R.v. Hartling, 2011 NSSC 506

SUPREME COURT OF NOVA SCOTIA Citation: R.v. Hartling, 2011 NSSC 506 Date:

(20120222) Docket: CRP 319949 Registry: Pictou Between: Her Majesty the Queen Plaintiff v. Bernard F. Hartling Defendant Judge: The Honourable Justice Arthur J. LeBlanc Heard: September 6, 7, 8, 9, 12, 13, 14, 15, 16, 19 and 20, 2011 and December 5, 2011 in Pictou, Nova Scotia Written Decision: February 22, 2012 Counsel: Edward J. McNeill, for the Crown Hector J. MacIsaac, for the Defendant By the Court : [ 1 ] Mr. Hartling was convicted of second degree murder of Kenneth McNamara after a jury trial.

Subsection 235(1) of the Criminal Code requires that a person convicted of second degree murder shall be sentenced to life imprisonment. The sole issue for my decision today, besides ancillary orders that I may be requested to issue, is to establish or set the date of parole ineligibility. [ 2 ] In coming to my decision I am guided by the provisions of the Criminal Code . That is the law that applies to any judge in Canada. These provisions provide at

section 718 and 718.1: Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that

have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and any other person from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. .... 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 3 ] The law respecting life sentences is set out at

section 745 of the Criminal Code , which provides, in part: Sentencing of life imprisonment 745 Subject to

section 745.1, the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be . . .

(

c) in respect of a person who has been convicted of second degree murder, that the person to be sentenced to imprisonment for lifewithout eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being morethan twenty five years, as has been substituted therefore pursuant to

section 745.4. . . . [4]

Section 745.2 provides that the jury shall be asked if it wishes to make a recommendation respecting the number of years anoffender must serve before being eligible for parole. The jury in this case made such a recommendation, which I will address later.Section 745.4 permits the sentencing judge, having regard to the character of the offender, the nature of the offence and thecircumstances surrounding its commission, and to the recommendation, if any, made pursuant to

section 745.2, to substitute for ten yearsa number of years of imprisonment (being more than ten but not more than twenty five) without eligibility for parole, as the judge deemsfit in the circumstances. [5] In the decision of R. v. Shropshire1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, which is a Supreme Court of Canada decision,which was decided in 1995, the Court stated at paras. 18 and 27: 18 The determination under s. 744 is thus a very fact sensitive process.

The factors to be considered in fixing an extended period ofparole ineligibility are: (1) the character of the offender; (2) the nature of the offence; and (3) the circumstances surrounding the commission of the offence; all bearing in mind the discretionary power conferred on the trial judge. .... 27 As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judgethat, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be releasedinto the general public assessed.

To this end, an extension of the period of parole ineligibility would be "unusual," would not be"unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded. [6] I refer to a decision of the Newfoundland Supreme Court, of R. v. Doyle, (NL SC), 2003 NLSCTD 20,affirmed at 2004 NLCA 64, where Chief Justice Green outlined a number of relevant considerations in applying the factors under s.745.4. Along with the principles of sentencing which I have just outlined, he said at paragraph 31: [31] These considerations can be restated for present purposes as follows: (

a) Character of the Offender: (

i) general background; (ii)previous criminal record and lifestyle; (iii) medical and psychiatric history;

(iv) capacity for future dangerousness; (

v) attitude, including remorse and victim empathy; (vi) motivation; (vii) mitigating circumstances, such as the entry of a guilty plea, and cooperation with the investigation, (

b) Nature of the Offence (

i) nature of the crime, (ii) victim impact, (

c) Circumstances surrounding the commission of the offence (

i) the manner in which the death was caused, including the infliction of any gratuitous, excessive or sadistic violence, (ii) explanation by the offender, or any lack of explanation, (iii) planning and deliberation, (iv) influence, if any, of alcohol or drugs. [ 7 ] The leading case in this Province on s. 745.4, which is the matter of parole ineligibility is R. v. Hawkins, 2011 NSCA 7 . In that case, the jury convicted the offender of second degree murder. The offender brutally killed the victim in his own home and robbed the home in order to buy cocaine.

