COURT FILE NO.: CR-16242/23 DATE: 20240326 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BARBARA KENNEDY Defendant

Counsel: Ms. T. Jackson, for the Crown Ms. C. Hunter, for the Defendant

HEARD: January 19, 2024

Reasons for Sentence

FUERST J. :

Introduction

[1] On Thursday February 17, 2022, 71 year old Barbara Kennedy killed 52 year old Terri Johnson, in their shared home.

[2] Ms. Kennedy pleaded guilty to second degree murder. She acknowledged that she caused the death of Ms. Johnson by unlawfully strangling her to death with a bungee cord.

The Circumstances of Ms. Johnson’s Murder

[3] After they became friends in 2013, Barbara Kennedy and Terri Johnson began a romantic relationship. Ms. Johnson moved into Ms. Kennedy’s Newcastle home. The romantic relationship was, however, a short one. After it ended, the two lived in the house as roommates for approximately eight years.

[4] Ms. Johnson was paralyzed on the left side of her body from previous strokes. She used a wheelchair and a homemade brace that gave her mobility.

[5] On February 20, 2022, Cameron Huard called 911. He said that his friend, Barbara Kennedy, was with him and she had just confessed that she killed someone. Ms. Kennedy spoke with the 911 dispatcher, and said that she strangled her roommate to death using a bungee cord, in their home.

[6] Ms. Kennedy said that she then placed Ms. Johnson’s body in a bin that was loaded into her car. She subsequently disposed of the body, and threw the bungee cord out the car window.

[7] After disposing of Ms. Johnson’s body, Ms. Kennedy went to the bank, the Metro, and then got her car washed, before going home. She left the bin she used to transport Ms. Johnson’s body at a farmer’s market in Bowmanville. Ms. Kennedy said that she was going to commit suicide, but instead went to Mr. Huard’s house and confessed to him.

[8] Ms. Kennedy told the 911 dispatcher that Ms. Johnson was psychologically abusive toward her, and they had been in an ongoing dispute over the house they lived in. Ms. Kennedy said that Ms. Johnson was “gaslighting” her. Ms. Johnson was supposed to purchase 50 per cent of the house, but did not follow through. Ms. Kennedy had lawyers involved for the past six months, and had not spoken to Ms. Johnson since August, 2021. Then on the morning of February 17th, Ms. Johnson said that Ms. Kennedy was going to lose the house. Ms. Kennedy saw a bungee cord. She grabbed it, wrapped it around Ms. Johnson’s neck, and killed her.

[9] Ms. Kennedy said that when she put the cord around Ms. Johnson’s neck, she wanted to kill her. Ms. Johnson was laughing and saying, “It’s not tight enough, it’s not tight enough”. Then Ms. Kennedy could not stop. She told the 911 dispatcher that she “had to take the moment”, “I gotta get rid of her.”

[10] Ms. Kennedy further advised that Community Care was supposed to have had a visit with Ms. Johnson, and had been calling to get hold of her. Ms. Kennedy told them she did not know where Ms. Johnson was and that maybe she was in Ottawa. Ms. Kennedy told the 911 dispatcher that the police came to the house after Community Care attended. Ms. Kennedy lied again, and told the police that Ms. Johnson was probably at one of the rallies in Ottawa. The police later confirmed that an officer had done a wellness check at the house on February 18th after Ms. Johnson missed an appointment with Community Care, and that Ms. Kennedy told the officer Ms. Johnson had mentioned going to Ottawa for the protest and left the house early that morning.

[11] Ms. Kennedy told the 911 dispatcher she felt relieved after Ms. Johnson died. She disclosed that she had previous thoughts of hurting Ms. Johnson. She did not regret that Ms. Johnson was gone, and believed the world was a better place without her. Ms. Kennedy further advised the 911 dispatcher that Ms. Johnson was sick and coughing, and she was unsure if it was due to Covid.

[12] Ms. Kennedy volunteered to show police where she had disposed of Ms. Johnson’s body.

