R v Jolicoeur, 2023 ABKB 9

Court of King’s Bench of Alberta Citation: R v Jolicoeur, 2023 ABKB 9 Date: 20230105 Docket: 191485531Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Blake Jolicoeur Accused _______________________________________________________ Reasons for Decision of the Honourable Justice Douglas R. Mah _______________________________________________________ Table of Contents A. This Decision . 2 B. Why I reserved . 3 C. The Victim and the Victim Impact Statements . 3

D. How is justice achieved? . 4 E. Facts . 5 F. Objectives of Sentencing . 5 G. Crown Position . 6 H. Defence position . 7 I. Cases . 8 J. The Nature of the Offence . 11 K. The Circumstances of the Commission of the Offence . 11 Post-Offence Conduct 11 Other Criminal Activity . 11 Provocation or Near-Provocation . 12 Drug Intoxication or Addiction; Drug-Seeking Behaviour . 12 Confession & Cooperation . 13 L. Character of the Offender 14 Future Dangerousness . 14 Rehabilitative Potential 15 Remorse . 15 Mitigating Effect of Onerous Bail Conditions . 15 M. Ruling . 15 A.

This Decision [ 1 ] This decision is a more or less verbatim rendition of the reasons for decision delivered orally in Court on January 5, 2023. [1] I have only added formatting and full citations. [ 2 ] These reasons should be read in conjunction with the trial decision at 2022 ABQB 370 . [ 3 ] I’ll describe what I’m going to discuss today. First, I will address the family and friends of Ms. Vivancos, the victim. Then there is a longer technical

section in which I discuss the principles of sentencing, aggravating and mitigating factors and legal cases, as they apply to this case. Near the end, before I formally pronounce sentence, I will speak to Mr. Jolicoeur directly. Finally, I will pronounce the sentence. B. Why I reserved [ 4 ] The decision I am making today is in regard to Mr. Jolicoeur’s parole ineligibility, following his conviction for second- degree murder. I heard sentencing submissions on December 16, 2022. Some of you might be asking why I needed an additional three weeks just to pick a number between 10 and 25.

Indeed, the range suggested to me by counsel was narrower, between 10 and 14. [ 5 ] I gave myself time to review all the legal cases submitted to me by counsel. I also wanted to think of how to express my reasons in a way that the family and friends of the victim, Saladina Vivancos, would feel that they have not been let down by the justice system. From hearing the victim impact statements, I am aware that members of Ms. Vivancos’ circle have a great interest and emotional investment in the outcome of this case. At the same time, I must accord Mr.

Jolicoeur all of the rights and considerations to which he is entitled as a convicted person under our system of law. C. The Victim and the Victim Impact Statements [ 6 ] Last time, I heard twenty-three separate victim impact statements. Some were read by the people who wrote them and the rest by Ms. Magill. There were other family members and friends who watched the sentencing hearing but did not submit statements. I have to be accountable for the decisions I make and I felt it was important that family members and friends of Ms. Vivancos have the opportunity to hear the decision directly from me.

[ 7 ] Each one of the victim impact statements spoke of a needless and senseless tragedy, of a searing and painful loss that leaves an immense family and a network of friends on two continents bereft. One of the statement-givers, Isabel Belyk, said that Saladina Vivancos was so much more than what she was doing at the time of her death. I agree with that sentiment. During the trial, what I heard was that Saladina Vivancos scraped together a living as a drug dealer.

But, as the victim impact statements made apparent, she was so much more than that. [ 8 ] During the victim impact statements, I heard that she was a loving and giving person, who found a world that was full of wonders and loved being alive, who looked forward to being a mother, and someone who was a devoted friend.

Throughout the victim impact statements, the phrase I heard repeatedly (from her sister Andrea Labour, her friend Diana Pascaru, her friend Judith Adama and others), was that Saladina Vivancos was a “beautiful soul”. [ 9 ] Those who gave statements spoke of how their lives will never be the same, how hope has been compromised, optimism dampened, and doubt engendered. Several statement-givers spoke of how Saladina’s mother, Rosa, succumbed to cancer during the trial. They said that the loss of Saladina sapped her of the will to live.

That is not a scientific explanation but I am prepared to accept, in effect, that is what happened. [ 10 ] As Renke J said in R v Soosay , 2021 ABQB 507 at paras 51-52 , these victim impact statements are an important reminder to the sentencing judge to consider the full impact of the offence and the full meaning of the human loss caused. The statements are also a message to the offender, here Mr. Jolicoeur, about what he did and the pain he has caused. I note that some of those who read their statements in Court took the opportunity to look Mr. Jolicoeur directly in the eye as they addressed the Court.

The statements therefore speak to one of the objectives of sentencing, which I will discuss in a moment, “to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims…” [ 11 ] However, the presence of the victim impact statements, or their number or content cannot be treated by the sentencing judge as an aggravating factor.