He was 29 years old at the time of the offence, and had had a difficult upbringing, but the trial judge found that he had some potential to be a contributing member of society, and some skills as a roofer. The evidence indicated that “ drug abuse had been the offender ’ s downfall ” (para. 22). The trial judge referred to , among other things, the offender ’ s lack of remorse and the principles of specific deterrence, and set the ineligibility period at 20 years. [ 8 ] The Court of Appeal considered the principles applicable to a determination under s. 745.4.

The Court noted that specific deterrence should not be a consideration, nor should the absence of any expression of remorse. The Court went on to state that an increased period of parole ineligibility may serve to express denunciation and the community ’ s revulsion over the offence, as well as providing some scope for general deterrence, although the deterrence aspect should not be overemphasized. It is not the overwhelming imperative of a longer period of parole ineligibility.

Therefore the general principles of sentencing under sections 718-718.2, and the Court stated, "generally inform the discretion to be exercised in setting the period of parole ineligibility" (para. 47). This compels the sentencing judge to consider the “ principles of restraint embodied in the mandatory directions of s. 718.2", and to have reference to what periods of parole ineligibility have been imposed on similar offenders for similar offences committed in similar circumstances (para. 47).

Previous cases will serve as a “ rough guide for the sentencing judge in identifying the types of aggravating or mitigating circumstances

that other courts have relied on as relevant in applying the guidelines." (Para. 51 citing R. v. Doyle (1991), 108 N.S.R. (2d) 1 (C.A. at para. 42). Justice Beveridge, speaking for the Court, also noted that a period of ineligibility of 20 years or longer “ is reserved for the worst offenders or offences. ” (para. 69). After an extensive review of caselaw, he concluded, at para. 95: 95 The facts speak of a brutal and callous murder of a vulnerable victim in his own home by an offender driven by the scourge of addiction to a corrosive drug. Most murders are brutal and callous.

As recognized by many cases, the imposition of a sentence of life imprisonment without parole ineligibility for at least ten years already carries with it significant element of denunciation and general deterrence. However, here the appellant recognized at trial and on appeal that some additional period beyond the automatic minimum ten years was appropriate and suggested 15 years. I agree that in light of the circumstances of this offence, some increase in the period of parole ineligibility is warranted.

In my opinion, the acceptable range of sentence in these circumstances is between 12 and 15 years. .... [ 9 ] Again in 2011 the Nova Scotia Court of Appeal considered s. 745.4 in R. v. Ward , 2011 NSCA 78 . In that case, the offender, a 35-year-old man with a somewhat dated criminal record, a stable work history, and possible alcohol problems, killed the victim with a blow or blows to the head by a baseball bat following a fight that had already left the victim temporarily unconscious.

In that case the accused had rendered the victim unconscious, left the residence went outside and came back in with a baseball bat. The trial judge imposed a period of parole ineligibility of 16 years. The Court of Appeal reduced this period.

The court stated at paras. 107-108: [In Hawkins ], my colleague Justice Beveridge meticulously examined leading cases in this and other jurisdictions before stating what this Court sees as being the appropriate current range for parole ineligibility following conviction for second degree murder in cases where similar circumstances may be ascribed to both the offence and the offender. In such cases as those, this Court has declared that the appropriate period of imprisonment before eligibility for parole can be considered ranges between 12 and 15 years.

While there will always be exceptional cases where judges might be persuaded that there is good reason to move below or beyond that range, the judge will be obliged (as would be expected in any other type of sentencing decision) to articulate the reasons for departure, which might then form a basis for meaningful review on appeal. [ 10 ] Noting that the Crown had sought in the Court of Appeal a period of 15 years of ineligibility, and the offender 10, the Court of Appeal went onto say at paragraphs 110-114 of the decision: 110 After carefully reviewing the record, I see nothing in the facts in this case which would take it outside that range.

