Reasons for Sentence
File No.: CR-17-70000591-0000
Date: 2025-01-30
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Lance Burkhard
Appearances:
S. Patterson, for the Crown
J. Struthers and D. Sarikaya, for Lance Burkhard
Heard: December 18, 2024
Judge: Kelly
Introduction
1Mr. Lance Burkhard was found guilty of first-degree murder following a jury trial. After a successful appeal, his matter returned to the Superior Court of Justice. Mr. Burkhard has now pleaded guilty and been convicted of second-degree murder. He appears before me now for sentencing.
2The imposition of a life sentence without eligibility for parole until Mr. Burkhard has served at least 10 years of his sentence is mandatory following a conviction of second-degree murder. However, the sentencing judge may increase the period of parole ineligibility from 10 years up to a maximum of 25 years.
3Crown counsel seeks a period of parole ineligibility of 15 years. Counsel for Mr. Burkhard submits that the appropriate period of parole ineligibility is 11 years. They agree on the ancillary orders to be imposed.
4I find that the appropriate period of parole ineligibility is 12 years. What follows are my reasons.
The Law: Parole Ineligibility
5Pursuant to ss. 235(1) and 745(c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, the sentence to be imposed on a person convicted of second-degree murder is a term of imprisonment of life without eligibility for parole until the person has served at least 10 years of their sentence. However, s. 745.4 of the Criminal Code provides that the sentencing judge may increase the eligibility for parole from 10 years up to a maximum of 25 years having regard to:
a. the nature of the offence and the circumstances surrounding the commission of the offence;
b. the character of the offender; and
c. the recommendation, if any, of the jury.
6On exercising this discretion, Iacobucci J. stated as follows in R. v. Shropshire, [1995] 4 S.C.R. 227, para 27:
[A]s 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. [1]
The Nature and Circumstances of the Offence
7In considering whether to increase the period of parole ineligibility, I am required to consider the nature of the offence and the circumstances surrounding it. The facts giving rise to the conviction were provided by way of an Agreed Statement of Facts, which may be summarized as follows:
Background:
a. Mr. Wasfi Ghalban was stabbed in the neck and killed during a home invasion at his apartment. Mr. Philip Frauts organized the robbery and pleaded guilty to manslaughter. Mr. Christopher Fuller was the lookout. He also pleaded guilty to manslaughter. Mr. Burkhard and Mr. Kyle Schindermann executed the home invasion. Mr. Schindermann participated in the murder of Mr. Ghalban. He pleaded guilty to second-degree murder.
b. Mr. Ghalban was 47 years old when he was murdered. He was the owner and operator of Ultimate Tattoo located at 363B Yonge Street in Toronto. In addition, Mr. Ghalban had a side job making fake identification (“ID”) for $50 to $60 for each fake ID. Sometimes, Mr. Ghalban made 40 or 50 fake IDs in a day. Mr. Ghalban carried his illegal cash home every day and kept it in his apartment.
c. In the fall of 2014, Mr. Frauts worked for Mr. Ghalban as a tattoo artist. Mr. Frauts knew that Mr. Ghalban had a large amount of illegal cash from making fake IDs. He became disgruntled and planned to rob Mr. Ghalban of the illegal cash that was kept in Mr. Ghalban’s apartment. Mr. Frauts knew that a large amount of illegal cash was taken from Mr. Ghalban’s apartment on a previous occasion and that Mr. Ghalban did not report it to the police.
d. Mr. Frauts told his long-time tattoo client, Mr. Schindermann, about his plan. Mr. Frauts further explained that Mr. Ghalban kept money in his apartment and that any crime would not be reported because the money was obtained from making fake IDs.
e. Mr. Frauts did not want to commit the robbery himself because he knew Mr. Ghalban and he would be identified easily. Mr. Schindermann had indicated to Mr. Frauts that he had committed a home invasion robbery in the past. In addition, Mr. Schindermann was in debt to three drug dealers and in need of cash. Thus, Mr. Frauts persuaded Mr. Schindermann to carry out the robbery.
f. In turn, Mr. Schindermann enlisted Mr. Burkhard to assist. He chose Mr. Burkhard because he knew he had experience. Mr. Burkhard recruited Mr. Fuller to act as the lookout. According to the plan, Mr. Fuller would tell Mr. Schindermann and Mr. Burkhard when Mr. Ghalban entered the apartment complex, and they would ambush Mr. Ghalban at his apartment door.
Events leading up to the homicide:
a. About a week or two before the homicide, Mr. Schindermann attempted to follow Mr. Ghalban home from Ultimate Tattoo, however he gave up after Mr. Ghalban took a long time in a Wendy’s restaurant.
b. A week later, Mr. Schindermann dropped off Mr. Burkhard near the same Wendy’s restaurant to follow Mr. Ghalban on foot. Mr. Burkhard followed Mr. Ghalban to his apartment complex at 200 Wellesley Street East. This is how they learned where Mr. Ghalban was living.
c. On November 30, 2014, Mr. Schindermann and Mr. Burkhard attended 200 Wellesley Street East to check out the apartment building. They decided that the home invasion would take place the following day.
d. Mr. Schindermann was in regular contact with Mr. Frauts and with Mr. Burkhard in the day leading up to the home invasion.