As I said in paragraph 83, page 18 of my trial decision, “If there is one thing that our society and our community values, it is life, and the preservation of life, no matter who the victim is… We are all equal that way.” So also says the Court of Appeal in R v Deer , 2014 ABCA 88 quoting the British Columbia Court of Appeal in R v Eneas , [1994] BCJ 262 at para 53 : The law ought not to measure the value of the life taken, for to do so would be to diminish every person’s essential right to live out his or her appointed span. [ 12 ] Let me summarize this part of my reasons with this: I want the statement-givers to know that I have heard them, each and every one of them.

I want them to know that the justice system acknowledges the very real human consequences of crime and the loss and suffering inflicted. Saladina Vivancos is not just another crime statistic; she is someone who loved and was loved and was a member of a family and part of a community. D. How is justice achieved? [ 13 ] This may not be an easy question to answer satisfactorily for Ms. Vivancos’ family and friends, but I will try by explaining the process: • First, there was a trial. The killing itself was admitted almost from the start but the issue of intent was contested. Mr.

Jolicoeur, through his counsel, presented a vigorous and competent defence to the issue of intent, as he was entitled to do. The Crown was put to the test of proving intent beyond a reasonable doubt. After a trial on the merits of the intent issue, Mr. Jolicoeur was found guilty and convicted of second-degree murder. • Second, I remind everyone that sentencing is not an exercise in vengeance or retribution. That is not the kind of society we live in. Sentencing is not an attempt to balance the scales because they can never be balanced.

Rather, my job as the sentencing judge is to determine a sentence that accords with the principles and objectives set out in the law, of which I will speak more in a moment. • Third, the mandatory and inescapable sentence under section 235(1) of the Criminal Code for second-degree murder is life in prison. I have no discretion here. I must impose a sentence of life imprisonment. What we are concerned with in this hearing is parole ineligibility, a period of time which falls between a minimum of 10 years and a maximum of 25 years, as set out in

section 745 (

c) of the Criminal Code . It is the identification of the date, years down the road, on which Mr. Jolicoeur will have the ability, for the first time, to apply for parole. Parole is not automatic. The application may be approved or not approved by the Parole Board of Canada. It is their decision based on criteria that they establish and a process prescribed by federal law. Mr. Jolicoeur may have to apply multiple times. Even if granted parole, Mr. Jolicoeur will be under supervision with conditions for the rest of his life.

Breach of those conditions can result in parole being revoked and the offender returned to prison. As Ms. Fraser rightly pointed out, Mr. Jolicoeur will always be subject to a term of imprisonment for life. E. Facts [ 14 ] I am not going to recount the facts of the offence in detail because they are well familiar to everyone here and described in full in my decision at 2022 ABQB 370 . Basically, in the context of a drug transaction, Mr. Jolicoeur met with Ms. Vivancos near a pond off a rural road where he struck her over the head numerous times with a metal weapon of some sort.

The injuries and her manner of death are described in paragraphs 43 through 53 of the written decision. At paragraph 83, I concluded that Mr. Jolicoeur intended to cause Ms. Vivancos bodily harm that he knew was so serious and dangerous that it would likely cause her death, that he was reckless in so doing and did in fact cause her death, resulting in the finding of second-degree murder. I also found that his post-offence actions amounted to attempts to conceal what he had done.

F. Objectives of Sentencing [15] The law provides that the fundamental purposes of sentencing are to: • protect everyone, • make sure that our laws are respected, and • maintain a just, peaceful and safe society. [16] That is done through the Court imposing sentences that will: • express society’s disapproval, or denunciation, of unlawful conduct; • deter the offender and others from committing offences, • separate offenders from society where necessary, • help the offender become a better and more productive person, and • help the offender take responsibility and acknowledge the harm done to victims or to the community: Criminal Code,

section 718. [17] It is also fundamental that a sentence is proportionate to the gravity, or seriousness, of the offence and the degree ofresponsibility of the offender (Criminal Code,

section 718.1). As I mentioned earlier, I have no discretion here in terms of the term ofimprisonment since the Criminal Code mandates a sentence of life imprisonment. The life sentence is appropriate because the crime isthe second most serious crime in the Criminal Code only after first-degree murder, resulted in intentional loss of life of another and Mr.Jolicoeur is solely and wholly responsible.

In the case of second-degree murder, the purposes and objectives of sentencing are alsoachieved through consideration of the period of parole ineligibility, which is part of the sentence. [18] Further, • the sentence must be rational, or make sense, • focus on the person before the Court, and • demonstrate parity in that similar circumstances should attract similar sentences. [19] Overall, the objectives must be tempered by restraint and common humanity. [20] In determining parole ineligibility,

section 745.4 directs that the minimum period of parole ineligibility of 10 years may bereplaced by a different number not to exceed 25 years, as I deem fit in the circumstances, having regard to: • the character of the offender, • the nature of the offence, and • the circumstances surrounding the commission of the offence. G. Crown Position [21] The Crown’s position is that Mr. Jolicoeur should be ineligible for parole for a period of 14 years.

I summarize the mainpoints of argument, with the cases cited, as follows: • The Supreme Court of Canada has directed that the power to extend the period of parole ineligibility beyond the 10-year minimumneed not be sparingly used and that it would not be unusual to do so: R v Bernard, 2017 NSSC 129 at para 31 citing R v Shropshire, (SCC), [1995] 4 SCR 227. • Mr.

