SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-23-0070-00 DATE: 2024-05-02

B E T W E E N:

HIS MAJESTY THE KING

• and -

Derrick Turner

HEARD: March 22, 2024, at Thunder Bay, Ontario

BEFORE: Regional Senior Justice W. D. Newton

COUNSEL: G. Fillmore and M. Leblanc, for the Crown S. Kelly, for the Accused

Reasons For Sentence

Overview

[1] Derrick Turner has pleaded guilty to the second-degree murder of Jordan Lapointe. The required sentence is life imprisonment. What is left for me to consider is the period of parole ineligibility. The Criminal Code provides that the minimum period for parole ineligibility is 10 years, and the maximum is 25 years.

[2] In this case, the Crown and the accused have agreed that the appropriate range for the period of parole ineligibility is between 12 to 18 years. It is the Crown’s position that an 18-year period of parole ineligibility is appropriate in this case. Counsel for Mr. Turner submits that the appropriate period of parole ineligibility should be 12 years.

The Facts

The Circumstance of the Offence

[3] The agreed Statement of Facts provides as follows:

1. On October 3, 2021, DERRICK TURNER spent several hours at 147 Frederica Street, East, in the City of Thunder Bay, Ontario. During this time, Mr. TURNER consumed a large amount of crack cocaine. Also present in the residence were Jordan Lapointe and two to three other individuals, one of whom was utilizing the residence to sell drugs. Mr. Lapointe consumed fentanyl.

2. Over many hours, an argument broke out between Mr. Lapointe, Mr. Gomez and the others regarding drugs and other issues. Mr. Gomez proceeded to assault Mr. Lapointe in various ways. The assaults initially were comprised of humiliating common assaults, specifically sticking Mr. Lapointe’s head in a toilet bowl, shaving his head and covering him with shaving cream. Mr. TURNER arrived at the residence at some point after the toilet bowl incident and the shaving of his head.

3. While Mr. Turner was present, the severity of the assaults escalated. Mr. Turner did not intervene or attempt to stop the assaults. At one point, the assaults also included the use of a broomstick, which was used to sodomize Mr. Lapointe. Parts of these assaults, including the assault with the broomstick, were captured on cellphone video taken by another of the individuals present. Mr. Tuner held Mr. Lapointe down during the assault with the broom stick by Mr. Gomez as depicted on the video extracted from the cell phone which will be submitted as an exhibit on sentencing. These assaults culminated in Mr. Gomez striking Mr. Lapointe’s head with heavy weightlifting plates. Mr. Turner was present for some of the assaults, was aware that Mr. Lapointe was being assaulted and was in the residence but was not in the room at the point in time that the weight was dropped on Mr. Lapointe’s head. These severe assaults occurred over approximately one to two hours.

4. In respect of the injuries caused by the assault with the broom handle, the postmortem concluded:

Anorectal Instrumentation resulted in perforation of the rectum as [well] as retroperitoneal hemorrhage and multiple foci of gastric and small bowel [wall] hemorrhage. These injuries showed robust acute inflammation indicating they were inflicted at least several hours… before death. These injuries could have caused death via peritonitis and septicemia if left untreated.

5. As a result of the culmination of the injuries inflicted upon Mr. Lapointe, he died shortly thereafter. Mr. Turner was aware of the preparations for immolation of the home and present in the residence, although did not participate in preparing and carrying out the burning and explosion of the house. Just prior to the explosion, Mr. Turner fled the area with the others.

6. Mr. TURNER was ultimately arrested on May 14, 2022, during the execution of a surety relief warrant.

[4] I sentenced a co-accused, Michael Gomez, who also pleaded guilty to the second–degree murder of Mr. Lapointe to life in prison with 18 years parole ineligibility pursuant to a joint submission.

Circumstances of the Offender

[5] Mr. Turner is 41 years old. He has an eight-year-old daughter who lives in southern Ontario with her mother and grandmother. He is supported by his parents. For most of his adult life he has been gainfully employed. He has had issues with mental health and, in 2021, he tried to commit suicide. He has become addicted to crack cocaine.

[6] He has been in custody since May 2022. Detention records indicate that he has been largely compliant and, for the most part, deemed to be lower risk. Presently, he is considered a minimum-security inmate and is working in the laundry.

