R v Bennett, 2024 ABKB 94

Court of King’s Bench of Alberta Citation: R v Bennett, 2024 ABKB 94 Date: 20240216 Docket: 181079278Q1 Registry: Calgary Between: His Majesty the King Crown - and - Justin Paul Bennett Accused _______________________________________________________ Reasons for Sentencing of the Associate Chief Justice D. Blair Nixon _______________________________________________________ I. Introduction [ 1 ] On March 19, 2021, I found Mr. Bennett guilty of second-degree murder pursuant to s 235(1) of the Criminal Code , RSC 1985, c C-46 .

[ 2 ] Since he was found guilty of the second-degree murder of Ivy Wick, the Criminal Code directs that I shall sentence Mr. Bennett to life imprisonment: Criminal Code , s 235(1). At a minimum, Mr. Bennett must serve at least 10 years of his life sentence, but I may extend the period of parole ineligibility up to a maximum of 25 years: Criminal Code , ss 745(c), 745.4. [ 3 ] The sole issue for me to determine is the period of parole ineligibility. II.

Brief Overview [ 4 ] On September 27, 2017, three-year old Ivy Wick was found unconscious in her bedroom and transported by ambulance to the Alberta Children’s Hospital. There the trauma team determined that Ivy had suffered a traumatic brain injury, and she was rushed into emergency neurosurgery. She was later transferred to the pediatric intensive care unit where she was placed on life support. Despite the best efforts of medical personnel, Ivy tragically succumbed to her injuries on October 5, 2017. [ 5 ] Mr.

Bennett initially told police officers that he believed Ivy had hit her head after she tripped and fell while she was running to her bedroom. The medical doctors and medical examiners told the police that a ground-level trip and fall was unlikely to explain the catastrophic nature of Ivy’s injuries. [ 6 ] In an attempt to determine if Ivy’s injuries were in fact inflicted, the police launched an undercover “Mr. Big” operation in which the targets were Mr. Bennett and Ivy’s mother, Ms. Helen Wordsworth. At the conclusion of that operation, on September 6, 2018, Mr.

Bennett provided a statement to an undercover police officer that he had inflicted the injuries on Ivy which ultimately led to her death. This statement was admitted at trial. [ 7 ] After hearing all the evidence, I found that Mr. Bennett hit Ivy on the head, threw her into a wall and then tripped her. Ultimately, I found that Mr. Bennett had the requisite intent for murder. [ 8 ] There was no evidence of previous abuse. III. Positions of Crown and Defence A. The Crown [ 9 ] The Crown’s position is that the period of parole ineligibility be set at 15 years.

The Crown submits that the age of the victim, the fact that Mr. Bennett was Ivy’s stepfather, and that he delayed calling 911 are aggravating factors. The Crown argues that the only mitigating factor is that Mr. Bennett was relatively young at the time he committed the offence. [ 10 ] The Crown seeks a mandatory lifetime weapons prohibition ( Criminal Code , s 109), a mandatory DNA order ( Criminal Code , s 487.051(1)), and an order prohibiting Mr. Bennett from communication with Helen Wordsworth during the custodial period of the sentence ( Criminal Code , s 743.21). B.

Defence [ 11 ] During oral argument, Defence counsel for Mr. Bennett submitted that the appropriate period of time for parole ineligibility is 13 years. Defence counsel concedes that the offender was in a position of trust. However, the Defence disagrees with the Crown that the only mitigating factor is that of Mr. Bennett’s youth. Defence counsel submits that Mr. Bennett did express remorse to an officer during the Mr. Big operation. Defence counsel submits that Mr. Bennett’s lack of a criminal record is also a mitigating factor. [ 12 ] During oral arguments, Defence counsel submitted that Mr.

Bennett was an extremely immature 24-year-old. He had a dysfunctional childhood, which included physical abuse from stepparents and a period of time in foster care. His education was limited, he has ADHD, and he struggles with reading and writing. [ 13 ] The ancillary orders are not contested. IV. Principles of Sentencing [ 14 ] A sentencing judge may accept as proved any information disclosed during trial or during the sentencing proceedings and any facts agreed on by the prosecutor and the offender: Criminal Code , s 724(1).

Section 724(3) of the Criminal Code provides direction on how to deal with disputed facts. As of the date of this sentencing hearing, there is no dispute with respect to any fact that is relevant to the determination of Mr. Bennett’s sentence. [ 15 ] The focus of this decision is to determine the duration of parole ineligibility. The discretion to set a parole ineligibility period is governed by s 745.4 of the Criminal Code which provides as follows: Subject to

section 745.5, at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to

section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not

more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [16] The sliding scale of parole ineligibility for second degree murder recognizes that the offence captures a broad range ofconduct that reflects varying degrees of moral culpability. It is incorrect to start from the proposition that the ten-year minimum willapply absent unusual circumstances: R v Shropshire, , [1995] 4 SCR 227 at para 31. All sentencing principles arerelevant to the exercise of the sentencing judge’s discretion under s 745.4: Shropshire at paras 23–26, 31, 33.

As recently confirmed in Rv Bissonnette, 2022 SCC 23 at para 58, the fixing of the period of parole ineligibility is part of the punishment for second degree murderand forms an important element of sentencing policy: see also R v Ledesma, 2019 ABQB 204 at para 34. [17] Sentencing is an individualized process. Nevertheless, it must be remembered that sentencing is not just about Mr.