Jolicoeur’s attempt at a guilty plea to manslaughter at the outset of the trial has no value and amounts to an “evidentialnothing” per R v Ryan, 2014 ABCA 286 at paras 30-37. • The brutality and viciousness of the attack and manner of death, which speak to the nature of the offence, are aggravating. Thevictim’s head was the target and the attack was of prolonged duration.

As comparator cases, the Crown cited R v Miel, 2017 BCSC 1446at para 69 (14 years of ineligibility) and Bernard at para 41 (also 14 years). • In terms of character of the offender and future dangerousness, there is no real explanation or contributing factors as to why theoffence occurred, i. e. there is an absence of a psychological reason such as mental illness or even drug addiction. This lack ofexplanation, or unpredictability, might be an indicator of character or future dangerousness.

Here, the comments of Iacobucci J inShropshire at pp 245-248 are relevant regarding the “absence of an explanation of attenuating factors” in the context of “the Court andpublic clearly having an interest in knowing why a human life was taken by an offender.” • Mr. Jolicoeur’s post-offence conduct in attempting to conceal his crime by first trying to set Ms. Vivancos’ vehicle on fire andthen pushing it onto the pond ice so that it would break through and submerge, although ineffectual, are nonetheless aggravating. This

activity speaks to the circumstances surrounding the offence’s commission. The Crown cites R v Martel , 2011 ABCA 225 for the proposition that post-offence conduct to hide culpability not only elevates the proper range of parole ineligibility beyond that which would apply if one looked at the killing alone. In that case, post-offence conduct was sufficiently significant to elevate parole ineligibility beyond 12 years – 15 years was substituted.

Note, however, that the statutory aggravating factor of spousal violence was present in Martel , and no remorse or rather, the opposite of remorse, was shown. • The Crown submits that the offence took place in the context of other criminal activity (namely, a drug transaction), speaking to the circumstances of the commission of the offence, which is also aggravating. Ms.

Fraser referred to Ryan where at para 58 the Court says: “Given the facts here, it is evident that the murder took place against the backdrop of a criminal enterprise involving Ryan and the victim.” The criminal enterprise in that case was the sale of illegal drugs. Ryan was thinking of killing the victim and then did kill him as reprisal for stealing drugs from him. It was aggravating that Ryan also took steps to dispose of the body and other evidence and he had a measure of foresight, having calculated the possibility of killing the victim by arming himself with a gun.

A parole ineligibility period of 13 years was increased to 17 years. • Mr. Jolicoeur demonstrated high moral culpability in failing to call for medical assistance after the attack. The Crown cited R v Bennight , 2012 BCC 461 in which an 18-year period of parole ineligibility was upheld where the offender subjected the victim, a vulnerable middle-aged woman, to “a vicious beating of astonishing brutality” that resulted in her death, before calling 911 with a fabricated story. The offender had a history of brain damage which indicated future dangerousness. • The Crown concedes that Mr.

Jolicoeur has shown some remorse and some acceptance of responsibility by way of his early voluntary confession and making all reasonable trial admissions, but these actions do not justify a sentence reduced from a proportional one that fits the gravity of the offence and degree of responsibility: Ryan at para 36 . • There has been significant impact on friends and family as shown through the victim impact statements. In sum, a parole ineligibility period of 14 years would be proportional to the gravity of the offence and in line with similar cases as a matter of parity. H.

Defence position [ 22 ] The Defence, on the other hand, submits that the appropriate period of parole ineligibility should be set at 10 years. I summarize the main arguments as follows: • The Defence concedes that the brutality of the act and that post-offence conduct in attempting to cover up the crime are aggravating factors. • The Defence submits it is only a borderline aggravating factor that the murder was committed while Mr. Jolicoeur was engaged in other criminal activity, namely a drug transaction. • Ms.

Lind points to the absence of other aggravating factors, statutory or otherwise, that would behoove the Court to extend the parole ineligibility period. Nothing in Mr. Jolicoeur’s background or character suggests that he is an inherently dangerous person and that lengthier incarceration is necessary to protect society. He has no criminal record, and has led a mostly pro-social life, including being productively employed for most of his adult life, and assuming a parental role in respect of his partner’s children, as well as having supported his own children. • In terms of mitigation, the Defence submits that Mr.

Jolicoeur’s co-operation with police and trial admissions enabled both the investigation and subsequent prosecution, and focused the trial on the central issue of intent. • Ms. Lind also submits that Mr. Jolicoeur has significant potential for rehabilitation, as shown by the rehabilitative and self- improvement steps he has taken since being in remand. He is also genuinely remorseful. • Ms. Lind further submits on his behalf that provocation or near-provocation is an attenuating factor. She also suggests that Mr.

Jolicoeur was under the influence of cocaine when committing the crime and that his drug issue has now been addressed. • Finally, Ms. Lind contends that the onerous bail conditions imposed on Mr. Jolicoeur during the pre-trial stage should be taken into account in determining the period of parole ineligibility in accordance with the reasoning of Gates J in R v Ledesma , 2019 ABQB 204 at paras 55 & 56 . Ms.

