2018 QCCA 1076, 2018 QCCA 1076

Turcotte c. R. 2018 QCCA 1076 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006091-167 (700-01-083996-093) DATE: June 28, 2018 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE ST-PIERRE, J.A. CLAUDINE ROY, J.A. GUY TURCOTTE APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] Guy Turcotte appeals the judgment of the Superior Court, District of Terrebonne (the Honourable Mr.

Justice André Vincent) rendered on January 15, 2016 that fixed the period of his ineligibility for parole at 17 years following his conviction of two counts of second degree murder and the imposition of a sentence of life imprisonment. [ 2 ] For the reasons of Hilton, J.A., with which St-Pierre and Roy, JJ.A. concur, THE COURT: [ 3 ] DISMISSES the appeal. ALLAN R. HILTON, J.A. MARIE ST-PIERRE, J.A. CLAUDINE ROY, J.A.

Mtre Pierre Poupart Les avocats Poupart, Touma Mtre Félix Rémillard-Larose Roy Bélanger Avocats For appellant Mtre René Verret Directeur des poursuites criminelles et pénales For respondent Date of hearing: March 13, 2018

REASONS OF HILTON, J.A. I INTRODUCTION [ 4 ] Appellate courts are rarely called upon to adjudicate appeals that challenge the duration of the period of ineligibility for parole of an offender convicted of second degree murder. This is one such appeal. [ 5 ] On January 14, 2011, Guy Turcotte was charged with having committed the first degree murder of his two children, Olivier and Anne-Sophie, on the evening of February 20, 2009. [1] Olivier was going on 6 years old and Anne-Sophie was a few months over 3 years old at the time of their death. Mr. Turcotte was arrested at the scene of the crime the next morning.

After his own hospitalization, he remained in custody at the Pinel Institute until a jury of the Superior Court returned a verdict on July 5, 2011 that he was not criminally responsible by reason of mental disorder. Subsequent to that verdict, the Crown appealed, and he remained within the purview of a Review Board pursuant to

Part XX.1 of the Criminal Code . On December 12, 2012 he was released and granted bail pending the outcome of the Crown’s appeal. [ 6 ] On November 13, 2013, this Court allowed that appeal and ordered a new trial. [2] Mr. Turcotte surrendered into custody, but applied for bail during the conduct of the new trial. Vincent, J., who was later to become the trial judge at the second trial, granted him bail, a judgment that this Court confirmed. [3] [ 7 ] On December 6, 2015, the jury returned a verdict of guilty of second degree murder on each count, whereupon Mr.

Turcotte was taken into custody, where he has remained. [4] The jury declined the trial judge’s invitation pursuant to s. 745.2 Cr.C . to fix the period of his ineligibility for parole. The trial judge then rendered his judgment sentencing Mr. Turcotte to the obligatory sentence of life imprisonment pursuant to s. 745(

c) Cr.C. , and fixed the period of his ineligibility for parole at 17 years. [5] II RELEVANT FACTS [ 8 ] Guy Turcotte and Isabelle Gaston, both of whom were physicians at the time of the events in issue, had been going out together and been married for several years. They were close friends of another couple: Martin Huot and Patricia Giroux. Mr. Turcotte became aware in January of 2009 that Mme Gaston and Mr. Huot had begun an extra-marital romantic relationship in the fall of 2008. [ 9 ] Mr. Turcotte chose not to raise this issue with Mme Gaston, as a planned family vacation to Mexico was on the horizon. Mr.

Huot informed Mme Gaston during this trip that Mr. Turcotte had become aware of their relationship. When she brought it up with him, he refused to discuss it then and said they would do so upon their return home. [ 10 ] Once back home, Mr. Turcotte undertook measures to acquire a separate residence, and moved out.

He eventually acquired a new home in close proximity to his former family residence that could accommodate his two children, and was expected to participate in a final inspection with his real estate agent on February 21, 2009. [ 11 ] Despite having agreed to participate with Mme Gaston in a mediation process to resolve outstanding issues between them, Mr. Turcotte nevertheless took umbrage at Mr. Huot moving into what had been his family residence. On February 20, Mme Gaston informed Mr.

Turcotte that she had changed the locks on the doors to their former residence, which led him to respond in a crude way that he was prepared to react accordingly. Later that day he picked up his two children, as he was intended to be the parental guardian that weekend. Mme Gaston was out of town on a skiing vacation with friends. [ 12 ] Upon his return to his residence with the children, Mr. Turcotte made them dinner, put on a video he had rented, and began to read the emails that had been exchanged between Mme Gaston and Mr. Huot.

