COURT FILE NO.: 22-16017 DATE: 2024-05-02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JOSHUA BURTON Defendant

COUNSEL: D. Slessor and K. Buker, for the Crown T. Balka, for the Defendant

HEARD: May 2, 2024

J. SPEYER J.

Reasons for Sentence

A. Introduction

[1] Mr. Burton was found guilty by a jury of two counts of second-degree murder. He stabbed his mother and grandmother to death on October 11, 2021. Mr. Burton is before me today for sentencing.

[2] Section 235(1) of the Criminal Code provides that the sentence to be imposed on Mr. Burton for each of the two counts of second-degree murder of which he has been convicted is a term of imprisonment for life. Mr. Burton will be sentenced to life imprisonment for each of the counts of second-degree murder for which he has been convicted.

[3] Today, I must decide how many years of his life sentence Mr. Burton must serve before he is eligible to apply for release on parole.

[4] Sections 745 (c) and 745.4 of the Criminal Code provide that Mr. Burton is not eligible for parole until he has served at least 10 years of his sentences. It is open to me, after considering Mr. Burton’s character, the nature of the offences and the circumstances surrounding their commission, and the recommendations of the jury, to increase the periods of parole ineligibility from 10 years to a maximum of 25. Those periods of parole ineligibility must run concurrently, not consecutively.

[5] The Crown submits that I should impose a period of parole ineligibility of 18 years for each of the life sentences that Mr. Burton will serve, which will run concurrently. The Crown also seeks a non-communication Order pursuant to s. 743.21 of the Criminal Code, a DNA database Order for each offence, a lifetime firearms prohibition pursuant to s. 109 of the Criminal Code, and a forfeiture Order in relation to seized property.

[6] The defence submits that I should impose a period of parole ineligibility of 15 years for each of the life sentences that Mr. Burton will serve, which will run concurrently. The defence accepts that the ancillary orders requested by the Crown should be made.

B. The nature of the offences and the circumstances surrounding their commission

[7] I begin with a consideration of the nature of the offences and the circumstances surrounding their commission.

[8] Section 724(2) of the Criminal Code provides that following a trial before a judge and jury, a sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. The facts that are essential to the findings of the jury in this case are that Mr. Burton caused the deaths of Ava Burton and Tatilda Noble by stabbing them, and that he did so intending to kill them or to cause them bodily harm that he knew was so serious and dangerous that it would likely kill them, and proceeded despite his knowledge that they would likely die as a result of the bodily harm.

[9] Section 724(2) also provides that the judge may find to be proven any other relevant fact that was disclosed by the evidence at the trial. Generally, the judge must be satisfied of the existence of a disputed fact on the balance of probabilities, but if the fact is an aggravating fact the judge must be satisfied beyond a reasonable doubt.

[10] I am satisfied beyond a reasonable doubt, based on the evidence adduced at trial, of the following facts.

[11] Mr. Burton lived with his mother, Ava Burton, and his grand-mother, Tatilda Noble, at 60 Sceptre Place in Whitby. It was a comfortable home, immaculately maintained, with enough room for each of them to have their own space.

[12] On October 11, 2021, between 1:18 p.m. and about 2:00 p.m., Mr. Burton attacked Ava Burton and Tatilda Noble in the kitchen of their home. He inflicted 44 stab wounds to Ava Burton, and 33 stab wounds to Tatilda Noble. The stab wounds were concentrated on their heads, faces, necks and upper torso. There was no evidence as to why Mr. Burton killed his mother and grandmother, or how the events unfolded. Having regard to the number of stab wounds and the location of those wounds, I am satisfied beyond a reasonable doubt that Mr. Burton intended to kill both victims.

[13] Both Ava Burton and Tatilda Noble were small women, who were powerless to defend themselves from the much larger, stronger, and younger Mr. Burton.

[14] After Mr. Burton killed his mother and grandmother, he carried their bodies to his car and placed them in the back seat area. He departed from 60 Sceptre Place at about 2:12 p.m. and drove to a rural area north of Whitby, where he stopped and discarded their bodies in a water-filled ditch at the side of the road. He then returned home, stopping to clean his car on the way.

[15] During the next few days, Mr. Burton bought cleaning supplies and attempted to clean the blood-stained areas of the house. He applied spray paint to the exterior of his car to hide bloodstains. He went to work as scheduled. He attempted to facilitate his access to money in a bank account he held jointly with his mother and to withdraw a substantial amount of money. His crimes were not discovered until Ava Burton’s sister, concerned that she had not seen or heard from her sister for a few days, went to the house on October 14, 2021. She saw bloodstains and other things that seemed to her to be amiss and called the police. The police forcibly entered the house to check on the well-being of the occupants, where they saw more bloodstains and commenced an investigation.