Mr. Wasfi Ghalban’s Death:
a. On December 1, 2014, Mr. Schindermann and Mr. Burkhard executed the planned home invasion robbery of Mr. Ghalban. There was no plan to kill him. Mr. Burkhard brought a broken BB gun. Mr. Schindermann brought a knife. Security surveillance video captured Mr. Schindermann and Mr. Burkhard entering the apartment complex at 6:56 p.m. They split up and made their way separately to the second floor. They waited outside Mr. Ghalban’s apartment: unit 216, 200 Wellesley Street East.
b. As planned, Mr. Fuller called them to tell them when Mr. Ghalban was on his way up to the apartment. Mr. Ghalban was ambushed at the door of his apartment and forced to go inside. Mr. Burkhard brandished his weapon at Mr. Ghalban and said “Police! Get down!” Mr. Ghalban was yelling and screaming. He managed to get out onto the balcony and called for help. Mr. Schindermann and Mr. Burkhard were both on the balcony trying to gain control of Mr. Ghalban. Mr. Ghalban was stabbed in the neck, wounding the jugular vein. Mr. Ghalban bled profusely from this wound.
c. Mr. Schindermann punched Mr. Ghalban in the face and dragged him back inside the apartment. The scuffle continued in front of the balcony door. Mr. Schindermann started to choke Mr. Ghalban. Mr. Ghalban was losing a lot of blood, and he was losing consciousness. Finally, Mr. Schindermann put one knee on Mr. Ghalban’s back and put on a zip tie handcuff.
d. Mr. Schindermann held Mr. Ghalban on the living room floor while Mr. Burkhard searched the apartment for money. He filled up two backpacks with illegal cash. At one point, Mr. Burkhard got frustrated because he was having trouble finding money. He threatened Mr. Ghalban and kicked him. Mr. Ghalban did not really move after Mr. Burkhard kicked him.
e. Mr. Burkhard then took over Mr. Schindermann’s position, holding Mr. Ghalban down while Mr. Schindermann cleaned up in the bathroom. The two men then fled the apartment via the north stairwell exit. They stole $162,000 from Mr. Ghalban which was split equally between them.
f. Mr. Burkhard had the required mens rea for second-degree murder. While he and Mr. Schindermann had no intention to kill Mr. Ghalban upon arriving at his apartment, it was during the course of the robbery that they formed the necessary intent for second-degree murder. Knowing that Mr. Ghalban had been grievously injured from the stab wound to his neck while effecting their common unlawful purpose to rob him, Mr. Burkhard continued to participate in numerous assaults on Mr. Ghalban as described above.
g. From that point forward, Mr. Burkhard’s actions — including continuing to assault Mr. Ghalban by restraining him and preventing him from seeking aid or escaping, contributed to his death. Mr. Burkhard became a party to causing bodily harm he knew was likely to cause death and he was reckless as to whether death ensued. He knew that Mr. Ghalban died because of the injuries he suffered at the hands of himself and Mr. Schindermann.
Autopsy and Expert Evidence:
a. Dr. Cunningham performed the autopsy on December 4, 2014. Dr. Cunningham’s report dated June 23rd, 2015, concludes that the cause of death was a “stab wound to neck”. This was associated with the near transection of the left internal jugular vein. Mr. Ghalban would have died in minutes from blood loss.
b. Mr. Ghalban could have survived the near transection with appropriate and immediate medical care, including compression of the wound.
c. Mr. Ghalban sustained injuries to his body in addition to the stab to the neck. He suffered blunt force trauma to his head, neck, and body. He had a sharp force injury at the back of his head, likely caused by a knife and sharp force injuries to his left-hand fingers.
Police Investigation:
a. The police received a tip about Mr. Frauts’ involvement in the crime, and an undercover operation ensued (as described in the ASF). It led to the identification of Mr. Frauts, Mr. Fuller, Mr. Schindermann and Mr. Burkhard.
b. On March 30, 2016, Mr. Frauts, Mr. Schindermann, and Mr. Fuller were arrested. On March 31, 2016, Mr. Burkhard was arrested.
c. On March 4, 2016, Mr. Schindermann met with undercover officers in a hotel lobby bar. Over the course of a four-hour statement that was audio-recorded, pursuant to a judicial authorization, Mr. Schindermann provided a detailed account of the robbery and killing of Mr. Ghalban.
d. After pleading guilty to second-degree murder, Mr. Schindermann was sentenced to life imprisonment with parole ineligibility for 11 years.
Victim Impact Statement
8In considering the nature of the offence and the circumstances surrounding it, I consider the impact on the victim and his family. In this case, a Victim Impact Statement was filed on behalf of the family by Mr. Rasmi Al-Ghalban, the biological brother of the deceased. The following is an overview of its content:
a. Mr. Ghalban emigrated to Canada from Gaza (Palestine) in search of safety and security after having obtained an engineering degree in Germany.
b. Mr. Ghalban was a beloved son, kind to his parents. He cared for them and his siblings: a brother who immigrated to Norway and a second brother who immigrated to Belgium.
c. Their lives turned upside down after Mr. Ghalban’s death. The shock of the death caused Mr. Ghalban’s father to suffer a stroke. His brother was in a poor mental state, not having seen Mr. Ghalban in 20 years and arriving in Canada for his funeral.
d. Mr. Ghalban’s brother advises that he has been “emotionally destroyed”. He cannot remove the image of the photograph of his brother’s head shown to him by members of the Toronto Police Service. His pain has intensified after learning that Mr. Ghalban could have been saved had he been given aid. Because of this, he believes that his brother was killed twice: once from being stabbed and a second time when Mr. Burkhard did not render aid.