They left no doubt in his mind as to the nature and intensity of their relationship. [ 13 ] The trial judge observed that the description of subsequent events is very confusing to the extent it is based on Mr. Turcotte’s testimony, which the latter described as consisting of “flashes”. That being said, there is also forensic evidence that assists in the reconstruction of what happened as it relates to his conduct that evening. [ 14 ] Mr.

Turcotte testified he began to think of committing suicide and consulted websites [6] about the means to do so that included the ingestion of windshield wiper fluid, a substance that contains methanol, which would be fatal.

He subsequently made three telephone calls: the first to his real estate agent to say he would not be attending the following day for the final inspection of the new residence he was purchasing; then to the mother of his baby sitter to say her daughter’s services would not be needed the next day; and, finally, to his mother, during which he complained about the unhappiness he experienced during his marriage. [ 15 ] According to his imperfect memory, he claims he then began to ingest windshield wiper fluid, but realized his children would eventually find him to be deceased.

He thus decided to spare them that unsettling experience by terminating their lives. He recalls seeing himself with a knife in hand in his son’s room with Olivier crying out “Non, non”. He saw he was hurting him but continued to strike him to end his suffering. The same scenario occurred in his daughter’s room. [ 16 ] All in all, Mr. Turcotte inflicted 46 knife wounds on his children that caused their horrific deaths. [ 17 ] Twenty-seven were directed at Olivier, 16 of which were to the chest and four to his back.

The autopsy report indicated as well that Olivier tried in vain to defend himself, as there were seven defensive wounds on his arms and hands. It further disclosed that he had been on his side at one point but been turned over to be struck again. Anne-Sophie was knifed 19 times, 16 of which were to the chest

and three to the back. [ 18 ] Uncontradicted expert evidence established that Mr. Turcotte committed these assaults on each of his children in two distinct sequences. [ 19 ] Afterwards, Mr. Turcotte says he continued to ingest windshield wiper fluid, fell asleep, and awoke upon the arrival of police officers the next morning, where he was found under his bed. His next memory is at a hospital where he was being treated to eliminate the methanol he had consumed from his system. [ 20 ] The Crown points out in its factum, however, that Mr.

Turcotte’s “flashes” of when he began to consume the windshield wiper fluid, that is to say before he began his fatal assaults on his children, are contradicted by four elements of objective expert evidence that would point to his having done so after he carried out the murders of his children. [7] Such objective evidence that directly conflicts with his account of events on an important element of the sequence of events, together with his testimony consisting merely of “flashes”, must have had an impact on the verdict the jury eventually returned. [ 21 ] As far as motive is concerned, the trial judge concluded that Mr.

Turcotte could not accept that Mr. Huot had essentially assumed his role not only as the matrimonial partner of Mme Gaston but also as the father figure for Olivier and Anne-Sophie. He further noted some of Mr.

Turcotte’s disparate comments recounted by nurses at the hospital to which he was taken: Mme Gaston had everything she wanted, travelled wherever she wished; he had killed his children to spare them the pain of the separation of their parents; and, he had done so to take away that which Mme Gaston most treasured in the world, her children. [ 22 ] The jury heard expert evidence both in support of and disputing the proposition advanced on behalf of Mr.

Turcotte that at the time of the commission of the offences, he was unable to appreciate the nature and quality of his conduct, or that he knew that what he was doing was wrong. In light of this evidence, the trial judge gave the jury the option of finding Mr. Turcotte not guilty by reason of mental disorder, the same verdict the jury reached at his first trial. [ 23 ] Their verdict that he was guilty of second degree murder, however, confirms that the jury was satisfied beyond a reasonable doubt that at the time of the commission of the offences, Mr.

Turcotte had the mental capacity to “mean to cause the death” [8] of his two children. III THE SENTENCING JUDGMENT [ 24 ] The trial judge quite properly characterized the murders as having been committed in a cold-blooded manner in the context of an inevitable matrimonial separation. He noted that the Crown sought a period of ineligibility for parole of 20 years, while counsel for Mr. Turcotte urged the judge to establish that period at less than 15 years and closer to the minimum of 10 years. [ 25 ] After citing R. v.