[13] Ms. Kennedy was arrested that day. She was interviewed by homicide unit detectives. She told them that on the morning of February 17th, Ms. Johnson was sitting in the sunroom. Ms. Kennedy was going to grab her coffee and go back to her own room. Ms. Johnson started talking to her, and asked, “Do you really want this to end?” She started laughing. Ms. Kennedy said she thought, “I have to do this.” Ms. Johnson bent over to clean the cat litter. Ms. Kennedy grabbed a bungee cord that was sitting on the freezer. She was thinking, “I have to save my life, I have to do this.” She said that she lost it, spur of the moment. She used her hands to demonstrate to the detectives how she wrapped the bungee cord around Ms. Johnson’s neck. She said that Ms. Johnson looked up. She was laughing, and said, “It’s not tight enough Barbara, it’s not tight enough Barbara.” Ms. Kennedy continued to strangle Ms. Johnson. She saw Ms. Johnson’s eyes twitching, and blood came out of her nose. Eventually Ms. Johnson died. Ms. Kennedy felt relieved after it was done. She maintained that she did not regret that Ms. Johnson was gone, and that the world was a better place without her.

[14] Ms. Kennedy said that after the death, she placed Ms. Johnson’s body in a large Rubbermaid bin with a grey top. Video footage from a hidden camera Ms. Johnson had installed in her room showed Ms. Kennedy walking in the nearby hallway, carrying a light blue item believed to be the Rubbermaid tote. Ms. Kennedy told the detectives that she placed the bin in her car. The following day, she drove to the Pickering Airport grounds and disposed of Ms. Johnson’s body by rolling it down a high snowbank into the creek.

[15] Ms. Kennedy said that she used a cloth to wipe up Ms. Johnson’s blood in the house, and then mopped and washed the floor. Video footage from Ms. Johnson’s hidden camera showed Ms. Kennedy entering and exiting Ms. Johnson’s bedroom multiple times, and mopping the hallway outside Ms. Johnson’s bedroom. Ms. Kennedy subsequently washed her car and the Rubbermaid bin. She then went to a country market in Bowmanville and left the bin on their property. The bin was later recovered by police. Ms. Kennedy’s DNA was identified on it.

[16] On February 20, 2022, police recovered Ms. Johnson’s body, supine in the creek. Her bended knees were visible above the water while the rest of her body was submerged with the water frozen around it.

[17] Postmortem examination revealed that the cause of Ms. Johnson’s death was neck compression, most likely with a ligature. There were some non-fatal blunt force injuries, including left rib and spine fractures. Ms. Johnson had focally severe chronic stable coronary artery atherosclerosis, and pulmonary adenocarcinoma.

[18] Police interviewed several witnesses who said that Ms. Kennedy and Ms. Johnson had a toxic relationship, and frequently argued over ownership of the Newcastle house. Ms. Johnson had a purchase and sale agreement dated February 28, 2013, showing that she deposited $50,000 to Ms. Kennedy and had 50 per cent ownership of the house. Ms. Johnson attempted to buy out Ms. Kennedy’s 50 per cent share of the house, but was unsuccessful. Ms. Kennedy believed that she was the sole owner of the house with 100 per cent interest. She believed that her signature on the purchase and sale agreement was forged by Ms. Johnson. Both parties had enlisted the help of lawyers to resolve the issue, but the matter did not reach a final outcome.

[19] Several witnesses told police that Ms. Johnson was fearful for her safety while living with Ms. Kennedy. Ms. Johnson had her cats removed from the home, installed a hidden camera in her bedroom, and sent text and email messages to her friends to document what was happening between her and Ms. Kennedy. Ms. Johnson told a third party that if she ever went missing, to check the beachfront in Pickering as Ms. Kennedy was from Pickering.

[20] Ms. Kennedy’s cell phone was searched under warrant. The day before the murder she had a text message conversation with a friend, in which it appears they discussed Ms. Johnson. Ms. Kennedy wrote, “She is vile and malicious. Scary!!!” and, “I really do not want to go to jail”. Her friend responded, “Not worth it! Jail! Breathe”. Ms. Kennedy replied, “Would be doing the world a favor” and “Self defense”.

[21] On February 20, 2022, web activity on the phone showed internet searches and web history relating to pleading temporary insanity and what constitutes self-defence in Canada.

The Victim Impact Information

[22] Victim Impact Statements were submitted by Ms. Johnson’s adoptive father, and several of her friends. Ms. Johnson was of partial Indigenous background. She faced challenges at points in her life, including racism. Nonetheless, she completed high school, and studied social work at a community college. She had a particular interest in working with senior women. She was described as a kind, compassionate, and giving person who did not hesitate to help others in need. Her death and the circumstances of it shocked those close to her. They continue to experience sadness, anger, and emotional distress because of her loss of life.

The Circumstances of Ms. Kennedy

[23] Ms. Kennedy is now 73 years old. She is single and has no children. She has no criminal record.