Aggravating Factors
9There are several aggravating factors about the nature of the killing and the circumstances of the offence. These aggravating factors include the following:
a. This was a pre-planned robbery. Mr. Burkhard was brought into the plan by Mr. Schindermann. He and others “scoped out” Mr. Ghalban’s apartment. Mr. Burkhard and Mr. Schindermann equipped themselves with the tools to commit the robbery. Mr. Burkhard brought a broken BB gun. Mr. Schindermann brought a knife. They had zip ties to restrain Mr. Ghalban.
b. The robbery and murder occurred in Mr. Ghalban’s home. The fact that Mr. Ghalban was the subject of a home invasion is troubling as one is meant to feel safe in their home.
c. The robbery was profit motivated. Mr. Burkhard collected $81,000 (50% of the $162,000 stolen).
d. Mr. Ghalban was brutally attacked. He cried for help and was stabbed. While he was losing a significant amount of blood and consciousness, Mr. Schindermann put one knee on his back and restrained his arms by using the zip-ties. Amongst other insults, Mr. Burkhard kicked Mr. Ghalban in frustration when he was bound and bleeding.
e. Mr. Ghalban suffered other injuries in addition to those caused by the stabbing. He suffered blunt force trauma to his head, neck, and body. He also suffered other sharp force injuries to the back of his head and his fingers.
f. Mr. Burkhard (and Mr. Schindermann) showed a callous disregard for Mr. Ghalban. Mr. Ghalban could have survived had he been given treatment, including compression of the wound. Rather than assist, they left him to die on the floor of his own home. He was only found two days later.
g. But for the tip and the undercover work of the Toronto Police Service Homicide Squad, Mr. Burkhard might have gotten away with murder. He was only arrested two years after the offence.
h. There has been a significant impact on the family of the deceased, Mr. Ghalban.
The Character of Mr. Burkhard
10The next statutory consideration is the character of the offender.
Personal Background
11Mr. Burkhard was born in 1983. He is now 41 years of age. He is the father of three children. His mother is alive. His father is deceased. He has one brother and one sister.
Criminal Antecedents
12Mr. Burkhard has a criminal record with the following entries and dispositions commencing when he was approximately 22 years of age:
Date
Offence
Disposition
July 13, 2005
Possession of a Schedule I Substance for the purpose of trafficking.
6 months and a mandatory prohibition order pursuant to s. 109 of the Criminal Code.
November 28, 2005
Uttering threats.
Suspended sentence and probation for 12 months. Discretionary prohibition order pursuant to s. 110 of the Criminal Code for 5 years.
February 17, 2006
Kidnapping.
34 months in addition to 26 months of pre-sentence custody ( i.e., 60 months).
Disguise with intent.
As above, concurrent.
Assault with a weapon.
As above, concurrent.
Fail to comply with recognizance.
As above, concurrent.
Use of an imitation firearm during the commission of an offence.
As above, concurrent.
Possession of a Schedule I substance.
30 days concurrent and mandatory prohibition pursuant to s. 109 of the Criminal Code.
March 9, 2011
Assault.
51 days in addition to 39 days of pre-sentence custody. Probation for 12 months and a prohibition order pursuant to s. 110 of the Criminal Code for 5 years.
October 2, 2012
Assault.
Suspended sentence and probation for 12 months in addition to 15 days of pre-sentence custody.
13At his sentencing hearing for the convictions entered in February 2006, the trial judge summarized the facts based on an Agreed Statement of Facts. It provided that, in 2004, Mr. Burkhard was familiar with the complainant, Mr. Jonathan Myer. They had been involved in drug transactions. Mr. Burkhard had been robbed of cash and drugs. He believed that Mr. Myer was responsible or knew who was responsible. Mr. Burkhard (and his brother) planned to meet Mr. Myer and did so. After Mr. Myer entered their car, Mr. Burkhard produced a replica handgun. He pointed and cocked it at Mr. Myer while he interrogated him. Mr. Myer was driven to Mr. Burkhard’s apartment. Eventually, Mr. Myer was blindfolded. He was handcuffed to the bed. Mr. Burkhard used plyers to pinch his thumb and fingers. Mr. Myer was beaten and stabbed. While Mr. Myer pleaded for his life, Mr. Burkhard used a metal file to beat his head, hands, and knees. Mr. Myer was asked if he wished to be stabbed with an ice pick or attacked by a pit bull, both of which were present in the apartment. At another point, Mr. Burkhard presented a firearm and placed a pillow next to Mr. Myer’s head, as if he was going to shoot him. Mr. Myer offered to pay Mr. Burkhard money in exchange for his life. Mr. Myer was taken to a bank. He was told that if anything went wrong, he and his family would be killed. While inside the bank, Mr. Myer informed the bank manager of his situation and 911 was called. Mr. Burkhard and his brother were arrested.
14Mr. Burkhard addressed the court prior to the imposition of his sentence, which was a joint submission for five years. He apologized to his family and to the family of the complainant. He said, “I tell you my word that nothing will happen. It ends here”, suggesting he was leaving behind his life of criminality. Of course, he did not.