Lacasse [9] and the Supreme Court’s recognition of the difficulty trial judges face in imposing a just and reasonable sentence, the trial judge referred, amongst others, to ss. 718.01 and 718.2 (ii.1) Cr.C . [ 26 ]

Section 718.01 Cr.C . directs trial judges to “give primary consideration to the objectives of denunciation and deterrence” to “an offence that involves abuse of a person under the age of eighteen years”, while s. 718.2 (ii.1) Cr.C. provides that a court imposing a sentence must take into account as an aggravating factor that “the offender, in committing the offence, abused a person under the age of eighteen years”. [ 27 ] After referring to the general principles of sentencing in R. v. M (C.A.) [10] and R. v. Nasogaluak , [11] the trial judge commented on the appellant’s character.

He noted that until the events specified in the charges against him, Mr. Turcotte had led an exemplary life that could not have given rise to the belief that he would find himself in the circumstances he was then facing. Moreover, he had always respected the conditions of his release from custody, both prior to the first trial and while awaiting the second trial after this Court set aside the initial verdict and ordered a new trial. [12] [ 28 ] Mr. Turcotte expressed remorse at the end of the sentencing hearing in very brief remarks.

Addressing Mme Gaston, he said that he had never wanted to hurt her, but during the trial he felt that he had to explain the reasons for his distress.

Nevertheless, he could not bring himself to explicitly mention his children, or any regret at having ended their lives in so brutal a manner. [ 29 ] In addition, expert reports and expert testimony were to the effect that he represented a minimal risk to society, but that he should be followed up with psychological and psychiatric treatment during his incarceration. [ 30 ] The trial judge characterized the commission of the two murders as horrible and noted that Mr. Turcotte created other victims who would be marked for life, including his own parents and Mme Gaston.

Her eloquent testimony during the sentencing hearing demonstrated just how much the murders of Olivier and Anne-Sophie affected her, and how her life had become filled with incommensurate sorrow and heartbreak that had an impact on her in many other unimaginable ways. [ 31 ] A review of the mitigating and aggravating factors then followed. [ 32 ] Apart from having admitted that he was the author of the death of his two young children, which was never in dispute, the trial judge did not identify any other mitigating factors, although he did note that his defence based on s. 16 Cr.C . was serious. [ 33 ] Nevertheless, there were several aggravating factors: the extent and location of the knife wounds; the manner of his carrying out the murders while his children slept; and the fact that he returned to each of their rooms to resume the assault when they were already in extreme agony or had already died.

Moreover, in the period after his arrest and detention, he seemed more interested in securing funds to present a defence than the fate he inflicted on his two young children

[ 34 ] The judge also remarked that although the jury had concluded that the murders were not “planned and deliberate” since it did not convict him of first degree murder, [13] he could not ignore for sentencing purposes that Mr.

Turcotte brought two knives to the second floor where his children slept, although only one was used. [ 35 ] The judge then considered the respective positions of the Crown and the defence. [ 36 ] He wrote that the 20-year period of ineligibility the Crown sought was exaggerated, did not satisfy the principle of harmonisation of sentences, and did not correspond with the offender’s personality to the extent he had no prior convictions and did not constitute a high risk to society. [ 37 ] Similarly, he rejected the suggestion of Mr.

Turcotte’s counsel who argued for a period of ineligibility of less than 15 years that would be closer to the minimum period of 10 years. Such a proposal if adopted would not respect the principle of proportionality nor reflect the moral culpability of Mr. Turcotte. [ 38 ] The judge thus concluded that a 17-year period of ineligibility for parole, retroactive to his arrest on February 21, 2009, less any time he was detained while awaiting trial (the precise details of which do not form part of the record) would constitute a just punishment that reflected Mr.

Turcotte’s moral culpability and the odious nature of the murder of his two children. IV THE PARTIES’ RESPECTIVE POSITIONS [ 39 ] Mr. Turcotte argues that the trial judge erred by failing to take account of case law to the effect that a period of ineligibility for parole beyond 15 years is not justified in the absence of a convincing profile of his danger to the public, and, that the judge erred by failing to consider his mental distress in the assessment of his moral culpability, irrespective of the fact that the jury rejected the s. 16 Cr.

C. defence. [ 40 ] The Crown contests the continuing applicability of the case law relied on by Mr. Turcotte in respect of the first submission, and argues that the judge took adequate consideration of his mental state and contact with reality when he committed the two murders. V ANALYSIS AND DISCUSSION [ 41 ] Before continuing, it is important to emphasize, as Mr. Turcotte’s counsel did at the hearing in this Court, that the trial judge did NOT sentence him to a term of imprisonment of 17 years. Mr. Turcotte was sentenced to imprisonment for the rest of his life. Mr.