Fraser responded that the bail conditions were not so onerous as to merit a form of credit to be applied to the parole ineligibility period. • In summation, the Defence suggested that the brutality of the attack and the post-offence conduct might suggest a range of 12 to 13 years for parole ineligibility in this case, but that mitigating factors including some 26 months of house arrest should lead the Court to conclude that the minimum 10 years of parole ineligibility is appropriate here. I. Cases [ 23 ] Both sides submitted a number of legal cases for me to consider.

The legal principles from cases decided by the Supreme Court of Canada and the Court of Appeal of Alberta are binding upon me. Otherwise, these cases provide a form of guidance to me in terms of the actual length of parole ineligibility. Sentencing, by its very nature, is an individualized and contextualized process. The cases assist with the identification of an appropriate range and the factors that may be applied. But no one reported case is exactly like the case before me. [ 24 ] The Court of Appeal aptly noted in R v Shaw , 2019 ABCA 106 at para 27 :

Though some comparison to precedents can be useful as a check on parity, it must be remembered that no two cases present an identical mix of factors. Sentencing is driven by principles, not comparators: R v Souvie , 2018 ABCA 148 at paras 42 to 44 . [ 25 ] While providing comparator cases is useful in terms of guidance, ultimately the decision I make is particular to the individual before the Court and the offence committed. [ 26 ] This notion of an individualized and contextualized process is codified in

section 745.4 Criminal Code which relates specifically to convictions for second-degree murder. In this regard, the Court of Appeal in Ryan at para 47 states that, in a case such as this: The judge is to have regard to (1) the character of the offender; (2) the nature of the offence; and (3) the circumstances surrounding the commission of the offence. The

section [745.4] does not define the scope of those three areas, nor does it weigh any considerations either within or between those areas. That Parliament would leave the scope of discretion broad is no surprise.

The potential variation of facts, both aggravating and mitigating, within each area is as large as human behaviour can imagine. [ 27 ] The Supreme Court of Canada put it this way at para 29 of Shropshire : … In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second-degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. [ 28 ] I also note that the three categories listed above are not necessarily discrete and may overlap.

This would be particularly so with regard to the latter two. [ 29 ] It is also fair to say that in the legal cases submitted different factors were relevant, although the cases all dealt with brutal forms of second-degree murder. In some cases, whether provided by the Crown or Defence, that pointed to a higher parole ineligibility, there were aggravating factors not present in this case. Similarly, in some cases submitted by the Defence suggesting a lower parole ineligibility, there are mitigating factors not relevant here. By way of example: • In Ryan , although the offender was more youthful than Mr.

Jolicoeur, he had a criminal record and was no stranger to crime. The murder involved a measure of foresight when the offender armed himself with a gun. The Court of Appeal noted the context of “drug crime involving the use of firearms for enforcement or revenge”. A parole ineligibility period of 17 years was imposed. • In Martel , the offender killed his domestic partner, made a two-minute video of her dying moments, lied to police about his involvement for two months and rather than show remorse, he exhibited the opposite of remorse, resulting in high moral blameworthiness.

The parole ineligibility was elevated from 12 years to 15 years by the Court of Appeal. • In Bennight , where the British Columbia Court of Appeal upheld a parole ineligibility of 18 years, the offender was found to be “unpredictably dangerous”. • In Bernard , the Nova Scotia Supreme Court imposed parole ineligibility at 14 years for an offender with a criminal record and an unaddressed alcohol addiction. • In R v Sinclair , 2019 ABQB 652 , cited by the Defence, parole ineligibility of 13 years was imposed for a brutal stabbing murder in which the offender killed an underage victim and then had sex with her dead body. [ 30 ] The Defence urged me to consider these authorities: • Ledesma – where 12 years of parole ineligibility was imposed in respect of a planned robbery in which money and drugs were stolen from the victim, who was shot twice in the back.

The offender had a criminal record, put innocent bystanders at risk during the shooting and engaged in post-offence cover-up. • R v Reitmeier , 2016 ABCA 269 , a 13-year parole ineligibility period was upheld for the offender’s role in a “murderous assault of a defenceless person by two strangers, simply for the fun of it”. The victim suffered numerous injuries not unlike those sustained by Ms. Vivancos in this case. Six days later, the offender turned himself into police. The period of parole ineligibility was set at 12 years.

The Court of Appeal did note that the Crown’s position of 15 years was arguable in this case. • In R v Shaw , 2019, ABCA 106 , the offender dispatched the victim with two or three hammer blows to the head.

Thereafter, he fled the province, concocted a story about how the victim had died, tried to put forward a false alibi and “offered a conveniently shifting series of exculpatory explanations.” The Court of Appeal upheld the parole ineligibility period of 13 years. • In R v Bramley , 2014 ABQB 179 , the offender lethally and inexplicably stabbed his roommate to death and made attempts to clean up the blood and conceal evidence. The victim was struck 25 times in the head and back with a Phillips head screwdriver.