15After his release from the penitentiary following the 2006 convictions, Mr. Burkhard committed two further offences. He was convicted and incarcerated for one count of assault in 2011. He was convicted of another assault one year later.
16Two years later and in 2014, Mr. Burkhard committed the murder of Mr. Ghalban. He was arrested and charged with first-degree murder in 2016. He was convicted by a jury of first-degree murder on December 6, 2018. The Ontario Court of Appeal allowed Mr. Burkhard’s appeal on May 6, 2024. The matter was remitted to the Superior Court of Justice for a re-trial. Following several judicial pre-trials, Mr. Burkhard pleaded guilty to second-degree murder on December 18, 2024.
17Mr. Burkhard’s criminal antecedents are extremely troubling. However, he does have the support of his community and has made tremendous steps towards rehabilitation since being incarcerated as set out below.
Institutional Records
18The institutional records provided show the following:
a. Despite the length of his sentence (25 years parole ineligibility), the sentence has not had a negative impact on Mr. Burkhard’s institutional adjustment.
b. Mr. Burkhard has progressed in a positive manner since his incarceration. There were reviews of his conduct provided in 2019, 2021 and 2023. They show remarkable success in Mr. Burkhard’s rehabilitation.
c. He has maintained a position of trust in the Works Department. His supervisor described him as punctual and willing to learn. He gets along well with staff and other inmates. He arrives in good humor and ready to work.
d. He has not been involved in any violent incidents since having completed the “Moderate ICPM program”. He put forward “significant effort and motivation towards changing his behaviour and thinking”.
e. He is described as “quiet and respectful with staff and goes about his daily routine without requiring staff intervention”.
f. The staff do not suspect that he is involved in the institutional subculture. His random urine checks have been negative.
g. During his participation in various programs, he has shown a strong level of insight. He has expressed remorse. He participates meaningfully in group exercises. He assists others and acts as a leader. He is honest and willing to share his personal experience, which “contributed positively to group cohesiveness”.
h. His ability to manage his risk improved from “needs a lot of improvement” to “good”.
i. He has maintained employment as the Razor Rep, Range Cleaner and Orientation Rep. He demonstrates a positive attitude and respect for others.
j. He was motivated to “gain as much positive learning as he could from his federal sentence”. He has participated in many programs in the provincial system and he is proud of his progress. He voluntarily returned for extra sessions in the PARS program to help him choose better friends and to cope.
k. He thrives when he has “structure, support and a productive routine”. He converted to the Muslim religion, which was encouraging. It has assisted him to deal with life challenges.
l. He participated in the “Forgiveness Project” at the Toronto South Detention Centre (“TSDC”) before transferring to Collins Bay. During his participation in the programs, he showed a commitment to creating a life free of criminal activities.
m. He has obtained the following certificates while incarcerated: Rise Above, dealing with Islamic history and faith; Islamic Heritage and Black Artists; Emotion Regulation; Jays Care Foundation, All Star Athlete Award; Certificate of Achievement from Gospel Express Ministries, Canada; Ramadan Month Do’s and Don’ts; Black History Month; Powered Hand Tools: Safety Is In Your Hands; Restorative Justice Principals; A Daily Life Choice: Overcoming Life Controlling Problems; Dad Hero; Peer Education Course; CORCAN Orientation Program; Agricultural Health and Safety; Islamic Perspective on Restorative Justice; Perspective Program (Overcomers, Grief and Loss and Restorative Justice principles); History Month Program Workshop; Look Both Ways: Creative Writing Workshop; Integrated Correctional Program, Moderate Intensity; Suicide Awareness and Prevention Workshop; 2018 TSDC Volunteer and Community Recognition Event; The Forgiveness Project workshop on anger management, forgiveness, restorative justice and restoration of the TSDC; The Forgiveness Project Creative Writing Series; 17 Life Skills Programs; Anger Management; Changing Habits; Recognizing Healthy Relationships; Understanding Feelings; Supportive Relationships; Managing Stress; Thoughts to Action; Being an Effective Father; Problem Solving; Substance Abuse; Goal Setting; Use of Leisure Time; It’s a Gamble; Setting Up A Budget; Look for Work; and Maintaining Employment.
19The institutional records show that Mr. Burkhard has made a significant effort in his rehabilitation. It also demonstrates that he has met with great success.
Community Support
20Filed at this proceeding, were 11 letters of support which may be summarized as follows:
Ms. Michelle Kays is Mr. Burkhard’s mother. She says that the son before the court today is not the same person, he was many years ago. He is now humble and has made amends with his family. He is devoted to his children and religion, and he is remorseful. He has completed courses and has been counseling other inmates. He has educated high school students to make the right decisions. She advises that the family will support Mr. Burkhard so that he becomes a “productive caring person in society”. He wishes to be present in the lives of his children. She believes that he will “continue to better himself, so his family can be proud of the person he is today”.
Mr. Aaron Burkhard is Mr. Burkhard’s brother. He describes his brother as having a “kind heart” and a “strong sense of family”. He is compassionate and willing to help others. He is determined to improve himself. Mr. Burkhard has expressed, to him, genuine remorse for his actions. He is committed to making amends.