Bennett.This point is well summarized in R v Garland: 2017 ABQB 198 at para 36, aff’d 2021 ABCA 46: But the sentence to be imposed today is not just about [the offender], it is about all of the [other] members of the community and ourcollective need to denounce this conduct; express our collective outrage; and reaffirm the values that lie at the heart of the sentencingprinciples, that is to sustain public confidence in the maintenance of a just, peaceful and safe society. [18] The circumstances of Ivy’s murder are set out in my reasons for judgment indexed at R v Bennett, 2021 ABQB 206[Bennett].

I will only repeat what is necessary for the purposes of sentencing. [19] The leading case governing parole ineligibility is Shropshire. In that case, Justice Iacobucci stated for the court thatextending the period of parole ineligibility above 10 years does not require “unusual circumstances”: Shropshire at para 26.

In fact, hecommented that “the power to extend the period of parole ineligibility need not be sparingly used”: Shropshire at para 31. [20] Nevertheless, it is incumbent upon this Court to exercise its discretion in evaluating the appropriateness of issuing such anorder based on the specific circumstances of the case.

In reference to this matter, Justice Picard from the Alberta Court of Appealemphasized that s 745.4 of the Criminal Code is “designed and intended to support the exercise of judicial discretion”: R v Ryan, 2015ABCA 286 at para 55, leave to appeal to SCC refused, 36841 (26 May 2016). [21] Setting a period of parole ineligibility is part of the sentencing process. It engages the factors generally relevant to sentencing:Shropshire at paras 23–25. The factors are well known, and the overriding principle is “proportionality”.

Importantly, the sentence mustbe proportional to the gravity of the offence and the degree of responsibility offender: Criminal Code, s 718.1; see also R v Garland,2021 ABCA 46 at para 110. [22] Sections 718 to 718.2 of the Criminal Code set out the purpose, principles and objectives of sentencing that guide thedetermination of a fit sentence. Further,

section 718.01 stipulates that when a court imposes a sentence for an offence that involves theabuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence ofsuch conduct. [23] The Alberta Court of Appeal usefully summarized the principles of sentencing in R v Ledesma, 2022 ABCA 285 at paras 43–48.

The Court stated that the sentence imposed should be proportional to the gravity of the offence committed and to the moralblameworthiness of the offender; in essence, the seriousness of the criminal conduct. [24] The concept of gravity of the offence is directed at what the offender did wrong. This includes two components: (

i) the harmor likely harm to the victim; and (ii) the harm or likely harm to society and its values: R v Arcand, 2010 ABCA 363 at para 57. [25] Moral culpability means the extent to which the accused actually intended the consequences of his or her actions. The greaterthe harm intended, the greater the moral culpability. Several factors are relevant, including the following: (

a) the nature of the act itself; (

b) the method by which it was committed; (

c) the manner in which it was committed in terms of degree of planning and deliberation; and (

d) the motive for committing the crime. [26] Additional principles of sentencing outlined in s 718 of the Criminal Code are: (

a) Denunciation — to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawfulconduct; (

b) Deterrence — to deter the offender and other persons from committing offences; (

c) Protection of Society – to separate offenders from society, where necessary; (

d) Rehabilitation — to assist in rehabilitating offenders; (

e) Reparation — to provide reparations for harm done to victims or to the community; and (

f) Responsibility — to promote a sense of responsibility in offenders and acknowledgement of the harm done to the victims orto the community. [27] As noted earlier, primary consideration to the objectives of denunciation and deterrence shall be given when the offenceinvolves the abuse of a person under the age of 18 years of age: Criminal Code, s 718.01.

V. The Pre-Sentence Report [ 28 ] A pre-sentence report was completed on June 17, 2021 (“Bennett PSR”). In preparation of the report, Mr. Bennett was contacted by telephone on three occasions from custody. The Bennett PSR was prepared by Probation Officer, Peter Swoboda. I address aspects of the Bennett PSR below. VI. Victim Impact Statements [ 29 ]

Section 722 of the Criminal Code provides that for the purpose of sentencing, the court shall consider victim impact statements describing the harm done to, or loss suffered by, the victim or victims of the offence. [ 30 ] The Court heard several victim impact statements from different family members including: (

i) Ivy’s mother: Helen Wordsworth; (ii) Ivy's maternal grandparents: Don, and Ellie Wordsworth; and (iii) Ivy's aunt: Heather Wordsworth. [ 31 ] All the victims describe their anger, profound grief, how their lives will never be the same and how much they miss Ivy. Understandably, the trial itself caused emotional harm to them because they learned what transpired on September 27, 2017. [ 32 ] Helen Wordsworth is angry and absolutely heartbroken. She fears crossing paths with Mr. Bennett and isolates herself from the world.

She poignantly wrote: I cry myself to sleep every night blaming myself for not being able to protect her from you; you took my light away and left me in a dark nightmare that I now have to carry on my shoulders for the rest of my life. [ 33 ] She attends multiple support groups and therapy. She often feels “sick, panic” and “overwhelmed”. [ 34 ] Heather Wordsworth explained in her statement that she cannot trust anyone and fears having her own children for the fear that someone will harm them the way Mr. Bennett harmed Ivy.

Heather stated that she fears the loss and pain will never end. [ 35 ] Ivy’s grandparents have endured their own pain as well as their daughters’ pain. They feel helpless because they can neither fix it nor take their daughter’s pain away. They have a challenging time trusting people and after four years they are trying to get back to a normal life. They are all in counselling and attend support groups. They have had to take time away from work to attend court. The stress has led to many health issues. VII. Facts [ 36 ] My findings of fact are outlined in detail in Bennett .