He was stabbed multiple times in the eye, neck and chest with a knife; the two stab wounds to the chest, severing the pulmonary trunk and aorta, were fatal. When the offender left the room, the victim was on his knees trying to get up. The offender did turn himself into police but at sentencing offered no explanation or remorse for the murder.

The period of parole ineligibility was set at 12 years. • R v Maciel , 2007 ONCA 496 - in which the Court imposed parole ineligibility of 12 years where the offender shot the deceased 7 times in a drug enforcement killing and, even at age 20 at the time of the offence, had been a lawless and violent person, completely enmeshed in a criminal lifestyle. However, as Ms. Fraser rightly pointed out, the offender had completely turned his life around between the date of the offence and the day of sentencing, gaining significant work skills and personal insight and finding spiritual comfort.

His character, for the purposes of the

section 745.4 analysis, had completely changed for the better.

• In R v Soosay , the offender, who participated in a violent beating death, had a criminal record for violence, but had undertaken some rehabilitative measures such as undergoing the Boot Camp in remand, taking anger management and parenting courses and working in the laundry. Justice Renke also said that Mr. Soosay’s background should be understood in light of Gladue factors, which are not present here.

The 13-year period of parole ineligibility was imposed in those factual circumstances. • In R v Lewis , 2012 ONSC 2488 , the victim was lured to a location on a pretext where several armed men awaited him, ambushed, confined, beat and then shot him to death. The victim sustained 11 gunshot wounds. The trial judge described the crime as a “vicious and cold-blooded murder”, made worse by the fact the offender had previous firearm convictions and was subject to a weapons prohibition at the time.

A period of parole ineligibility of 12 years was imposed; however, the Crown would likely note that this case involved a jury recommendation of 10 years of parole ineligibility and the jury’s implicit finding that the offender was not the one who fired the weapon. • In R v KDS , 2021 ABQB 934 , Justice Gill imposed a parole ineligibility period of 13 years for a murder involving gratuitous violence that was committed in the presence of another family member. • In R v Whitlock , 2017 BCSC 1998 , a 12-year parole ineligibility period was imposed for the offender’s killing of his mother in which either blunt force injuries to the head or sharp force injuries to the neck could have caused death.

In both these cases, Ms. Fraser suggests that untreated mental illness was an attenuating factor. [ 31 ] In all, Ms. Lind cited 21 authorities which she suggests support a parole ineligibility period in this case in the lower range. Ms. Fraser points out that, of those cases, in Shropshire , Ledesma , Soosay , Maciel , Lewis , and Sinclair , as well as R v Tocharchuk , 2004 MBCA 46 , R v Cabrera , 2021 ABCA 291 , R v Steirs , 2010 ONCA 656 , and R v Osei-Agyemang , 2011 ABCA 2 , the offender in each case was under the age of 26 and therefore youthful or relatively youthful. Mr.

Jolicoeur, on the other hand, at 36 years of age at time of offence, is not youthful and these cases are all therefore distinguishable on that fact. Ms. Fraser was, I think, referring to the comments of Justice Picard in Ryan at para 54 that the de facto 10-year median for parole ineligibility emerging from the caselaw results from the preponderance of younger offenders with no records and reasonable prospects ahead of them.

Furthermore, in R v Diep , 2005 ABQB 81 , the offender was in his late 50s at the time of sentencing and had attempted suicide following his conviction for second-degree murder in the single stab wound death of his wife, and therefore the case (10 year minimum imposed) is not an apt comparator. [ 32 ] I now turn my attention to the components of

section 745.4. J. The Nature of the Offence [ 33 ] To be sure, as I detailed in the previous written decision, this killing was vicious and brutal. The Crown says that cases such as Cerra and Miel point to a parole ineligibility interval in the higher end of the range where this aggravating factor is prominent. I noted in para 83 of the written decision, second bullet point, that Mr. Jolicoeur was certainly persistent in his attack, but it is unknown how long it took. The Court in Cerra notes at para 28 that Mr. Cerra did not kill the victim in a sudden burst of anger or on an impulse.

Rather, he beat her and then drowned her in the course of a drawn-out episode. While I accept that the brutality of the attack is an aggravating factor, I did not make a trial finding that Mr. Jolicoeur had set out to kill Ms. Vivancos. I accept that something went wrong during their interaction that evening that precipitated an attack that appears to have occurred spontaneously or impulsively. K.

The Circumstances of the Commission of the Offence Post-Offence Conduct [ 34 ] I readily accept that post-offence conduct intended to cover up the crime is an aggravating factor as cases such as Ryan , Martel and Shaw suggest. I consider Mr. Jolicoeur’s failure to alert authorities immediately after the incident or call for medical assistance to be part of the same post-offence cover-up. My finding at para 97, page 22, fourth bullet point, is that Mr. Jolicoeur already knew she was dead at the time he was trying to set the fire or sink the vehicle in the pond.