[7] The addiction counsellor at the detention facility wrote an email in support of Mr. Turner. She said that she has been working with Mr. Turner for 10 months and he has consistently completed programming. She described him as “pleasant, cooperative and proactive in his work.” She also described him as a mentor for some of the other more vulnerable inmates, “encouraging them to interact with me or avoid certain people and things.” I note that Mr. Turner has completed approximately 50 sessions of other programming while incarcerated and generally achieved high marks.

[8] Mr. Turner has a criminal record consisting of a conviction for assault with a weapon in 2006 and break and enter in 2023. He also has three convictions for failing to comply with a court order in 2020 and 2023 and was subject to a release order in respect of other charges at the time that Mr. Lapointe was murdered.

[9] Mr. Turner provided a written statement as follows:

I’m truly sorry for the senseless acts committed on October 3, 2021. Hopefully, after today, you can find closure and begin to heal from the hurt caused and the loss that shouldn’t have happened. I don’t expect forgiveness, but I am truly sorry. With me taking responsibility hopefully it will help with putting this hard and stressful situation behind you all. Once again, I am truly sorry.

[10] Mr. Turner’s parents also wrote a letter to the Lapointe family offering their condolences and apology.

Impact upon the Mr. Lapointe’s Family and the Community

[11] I have received and heard victim impact statements from a friend, a niece, an aunt, a grandmother, a sister, a young son, and a mother and father. All have eloquently demonstrated the vast and prolonged impact of their loss. This was a senseless, tragic, life altering loss for all.

Position of the Parties

[12] As noted, the Crown seeks a period of parole ineligibility of 18 years and counsel for Mr. Turner, 12 years. I will deal first with the submissions of counsel for Mr. Turner.

Counsel for Mr. Turner

[13] In support of the submission that a 12-year period of parole ineligibility is appropriate, counsel for Mr. Turner relied upon the following cases: R. v. Peers and Harding[^1]; R. v. Kim[^2]; R. v. Kostyk[^3]; R. v. Lewis[^4]; and R. v. Oliver and Morrison[^5].

[14] Harding was convicted of second-degree murder for the beating death of the victim in his own home. The beating was described as “prolonged and vicious.” An aggravating circumstance was that the murder occurred in the victim’s home. Mr. Harding had a criminal record which was described as “lengthy” but had no convictions for violence. Like Mr. Turner, he apologized to his victim’s family. The sentencing judge set the period of parole ineligibility at 12 years. Harding’s appeal against sentence was dismissed.

[15] Kim was convicted of second-degree murder and his period of parole ineligibility was also set at 12 years. Mr. Kim did not accept responsibility, claiming that he had acted in self-defence. His victim was stabbed while sitting in his car. Mr. Kim had lured his victim to a remote location and then had taken steps to evade detection. Mr. Kim was a first-time offender with realistic prospects of rehabilitation.

[16] Kostyk brutally beat his victim to death with a baseball bat. He took steps to avoid detection, including moving his victim to a remote rural location where he was dumped while possibility still alive. There was no doubt that the murder occurred in the context of the drug trade. The Court of Appeal for Ontario upheld the period of parole ineligibility of 13 years.

[17] Lewis was convicted of second-degree murder in the shooting death of the victim. The jury’s verdict meant that Mr. Lewis was not the person who fired the fatal shots. The sentencing judge described the murder as “vicious and cold-blooded” which occurred in the course of an armed forcible confinement and beating of the victim who was shot multiple times at close range. The jury unanimously recommended that the period of parole ineligibility be set at 10 years. The court set the period at 12 years.

[18] Oliver was convicted of second-degree murder and sentenced to life imprisonment without eligibility for parole for 12 years. His victim was a homeless person with physical and mental disabilities who died as a result of head trauma caused by a beating from Mr. Oliver. The Court of Appeal for Ontario upheld the 12-year period of parole ineligibility set by the trial judge. The trial judge had noted Mr. Oliver’s age, 31, his extensive criminal record, the unprovoked assault on a particularly vulnerable victim, and the absence of any concern for the victim’s well-being after the assault and absence of any remorse.

The Crown

[19] It is the Crown’s submission that s. 718.2(b) of the Criminal Code (the parity principle) is the overarching sentencing principal applicable in this case and that Mr. Turner should be sentenced to the same period of parole ineligibility as Mr. Gomez – 18 years.