Turcotte will be conditionally released only if the Parole Board of Canada is seized of an application on his behalf for parole after he has been imprisoned during the period of years of ineligibility and it grants such an application releasing him from custody on the conditions it then determines. [ 42 ] Such a determination will be based in large measure on Mr.

Turcotte’s conduct during his incarceration. [14] If he were to breach any of those conditions after being released, he would be returned to custody to serve the balance of his sentence of life imprisonment. [15] The sentence of life imprisonment will thus be a constant factor in his life, irrespective of whether or not he is eventually released on parole. [ 43 ] The majority judgment of this Court in R. v. Lemieux [16] on which Mr. Turcotte principally relies was rendered in 1997.

Like the circumstances of this case, the accused’s defence based on s. 16 Cr.C . failed and the jury returned a verdict of guilty of second degree murder. The trial judge in that case took account of the circumstances of the offence, which involved the unprovoked knifing of an 11- year old boy and the attempted strangling of the victim’s sister who had come to his aid. He fixed the period of ineligibility for parole at 18 years. [ 44 ] The majority of this Court intervened to reduce that period to 14 years.

It did so essentially because there was inadequate evidence of the offender’s long term dangerous character, and because the trial judge did not take account of his mental state at the time of the commission of the offence. It is important to note, however, that although Lemieux has been cited on five occasions in other judgments of this Court, none of them have restated the principle on which Mr.

Turcotte relies. [17] The failure of the trial judge to consider or apply Lemieux in the manner the appellant proposes cannot therefore be said to constitute an error of law. [ 45 ] The role of intermediate appellate courts in sentencing has evolved since 1997.

In Lacasse , [18] the Supreme Court of Canada took the opportunity “to clarify the standard on the basis of which an appellate court may intervene and vary a sentence imposed by a trial judge.” [19] That standard is a demanding one, as the reasons of Wagner, J. (as he then was) for the majority show, and does not leave much margin for appellate intervention:

[11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard . The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit . [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts .

With respect, I am of the opinion that the Court of Appeal was wrong in this case to reduce the sentence imposed by the trial judge by basing its intervention on the fact that he had departed from the established sentencing range. [Emphasis added.] [11] Notre Cour a maintes fois rappelé l’importance d’accorder une grande latitude au juge qui prononce la peine. Comme celui-ci a notamment l’avantage d’entendre et de voir les témoins, il est le mieux placé pour déterminer, eu égard aux circonstances, la peine juste et appropriée conformément aux objectifs et aux principes énoncés au Code criminel à cet égard.

Le seul fait qu’un juge s’écarte de la fourchette de peines appropriée ne justifie pas l’intervention d’une cour d’appel. Au final, sauf dans les cas où le juge qui fixe la peine commet une erreur de droit ou une erreur de principe ayant une incidence sur la détermination de cette peine, une cour d’appel ne peut la modifier que si cette peine est manifestement non indiquée . [12] En la matière, la proportionnalité demeure le principe cardinal qui doit guider l’examen par une cour d’appel de la justesse de la peine infligée à un délinquant.

Plus le crime commis et ses conséquences sont graves, ou plus le degré de responsabilité du délinquant est élevé, plus la peine sera lourde. En d’autres mots, la sévérité de la peine ne dépend pas seulement de la gravité des conséquences du crime, mais également de la culpabilité morale du délinquant. Fixer une peine proportionnée est une tâche délicate. En effet, comme je l’ai souligné plus tôt, tant les peines trop clémentes que les peines trop sévères peuvent miner la confiance du public dans l’administration de la justice.

Qui plus est, si les tribunaux d’appel interviennent sans retenue pour modifier des peines perçues comme trop clémentes ou trop sévères, leurs interventions risquent d’éroder la crédibilité du système et l’autorité des tribunaux de première instance .

Avec égards, je suis d’avis qu’en l’espèce, la Cour d’appel a eu tort de substituer une peine réduite à celle infligée par le juge de première instance en appuyant son intervention sur le fait que ce dernier se serait écarté de la fourchette de peines établie. [Soulignage ajouté.] [ 46 ] Two fundamental questions thus emerge: did the 17-year period of ineligibility for parole deviate from the proper sentencing range, and if so, did the trial judge commit an error of law or principle that had an impact on the sentence, in light of the gravity of the crime and Mr.