Ms. Candace Kays is Mr. Burkhard’s sister. She describes her brother as a person of good character. He is honest, compassionate, and committed to his three daughters. She is confident that Mr. Burkhard will “use this tragedy as an opportunity to continue to reflect, grow and contribute positively to society moving forward”. She believes his remorse is genuine.
Ms. Layla Burkhard is Mr. Burkhard’s 14-year-old daughter. She has worked hard to establish a relationship with her father despite the anger she feels for his actions. She says that he put her first. He would listen to her discuss her feelings. She loves her father. He does not judge her. He provides advice. He has taught her “much about choosing the right path in life”. She believes that he has changed. She is proud of him, although she did not always feel that way. He is no longer selfish. He has left his former lifestyle, and she believes he would not do anything to risk being with his family.
Ms. Jannah-Leena Burkhard is Mr. Burkhard’s 12-year-old daughter. She was young when Mr. Burkhard went to jail and as such, reconnecting was difficult. They have bonded over the phone. She hears empathy in his voice. He understands her emotions which include both anger and love.
Ms. Delylah Burkhard is Mr. Burkhard’s 9-year-old daughter. She says that she misses him and said, “I wish I was Bell from beauty and the beast, and I had a magic mirror and I could see my papa any time but I can only here [ sic ] his voice sometimes”. She wishes to give him a hug and hopes that he comes home soon.
Mr. Faraz Khan is a friend of Mr. Burkhard. He believes that this incident does not reflect his friend’s nature. He has shown “integrity, kindness and selflessness”. He is remorseful. He is committed to “making amends and bettering himself”. He is determined to “grow and to create a positive path forward”.
Ms. Lori Chiavatti is a friend. She has seen him grow and better himself. He has self-reflected. He has a positive mindset. He has “found ways to help others choose a better lifestyle and become better men”. He is a “changed man” and he can be a positive role model for others.
Mr. Shaun Campbell and Ms. Jennifer Kochanov are friends. They met Mr. Burkhard in high school. They describe Mr. Burkhard as a hard-working person who did not always make the best decisions. They believe that Mr. Burkhard has “reflected on his offence and the impact of his actions on those around him”. He has used this to grow into a better person. He is a mentor to others, “reinforcing the importance and responsibility” of raising children. In 2023, Mr. Burkhard was selected to be the representative for the DAD Hero Project, which is a parenting program funded by “Movember”. It is a program delivered across Canadian prisons to help fathers stay connected to their children, support their mental health, and increase their chances of reintegration into society and their family’s lives when they leave prison. He has taken responsibility for his actions and dedicated himself to serving others to having meaning in his life. He has been a model inmate with no misconducts. He has received positive recommendations from his institution supports. He is the unit representative for his housing division. He is a liaison between the inmates and staff.
Mr. Chaplain Ismail of the Toronto East Detention Centre writes that Mr. Burkhard enthusiastically participates in programs. He “eagerly joins in collective prayer sessions” and engages in discussions regarding faith. He adds, “Mr. Burkhard has shared with me his strong faith practices, understanding of family responsibilities and desire to be an active and productive member of our community following his release.
Mr. Terence Neblett of Urban Rez Solutions Social Enterprise confirmed Mr. Burkhard’s participation in the Urban Rez Solutions Enterprise “Inside Out” program. The program provides support for participants in the areas of employment, entrepreneurship, education, and skilled training, both while in custody and when the candidate is released. Mr. Burkhard has been meeting with Mr. Neblett twice a week. Mr. Neblett says that Mr. Burkhard has, amongst other things, been a role model in the program and that “he exhibits a desire to challenge himself to embrace change”. Mr. Neblett observes that Mr. Burkhard is “holding himself accountable”. He opines that Mr. Burkhard is “positioned to meet the demands of starting an apprenticeship” with the Local 27 Carpenters upon his release.
20The letters filed show that Mr. Burkhard has the support of his community when released and a desire to be a good role model for his three daughters.
Remorse
21Mr. Burkhard takes responsibility for the actions giving rise to his conviction and he is remorseful. This is evident from his guilty plea. Further, it is evident from his elocution.
22At the conclusion of the sentencing hearing, Mr. Burkhard apologized to the family of the deceased, his own family and to the court. Amongst other things, Mr. Burkhard explained that he had changed and will not fall back into his “old ways”. Why? He explained, “in the past when I supposedly changed my ways for the better, I only ‘left’ that criminal lifestyle, but I didn’t truly hate it. And that’s why it was easy for me to fall back into it. But this time is different because now I HATE everything to do with that criminal thinking. I hate what it’s done to me, my family, my daughters’ lives, and of course the victim and his own family”.
23The elocution was detailed. It was articulate and sincere. I considered it to be a genuine sign of his remorse.
Pre-Sentence Incarceration
21Mr. Burkhard provided an affidavit to the court. A summary of its contents is as follows:
a. He has been incarcerated since March 31, 2016.
b. He spent his pre-sentence custody in the following institutions: the TSDC, Central North Correctional Centre, Central East Correctional Centre and the Toronto East Detention Centre (TEDC).
c. There were several lockdowns during his pre-sentence custody, particularly at the TSDC. Lockdowns meant there was no fresh air or access to the telephone, and days without showers. This caused anxiety and frustration.
d. Lockdowns caused friction between the inmates as there is no privacy. Hostility between them developed due to the limited time to access the showers and/or phones.
e. Additionally, the conditions of the institutions were unsanitary. There were insects and mice in the cells. Mr. Burkhard observed insects in the food. Given the cold temperatures in the cells, he was unable to keep warm despite being provided with extra blankets.