In respect of parole ineligibility, I repeat the following salient facts that have been proven beyond a reasonable doubt: a. Ivy Wick was murdered; b. the murder took place at or near Calgary, Alberta; c. Mr. Bennett caused the death of Ivy Wick by: (

i) hitting her on her head; (ii) throwing her into a wall; and (iii) tripping her; d. these injuries were inflicted on Ivy Wick in the context of Mr. Bennett “freaking” out; and e. Mr. Bennett delayed calling 911. He called his father and a former girlfriend first. When he did call 911, he lied to the healthcare providers about what had happened to Ivy, thereby delaying and frustrating the medical care that the child desperately needed. [ 37 ] In respect of parole ineligibility, the following facts are not in dispute: a. Mr. Bennett was born on July 8, 1993.

He was 24 years old at the time of Ivy's death, and is currently 30. b. He has neither a previous criminal record nor a history of violence. c. Mr. Bennett and Ms. Wordsworth began dating in January 2017, and they moved in together in February 2017.

d. At the time of the murder of Ivy, Mr. Bennett was basically unemployed. Indeed, the evidence was that he spent much of his adult life unemployed, notwithstanding that he had skills as a painter. VIII. Analysis [ 38 ]

Section 745.4 of the Criminal Code stipulates the factors to be considered in fixing a period of parole ineligibility upon Mr. Bennett for the conviction of second-degree murder. That statutory provision also prescribes the boundaries within which a parole ineligibility period may be fixed, which is not less than ten years and not more than twenty-five years. [ 39 ] The factors that must be considered in fixing parole ineligibility are: (

i) the character of the offender; (ii) the nature of the offence; (iii) the circumstances surrounding the commission of the offence; and (iv) if applicable, the recommendation, if any, of the jury. Since this case was a trial by judge alone, the fourth factor is not relevant. I will now turn to the other three factors in sequence. A. Character of the Offender [ 40 ] Mr. Bennett was 24 years old when he killed Ivy. He has no criminal record and no evidence of a history of violence. [ 41 ] I reviewed the Bennett PSR and make the following comments. The report writer was a probation officer, who noted that Mr.

Bennett is not in agreement with the circumstances of the case. Mr. Bennett continues to deny any responsibility, and displaced blame onto others. For this reason, the probation officer was unable to assess Mr. Bennett’s level of remorse. [ 42 ] Mr. Bennett was born in Edmonton and moved to Calgary when he six years old. His father, Paul Bennett, received fully custody of Mr. Bennett when he was one year old, after separating from Mr. Bennett’s mother. His biological mother did not provide parental care and used intoxicating substances. [ 43 ] Mr. Bennett described being “spoiled rotten” during childhood.

Despite family financial issues he noted that they took many camping trips and enjoyed outdoor activities. According to Mr. Bennett, the family’s basic needs were always met. [ 44 ] Mr. Bennett reported that his father, Paul, often worked two jobs to provide for the family. For this reason, he indicated that his father was often away, and Mr. Bennett spent a lot of time playing video games. [ 45 ] During his childhood, Mr. Bennett encountered several mother figures, some of whom physically abused him. In one particularly severe incident, Mr.

Bennett was assaulted to such an extent that he spent a month in foster care at the age of twelve. Mr. Bennett’s experience in foster care was negative and his father advised him to misbehave intentionally so he would be returned to his family. Mr. Bennett’s behaviour was described as “unmanageable”, and he would engage in physical altercations and even set fires. Mr. Bennett was placed in foster care only once. [ 46 ] Mr. Bennett did not graduate from high school and there are mixed reports as to what grade he completed. During his time in school, Mr.

Bennett found little enjoyment and struggled to establish positive relationships with his peers. Absenteeism was a notable aspect of his school experience, as he often chose to spend time with the “wrong people”. He was often bullied and engaged in physical confrontations. [ 47 ] When Mr. Bennett was twelve years old, Amber Morrisette began a relationship with his father and later became his stepmother. His relationship with Ms. Morrisette was overall positive. She gave him pro-social support and assisted with household chores. Ms. Morrisette confirmed that at twelve years old, Mr.

Bennett was hard on her and did not do chores, and often tried to push boundaries. Ms. Morrisette also recalled the family struggled financially. [ 48 ] Paul Bennett reported having challenges as a parent and admitted he lacked parenting skills when he received full custody of one-year-old Mr. Bennett. He received some government assistance to help him develop parenting skills. Paul Bennett’s parenting skills were self-described as “hard dad” and at times he engaged in physical altercations with his son. Although Ms.

Morrisette felt that Paul did his best to support his son, she thought that Paul was not a nurturing parent and had a habit of yelling and being in physical altercations. However, Mr. Bennett currently does have a close relationship with his father, and Paul intends to continue to maintain this relationship and visit him in custody. [ 49 ] Following his departure from his father’s home, Mr. Bennett had several relationships. He reported that the longest he stayed in a residence was two years. Mr. Bennett was not able to manage his finances, and his partners mostly paid for household expenses. [ 50 ] Mr.

Bennett has one biological child. He was married to the mother and this relationship lasted three years starting when he was twenty years old. Mr. Bennett felt parenting came easy to him, but the mother was awarded full custody when he was charged with second-degree murder for the death of Ivy Wick. [ 51 ] He met Ms. Wordsworth when he was 24 years old. Mr. Bennett described the relationship as “rocky”. Mr. Bennett described Ms. Wordsworth as a negative partner, and they consumed intoxicating substances together. [ 52 ] According to Ms. Wordsworth, Mr.