Turcotte’s degree of responsibility? [ 47 ] The answer to these questions is negative, given the tender age of the two victims, the vicious manner in which they were murdered, the devastating impact of the murder on Mme Gaston, the presence of two statutorily mandated aggravating factors and the absence of any significant mitigating factors. [ 48 ] The gravity of the crime is hardly in doubt. Mr. Turcotte’s degree of responsibility is complete. Obviously, he alone is responsible for the two murders. [ 49 ] Even if one were to acknowledge the despair Mr.

Turcotte experienced by learning that his wife had effectively ended their marriage by beginning and maintaining an intense romantic relationship with another man, and to acknowledge his testimony that he decided to spare Olivier and Anne-Sophie the trauma of seeing their father dead when they awoke on the morning of February 21 by inflicting a viciously horrific death on them, there is other contemporaneous evidence that suggests he did so as a result of the animus he felt towards Mme Gaston.

[ 50 ] Chantale Duhamel, a nurse who was working in the emergency room at Hôpital St-Jérôme when Mr. Turcotte arrived, testified that she had known him as a workplace colleague for seven or eight years. He recognized her immediately upon seeing her when brought to the hospital, despite being in an agitated state. She remained with him until he was transferred to Hôpital Sacre-Coeur approximately eight hours later, during which time she accompanied him in an ambulance. [ 51 ] During the examination in chief Mme Duhamel, Crown counsel asked her whether during the afternoon, Mr.

Turcotte had said anything to her about Mme Gaston. She answered as follows: Il m'a dit qu'il voulait la faire chier.

Il m'a dit la seule façon qu'il avait trouvé de la… excusez les… le terme, je reprends les paroles, la seule façon qu'il voulait la faire chier c'est de lui enlever ce qu'elle avait de plus précieux au monde et c'était ses enfants. [ 52 ] A few minutes later during the same examination, she added: Il m'a dit : « J'aimerais que tu dises un message à Isabelle pour moi, dis-lui que j'ai fait ça pour la faire chier. » [20] [ 53 ] Mme Duhamel was not cross-examined on this aspect of her testimony, thus leaving it unchallenged. [ 54 ] Whether to spare Olivier and Anne-Sophie the spectre of seeing their father dead or his animus towards Mme Gaston, the jury rejected the expert evidence adduced on his behalf in support of a verdict that he was not criminally responsible based on his having lost contact with reality.

The trial judge nevertheless acknowledged the seriousness of the defence in his sentencing judgment in the context of Mr. Turcotte’s character, including the factors I have mentioned in paragraph [27]. [ 55 ] To the extent the trial judge could have chosen to give more weight than he did to Mr.

Turcotte’s s.16 Cr.C . defence in establishing the duration of his period of ineligibility, it was certainly not an error of law to have failed to do so in light of the balance of the evidence he considered, not the least of which is the tender age of his two young victims and the absence of any significant mitigating factors. [ 56 ] The period of ineligibility of 17 years imposed by the trial judge is not unusual or disproportionate given the circumstances and taking account of other cases across Canada. [ 57 ] Most recently, the Court of Appeal for Ontario held in R. v.

Rosen [21] that the particular circumstances of a single murder for which the accused's ineligibility for parole was established at 17 years "warranted a substantial increase" beyond the minimum of 10 years since "the murder involved a significant breach of trust" and was "proportionate to the gravity of the appellant's offence and his degree of responsibility for having committed it." This determination was consistent with its earlier judgment in R. v.

Dewald [22] in which the Court’s majority (McMurtrey, C.J.O and Laskin, J.A.) fixed a period of ineligibility of 17 years for a first-time offender convicted of second degree murder who drowned his 10 and 12 year old children and who was, amongst other characteristics, “severely depressed when he committed the murders, a depression that according to his psychiatrist contributed to what he did.” [23] [ 58 ] In the same vein, reference may also be made to R. v. Regan (17 years of ineligibility for a single murder in the context of drug dealing), [24] and R. v.

Cerra (20 years of ineligibility for the severe beating death of a young woman over a drug dispute). [25] [ 59 ] Mr. Turcotte is not the first nor the last person to have lost the affections of a spouse for someone else. The breakdown of his marriage cannot have the effect he would attribute to it in the sentencing process in light of all of the other factors the trial judge was obliged to consider and apply. [ 60 ] I would accordingly dismiss the appeal. ALLAN R. HILTON, J.A.