24The record of Mr. Burkhard’s pre-sentence incarceration was filed. Mr. Burkhard was incarcerated during the COVID-19 pandemic. The records show that at the TSDC there were 253 lockdowns over periods in 2016 and again in 2019. All were the result of staff shortages. The records from the TEDC show that he was triple bunked on 22 nights. Fresh air was offered on 32% of the days when he was at the TEDC. There were eight lockdowns there due to staffing issues.
25The affidavit and institution records indicate that Mr. Burkhard has been incarcerated suffering from harsh conditions, including imprisonment during COVID.
Recommendations of the Jury
26The third matter that a sentencing judge is required to consider in determining whether to increase the parole ineligibility period is any recommendation made by the jury. Of course, there were no recommendations made by the jury as this matter was a plea before me.
Analysis
27The issue before me is to determine whether the time that Mr. Burkhard must wait before being considered for parole should be increased beyond the minimum period of 10 years.
28Because there is a sliding scale of parole eligibility following a conviction for second-degree murder, “there will be a broad range of seriousness reflecting varying degrees of moral culpability”. [2] The imposition of a sentence or the fixing of a period of parole ineligibility as part of the sentence depends on the specific circumstances of the case and the character of the offender.
29In each case, where the issue of parole ineligibility is considered, the offender will be a person who, without lawful justification, has not only killed someone but had the intent to kill or meant to cause harm knowing it would likely kill. A conviction for murder will always be founded on inherently serious conduct deserving of the significant sanction of imprisonment for life. [3]
30Section 754 of the Criminal Code, however, does not require unusual circumstances to justify a deviation from the minimum period of parole ineligibility. Extending the parole ineligibility period is not restricted to cases involving extreme brutality or the worst offenders. However, it is only those circumstances that can be said to be aggravating beyond the essential elements for second-degree murder that will justify an increase above the 10-year minimum parole ineligibility for second-degree murder. [4]
31In determining an appropriate sentence for Mr. Burkhard, regard must also be had to the sentencing objectives in s. 718 of the Criminal Code. Deterrence and denunciation are the most important factors to be considered in sentencing Mr. Burkhard, although rehabilitation will also be considered.
32A further consideration is that all sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender as set out in s. 718.1 of the Criminal Code. The gravity of the offence is significant. The murder itself was brutal, as I have outlined above.
33Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences pursuant to s. 718.2 of the Criminal Code. [5] Counsel submits that the most relevant case for consideration is the sentence imposed by McMahon J. on Mr. Schindermann. He was initially charged with the first-degree murder of Mr. Ghalban but pleaded guilty to second-degree murder.
34When considering the similarity of the offence, I note that the facts to which Mr. Schindermann pleaded guilty are similar to the facts that Mr. Burkhard pleaded guilty to. Both Mr. Burkhard and Mr. Schindermann accepted responsibility for the offence on similar grounds.
35Neither Mr. Burkhard nor Mr. Schindermann is identified as the stabber. They have both been convicted on the basis that when they arrived at the apartment, they had no intention of killing Mr. Ghalban. However, during the robbery, they knew that Mr. Ghalban had been grievously injured from the stab wound to the neck. They continued to restrain, assault, and prevent him from seeking help or escaping, which contributed to his death. Each were parties to causing bodily harm they knew was likely to cause death and were reckless as to whether death ensued, giving rise to the convictions for second-degree murder.
36While I am not privy to the entirety of the record before McMahon J., his reasons for passing sentence observed that Mr. Schindermann did not have a criminal record. He testified at the trial of Mr. Burkhard that resulted in a conviction for first-degree murder. He did so without offer of advantage by the Crown. After testifying, he was beaten in the correctional institution where he was imprisoned. McMahon J. recognized that Mr. Schindermann’s health and safety would be jeopardized while serving his sentence in the penitentiary because of his testimony. Lastly, Mr. Schindermann suffered from drug addiction and mental health issues. Mr. Schindermann was sentenced to life without eligibility for parole for 11 years.
37While I agree that the offences of Mr. Schindermann and Mr. Burkhard are similar, I do not find them to be “similar offenders”. The differences may be summarized as follows:
a. Although at the time of sentencing, Mr. Schindermann agreed that he participated in a home invasion robbery on another occasion, it was non-violent. On the other hand, Mr. Burkhard has a criminal record consisting of several acts of violence, the most brutal acts set out in paragraph 12 above.
b. Mr. Burkhard was not a drug addict at the time of this offence whereas, Mr. Schindermann was an addict.
c. There is no evidence that Mr. Burkhard suffered a mental illness at the time of the offence, unlike Mr. Schindermann.
d. Mr. Schindermann testified as a witness in the prosecution for first-degree murder against Mr. Burkhard. He was beaten up as a result. McMahon J. recognized that his term of incarceration would be more difficult because of testifying. Those factors do not exist for Mr. Burkhard.