[24] Her step-brother described their family as an extremely dysfunctional one. Their father was an emotionally abusive alcoholic. However, Ms. Kennedy did well in school, and completed her qualifications as a Registered Nursing Assistant. In 1974 she received her diploma in Developmental Psychology. In 1990 she became a Registered Massage Therapist. In 1994 she obtained a Bachelor of Applied Science in Holistic Nutrition.

[25] Ms. Kennedy juggled various jobs over the years. She was a child care worker for 15 years, and a nutrition consultant for 25 years. She taught massage therapy. She worked as a Personal Support Worker for three years preceding her arrest.

[26] Ms. Kennedy has been in custody since February 20, 2022. She has been held at Central East Correctional Centre (“CECC”), the Vanier Centre for Women (“Vanier”), and more recently at Quinte Detention Centre. At CECC she was locked down for all or part of a day due to staffing issues and/or COVID-19 protocols, on more than 75 occasions. The Vanier records are less clear, but it seems there were multiple occasions of full or partial lockdown, and days when programs and/or regular visits were cancelled, because of staffing issues.

[27] While in custody Ms. Kennedy completed a number of programs, including various life skills courses.

[28] Letters of support were provided by friends of Ms. Kennedy, and by her step-brother. She is described as an intelligent, hardworking, and caring person, for whom this offence is very much out of character.

[29] I was advised that the Newcastle house has been sold, and half the proceeds paid to Ms. Johnson’s estate.

[30] In her remarks at the conclusion of the sentencing hearing, Ms. Kennedy apologized for what she did. She said that she realizes the seriousness of her offence, and will pay the penalty for it.

The Positions of the Parties

[31] Crown and defence counsel provided a number of cases, which are listed in Exhibits A and B to these proceedings, and that I reviewed.

[32] On behalf of the Crown, Ms. Jackson seeks a parole ineligibility period of 14 to 15 years, on the basis that denunciation and deterrence both general and specific are the paramount principles in fixing the parole ineligibility period in this case. She acknowledges that there are mitigating circumstances, including that Ms. Kennedy is a first offender who pleaded guilty. Ms. Jackson argues, however, that there is a domestic context to this homicide. She emphasizes that Ms. Johnson was a vulnerable person who was killed in her home, that the manner of death was strangulation, that Ms. Kennedy disposed of Ms. Johnson’s body in an undignified way, that Ms. Kennedy took elaborate steps to hide what she had done including lying to those who inquired about Ms. Johnson, and that Ms. Johnson’s murder has had a significant impact on those who were close to her. Ms. Jackson contends that there is no evidence that Ms. Kennedy has any particular health issues that the penitentiary system could not manage.

[33] Ms. Jackson also seeks a DNA order, a s. 109 order for life, a s. 743.21 non-communication order in respect of the persons who provided Victim Impact Statements, and a forfeiture order.

[34] On behalf of Ms. Kennedy, Ms. Hunter seeks the minimum parole ineligibility period of 10 years. She argues that this killing did not occur in a domestic context. Ms. Kennedy and Ms. Johnson were living as roommates, not domestic partners. Ms. Hunter acknowledges that it is aggravating that Ms. Johnson was killed in her home, as is the cover-up activity engaged in by Ms. Kennedy. But, two days later Ms. Kennedy confessed to a friend, and was cooperative with the ensuing police investigation. Ms. Hunter emphasizes the mitigating factors including that Ms. Kennedy is a first offender who pleaded guilty, she has an unblemished work history, her pre-sentencing custody involved harsher than usual conditions, and given her age her incarceration in a penitentiary will be more difficult than it would be for a younger inmate. Denunciation and deterrence would be met by a 10 year period of parole ineligibility.

[35] Ms. Hunter voiced no objection to the ancillary orders sought by Crown counsel.

The Principles of Sentencing for Second Degree Murder

[36] Section 745(c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years. Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years.

[37] In exercising their discretion under s. 745.4, the sentencing judge must have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any. As Ms. Kennedy pleaded guilty, there is no jury recommendation to be considered in this case.

[38] As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by the sentencing judge’s determination that, according to the criteria set out in s. 745.4, the offender should wait a longer period before having their suitability for release assessed. The determination of the parole ineligibility period is “a very fact-sensitive process”: see, R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 18. The sliding scale of parole ineligibility reflects the fact that “within second degree murder there is both a range of seriousness and varying degrees of moral culpability”: see, Shropshire, at para. 31.

[39] An increased parole ineligibility period does not require unusual circumstances: see, Shropshire, at paras. 26 to 27.