Other Criminal Activity [ 35 ] The Crown also suggested as an aggravating factor the context in which the murder took place, that is, that Mr. Jolicoeur was engaged in another illegal activity when committing the murder. That illegal activity would be the drug transaction. I recognize in Shropshire the Court mentions that the period of parole ineligibility could be increased when the murder is committed in the course of another crime, particularly a crime of violence. But here, I tend to agree with Ms. Lind that as an aggravating factor, the fact of the drug transaction is borderline aggravating at best.

I made no finding that Mr. Jolicoeur had planned to rob Ms. Vivancos that night. Although Mr. Jolicoeur did take Ms. Vivancos’ drugs and use them, the taking of her cell phone and the purse containing the drugs again was part of the post-offence cover-up. Unlike in Ryan , there is no finding that this was a drug enforcement murder or retaliation murder. In Shropshir e, while the killing remained unexplained by the offender, there was evidence from a witness that the offender immediately after the event had shouted that the killing was at the behest of a drug associate.

Provocation or Near-Provocation [ 36 ] I do not accept that a form of provocation or near-provocation is a circumstance that mitigates here. At para 128 of my earlier written decision, I made the express finding that provocation as a defence had been disproven beyond a reasonable doubt for three reasons. More to the point, at para 131, I expressed skepticism as to whether Ms. Vivancos had initiated the incident by attacking Mr. Jolicoeur in an unprovoked manner while the two of them were in the car, and at para 112 I made the finding that the utterances attributed to Ms.

Vivancos were understandable and not unexpected in the circumstances. Therefore, such utterances would not have

been capable of provoking Mr. Jolicoeur even in the sense used during the sentencing. Drug Intoxication or Addiction; Drug-Seeking Behaviour [ 37 ] The Defence suggested to me that Mr. Jolicoeur was either high on drugs or using cocaine that day. This suggestion was not put to me as a circumstance that would reduce moral culpability but rather as a contributing factor to the incident that has now been addressed by Mr. Jolicoeur. [ 38 ] The Crown responded by saying there was no evidentiary foundation for an assertion that Mr. Jolicoeur was either high on drugs or even using cocaine on the evening in question.

Rather, the evidence, such as it was, was that Mr. Jolicoeur was purchasing cocaine from Ms. Vivancos for resale to his own customer. [ 39 ] Ms. Lind suggested that it was open to me to find Mr. Jolicoeur’s drug intake was a contributing factor because of my adverse credibility findings against Mr. Jolicoeur. I had, at para 97, page 24 expressed grave doubt about whether this customer even existed. The implication is, of course, that if no customer existed then the cocaine he was purchasing from Ms. Vivancos must have been for himself. [ 40 ] It was Mr.

Jolicoeur’s involvement in the drug world, as a consumer, that led him to his fatal encounter with Ms. Vivancos. Now that Mr. Jolicoeur has taken steps to address his issues with drugs, it is argued, there is little or no likelihood that violent behaviour on his part will be repeated. This argument speaks to future dangerousness which is a factor for the Court’s consideration in determining parole ineligibility: Ryan at para 39 . [ 41 ] There is a finding at para 40 of Ryan that the offender was “a criminalized addict with dangerous impulses” at the time of the offence. At Mr.

Jolicoeur’s trial, there was certainly evidence that Mr. Jolicoeur was a cocaine user and may have been an addict at one time. In the Defence’s written submissions for sentencing, there is a reference from his partner to both Mr. Jolicoeur’s addiction to drugs and his selling of drugs. [ 42 ] From this, I can say that Mr. Jolicoeur’s involvement in the drug world, even if only as a customer, was the main factor leading to the fatal encounter with Ms. Vivancos. I also see that during remand, Mr.

Jolicoeur has availed himself of Alcoholics Anonymous/Narcotics Anonymous, thereby taking steps to address this factor. [ 43 ] With this factor, the categories of circumstances of commission and character of the offender overlap. Mr. Jolicoeur’s involvement in the drug world is a circumstance of commission while recognizing and taking steps to overcome these drug issues reflect on his character. [ 44 ] This factor is also a response to Ms.

Fraser’s assertion that there are no contributing reasons for the killing, such as drug addiction or mental illness, which therefore points to unpredictability and future dangerousness. This argument may flow from paras 40 to 42 of Shropshire in which the Supreme Court of Canada notes that, post-conviction, an offender seeking the least severe sentence no longer has a constitutional right to silence and has somewhat of an obligation to take an active role in the sentencing process, which may involve explaining why the offence occurred.

Here, the Supreme Court of Canada was not taking issue with the sentencing judge’s focus on the offender’s silence, from arrest through sentencing, as to why he engaged in an execution-style murder of the victim, as an aggravating factor. The sentencing judge was clearly troubled by the random nature of the killing in Shropshire (at page 246; see also comments of Renke J in Soosay at paras 82 & 83 regarding “randomness” as an aggravating factor). [ 45 ] The search for an explanation for a seemingly irrational act is natural. An explanation might involve discerning a motive or cause for the violent act.

The absence of such an explanation was disconcerting to the sentencing judge in Shropshire . [ 46 ] In the case before me, Mr. Jolicoeur’s actions were not random, and he was far from silent. During his police interviews, he gave at least three explanations of his conduct: self-defence, provocation and trying to prevent Ms. Vivancos from using her cell phone. At trial, the Defence only asserted the second explanation while the Crown relied on the third. Ultimately, I accepted the Crown’s view that Mr. Jolicoeur tried to stop Ms. Vivancos from using her cell phone.