e. There was no evidence before the court that Mr. Schindermann had demonstrated an effort at rehabilitation by participating in programs offered while incarcerated. There was no proven track record that Mr. Schindermann would successfully be reintegrated into the community. There is significant evidence before the court to show the trajectory of Mr. Burkhard towards becoming a pro-social member of our community if, and when he is released.
f. McMahon J. sentenced Mr. Schindermann in 2019 before the Court of Appeal addressed the conditions of pre-sentence custody as a mitigating factor in sentencing on murder cases. [6]
38I have also been referred to other cases in which the courts considered the appropriateness of increasing parole ineligibility for persons convicted of second-degree murder. For example, counsel for Mr. Burkhard provided the case of R. v. Chretien where the accused was convicted of second-degree murder in the context of a home invasion robbery to satisfy their drug addiction. [7] During the robbery, Mr. Chretien’s co-accused kicked the deceased in the head and Mr. Chretien hit him two or three times with a Maglite. Mr. Chretien suffered from alcohol abuse and was diagnosed as bipolar. He had a lengthy criminal record for various crimes, including crimes of violence. He expressed remorse. The court concluded that the appropriate period of parole ineligibility was 12 years.
39Crown counsel provided several authorities in support of their position of parole ineligibility of more than 11 years, including the following:
In R. v. Cargioli, [8] a group of men, including Mr. Morrisson and Mr. Kamal, attacked and repeatedly stabbed the victim during a planned robbery. They killed the victim in the alleyway beside his home in which he lived with his parents. Mr. Morrisson inflicted injuries on the deceased’s mother while they confined her following the murder. Mr. Morrisson and Mr. Kamal were convicted of second-degree murder. Both were young at the time. Mr. Kamal was sentenced to 14 years of parole ineligibility, and Mr. Morrison to 15 years. The trial judge found that Mr. Morrisson was firmly committed to a life of serious criminal conduct involving robberies and firearm-related offences. There was little positive to say about his character. Mr. Kamal had good character, strong prospects for rehabilitation, and sincerely apologized. The Court of Appeal upheld their sentences.
In R. v. Hong, [9] three offenders entered a known drug dealer’s (Mr. McKelvey’s) home wearing facemasks and gloves. In the course of the home invasion, Mr. McKelvey’s friend, Mr. Kennedy, was punched and hit several times with a plastic oar and an aluminum baseball bat. Mr. McKelvey was also hit repeatedly on the back with a bat. Mr. Kennedy was struck in the head with a pellet gun as he lay on the floor and died as a result. The home invasion was drug related. Mr. Hong was convicted of second-degree murder and sentenced to life imprisonment with a period of parole ineligibility of 13 years, plus 4 years concurrent for assault causing bodily harm. He inflicted gratuitous violence on a defenseless and struggling victim, showing callous disregard for his well-being. The victims were confined and restrained with duct-tape. Mr. Hong had substantial family support and demonstrated some remorse. He was a young man with a minor criminal record and no history of violence. The other two offenders were convicted of manslaughter, for which they were sentenced to 11 years in custody.
In R. v. Vuozzo, [10] the offender was convicted of second-degree murder and break and enter. The offender was youthful. He had a significant criminal record given his age. The offender broke into the victim’s home armed with a machete, along with his friend, to steel the victim’s marijuana. Mr. Vuozzo stabbed the victim. Mr. Vuozzo was sentenced to life imprisonment with 15 years of parole ineligibility and 15 years concurrent for the break and enter count.
40Situating an offender such as Mr. Burkhard in his proper place amongst the precedents is fact specific and an inexact science. As stated by the Supreme Court of Canada in R. v. Lacasse, “Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives”. [11]
41In considering the fit sentence for Mr. Burkhard, I find the following to be the aggravating factors:
a. Those involving the offence itself referred to in paragraph 7 above. I will not repeat those factors here but observe that the offence was horrific. In summary, there is a high degree of moral culpability for restraining and confining Mr. Ghalban when Mr. Burkhard knew that Mr. Ghalban had suffered a grievous stab wound.
b. The impact on the family is significant. The family has suffered the loss of a loved one. As stated above, Mr. Ghalban came to Canada to better his life. Rather than enjoying the riches of our country, he met with death at the hands of two cowards who maliciously stabbed and beat him, leaving him to die alone.
c. Mr. Burkhard has a significant record for crimes of violence.
42In considering the fit sentence for Mr. Burkhard, I find the following to be the mitigating factors:
a. Mr. Burkhard has pleaded guilty which is a sign of his remorse.
b. Mr. Burkhard took full responsibility for his actions.
c. Mr. Burkhard apologized to the family of Mr. Ghalban, his own family and to the court. I accept that he is remorseful for his actions.
d. The plea of guilt comes at a time when the court’s resources are under stress. The plea of guilt saved four weeks of trial time and allowed another matter to proceed.
e. The matter was quickly resolved after Mr. Burkhard’s successful appeal. He had waived his s. 11(b) rights in anticipation of resolving this matter.
f. The plea provided certainty of result and prevented the necessity of Mr. Ghalban’s family having to relive the death of their son and brother in a trial before a jury.
g. While incarcerated, Mr. Burkhard has made significant use of his time, participating in programs to better himself. This began before he knew that the Court of Appeal would grant him a new trial in 2024. In other words, despite serving a life sentence without being eligible for parole for 25 years, he sought to improve himself. The records show a progression of his pro-social conduct, demonstrating that the rehabilitative programming is working. This bodes well for his reintegration into the community.
h. Mr. Burkhard, despite his parole ineligibility, was planning for his release, recognizing the skills he required and working to improve them so that he could be employed in a lawful job.
i. Mr. Burkhard has the support of his family and his community which, again, bodes well for his rehabilitation when released. It appears that his daughters, in particular, provide a great incentive to leave his life of criminality behind.
j. Mr. Burkhard was incarcerated during the COVID-19 pandemic with significant limitations in place. He has also been the subject of lockdowns due to staff shortages.