While it might seem distasteful to some to “compare” the features of one homicide against another, the reality is that such an analysis is required in order that proper, sensible and predictable “ranges” might be established. To the extent that one can ever “grade” the level of viciousness or brutality associated with murder, such an analytical exercise is warranted if one’s objectives are to achieve proportionality and consistency in sentencing for similar crimes and similar offences. 111 At the time of sentencing Shane Ward was 35 years of age, single, with a Grade 12 education.

He and his brother Matt left Nova Scotia for “greener pastures” and worked in Ontario for nine years before returning to Nova Scotia. He then entered a common law relationship which continues. While in high school he was a wrestler who displayed sufficient skills to make it to the nationals and be asked to try out for the Canada Games team. Witnesses referred to the appellant as being a very capable and hard working drywaller. He denied using drugs and said he rarely drank alcoholic beverages. His probation officer described him as an intelligent, pleasant and co operative individual.

Letters of support described Mr. Ward as kind, honest and non-violent, in many ways “a peacemaker” within his group of friends. People said the offence was out of character and that the appellant was one who always put the interests of others ahead of his own. The appellant was also cited as the person responsible for saving the lives of several individuals whose house was on fire. Mr. Ward was able to raise the alarm and get people to safety before anyone was hurt. 112 Such commendable qualities and mitigating factors must be contrasted with the aggravating features noted by the trial judge.

The appellant told his probation officer that he could not remember the details of the offence. He thought Phillip Love said “I’m going to kill you”, he felt scared and only recalled hitting Love with an unknown object. Mr. Ward had a somewhat dated criminal record, but which did include crimes of violence including assault, possession of a weapon, and assault causing bodily harm. Significantly these incidents involved assaults upon relatives and friends.

This suggests that the appellant has a hair trigger temper or little capacity to control his emotions. 113 There can be no question that Phillip was the victim of a brutal murder. He was virtually beaten to death in his own home. He lingered on in the hospital for several days. However, given the nature of his severe skull and brain injuries, death was inevitable. 114 Undoubtedly alcohol was a factor in these tragic circumstances. The trial judge found that the appellant was intoxicated but also

appeared to be the least intoxicated of all of the persons who were in the residence that evening. [ 11 ] The Nova Scotia Court of Appeal considered all these factors “ including the principles and objectives of sentencing; the appellant ’ s culpability in such a senseless and vicious assault; and a recognition that in his case the prospects for parole should not be so distant as to dash all hope for rehabilitation ” and fixed the appellant ’ s period of parole ineligibility at 13.5 years (para. 115). [ 12 ] The Crown submits that the Court should increase the period of parole ineligibility here from ten years to 18 to 20 years.

On behalf of Mr. Hartling, Mr. MacIsaac suggests that the Crown ’ s position is overly harsh, and seeks a shorter period of ineligibility, of no more than 13 years. [ 13 ] We have heard the evidence given at trial and I am going to offer a

summary. On the morning of November 14, 2009, Mr. McNamara visited the residence of Ms. Tammy Dowding, wishing to speak to Mr. Hartling. Mr. McNamara was talking about a hit being on him and told Ms. Dowding that "he didn't want any trouble around his house as she wouldn't want any trouble around her house". Ms. Dowding in turn conveyed the message to Mr. Hartling. Mr. Hartling testified that before he went to Mr. McNamara's residence he had received a phone call from Ms. Dowding from which he understood that she had been threatened. Ms. Dowding said that she was confused and a little intimidated by the visit.

Shortly thereafter Mr. Hartling drove to Mr. McNamara's residence. He parked on the roadway adjacent to the driveway leading to Mr. McNamara's home. Remaining in his truck he called for Mr. McNamara to come to see him. When Mr. McNamara came out he went to his own vehicle and appeared to take something out. As he approached Mr. Hartling's vehicle he was carrying a canister of bear spray behind his back under his shirt. [ 14 ] As Mr. McNamara approached the Hartling vehicle words were exchanged between the two men. Ms. Cornett, Mr. McNamara ’ s spouse, claims that she heard Mr. McNamara say to Mr.