So, there is an explanation of sorts for why the attack took place. [ 47 ] But overall, the entire scenario unfolded because Mr. Jolicoeur was looking to Ms. Vivancos for drugs. While Mr. Jolicoeur’s drug-seeking behaviour does not explain the killing itself, it does explain why he was at the pond in the first place, with the lethal actions then spontaneously arising. The Defence’s point here is, I think, that the drug-seeking behaviour was an antecedent to the incident and one which Mr. Jolicoeur has taken steps to address, thus reducing or eliminating the risk of future dangerousness.

I take the point. [ 48 ] Why Mr. Jolicoeur chose to use deadly force, in the circumstances, remains inexplicable. Confession & Cooperation [ 49 ] Similarly, Mr. Jolicoeur’s cooperation with authorities is either a circumstance of commission or circumstance of the offender. I agree, of course, that his attempted guilty plea to manslaughter at the outset of the trial was, as the Court of Appeal found in Ryan , an evidential nothing and by itself not a mitigating factor. However, we must look at what Mr. Jolicoeur actually did: • although initially proffering a false alibi, Mr.

Jolicoeur did on his own initiative and at next opportunity, voluntarily attend with police and confess his actions in causing Ms. Vivancos’ death; • at para 90, I found that the voluntary confession was both a function of conscience and self-interest; • that confession and co-operation with police dispensed with the need for further investigation; • at trial, Mr. Jolicoeur made extensive admissions, save with respect to intent, which dispensed with formal proof of the actus reus ,

saved both prosecution and Court time, and dispensed with the need to call certain witnesses; • Mr. Jolicoeur has always taken responsibility, except for that first interview, for the death and disputed with the authorities only on the level of intent, which he was entitled to do; • I said at para 88 that I would give Mr.

Jolicoeur his due for doing all of that and that his co-operation and admissions were worth something in the legal process. • Here, it is important to note the distinction between this case and the Ryan case, where the Court of Appeal felt the attempted guilty plea to manslaughter amounted to nothing. That is because the Court of Appeal noted at para 36: … The extent of Ryan’s acknowledgement of responsibility was that of an actus reus the Crown clearly could prove beyond a reasonable doubt.

Ryan’s aim was to avoid the life sentence which, on the evidence, was otherwise unavoidable… • That is certainly a different circumstance than we have in Mr. Jolicoeur’s case. There was no forensic evidence linking Mr. Jolicoeur to the murder. When Mr. Jolicoeur acknowledged responsibility, the Crown was not in a position to clearly prove the actus reus beyond a reasonable doubt. Mr. Jolicoeur put the Crown in that position by his confession and subsequent admissions. • While it is conceivable that police eventually may have been able to somehow connect Mr. Jolicoeur with Ms.

Vivancos’ death, they were spared that exercise. [ 50 ] In this regard, I adopt the comments of Justice Renke at paras 94 and 95 of Soosay : [94] Mr. Soosay did not plead guilty. He exercised his constitutional right to trial. [95] Mr. Soosay did cooperate in the focusing of the trial. With the Crown’s consent, he elected to be tried by judge alone. This had the effect of saving significant time and resources for the administration of justice and for those who would have sat as jury members. Mr. Soosay gave a statement to the police and did not challenge its admissibility. Mr.

Soosay accepted a statement of admitted facts that significantly shortened trial time. These factors have a mitigating effect on Mr. Soosay’s punishment. [ 51 ] I conclude that Mr. Jolicoeur’s co-operation did have the effect of focusing the trial, which was concerned solely with the issue of intent. Consequently, this aspect should have some mitigating effect on the punishment. L. Character of the Offender Future Dangerousness [ 52 ] I accept that there is nothing in Mr. Jolicoeur’s background, aside from the offence itself, to suggest he presents a risk of future dangerousness for violent behaviour.

Apart from involvement in the drug world, he has led a pro-social life characterized by mostly full employment in a trade and providing for his family. The letters presented by his family members indicate that the offence was out of character. While such letters are expected to be favourable to the offender, there is really nothing to controvert what they say. [ 53 ] The offence itself arose from Mr. Jolicoeur’s involvement with drugs. The material before me indicates that he has taken steps to stay out of that world. I conclude therefore that Mr.

Jolicoeur is not a dangerous person such that his continued imprisonment through a longer parole ineligibility is necessary to protect society. Rehabilitative Potential [ 54 ] Mr. Jolicoeur’s partner and his family remain supportive. While in remand, Mr. Jolicoeur has made the best of his time. He has engaged in the Boot Camp, and taken a number of courses including Anger Management, Leadership Enhancement and Development Skills, Public Law, Math 20-2, and Spiritual Health and Aboriginal Resources for Empowerment.