[16] The bodies of Ava Burton and Tatilda Noble were not found until October 24, 2021, by a woman who was walking her dog.

[17] The circumstances surrounding the commission of the offences include their impact on the victims. I have received victim impact statements from Ava Burton’s siblings, cousins, and mother (the wife of her father who raised Ava and whom Ava referred to as her mother).

[18] It is impossible to overstate, or to truly capture in words, the pain and sorrow that Mr. Burton’s actions have caused. In the weeks that following the disappearance of Ava and Tatilda, until their bodies were found, their family endured the uncertainty of not knowing what happened to them. They had hope that Ava and Tatilda would survive what happened to them, even as they feared the worst. They experienced panic, hope and sadness.

[19] Their worst fears were realized when they learned that Ava and Tatilda were found in a ditch at the side of the road, and that Mr. Burton was charged with their murders. They are devastated. When they think of Ava and Tatilda they also think about the agony that they suffered. They were unable to say a proper goodbye to Ava and Tatilda because they were unrecognizable when their bodies were found. They are also afraid, because they cannot understand why this happened. The uncertainty about that, and Mr. Burton’s unpredictability and callousness, causes them to worry that Mr. Burton will hurt other members of his family. They worry about how they will explain to their children, when they are older, what happened to their cherished Aunt Ava. A day that is supposed to be about thanksgiving and a celebration of family is forever marred for them because Ava and Tatilda were killed on Thanksgiving day.

C. The character of Mr. Burton

[20] In making my decision about parole ineligibility, I must consider Mr. Burton’s character.

[21] A pre-sentence report was prepared to provide me with information about Mr. Burton. He is 33 years old. He was 30 years old when he killed his mother and grandmother. He is single and has never had a significant relationship. He lived with his mother before her death. His father died in May of 2021 after a long battle with cancer. He was raised by his mother and father in a stable home, free from violence and substance abuse. He was not abused physically or emotionally.

[22] Mr. Burton is an only child. He was loved by his parents. According to others, his mother would have done anything for him. She helped him and took care of him. However, he told the author of the pre-sentence report that his relationship with his mother was not close. He described her as quiet, distant, cold, sad and unapproachable. This is very different from how she was described by others. I find that Ava Burton was, as described by her family members other than Mr. Burton, a kind and caring mother to Mr. Burton, who looked after him even as he became an adult, and who would have done anything for him. That he describes her so differently than everyone else tells me that his ability to accurately perceive interactions with others is compromised.

[23] Mr. Burton told the author of the pre-sentence report that he did not have a relationship with his grandmother, Tatilda Noble, even though she had lived with him and his mother for about a year. She was quiet and did not really speak to him, and that did not bother him. He did not participate in any activities with her. This is consistent with his general reluctance or inability to engage socially with others.

[24] Mr. Burton does not have a meaningful relationship with any members of his extended family. When they visited Ava Burton’s home, or at family events, Mr. Burton would remove himself from the gathering and go to his room or away from others. Attempts to engage him in conversation resulted in single-word answers.

[25] Mr. Burton has no prior criminal record. He has never used illicit drugs. Alcohol was not a factor in the offences. There is no evidence that he has ever behaved violently in the past.

[26] Mr. Burton has been gainfully employed since he completed school after attaining his high school diploma and graduating from a college food service worker program. He worked as a security guard when the offences occurred. He used his leisure time to read, play video games, watch movies and television and exercise.

[27] Mr. Burton’s family has strong Christian faith. Mr. Burton was, in his words, not “as religious” as his parents were.

[28] Members of Mr. Burton’s extended family describe him as shy, quiet and reserved. He avoided conversations. He was calm and passive. He does not display emotion and appears to struggle with empathy. They have never seen him exhibit excitement or joy or anger.

[29] Mr. Burton describes his mental health as stable. He has never had any kind of mental health diagnosis and has never been under the care of a psychologist or psychiatrist.

[30] No one who knew Mr. Burton and the victims saw any sign of trouble between them. If Ava Burton had any concerns about her son, she did not express them to others. All are perplexed, shocked, and at a loss to explain what might have triggered Mr. Burton’s actions. His killings of Ava and Tatilda were completely unanticipated and are inexplicable.