Hartling that he did not want any trouble and that Mr. Hartling said Mr. McNamara inquired as to who else was in the truck. Mr. Hartling twice asked Mr. McNamara what he was doing at his house earlier that day. Both men were speaking in raised voices and Mr. Hartling was using foul language. As Mr. McNamara approached the truck in which he was still sitting, Mr. Hartling fired his sawed off shot gun which had been beside him in the truck, loaded, cocked and without the safety engaged. Mr. McNamara was killed instantly. He lay on the roadway for Ms. Cornett to see. After the shooting Mr.

Hartling left immediately, disposing of his gun and the remaining shells. [ 15 ] The jury determined that the defence of self-defence and accident did not apply and found Mr. Hartling guilty of second degree murder. The jury determined that there was insufficient evidence to find Mr. Hartling guilty of first degree murder. [ 16 ] Mr. Hartling claimed that he had gone to the McNamara residence to inquire as to the purpose for which McNamara had gone to Ms. Dowding's residence. There was no evidence of any enmity or ill will between the two, that is between Mr. McNamara and Mr.

Hartling, in the days or weeks prior to the murder. In fact, there was evidence Mr. McNamara, for his part believed that he could resolve any issues he had with Mr. Hartling through discussions. According to Mr. Cornett's evidence, Mr. McNamara did not believe that Mr. Hartling was involved or a party in the hit. [ 17 ] Mr. Hartling is 37 years of age. His father died when he was seven. According to the pre-sentence report, he reported a good relationships with his mother and sister. He has a common law wife, Tammy Dowding, whom he met when he was sixteen. They had a daughter when Ms. Dowding was 17. Mr.

Hartling moved to Ontario at the age of 19, and spent time in St. Catherines and then some in Toronto where he went to trade school. He returned to Nova Scotia after he and Ms. Dowding resumed their relationship. He reported that he and Ms. Dowding wanted their children to grow up near their grandparents. They have two children, aged fifteen and five. Ms. Dowding also has two children from another relationship, aged nine and ten, to whom Mr. Hartling is stepfather. [ 18 ] Mr. Hartling reported that he completed grade nine. He also took a rebar course when he lived in Toronto.

He was last employed with Steel Mac as an iron worker, just before the offence. [ 19 ] Mr. Hartling reported a long history of marijuana use, starting at the age of twelve. He testified that before the death of Mr. McNamara, he was smoking ten to 15 marijuana cigarettes per day. According to the pre-sentence report, he said he did not smoke in front of the children, and claimed that marijuana use had impacted his life. He said he drank alcohol, but not to the same extend and level as he used marijuana. The pre-sentence report identifies substance abuse as an issue that should be addressed with Mr. Hartling. There

was evidence that Mr. Hartling had smoked a marijuana cigarette earlier on the morning of the offence, before reaching Mr. Gilmore ’ s around 8 a.m. There was no evidence, however, that the marijuana caused him to be intoxicated. Therefore, I am not satisfied that the substance use was a contributing factor of any significance to the commission of the offence. [ 20 ] Mr. Hartling has, in my opinion, a dated criminal record. Two previous convictions for theft, breach of probation, another breach of probation, theft and break and enter with intent to commit an indictable offence, and assault.

The offences are all between 1997 and 1998. Given the age of these convictions, I am not convinced that there is a basis to conclude that he is a danger because of them. [ 21 ] As I indicated, Mr. Hartling ’ s position at trial was that Mr. McNamara ’ s death was accidental. He turned himself in to the police and provided a statement, which was before the jury. He disclosed the location of the weapon. There is an indication of remorse in his pre-sentence report and he again expressed remorse this morning. It is clear that the jury rejected the claim of self-defence and accident.