Bennett was financially, psychologically, and physically abusive. Ms. Wordsworth reported one circumstance when she was not working, and Mr. Bennett told her she had one week to get a job, or he would terminate the relationship. [ 53 ] Ivy Wick was two years old when Mr. Bennett first met her, and he denied being abusive to her in any regard. He and Ms. Wordsworth engaged in a lot of arguments over how she parented Ivy. [ 54 ] Ms. Wordsworth observed Mr. Bennett’s parenting with both his biological son and Ivy. Although Ms. Wordsworth had no

concerns of abuse, she noted that he demonstrated favoritism towards his biological son. Her relationship with Mr. Bennett ended when he was charged with the death of her daughter. [ 55 ] Both Paul Bennett and Ms. Morrisette described Mr. Bennett’s conviction as a huge shock. They described Ivy as a happy and energetic child with whom Mr. Bennett spent a lot of time. He assisted her with bathroom training and taught her how to count and read. [ 56 ] Mr. Bennett is currently in an intimate relationship with a new partner who he met while in custody; they are currently engaged. [ 57 ] Mr.

Bennett attended Reeves College in 2017, for a “couple months” taking a computer graphic design program with the long-term goal of creating his own video games. [ 58 ] Mr. Bennett struggles with reading and writing skills, but is capable of organizing and counting. He received his learning permit for driving and passed the test. [ 59 ] Mr. Bennett’s employment history is limited. He first started working at 12 years of age, regularly assisting his father with his painting business. In the context of this case, Mr.

Bennett reported that instead of working he was always playing video games and was happier to provide childcare himself because it was cheaper. He did not trust childcare services. He never held a job for longer than a month each, and reiterated his primary interest was playing video games. [ 60 ] Mr. Bennett explained that he allegedly engaged in organized crime which was the “Mr. Big Operation”. He stayed for the lifestyle, money and to avoid conflict. [ 61 ] Mr. Bennett was described as a good worker, and he could be left alone. Mr. Bennett painted houses for four years.

His video game habits affected his attendance. He would play for 24 hours and admitted gaming has disrupted his adult responsibilities. [ 62 ] Mr. Bennett reported that stability means being able to afford his internet, cellphone, and food. He explained that his partners would manage the finances personally. Mr. Bennett admitted that he has poor money management skills, consumes intoxicating substances, and never completed his taxes. [ 63 ] Paul Bennett described Mr. Bennett as personable, friendly, and good with children. Mr.

Bennett would organize his work truck and his game room was extremely clean and organized. [ 64 ] Paul Bennett acknowledged that Mr. Bennett is impulsive and makes poor choices and can be argumentative and engage in physical confrontations. He is angry and isolates others, but Paul Bennett did not feel Mr. Bennett had an anger management problem. [ 65 ] Ms. Morrisette said Mr. Bennett’s strengths are that he is intelligent, artistic, and has a good sense of humour. He is also a storyteller. Mr.

Bennett has a giving heart and cares, but his weakness is that he needs a filter, shares personal information with strangers, and argues. Mr. Bennett has a temper but generally is a passive person. His temper seemed to be directed towards Paul Bennett and, historically, he has not been a violent person. Ms. Morrisette was shocked about Mr. Bennett’s involvement in this incident. [ 66 ] Ms. Wordsworth stated Mr. Bennett’s only strength was playing video games. She asserted that his weakness was being dishonest, and he did not compromise. [ 67 ] Mr. Bennett injured his back riding his bike.

He was diagnosed with ADHD and was taking medication. While in custody he was taking Vivan medication. [ 68 ] Mr. Bennett had suicidal ideations and he intended to commit suicide by means of drug overdose. Ms. Morrisette stated that while Mr. Bennett was in the community, she had no concerns with suicide or serious suicidal ideations. [ 69 ] Paul Bennett reported that Mr. Bennett faced no challenges with his physical health but did struggle with ADHD. Paul Bennett recalled Mr. Bennett meeting with a psychiatrist because he was out of control. Ms. Morrisette said at twelve years old Mr.

Bennett exhibited behavioural issues, defiance, and destructive tendencies. Ms. Morrisette affirmed Mr. Bennett’s diagnosis of ADHD and possibly FASD attributing his impulsivity, lack of appreciation for consequences, and communication filter. [ 70 ] Mr. Bennett admitted to a history of alcohol and drug usage. Following the victim’s death, Mr. Bennett turned to alcohol as a coping mechanism, pledging abstinence when released from custody. Mr. Bennett first started using methamphetamine in 2017 after the victim’s death.

While on meth he exhibited a lack of fear in engaging in alleged criminal behaviour, expressing a commitment to abstain if released. [ 71 ] Upon release Mr. Bennett is motivated on improving his stability and becoming a responsible parent. His plans include painting work and opening an organization to aid people in achieving stability. While the goal for employment with his father is realistic, the writer expressed reservations about opening a business as there is a lot of learning and skills to develop. [ 72 ] Key areas for Mr.

Bennett’s focus include substance abuse, mental health, and social influences/peer group. With his history of alcohol and marijuana, Mr. Bennett will need to attend Adult Addiction Services Calgary for a treatment program. [ 73 ] Mental health remains an area of development considering the sources of trauma and unhealthy relationships. [ 74 ] The Bennett PSR indicates that Mr. Bennett did not express remorse or regret for his involvement in Ivy’s death. I acknowledge that it is not unusual for a person who denies criminal liability to fail to express remorse.

This is consistent with the fact that he entered a not guilty plea at trial: see e.g. R v Whalen , 2014 ONSC 5481 at para 73 . B. Nature and Circumstances of the Offence

[ 75 ] Second-degree murder stands as one of the most serious offences recognized under the Criminal Code . The circumstances leading to the commission of this murder are straightforward, yet profoundly tragic. [ 76 ] On the morning of September 27, 2017, Mr. Bennett was focused on playing video games. Ivy was interfering with his video game time. Tragically, Mr.