[20] In its written submissions, the Crown states:

They have been convicted of the same offence, Derrick Turner was a party to the acts of serious violence and of the various acts of brutality inflicted upon Jordan Lapointe on the day of his death and was actively involved in the most sadistic, demeaning, and torturous of those acts.

Derrick Turner participated by holding Jordan down during the assault with a broom stick. The injuries were severe and would have in themselves eventually killed Jordan. The injuries were no doubt excruciatingly painful, and Jordan suffered from them for two hours.

It is the Crown's submission that it is the gratuitous and sadistic aspect of Jordan Lapointe's murder making it a crime of extraordinary violence, cruelty and inhumanity that takes it beyond the minimal to low range of parole ineligibility into the 18 plus year range.

It is the infliction of what is submitted can only be characterized as torture in the killing of Jordan which distinguishes the case at bar from those that the defence has cited.

Jordan Lapointe was vulnerable and killed in his own home.

[21] The Crown also notes that the personal circumstances of Mr. Turner and Mr. Gomez are not materially different so as to favour Mr. Turner. Mr. Gomez was 20 years old at the time of the murder. Mr. Turner was 38. While both had criminal records, Mr. Turner was subject to a release order in respect of other charges at the time he committed this murder.

[22] With respect to the cases cited by counsel for Mr. Turner, the Crown relies upon the following passage from the Supreme Court of Canada’s decision in R. v. C.A.M.[^6]:

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

The Law

General Principles of Sentencing

[23] 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.

Objectives — offence against vulnerable person

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

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,

(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

[24] 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.

[25] 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.

[26] 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. Turner 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.

[27] 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.

[28] In R. v. Shropshire,[^7] 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.

[29] 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.

[30] 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.

The Sentence

[31] Jordan Lapointe was a vulnerable person, both physically and mentally, due to his personal circumstances. He was addicted to drugs. His drug use made him vulnerable, and his drug use had resulted in the amputation of one arm. As the videos depict, he was frail, unable to defend himself, yet he was brutally abused and tortured by his murderers. As such, this case is distinguishable from the cases relied upon by counsel for Mr. Turner.

[32] Mr. Turner held Jordan Lapointe down while Mr. Gomez sodomized him with a broomstick. While Mr. Lapointe did not die immediately, Mr. Turner did nothing to secure medical aid for Mr. Lapointe. While it was Mr. Gomez who dropped the weight on Mr. Lapointe’s head, the degree of culpability of Mr. Turner is, in the language of s. 718.2(b), similar. Although it was Mr. Gomez who instigated the torture, Mr. Turner assisted.

[33] Denunciation and deterrence are, therefore, the primary considerations.

[34] Mr. Turner pleaded guilty, as did Mr. Gomez, and the guilty plea is a mitigating factor. I also note Mr. Turner’s attempts to address his challenges while in custody and this indicates a potential for rehabilitation which weighs in Mr. Turner’s favour.

[35] Mr. Gomez received a sentence of life imprisonment with no eligibility for parole for 18 years as a result of a joint submission. In accepting that submission, I noted that denunciation and deterrence figured prominently in determining the appropriate period of parole ineligibility, all the more so since this crime arises in the context of the drug trade that is responsible for sowing hardship, addiction problems, crime, and death in our community.

[36] The current needs of this community emphasize the need for denunciation and deterrence.

[37] Mr. Turner, please stand. I sentence you to life imprisonment with no eligibility for parole for 16 years.

Ancillary Orders

[38] As a further consequence of your conviction, ancillary orders are mandated by the Criminal Code for these convictions. Pursuant to section 109(1)(a), you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, 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.

“originally signed”

The Hon. Regional Senior Justice W. D. Newton

Released: May 2, 2024

[^1]: 2006 BCSC 1971, aff’d 2012 BCCA 52 (“Harding”). [^2]: 2014 ONSC 2043 (“Kim”). [^3]: 2014 ONCA 447 (“Kostyk”). [^4]: 2012 ONSC 2488 (“Lewis”). [^5]: 2005 CanLII 3582 (ON CA), 194 C.C.C. (3d) 92 (“Oliver”). [^6]: 1996 CanLII 230 (SCC), 1996 SCC 230, [1996] 1 SCR 500, at p. 567 (“C.A.M.”). [^7]: 1995 CanLII 47 (SCC), 1995 SCC 47, [1995] 4 S.C.R. 227 (“Shropshire”).