I am satisfied as well that beyond a reasonable doubt that these two defences did not apply. Mr. McNamara died from a single gunshot wound. The medical evidence indicated that death would have been instantaneous. There is no evidence that would have allowed the jury to determine that there was planning or deliberation necessary for first degree murder. [ 22 ] This morning we head from Joanne McNamara, mother of the late Mr. McNamara; Amanda Cornett; his common-law spouse; his bothers, Derek and Bradley.

All of these are very eloquent statements of how this tragic event has affected their lives and how it continues to do so. Words that I express will not be enough to take away the grief and the heartache and the loss they still suffer. Ms. Little, Laura Jolene Little has filed a victim impact statement on behalf of their son Braden and I will read from parts of it. She writes that: The biggest impact has been on her own son Braden. He was extremely close with is father, spending almost every weekend with him since he was born and talking to him almost every day. Braden idolized Kenny in every way possible.

This has affected him immensely and that he suffers still at the current date from stress headaches and stomach pains whenever he thinks of his father's death. During the time in question between November 2009 and today he has missed hockey and other events which were very dear to him. He feels sad, mad, frustrated and helpless. She writes that: Mr. McNamara never missed a visitation, a birthday, a party or Christmas concert. He made sure Braden made every hockey practice and game and was there to support Bailey at his cheer, Braden and also was there for Bailey, a child of Ms. Little from another relationship.

She writes that Braden wrote a poem for Mr. McNamara and said: Dear Dad or My Dad. Dad you're an angle in the sky, why did you have to die? That makes me want to cry, I just wanted to say goodbye. I will miss you more than words can say and I think of you every second of the day. You're the best dad I could have ever had, I wish I could see you, it makes me so sad. [ 23 ] The Crown has suggested that there are a number of aggravating factors that I should consider, namely that the accused regularly engaged in illegal activities and production and consumption of marijuana.

He had a prior record, which I have already addressed. He is no longer a youthful offender, he has a grade nine education. The offence was committed in the immediate vicinity of the victim's home where he was entitled to feel safe and secure and the victim's pregnant spouse was nearby. There are elements of planning, at least in that the accused attended the victim's residence with a loaded shotgun. The accused had many opportunities to extricate himself from the situation but chose instead to remain.

The murder was committed in circumstances in which the accused clearly knew that the body of Kenneth McNamara would be discovered by his common-law spouse, Amanda Cornett. [ 24 ] The victim was shot in the face with at shotgun in close proximity. The Crown claims that the accused was cold and callous in his actions.

He drove immediately from the scene without regard for the victim in an attempt to cover up the offence by disposing of the murder weapon and ammunition. [ 25 ] The accused returned to the residence of David Gilmore, where he had been working, and his reported normal behaviour, it is argued, reflects his callous demeanour in this regard for the victim by the significance of his action. Following the offence the accused arranged for the removal and transportation of controlled substances from his residence or that of Ms. Dowding to the residence of David Gilmore.

The Crown submits the accused's degree of participation is high, as he acted alone and was thus singly responsible and

accountable for the offence. [26] Now I wish, before going any further, to address some of the cases. You will recall that I mentioned that it is necessary for theCourt to consider what other courts have imposed by way of sentence or sentences. Some of these cases were referred to me by theCrown, and others are cases that I have found myself, as well as cases that were cited by Justice Beveridge in R. v. Hawkins.

R. v.Bartels, 2005 NSSC 317, after a plea of guilty, the accused received life imprisonment without parole for 18 years for a savage beatingdeath of an intellectually disabled man who saw the accused as his friend. The accused's prior record showed a pattern of repeatedviolence. R. v. Lavoie , 2008 NSSC 51, where the accused entered a plea of guilty, was sentenced for life imprisonment without parolefor 20 years for a sudden and unprovoked attack, brutal murder of a female victim. The accused had a record involving drugs, propertyrelated offences and violence. R. v.