Bennett in a moment of impatience struck the child on the head, threw her against the wall and tripped her, ultimately leading to her death. [ 77 ] Based on the evidence and analysis, I determined that Ivy’s injuries were not the result of a simple trip and fall. The severity of her injuries, coupled with evidence of multiple impact points, could only be explained by an inflicted cause. Consequently, it was established beyond a reasonable doubt that Ivy’s death was not accidental: Bennett at para 332 . Furthermore, the Crown proved beyond a reasonable doubt that Mr.

Bennett caused the death of Ivy, and that he did so in an unlawful manner: Bennett at 420. [ 78 ] The above conclusions were drawn subsequent to the admission of evidence where Mr. Bennett confessed to undercover officers that he had “fucked up”. Within this context, he further stated that he delivered what he thought was a final blow to Ivy. He acknowledged witnessing the impact on her face after he smacked her head against the wall. Despite Ivy being visibly dazed and unable to walk in a straight line, Mr.

Bennett, fully aware of her condition, proceeded to trip her as she tried to run away, inflicting a final and fatal blow on her: Bennett at para 430 . [ 79 ] Mr. Bennett did not immediately call 911 but called a former girlfriend who was a nurse. She immediately told him that he needed to call 911. Yet, Mr. Bennett proceeded to attempt to call his father and stepmother several times before calling 911. [ 80 ] In

summary, I found that by inflicting the above injuries on Ivy, Mr. Bennett breached multiple duties that he owed to Ivy. He did so in a dreadful manner, all the more distressing given that the harm was inflicted upon a vulnerable child of only three years of age. IX. Aggravating factors [ 81 ] In this case, I find that the Crown has proven the following to be aggravating factors beyond a reasonable doubt:

i) the young age of the victim; ii) the violation of the offender’s position of trust; and iii) obstruction of timely medical intervention. [ 82 ] I will review each of these aggravating factors. A. Ivy’s young age [ 83 ] Ivy was a toddler, and fully dependent on her caregivers for her safety and well-being. She was completely vulnerable. The protection of children is one of the most fundamental values of Canadian society. There is an innate power imbalance between children and adults that enables adults to violently victimize them. [ 84 ] Parliament has deemed the victimization of a person under the age of 18 to be a statutorily aggravating factor:

section 718.2 (a) (ii.1) of the Criminal Code . [ 85 ] Ivy’s young age is a significant aggravating factor. Defence counsel does not dispute that this is an aggravating factor. B. Violation of a Position of Trust [ 86 ] Defence counsel concedes that Mr. Bennett’s role as caregiver and stepfather to Ivy placed him in a position of trust. Although Ivy was not Mr. Bennett’s biological child, he was her caregiver and described himself as her stepfather. He cared for her 60 to 70 percent of the time. He was not working but was almost constantly preoccupied by video games. [ 87 ] Mr.

Bennett failed to protect this child. Instead, he inflicted fatal injuries on Ivy. It appeared to be an impulsive act and he was annoyed with her for interrupting his video game. He did this for no other reason, other than he was “tired of taking care of an ungrateful kid”: Bennett at para 415 . [ 88 ] Children are most vulnerable and at risk at home and among those they trust: R v Friesen , 2020 SCC 9 at paras 65 , 66. Abuse of a position of trust is also a statutorily aggravating factor. Its presence in this case should result in an increased period of parole ineligibility: see Criminal Code , s 718.2(a)(iii).

C. Obstructing Timely First Responder Intervention [ 89 ] Defence counsel disputes that this factor should be considered aggravating. [ 90 ] Mr. Bennett did not immediately call 911. As I noted above, he made several phone calls first. He called a former girlfriend (who was a nurse) to ask for advice. She immediately told him to call 911. Yet he proceeded to attempt to call his father and stepmother several times before calling 911. In fact, he made five phone calls before eventually calling 911. [ 91 ] Once he called 911, a group of first responders tried valiantly to save her life. The group included: (

i) the firefighters and paramedics, who were first on scene; and (ii) the surgeons and pediatric intensivists at the Alberta Children’s Hospital.

[ 92 ] Defence counsel submits that Mr. Bennett’s immaturity and lack of parenting skills led to his decision to not initially call 911. [ 93 ] Ultimately, it is unlikely that Ivy would have survived, even if Mr. Bennett had facilitated timely medical care. However, I consider it is an aggravating factor that there was a delay before he called 911. It was also established that he lied to the first responders as to how Ivy incurred her injuries. X. Mitigating Factors [ 94 ] There are few mitigating factors. I find it mitigating that Mr. Bennett was relatively young at the time of Ivy’s murder.

As mentioned above, he was 24 years old at the time of the tragic event. [ 95 ] Other mitigating factors are absent. In particular, he did not plead guilty. This required Ms. Wordsworth to testify and re-live the morning of Ivy’s tragic injuries. [ 96 ] The absence of a criminal record is relevant to the assessment of a fit sentence. Typically, Alberta courts have considered the absence of a criminal record to be a neutral sentencing factor.

However, recently in the Supreme Court decision in R v Bertrand Marchand, 2023 SCC 26 the Court clarified that that the absence of a criminal record can be a “significant mitigating factor”: at para 127.

This issue was not the subject of the appeal and therefore, little else was said on the topic. [ 97 ] In R v Quintero-Gelvez , 2023 ABCA 64 at para 19 the court stated that “while ‘good character’, in the sense of the absence of any criminal record, is often referred to as mitigating, it is best viewed as the absence of an aggravating factor:” see R v Eliasson, 2021 ABCA 188 at para 17 . [ 98 ] In my view, the determination of whether the absence of a criminal record is mitigating or neutral is dependent on the circumstances of each case and the nature of the crime committed.