[31] Mr. Burton told the writer of the pre-sentence report that he has no memory of the offences. He did not testify at trial. He declined an opportunity to address the court before he was sentenced. There is no evidence that he has any insight into what he did or why he did it. While he told the writer of the pre-sentence report that he does feel horrible and ashamed of his actions, it does not appear that he is willing, or perhaps he is unable, to act on those feelings to change. He was asked by the writer of the pre-sentence report if he wants to get to the bottom of why he committed these offences, and he responded: “honestly no”, though he allowed that maybe talking to a psychiatrist or psychologist would be beneficial.

D. The recommendations of the jury

[32] The third matter that a sentencing judge must consider when determining an appropriate period of parole ineligibility in a murder case is any recommendation made by the jury.

[33] Where a jury finds an accused guilty of second-degree murder, the trial judge is obliged, before discharging the jury, to ask if they wish to make any recommendation with respect to the number of years that the accused must serve before becoming eligible for parole: s. 745.2 of the Criminal Code. In this case, the jury was asked that question.

[34] After taking a short time to consider this question in their jury room, on their return to the courtroom, the foreperson announced that five members of the jury chose to offer no recommendation, five members of the jury chose to recommend a parole ineligibility period of 10 years, and two members of the jury chose to recommend a parole ineligibility period of fifteen years.

[35] The jury heard the whole of the evidence in this case, and their recommendations reflect their views of the gravity of the offences. In considering the weight to be given to the recommendations of the jury I take into account that the information available to the jury as to what is an appropriate sentence in this case is limited. As Watt J. (as he then was) noted in R. v. Barry, [1991] O.J. No. 2666 (Gen.Div.), aff’d [1993] O.J. No. 3955 (C.A.), cited with approval in R. v. McKnight (1999), 44 O.R. (3d) 263 (C.A.) at para. 55:

It is difficult to gauge with any accuracy the weight that should be attributed to a jury recommendation regarding parole ineligibility. In one sense, it might be said to represent the community view upon the issue. To so hold, however, as it appears to me, is somewhat to overstate the case. They are given no guidance on the precedents concerning the appropriate range. They are simply told the numbers. They are not required at least to endeavour to achieve unanimity. It is, as it was in this case, but a brief, somewhat informal exercise, after they have been earlier told that sentence forms no part of their responsibility in determining liability, and then thereafter told it is but a recommendation. They receive no further evidence concerning, for example, the likelihood of recidivism, future danger to society or other matters which might logically bear upon the issue other than what they can recall was given at trial.

[36] In this case, the jury was not able to provide a recommendation that reflected the majority opinion of the jurors. Five of them chose to make no recommendation. Perhaps their recommendations reflect the difficult nature of the sentencing decision in this case, where they heard very little evidence about Mr. Burton, and where the trial evidence provided no insight as to why he did what he did.

[37] I have considered the jury’s recommendations but, given the divided nature of the recommendations that were made, and the choice of almost half the jury to provide no recommendation, I find little assistance in their recommendations.

E. The Applicable Principles

[38] In McKnight, the Court of Appeal for Ontario held that in assessing the s. 745.4 criteria and in 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, are denunciation of unlawful conduct and the harm caused to victims or to the community; deterrence both general and specific; the separation of offenders from society where necessary; rehabilitation; reparation for harm done to victims or to the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

[39] The period of parole ineligibility to be imposed must reflect the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender".

[40] Sentencing is a fact-sensitive and inherently individualized process. The unique facts of each offence and each offender demand a tailored approach. Everything depends on the gravity of the offence, the offender’s degree of responsibility, and the specific circumstances of the case. As a result, a fit sentence may fall outside a particular range: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58. While sentencing ranges provide helpful guidance, they are neither permanently fixed nor straitjackets on the exercise of judicial discretion: Lacasse, at paras. 57 and 60; R. v. Foster, 2018 ONCA 53. As Doherty J.A. held in R. v. Teske, 32 C.R. (6th) 103 (Ont. C.A.), at para. 105, by setting an appropriate range for a certain type of offence, an appellate court is not imposing a ceiling on the sentences available.

[41] Counsel have provided me with a number of decisions of other judges in other cases. I have found these to be helpful to the extent that they suggest a range within which sentences in cases that have some similarities to this case tend to fall. I will not canvas those cases in any detail, because they are all unique, as is this case, both as to the circumstances of the offences and as to the circumstances of the offenders.

[42] 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 he must serve before parole can even be considered.