Boudreau, 2009 NSSC 20, a Nova Scotia case, where the mother killed her daughter by stranglingher. The aggravating factors in that case were the positions of trust and dependency. There were elements of planning and deliberation,although not for first degree. A systematic cover up included disposing of a length of twine in a Tim Norton's cup, hiding the clothes ofthe victim, making a false report of the missing child, and participating in a tearful plea to the community for help in finding her missingdaughter.

The entire purpose of the killing was to prevent the daughter from interfering with the relationship the accused with herboyfriend. [27] R. v. Hawkins, supra, I already addressed wherein the Court of Appeal reduced the period of parole ineligibility from 20 to 15years. [28] In R. v. Ward, supra, I think I've already gone over the facts but again there the Court of Appeal reduced the period from 16years to 13 years and a half years. [29] In R v.

Gowen, 2011 NSSC 249, the offender planned to beat up the victim but accidentally shot him and then shot him twicemore, and was sentenced to life without parole for 15 years. There was one prior conviction for possession of marijuana. He wasemployed and attending college. [30] I refer to paras. 77-81 of Hawkins, supra, to which I referred to earlier: 77 I will refer to additional cases that illustrate what I believe to be the appropriate range of sentence for this offence. In R. v. Martin,(1981), (NS CA), 49 N.S.R. (2d) 361 (N.S.C.A.) the jury convicted the offenders of second degree murder.

Theoffenders followed the victim from a tavern where he had been seen by them to have a wallet containing a quantity of cash. They bothbeset him, beat and kicked him to death and robbed him. The trial judge imposed 12 and 14 years of parole ineligibility. The sentencewas upheld by the full court, who found the murder to be brutal and of the most serious kind. 78 In R. v. Moore (1978), (NS CA), 30 N.S.R. (2d) 476 (N.S.C.A.), the offender was convicted of second degreemurder of the beating death of his infant daughter. The trial judge set the parole ineligibility at 15 years. On appeal the sentence orderwas upheld.

The Court noted the many convictions of the offender for previous offences. 79 Occasionally, a case can be found that seems outside the range. R. v. Tsyganov (1998), 1998 NSCA 227 , 172 N.S.R. (2d)43 (N.S.C.A.) Has some factual similarities to the case under appeal. The parole ineligibility for the offender of 19 years was upheld onappeal. However, one isolated case does not establish the range of sentence. It arises out of an amalgam of many cases, not just fromNova Scotia but from across the country. 80 In R. v.

Patterson, 2001 BCCA 11 (B.C.C.A.), the offender was tried for the first degree murder of his former lover, but convicted ofsecond degree murder and sentenced to life imprisonment with the ineligibility period set at 14 years. The relationship between thedeceased and the offender had been over for two years. On the day of the murder, the offender purchased the murder weapon, a bat, andobtained a rope. He broke into the deceased's home and waited for the victim. When the victim arrived home, the offender attacked himwith great violence.

The evidence supported a struggle of great violence in the house resulting in the death of the victim. The offence fellcloser to first degree murder than to manslaughter, and the majority of the court upheld the 14 year period of parole ineligibility. 81 In R. v. Hein, 2004 SKCA 120 (Sask. C.A.) the offenders and three others went to the home of the victims, a husband and wife, withthe intent to rob them. The husband was killed by two blows to his head. His wife was assaulted and suffered a variety of injuries. Shewas found days later, but succumbed to her injuries.

The offenders were convicted of first degree murder of the husband and second

degree murder of the wife. The trial judge failed to ask the jury for their recommendation on parole ineligibility. The trial judge reported to the Court of Appeal that he would not have gone below 20 years parole ineligibility. The Court of Appeal allowed the appeal and set the parole ineligibility period at fifteen years. [ 31 ] There are a number of other cases cited at paras. 82 to 93 of Hawkins , supra, which I believe are supportive of the ranges of time set by Justice Beveridge in Hawkins , supra. [ 32 ] There is one more case I want to refer to and that is R. v.