In this case, considering the serious nature of the offence, I consider the absence of a criminal record to be a neutral factor. [ 99 ] I found that Mr. Bennett expressed significant remorse during his meeting with the undercover officers: Bennett at paragraph 415 . However, the material before me now for the purpose of sentencing suggests that he no longer expresses remorse as he now denies any involvement in the fatal injuries to Ivy. Given those circumstances, I view this is as a neutral factor, not an aggravating one: R v Ryn, 2023 ONSC 2919 . XI. Parity [ 100 ]

Section 718.2 (

b) of the Criminal Code holds that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. While identical factual circumstances and offenders may not be present, similar themes, circumstances and factors may exist. This is referred to as the principle of parity. [ 101 ] The parties have provided numerous cases to the Court as guides on a fair and fit sentence. As stated earlier, Mr. Bennett will receive a life sentence.

One of the principles is that his sentence be like sentences imposed for similar offences. [ 102 ] Crown counsel provided me with several cases in respect of their position. Defence counsel did not take issue with the cases, and conceded that these cases contain relevant and persuasive guidance in determining the period of parole ineligibility. However, defence counsel submit that the cases can be distinguished from Mr. Bennett’s circumstances. I briefly summarize the cases below. [ 103 ] In R v Barrett, 1999 BCCA 482 , the offender, Mr.

Barrett, was convicted of second-degree murder in the beating death of his girlfriend's three-and-a-half-year-old son. The trial judge imposed the mandatory sentence of imprisonment for life on Mr. Barrett, and further ordered parole ineligibility for 14 years. Mr. Barrett appealed the sentence. The British Columbia Court of Appeal dismissed Mr. Barrett’s appeal. [ 104 ] The trial judge found that there were no mitigating factors and that he beat the child because he annoyed Mr. Barrett and interfered with his drug operation. The trial judge went on to state that the conduct displayed by Mr.

Barrett was something that must not only be deterred but must also be denounced. [ 105 ] In a more recent, Alberta Court of Appeal decision, R v Heller , 2014 ABCA 182 , Mr. Heller pleaded guilty to second-degree murder of a two-year-old child and was sentenced to life imprisonment with no eligibility for parole for 18 years. The Court of Appeal dismissed Mr. Heller’s appeal. [ 106 ] The cause of death of the two-year old child was determined to be multiple blunt force traumas. The child also had a fracture of the arm and injury to his genitals. Mr.

Heller called 911 but downplayed the infant’s injuries and lied about the cause. There was evidence that Mr. Heller had made efforts to clean up the home, in an effort to rid it of evidence of the assault. In addition to other aggravating factors, Mr. Heller was on release for other Criminal Code offences at the time of the offence. On the other hand, he expressed genuine remorse for his actions. The record revealed that there was “guarded” optimism that with appropriate programs and sufficient time in a controlled environment, Mr.

Heller could have been rehabilitated. [ 107 ] In R v Batstone, 2019 BCSC 1520 , aff’d 2022 BCCA 171 , Ms. Batstone was convicted of second-degree murder and sentenced to life imprisonment without parole eligibility for 15 years. Ms. Batstone’s conviction was for second degree murder in the death of her eight-year-old daughter. Ms. Batstone suffocated her daughter with a plastic bag while she was sleeping. Ms. Batstone’s plan was to kill her daughter then kill herself, using the same method.

[ 108 ] After Ms. Batstone killed her daughter she sat on the couch near her lifeless body, drank some wine and wrote a letter casting blame for the murder on her ex-husband. [ 109 ] Ms. Batstone was suffering from depression, anxiety, and was experiencing psycho-social stressors. However, the judge found Ms. Batstone’s moral culpability was not mitigated to any significant degree by her mental health issues. After considering all these matters, the trial judge imposed the mandatory sentence of imprisonment for life on Mr.

Batstone, and further ordered parole ineligibility for 15 years. [ 110 ] In R v Boothe-Rowe , 2014 ONSC 3391 , the ten-year-old victim was the male offender’s son from a previous relationship. The child was raised in Jamaica and then brought to Canada to live with his father and stepmother. Initially he was treated properly but began to be abused after a new baby was born. He was regularly whipped by his father and was kept chained to a bed. The abuse occurred over the course of six months. No medical treatment was sought.

There was little evidence the stepmother struck him, but she was fully aware of the situation. She assisted in the cover up of the child’s death and then fled to the United States. There was evidence that she was the victim of domestic violence at the hands of her husband. [ 111 ] The sentencing judge imposed a period of parole ineligibility of 18 years for the father and 13 years for the stepmother. [ 112 ] In R v Dooley, 2009 ONCA 910 , leave to appeal to SCC refused, 33701 (30 September 2010), Marcia and Edward Dooley were both convicted of second-degree murder.

Marcia Dooley was sentenced to life imprisonment without eligibility for parole for 18 years. Her husband, Tony, was sentenced to life imprisonment without eligibility for parole for 13 years. [ 113 ] Randal was the son of Tony and the stepson of Marcia. Randal came to Canada to live with Marcia and Tony in November 1997. He was six years old at the time. Eleven months later, Randal was dead.

Post-mortem medical examinations revealed a shocking array of injuries to almost every part of Randal’s small body. [ 114 ] Over the course of ten months, Randal was beaten by both of Marcia and Tony, but by Marcia more so than Tony. Randal was kept out of school and isolated. Randal had multiple injuries to various internal organs. Tragically, there was a culminating violent episode. The child was deprived of medical treatment, which might have saved his life.