[43] There are factors present in this case that the Criminal Code requires me to reflect in the sentence I impose:

a. Section 718.04 provides that when a court imposes a sentence for an offence that involved abuse of a person who is vulnerable because of personal circumstances, the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

b. Section 718.2(a) provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, including:

i. That the offender, in committing the offence, abused a member of his family;

ii. That the offender, in committing the offence, abused a position of trust in relation to the victims; and,

iii. That the offence had a significant impact on the victims.

F. A fit sentence in this case

[44] The aggravating factors in this case are numerous and significant.

(i) The killing of a family member is a statutorily recognized aggravating factor.

(ii) The killing of two family members is an egregious aggravating factor.

(iii) The victims were physically vulnerable and defenseless as they were much smaller, weaker and older than Mr. Burton.

(iv) The victims were killed in their own home, by a person they trusted.

(v) The attacks were brutal. Mr. Burton inflicted more than 70 stab wounds to the necks, heads, faces and torsos of the victims. Ava and/or Tatilda would have endured the agony of knowing what Mr. Burton did to the other as he set upon her.

(vi) Mr. Burton followed his murderous attack by removing the bodies of his mother and grand-mother from their home, and discarding them in a watery ditch where they could be found only by happenstance.

(vii) Mr. Burton tried to remove evidence of what he did. He cleaned his car and the house.

(viii) Mr. Burton acted in his own self-interest in continuing to live his life as if nothing had happened, with complete disregard for the interests of his family in knowing what happened to Ava and Tatilda.

(ix) The impact on the family of Ava and Tatilda is devastating, and enduring. The impact is felt by the wider community as well.

[45] There are mitigating factors in this case. Mr. Burton is 33 years old, and was 30 years old when he killed his mother and grand-mother. Until then, he had not committed any criminal offence, or acted out violently. He was gainfully employed. It was out of character for him to act violently. If Mr. Burton gains insight into what caused him to do what he did, and if he undertakes whatever counselling or treatment might be available to address those triggers, there is reason to believe that he may be rehabilitated. However, without insight and commitment to change, if is difficult to have any confidence that he will not again act out violently.

[46] I am also aware that Mr. Burton’s time in custody since his arrest, spent at the Central East Correctional Centre, has been difficult. I have been provided with a lockdown report that tells me that Mr. Burton has been triple-bunked in a 7’ x 15’ cell with two bunk beds for considerable periods of time, and that on 230 of the 922 days he has been in custody, his unit was locked down for six hours or more for a variety of reasons, but primarily as a result of staffing shortages. In R. v. Hasan, 2023 ONSC 5323, at para. 54, Taylor J. reviewed the differing opinions of judges of this court about whether conditions of pre-sentence custody are relevant to determining the period of parole ineligibility for second degree murder. I am persuaded that harsh conditions of pre-sentence custody can be considered as a mitigating factor in determining the appropriate period of parole ineligibility, though it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating and aggravating factors. It is a factor to be taken into account in determining the appropriate sentence.

[47] The aggravating factors in this case are very significant. The mitigating factors are less so.

[48] Mr. Burton brutally, viciously, and persistently attacked two vulnerable and defenceless women in their home. They were his mother and grandmother. The trial and sentencing proceedings disclosed nothing about what lead up to these horrific attacks. Mr. Burton was capable, after these attacks, of coldly and methodically disposing of the bodies of his mother and grandmother and cleaning up evidence of his crimes. He was capable of returning to work and carrying on as if nothing had happened. Mr. Burton lacks insight into his behaviour and the path to his rehabilitation is therefore unclear.

[49] Mr. Burton’s moral culpability is enormous. He took not one life, but two. He killed his mother, the person who cared for him more than anyone. He killed his grandmother, a tiny 84 year old woman.

[50] To adequately reflect the gravity of Mr. Burton’s offences and his moral culpability, and taking into account the nature and circumstances of his offences, his character, and the recommendations of the jury, in my view the appropriate period of parole ineligibility in this case for each count of second degree murder is 17 years, to run concurrently. Pursuant to the Criminal Code, s. 746 the time that Mr. Burton has spent in custody will be credited towards that period of parole ineligibility.

[51] In addition, I make the following ancillary orders:

a. A s. 109 order for life.

b. A DNA databank order for each primary designated offence

c. A 743.21 non-communication order in relation to the persons listed by Crown counsel in her submissions

d. An order for forfeiture of all items seized by the police.

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – JOSHUA BURTON REASONS FOR SENTENCE

Released: May 2, 2024 The Honourable Madam Justice J. Speyer