Nash , 2009 NBCA 7 , from New Brunswick Court of Appeal; leave to appeal to the Supreme Court of Canda was refused. The offender and his brother got into a physical altercation. The offender pursued his brother after he drove off, and shot him twice in the head, while their nephew was sitting in the victim's vehicle. The offender later engaged with a standoff with police and fired several shots. The offender was 42 years old and married with two children, owned a home and had been employed for 14 years.

He was of aboriginal decent and had spent most of his childhood in foster homes and suffered from alcohol related problems. The offender had a criminal record, mostly involving driving offences but with four prior assault convictions. The last assault conviction was from 1997. The New Brunswick Court of Appeal allowed the appeal of a 20-year parole ineligibility imposed by the trial judge and substituted therefore a period of 12 years. [ 33 ] In this case the jury recommended a period of parole ineligibility. One juror recommended 10 plus years.

Seven jurors recommended 20 years, and three jurors recommended 25 years. In Hawkins , supra, the jury had recommended 20 years and the Court of Appeal substituted a period of incarceration from 20 years to 15 years. [ 34 ] It is clear that murder is one of the most serious, if not the most serious, offences in the Criminal Code . In this case, an innocent man was needlessly murdered. It is necessary to express society ’ s condemnation of such actions, and to be mindful of the need to protect society from such activities.

As sentencing judge, I have the discretion to increase the length of time before parole eligibility. The extent to which I should do that may be reflected in findings of unusual circumstances, extreme brutality, torture or related criminal record, although such findings are not necessary for an increase in the time period.

I must impose a fit sentence in view of all of the circumstances of the case, together with the sentencing guidelines mandated by Parliament. [ 35 ] In addition to the factors set out by the Crown in its brief with respect to aggravating factors, I also want to take into account the fact that Mr. McNamara had been at Ms. Dowding's residence that morning. He told her he didn't want any trouble at his house. He told her that he wanted to talk to Mr. Hartling, not that he was hunting for him. So I take that into account. I also consider the mitigating factors, as I am mandated to do, and these are: Mr.

Hartling's dated criminal record; the fact that he was trained as an iron worker; the fact that he had resumed a relationship with Ms. Dowding; the fact that he was attempting to control his alcohol consumption; and the fact that there is no evidence of habitual violent behaviour by Mr. Hartling. As I said, and I repeat, on the aggravating side there were all the factors outlined on behalf of the Crown by Mr. McNeill. I remind people here and the public that the murder was committed in front of the victim's home just seconds away from the residence he shared with Ms. Cornett. [ 36 ] It must be remembered that Mr.

McNamara was a man with a family. Nonetheless, the factors that I have reviewed, the circumstances of the offence, the aggravating and mitigating factors, in my opinion do not remove the case from the range so as to increase it above what Justice Beveridge said the range should be in Hawkins , supra. [ 37 ] I echo the Court of Appeal's comment in Ward , supra, about the apparent distastefulness of measuring the degree of brutality as between different murders, while acknowledging that this is inescapable in achieving proportionality and consistency.

I am satisfied that it is appropriate to extend the time period of ineligibility to seek parole within the lower end of the range, within the range described in Hawkins and Ward . Obviously this is difficult because no two cases are alike. [ 38 ] As a result I believe that the appropriate period of ineligibility for Mr. Hartling is 13 years to be calculated from the date of Mr. Hartling's arrest on the day after the offence was committed, November 15, 2009. [ 39 ] I also make a lifetime order under

Section 109, and also Mr. Hartling will be requested to provide a DNA sample.

[ 40 ] As a result Mr. Hartling, please stand. For the crime of second degree murder involving the death and the killing of Mr. McNamara, you are sentenced to life imprisonment with parole ineligibility set at 13 years. [ 41 ] If you require any further orders to be signed by me with respect to

Section 109 and with respect to DNA orders I will gladly provide you with those. The Crown will prepare those orders. LeBlanc, J.