He has engaged as a laundry worker at ERC, has gained the knowledge of industrial washing machines and dryers and is reported to be a good worker and mentor. His Boot Camp evaluator reports that Mr. Jolicoeur has made significant strides in personal growth, sobriety and physical health and looks to continue that growth. [ 55 ] I accept that Mr. Jolicoeur has significant prospects for full rehabilitation. Remorse [ 56 ] Moreover, Mr. Jolicoeur has expressed remorse from the outset, as I found at paragraph 92 of the trial decision. During sentencing, Mr.

Jolicoeur addressed the Court and articulated, as best he could, his sorrow and regret over what he did. I perceived this to be genuine. [ 57 ] His significant potential for rehabilitation and remorse are mitigating factors. Mitigating Effect of Onerous Bail Conditions [ 58 ] There is next the matter of whether the bail conditions imposed were so onerous that they merit some reduction in parole ineligibility, such as in Ledesma . Mr.

Jolicoeur was under house arrest for 26 months but there were exceptions that were granted that included being able to walk his young children to school and working a booth at a farmers’ market. While Mr. Jolicoeur’s bail period

was considerably longer than Mr. Ledesma’s, the conditions were less onerous. Mr. Jolicoeur was not under electronic monitoring, and he was given some liberties. I am aware that the law does not permit a reduction of parole ineligibility commensurate with the duration of the bail conditions, but I will keep the quality of the bail conditions in mind, as well as the fact that Mr. Jolicoeur did well while on bail which is relevant to his rehabilitation potential and the risk that he presents to the public in future: Ledesma at para 56 . M.

Ruling [ 59 ] Given the aggravating factors in this case, namely the brutal nature of the offence and the cover-up attempts afterward, without more, I would have imposed a parole ineligibility period of 14 years. In my view, this would have been necessary, even taking into account the negligible risk for future violent behaviour on Mr. Jolicoeur’s part, as an expression of deterrence and denunciation. [ 60 ] In terms of mitigation, I have factored into the equation the fact of Mr.

Jolicoeur’s co-operation with the police during the investigation and the Crown during his own prosecution, his significant rehabilitative potential, including leaving the drug world, and the genuine remorse he carries with him. [ 61 ] In the result, I set the period of parole ineligibility at 12 years.

In that decision, I have considered the impact of bail conditions, but I have concluded that reducing parole ineligibility any further would not carry the weight of deterrence and denunciation that this case demands. [ 62 ] To a lesser extent, I have also had regard to the comments of Picard JA in Ryan that the 10-year median is the place of more youthful offenders. [ 63 ] Here, the crime is as serious as it gets, and Mr. Jolicoeur was solely and wholly responsible for Ms. Vivancos’ death. I have reviewed and heard submissions regarding the legal cases presented to me.

I have concluded that a parole ineligibility duration of 12 years reflects proportionality and parity and advances the objectives of sentencing. [ 64 ] Before I ask you to stand up and formally pronounce the sentence, I wish to take a moment to speak to you directly, Mr. Jolicoeur. [ 65 ] Despite a very able sentencing case put forward by the Crown, I have shown restraint here. That is something you denied to Ms. Vivancos.

Furthermore, by imposing the parole ineligibility duration that I have, I have given you hope for the future, recognizing that the ultimate decision regarding whether you ever regain your liberty is up to the Parole Board of Canada. You took hope away from Ms. Vivancos. In those last moments, she must have realized she was going to die, and she must have been terrified. You just didn’t deprive her of hope, you took everything from her, her whole life, her whole future. [ 66 ] It is right that you feel remorse for you have done the worst thing that someone can do to another human being.

Try as I might, I cannot understand why this happened. You could have gotten into your work van and driven away from that pond without so much as touching her. If you wanted to take her cell phone away from her to prevent her from calling, you could easily have done that without harming her. You are a big, strapping man and she was a woman smaller than you. What you have done, and the way you did it, is beyond human comprehension. [ 67 ] You yourself during one of your police interviews described Ms. Vivancos as beautiful. I think you meant physically beautiful. You heard what her family and friends had to say.

She was a beautiful person in her soul. That is the life you took. [ 68 ] You told me three weeks ago that you will spend the rest of your life trying to make things better. Atonement is all you have left to offer, Mr. Jolicoeur. In order to honour the life you have taken, you must devote the rest of your life to being as good a person as you can be and making things better. [ 69 ] Stand-up, Mr. Jolicoeur.

On the charge of second-degree murder for which you have been convicted, I sentence you to: • Life imprisonment; • with parole ineligibility for a period of 12 years. [ 70 ] I further impose a lifetime weapons prohibition order, under section 109(2) of the Criminal Code , and I order you, Mr. Jolicoeur, to provide a sample of your DNA under

section 487.051 of the Criminal Code . [ 71 ] Finally, there will be an order for the return of seized exhibits to their lawful owners after the appeal period and forfeiture of any remaining exhibits 90 days thereafter. Heard on the 5 th day of January, 2023. Dated at the City of Edmonton, Alberta this 5 th day of January, 2023.

Douglas R. Mah J.C.K.B.A. Appearances: Heather Fraser and Allison Magill for the Crown Amy Lind for Mr. Jolicoeur