There was a failure to provide medical care because the abusers put protection of their own interests ( i.e. , avoiding detection) above those of the child, Randal, for whom they had a duty to provide and protect. [ 115 ] The trial judge ordered that Tony should serve 13 years before being eligible for parole, and that Marcia should serve 18 years. The Ontario Court of Appeal upheld the period of 18 years parole ineligibility imposed on Marcia. [ 116 ] Mr. Monckton was convicted of second-degree murder for killing his girlfriend’s two and half year-old child: R v Monckton , 2017 ONCA 450 .

He was also convicted of assault causing bodily harm in relation to the injuries the child suffered in the weeks or months leading up to his death. The trial judge set the period of parole ineligibility at 15 years. [ 117 ] A forensic pathologist testified that the cause of death was blunt abdominal trauma, with head injuries and multiple other injuries of varying age. The forensic pathologist testified that the child’s injuries were indicative of previous child abuse. He explained that there was no demonstrable, non-traumatic cause for the sudden collapse or death of the child.

The child’s brain reflected changes from either trauma or lack of oxygen. He had three distinct bruises on his face, six broken ribs, compression fractures of three vertebrae, with disc bleeding caused by significant force. He had bruising on his abdomen, back and upper arms. He also had blunt force injuries to his lower limbs. The sentence appeal in Monckton was dismissed. [ 118 ] In R v Sunshine , 2014 BCCA 318 , leave to appeal to SCC refused, 36430 (15 October 2015), Mr. Sunshine was convicted for second degree murder in the death of his girlfriend's two-and-one-half year-old daughter.

The trial judge imposed the mandatory sentence of imprisonment for life on Mr. Sunshine, and further ordered parole ineligibility for 15 years. The sentence was confirmed by the British Columbia Court of Appeal. [ 119 ] Mr. Sunshine was in a parental role to the two-and-a-half-year-old female victim. The cause of her death was blunt force trauma to the abdomen.

The autopsy report showed prior bruising of the mesentery, indicating that the blunt force had been applied to her abdomen over a period of time. [ 120 ] The medical evidence included an indication of previous blows at various stages of healing, of burns from a hot object and open flame, and head injuries. These injuries were all found by the sentencing judge to have been at the hands of Mr. Sunshine. [ 121 ] Mr. Sunshine’s conviction was based in large part on his admissions during an undercover operation.

He admitted that he punched the child in the stomach on the night in question and had done so approximately 25 times in the past. He also admitted to burning her. [ 122 ] Mr. Sunshine was of Indigenous background. Reports revealed he suffered a highly abusive childhood. This was coupled with exposure to the negative intergenerational effects of residential schools, overt racism, and discrimination. The reports revealed a shocking dereliction of the obligations of safe care owed by adults to Mr. Sunshine when he was a child. [ 123 ] Ms.

Roseanne Whalen was found guilty by a jury of second-degree murder of her two-year-old daughter: R v Whalen , 2014 ONSC 5481 . The child had been subjected to terrible physical abuse for an extended period of time, which ultimately led to her death, although the specific cause of death could not be determined. Ms. Whalen did not personally inflict the assaults. She was 23 years old when the child died, had no prior criminal record and was cooperative in helping the police locate where the child had been buried. [ 124 ] After the murder of Marissa, Ms. Whalen and her partner attempted to dispose of the corpse.

Even though the physical actions of her partner were the direct cause of Marissa’s death, Ms. Whalen had repeated opportunities to take the child out of harm’s way. [ 125 ] The partner entered a guilty plea and was sentenced to the mandatory minimum sentence of life imprisonment with a 12-year

period of parole ineligibility. Ms. Whalen received a sentence of parole ineligibility for 15 years. XII. Appropriate Sentence [ 126 ] In arriving at the applicable period of parole ineligibility, I have considered the character of Mr. Bennett, the nature of the offence and the circumstances surrounding the commission of these offences.

I have also considered the authorities provided to me by counsel as well as the objectives and principles of sentencing. [ 127 ] Given the gravity of the offence coupled with the number of aggravating factors, an increase to the statutory minimum period of parole ineligibility is warranted in this case. [ 128 ] Fundamentally a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The actions of Mr. Bennett had grave consequences. A three old child tragically lost her life.

A sentence in this type of case must reflect society’s revulsion for crimes committed against vulnerable children. The breach of trust was abhorrent. [ 129 ] Although Mr. Bennett was not her biological father, he acted as a caregiver and stepfather, and Ivy relied on him and trusted him. Murder is one of the most serious offences contained in the Criminal Code , and the fact that it was the murder of an innocent young child is deplorable. [ 130 ] The sentence must deter others from committing similar offences.

My conclusion in that regard is supported by s 718.01 of the Criminal Code which specifically requires that I give primary consideration to the objectives of denunciation and deterrence in matters of abuse of a child. [ 131 ] The sentence must also address the principle of retribution. The principle of retribution addresses the consequential harm that was caused by Mr. Bennett’s actions. They have been aptly described by the victims in the victim impact statements. The murder of Ivy continues to weigh on Ivy’s mother, grandparents, and aunts. The actions of Mr.

Bennett concerning Ivy will have lifelong repercussions. No sentence will bring Ivy back or alleviate the heartbreak and pain that these family members have experienced, and will continue to experience. [ 132 ] The sentence must reflect the moral blameworthiness of the offender. Defence counsel argues that Mr. Bennett’s ADHD, learning difficulties, and consequential immaturity resulted in his inability to cope as a parent. The Bennett PSR indicates that he had a dysfunctional childhood at times, struggled in school, and played video games for an astounding amount of time. While the conduct of Mr.