43This is a very serious offence which has had devastating consequences for several people. A sentence of life imprisonment is mandatory but is also manifestly fit and appropriate. The nature and circumstances of the offence justify an increase of parole ineligibility.
44I also find that Mr. Burkhard’s criminal antecedents justify an increase of parole ineligibility. I have considered the submission of counsel for Mr. Burkhard about the so called “gap” in Mr. Burkhard’s criminal record. [12] While there is a gap between the most serious offences in 2004 and the murder in 2014, there is no gap due to the further offences committed by Mr. Burkhard following his convictions in 2006 and his release from the penitentiary.
45I have also considered the pre-sentence conditions of incarceration in determining the appropriate period of parole ineligibility. Although there was no evidence of the impact of the COVID-19 epidemic specific to Mr. Burkhard, he did provide an affidavit about the effect of the lockdowns generally. Like the court in Lamba, “the conditions of custody during the pandemic were notoriously harsh and exceptional, as documented in many prior decisions”. [13] In these exceptional circumstances, the court can take notice of the conditions and consider them when deciding the appropriate period of parole ineligibility.
46COVID-19 did result in harsh conditions in the detention centres because of the various measures implemented to prevent the spread of it. Programs were suspended as were visitations. Further, I have considered the conditions of Mr. Burkhard’s conditions in the detention centres as I have described above. I find that Mr. Burkhard has experienced conditions that are more difficult or punitive. [14]
The Sentence Imposed
47After having considered the totality of the circumstances of this case, I am satisfied that the sentencing objectives of denunciation and deterrence are met by the imposition of a life sentence with parole ineligibility above the minimum. I would have been inclined to impose a period of parole ineligibility of 13 to 14 years. However, when I take all factors into account, including the harsh circumstances of Mr. Burkhard’s pre-sentence custody and the positive steps he has taken towards rehabilitation, I find that the appropriate sentence is life imprisonment with no parole eligibility until Mr. Burkhard has served 12 years.
48It must not be forgotten that the sentence that is to be imposed in this case is life imprisonment. The 12-year period of parole ineligibility does not mean that Mr. Burkhard will be released on parole after serving 12 years. It only means that this is when he first becomes eligible for parole. Whether he will be released will be up to the Parole Board, and that decision will be based in part on how Mr. Burkhard conducts himself between now and then.
The Ancillary Orders
49Because Mr. Burkhard has been convicted of an indictable offence involving the use of violence that is punishable by life imprisonment, a prohibition order under s. 109(1) (a) of the Criminal Code is mandatory. Pursuant to s. 109(2) of the Criminal Code, I direct that Mr. Burkhard be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, and explosive substance for life.
50Murder is a primary designated offence within the meaning of s. 487.04 of the Criminal Code and accordingly, in these circumstances, a DNA order is mandatory. There will therefore be a DNA sample order made under s. 487.04 of the Criminal Code.
51Pursuant to s. 743.21 of the Criminal Code, I order that Mr. Burkhard have no contact (direct or indirect) while he is serving his sentence with Mr. Philip Frauts, Mr. Christopher Fuller and Mr. Kyle Schindermann.
Kelly J.
Released: January 30, 2025
1, [1995] 4 S.C.R. 227 (“ Shropshire ”).
2Shropshire , at para. 29 .
3R. v. Pandurevic , 2013 ONSC 3323 , 2013 CarswellOnt 7716, at para. 28 .
4R. v. Kim , 2014 ONSC 2043 , 2014 CarswellOnt 4864, at para. 13 .
5R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424, at paras. 30-33 ; R. v. Pearce , 2021 ONCA 239 , [2021] O.J. No. 1934, at paras. 17-18 ; R. v. Courtney , 2012 ONCA 478 , [2012] O.J. No. 3087, at para. 4 .
6R. v. Lamba , 2024 ONCA 778 , 2024 CarswellOnt 16247 (“ Lamba ”).
7.
8R. v. Cargioli , 2023 ONCA 612 , 2023 CarswellOnt 14572, at para. 1 .
9R. v. Hong , 2016 ONSC 2654 , [2016] O.J. No. 2175, at para. 9 .
10R. v. Vuozzo , 2010 ABQB 664 , [2010] A.J. No. 1233, at para. 1 .
112015 SCC 64 , [2015] 3 S.C.R. 1089, at para. 57
12R. v. Nembhard , 2010 ONCA 420 , [2010] O.J. No 2420; R. v. Carroll , 2010 ONCA 378 , [2010] O.J. No. 2154.
13Lamba , at para. 33 .
14R. v. Duncan , 2016 ONCA 754 , 2016 CarswellOnt 15975, at para. 6 ; R. v. Marshall , 2021 ONCA 344 , 2021 CarswellOnt 7286.