle of that range.
[59] The brutal nature of the offence, the post-offence conduct, and the fact that Ms. Hampson was not only Mr. Tkachyk’s domestic partner, but she was also the person who was attempting to care for him, push this case well beyond the low end of the range. That being said, Mr. Tkachyk’s mental health issues, his otherwise good character, and the manner in which the trial was conducted, mean that he should not be given a sentence at the high end of the range.
[60] While no two cases are exactly alike, I find that the fact situation in this case is very similar to the fact situations in McKnight and in Czibulka, in which the parole ineligibility periods were set at 14 years and 15 years, respectively.
[61] I acknowledge that some of the mitigating factors in the McKnight case are not present in Mr. Tkachyk’s case. However, in both McKnight and Czibulka the offender was convicted after a trial by jury on the murder charge, whereas Mr. Tkachyk simplified the process by agreeing to a more focused judge alone trial that was limited to the mental health issues. As I stated earlier, that is a mitigating factor in Mr. Tkachyk’s favour.
[62] For these reasons, I find that it is appropriate to fix the period of parole ineligibility for Mr. Tkachyk at 14 years.
CONCLUSION
[63] For all these reasons, Mr. Tkachyk is hereby sentenced to life imprisonment without eligibility for parole for 14 years.
[64] In addition, I make the following orders:
- There will be an order to produce a DNA sample for a primary designated offence pursuant to s.487.04 and s.487.051.
- There will be a weapons prohibition order for life pursuant to s.109 (1).
- There will be an order that Mr. Tkachyk shall not contact or communicate in any way with the persons listed in exhibit S4, filed at the sentencing hearing.
J. R. Henderson J.
Released: February 2, 2023
COURT FILE NO.: 394/21
DATE: 2023 02 02
ONTARIO
SUPERIOR COURT OF JUSTICE
His Majesty the King
Crown
- and -
Gregory Tkachyk
Defendant
REASONS FOR SENTENCE
J. R. Henderson J.
Released: February 2, 2023