Bennett has been shaped by some of his negative personal life events, these events do not militate toward a reduction in sentence. [ 133 ] Whilst denunciation and deterrence are given primary consideration in this case, rehabilitation is also a principle in sentencing. In this case, rehabilitation as a sentencing goal is possible. There were submissions before me that Mr. Bennett has been taking some courses. Specifically, Mr.

Bennett has now completed five different courses that include Effective Communication, Brain and Addiction, Working with Anger, Life Skills, and Literacy and Learning. [ 134 ] I acknowledge that the attendance in these programs did not occur until a much later date, after the offence. I also note that he did not express remorse. While this is not an aggravating factor, it can be taken into account when assessing rehabilitation. However, I recognize that Mr. Bennett is taking some steps towards rehabilitation and can continue to do so while in custody.

Further, he is close with his father and his stepmother, and has support from both. His father has indicated that he will continue to visit his son while in custody, and he will provide support for his son at the end of his sentence. [ 135 ] I have considered both the aggravating and mitigating factors. The protection of children is one of the most fundamental values of Canadian society: Friesen at paras 64–65 . Defence counsel takes no issue with Ivy’s age as an aggravating factor or the breach of trust as an aggravating factor.

As noted earlier, Parliament has codified breach of trust as an aggravating factor and calls for an increase in parole ineligibility. Ivy was three years old. Mr. Bennett was Ivy’s caregiver and stepfather, and was in a position of trust. Mr. Bennett wanted to play video games instead of parenting a three-year-old child. [ 136 ] Defence counsel does take issue with classifying the delay in calling 911 as an aggravating factor. Defence counsel describes the offender as an immature individual whose instability growing up had completely followed him in his personal life.

He has been involved in several unhealthy relationships and has repeating cycles of broken relationships, Mr. Bennett also has an inability to have any type of normal parenting style. He had a positive relationship with his wife, Katharina Leon, from whom he is now separated. Katharina is a nurse. [ 137 ] The fact Katharina had a nursing background was likely the reason Mr. Bennett called her first. However, he made five phone calls before he actually made the 911 call and then lied to the first responders about Ivy’s injuries.

As I mentioned earlier, I consider this delay to be an aggravating factor. [ 138 ] Finally, I have considered the directives in s 718.2(

b) of the Criminal Code that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Each case is fact specific. No other cases are identical. [ 139 ] Based on my review of the submitted cases, I note that some of the offenders had previous convictions for violence. I also note that in the cases of Monkton , Whalen , Dooley , Sunshine , and Booth-Rowe, the victims had been subject to prolonged abuse prior to their deaths. In Monkton , the offender had a criminal record and at the time of the killing was bound by three probation orders.

He was registered with the Child Abuse Registry with the Ontario Ministry of Community and Social Services. As noted above, in Batstone , the murder was not an impulsive act but required thought and a number of different actions to complete it. In the present case, there was no evidence of previous physical abuse of Ivy. Mr. Bennett also did not have a criminal record.

[ 140 ] In Whalen , there was no suggestion that Roseanne Whalen personally inflicted the blows, but she stood by while the abuse was perpetrated on her daughter. Furthermore, she assisted in burying her daughter to hide the evidence. [ 141 ] Most similar is the Alberta decision of Heller . In Heller , the offender murdered a two-year-old in his care. The cause of death was determined to be blunt force injuries. The child also had a fracture of one arm and injury to his genitals. This case appears to involve a single incident. However, Mr.

Heller also had previous criminal convictions and is distinguishable on that basis. [ 142 ] In crafting a fit sentence which is proportional considering the nature of the offence and the culpability of the offender, I have had regard to: (

i) the tragic events on the day Ivy was killed; (ii) Mr. Bennet’s personal circumstances; (iii) the further aggravating and mitigating factors and (iv) sentencing principles. In

summary, I find that a period of parole ineligibility of 14 years will satisfy the paramountcy sentencing objectives. In making this finding, I acknowledge that it is four years less than the parole ineligibility directed in Heller . However, with respect, I find that the 18 parole ineligibility in Heller to be an outlier. XIII. Conclusion [ 143 ] Given the above facts and analysis, and taking into account all the principles of sentencing and the submissions of Counsel, I find as follows. (

a) Life imprisonment is the sentence imposed on Mr. Bennett by this court; and (

b) The period of parole ineligibility will be set at 14 years. For purposes of calculating his eligibility for parole, I note that Mr. Bennett has been in custody for 1989 days, such that the 14 year parole ineligibility has a credit applied in the amount of that number of days. [ 144 ] I make the following ancillary orders: (

a) A mandatory order under s 109 of the Criminal Code for a firearms prohibition for life; (

b) A mandatory order under s 487.05(1) of the Criminal Code that Mr. Bennett provide samples of all substances that are reasonably required for the purpose of forensic DNA; (

c) An order under s 743.21 prohibiting Mr. Bennett from communicating, directly or indirectly, with Helen Wordsworth during the custodial period of the sentence. Insofar as this is a discretionary order, my reason for making this determination is grounded in the Bennett PSR. In that document, the Probation Officer had sufficient concern that he recommended Mr. Bennett “[h]ave no contact with Helen Wordsworth”. I find that it is appropriate to so order in the circumstances here. XIV. Other Matters [ 145 ] As a final matter, Mr.

Bennett advises that he has been assaulted in jail and has requested that he be allowed to serve, as far as possible, his sentence in either protective custody or isolation. While I make no order to this effect, I ask correctional services to take this request into consideration during the exercise of its discretion. Heard on the 11 th day of January 2024. Dated at the City of Calgary, Alberta this 16 th day of February 2024. D.B. Nixon A.C.J.C.K.B.A. Appearances: Ms. Suzanne Kendall, KC and Mr. Tom Spark for the Crown Mr. Greg Lazin for the Defence