[40] In R. v. McKnight (1999), 135 C.C.C (3d) 41 (Ont. C.A.), the Court of Appeal held that in assessing the s. 745.4 criteria and deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives, as set out in s. 718 of the Criminal Code, are denunciation of unlawful conduct and the harm done, deterrence both general and specific, the separation of offenders from society where necessary, rehabilitation, reparation for harm done to the victim or to the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. The court observed in McKnight, however, that the statutory 10 year minimum ineligibility period limits the weight that can be accorded to the offender’s prospects of rehabilitation.

[41] It bears repeating that regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled, but merely the period that must be served before parole can even be considered: see, R. v. Trudeau (1987), 24 O.A.C. 376.

Analysis

[42] Every murder is by definition a crime of grave violence. The nature of this second degree murder and the circumstances of its commission have aggravating features. Ms. Johnson was killed in the place that was her home, and that had been her home for several years. She was unarmed and defenceless at the time, seated in the sunroom of the house, bending over to clean cat litter. She was particularly vulnerable to physical attack because of her left-sided paralysis and need to use a leg brace and/or a wheelchair for mobility.

[43] I am unable to agree with Crown counsel that this murder occurred in a domestic context, meaning that the parties were in an intimate or spousal relationship such that there was a breach of trust of the kind recognized in McKnight, and by s. 718.2(a)(ii) of the Criminal Code. The evidence before me is that while Ms. Kennedy and Ms. Johnson had had a romantic relationship, it was brief, and it ended years before the murder. There was no evidence that at the time of the murder either had any interest in resuming a romantic relationship with the other. In other words, Ms. Kennedy and Ms. Johnson were not intimate partners at the time of the murder, they had not been intimate partners for a very long time, and they did not view themselves as intimate partners. The factual circumstances of this case are unlike those in R. v. Duarte, 2022 ONSC 122, relied on by Crown counsel, where the accused became enraged by his ex-girlfriend’s rejection of him and killed an innocent man who happened to be at the same house party as the accused and the ex-girlfriend.

[44] Breaches of trust, however, are not restricted to crimes against intimate or spousal partners. At the time of the murder, Ms. Kennedy and Ms. Johnson were living as roommates, in a house that both regarded as their home. They were not simply lodgers in the same building. They shared a residence. That circumstance, regardless of any dispute about ownership of the property, involved an element of trust that each was entitled to be safe in the home. Ms. Kennedy breached that trust in a profound way when she murdered Ms. Johnson.

[45] Ms. Johnson was strangled by ligature, a means of killing described as “grotesque” in R. v. Brooks, [1993] O.J. No. 1396 (Gen. Div.), at paragraph 10, and referenced by the Court of Appeal for Ontario as an aggravating circumstance in R. v. Kassa, 2013 ONCA 140, at paragraph 139. Further, while this is not a case of first degree murder, there is evidence that Ms. Kennedy mused about harming Ms. Johnson in some way, as recently as the day before the murder.

[46] Ms. Kennedy displayed the ultimate disrespect for Ms. Johnson in the hours and days that followed the murder. She summoned no assistance for Ms. Johnson. She notified no-one of Ms. Johnson’s death, and instead lied to those who inquired about Ms. Johnson’s well-being, including a police officer. In a series of deliberate steps, she packaged Ms. Johnson’s body into a Rubbermaid container, loaded it into her car, and left it sitting there overnight. The next day, she drove from Newcastle to Pickering, where she removed Ms. Johnson’s body from the bin and rolled it into a creek where it was unlikely to be discovered quickly.

[47] Additionally, Ms. Kennedy took pains to conceal physical evidence of the murder. She cleaned up Ms. Johnson’s blood in the house, washed her car and the Rubbermaid container, and then discarded the container on a commercial property in Bowmanville.

[48] These efforts to conceal the crime and hide Ms. Johnson’s body are aggravating, as discussed in R. v. Wristen (1999), 47 O.R. (3d) 66, at paragraphs 75 to 77. They deeply offend common standards of decency. Their aggravating effect is somewhat attenuated by Ms. Kennedy’s confessions to her friend, the 911 dispatcher and the investigators, along with her cooperation that allowed the police to recover Ms. Johnson’s body and evidence of the murder. I note, however, that in her comments to the 911 dispatcher and the investigators, Ms. Kennedy was far from remorseful for her actions. She demonstrated a callous lack of appreciation of the seriousness of her crime.

[49] Ms. Johnson’s murder and the circumstances of it have had a profound impact on her adoptive father, as well as on her friends. This is a consequence that cannot be divorced from the offence, its nature and its circumstances.

[50] Turning to the character of Ms. Kennedy, it is mitigating that she pleaded guilty. I agree that the Crown’s case was strong, but Ms. Kennedy’s guilty plea is nonetheless a sign of remorse and willingness to accept responsibility for her offence. Her guilty plea saved weeks of court time, which could be reallocated to other cases. She expressed genuine remorse in her remarks at the end of the sentencing hearing.

[51] It also is important that Ms. Kennedy has no prior criminal record. While she had a difficult upbringing, she succeeded in post-secondary school educational programs. She was a hard worker, including at times as a caregiver to others, and a productive member of the community for decades. The letters of support provided by her step-brother and friends confirm that she lived a pro-social life until she committed this offence.

[52] I consider that Ms. Kennedy is now 73 years old. Even if I were to impose the minimum parole ineligibility period, it is incontrovertible that she will be in her 80s before she is eligible to seek release. In R. v. Laforme, 2022 ONCA 395, where the offender was 69 years old at the time of sentencing, the Court of Appeal for Ontario referred at paragraph 53 to the offender’s age as a factor augering in favour of a shorter parole ineligibility period, although other factors in the case militated in favour of a longer period.

[53] Further, even though Ms. Kennedy does not currently have health issues, there is evidence before me that the conditions of incarceration in federal institutions can be difficult for aging inmates. In a joint February 2019 report entitled “Aging and Dying in Prison”, the Correctional Investigator of Canada and the Canadian Human Rights Commission identified problems faced by older individuals held in federal custodial institutions. Issues included that some inmates who were past retirement age felt compelled to work nonetheless, out of fear of otherwise being isolated or locked up; that older inmates voluntarily asked to be placed in segregation more frequently because of fear for their personal safety; that bullying, victimization, intimidation, and assaults on older inmates appeared to be commonplace; and that there was a need for reasonable access to dignity aids and comfort items for older inmates, with facilities infrastructure noted as posing accessibility challenges. The Correctional Service of Canada provided a written Response as to steps it was taking to address the concerns, but said at page 2 that “considerable work remains in order to fully address all of the issues raised”. Respectfully, it would be naïve to think that Ms. Kennedy’s experience of incarceration will not carry an added measure of harshness because of her age.

[54] While in pre-sentence custody, despite some measure of difficult conditions including lockdowns, Ms. Kennedy completed a number of courses, including some directed to self-improvement. This reflects rehabilitative potential.

Conclusion

[55] This is a case in which denunciation and deterrence including specific deterrence are paramount. I include specific deterrence in light of Ms. Kennedy’s initial post-offence comments, which demonstrated a concerning lack of appreciation of the magnitude of her actions. While Ms. Kennedy has prospects for rehabilitation, that objective is a secondary consideration in determining the period of parole ineligibility.

[56] There are significant aggravating factors in this case, including the element of breach of trust, the killing of Ms. Johnson in the place that was her home, her physical vulnerability, the inhumane disposal of her body, and Ms. Kennedy’s efforts to destroy or conceal evidence even if relatively short-lived. They render the minimum period of parole ineligibility inappropriate even for a first offender of otherwise good character who pleaded guilty.

[57] However, a period of parole ineligibility of 14 to 15 years would give inadequate weight to Ms. Kennedy’s guilty plea, her status as a first offender, and the reality that a period of incarceration for a person who is well into her 70s will carry a punitive aspect above and beyond imprisonment itself.

[58] After considering the nature of the offence, the circumstances of its commission, and the character of Ms. Kennedy, and acknowledging the primacy of denunciation and deterrence, I conclude that the appropriate period of parole ineligibility is 12 years.

[59] Ms. Kennedy, please stand.

[60] I sentence you to life imprisonment with no parole eligibility for 12 years. The warrant of remand will reflect that the sentence began to run on February 20, 2022.

[61] I make a DNA order, a s. 109(2)(a) and (b) weapons prohibition order for life, and an order of forfeiture of items seized.

[62] In addition, there is a s. 743.21 non-communication order prohibiting you from contacting any of the persons who submitted Victim Impact Statements, while you are in custody.

[63] Crown counsel is asked to provide the registrar with the names and contact information of any victim who wishes to receive information under the Corrections and Conditional Release Act.

Justice M.K. Fuerst

Released: March 26, 2024

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.