R. v. Bates, 2019 ONCJ 560

ONTARIO COURT OF JUSTICE CITATION: R. v. Bates , 2019 ONCJ 560 DATE: 2019 08 12 COURT FILE No.: Niagara Region 998 18 SR5506 BETWEEN: HER MAJESTY THE QUEEN — AND — Alexander Bates Before Justice J. De Filippis Heard on July 19, 2019 Reasons for Sentence released on August 12, 2019 Ms. A. Brown........................................................................................ counsel for the Crown Mr. V.

Singh..................................................................................... counsel for the accused De Filippis, J.: INTRODUCTION [ 1 ] The defendant pled guilty to attempting to murder two people with an aluminum baseball bat; Alberto Araujo and Lynda Gallandt. On consent, I received facts with respect to two other offences; possession of a weapon (an imitation handgun) for a dangerous purpose and threatening to cause the death of Alberto Araujo and Meaghan Cher. [ 2 ] All offences were committed on December 21, 2018 at the Township of Smithville, Ontario.

Also present during part of the events was Meaghan Cher. She is the common law spouse of Mr. Araujo. Ms. Gallandt is the mother of Ms. Cher. [ 3 ] An integral part of the background to these events is a prior sexual offence, committed by the defendant, against the daughter of Alberto Araujo. A publication ban was imposed at the court proceedings about the sexual offences to protect the identity of the victim. That victim, and her family, do not seek a similar ban in the present case. They request that I refer to the her as “S.A.” and name the victims of the attempt murder offences.

Crown and Defence counsel accede to their wishes. As do I. [ 4 ] What follows is a

summary of an agreed statement of facts previously reduced to writing, approved by the parties, filed in court, and read onto the record by Crown counsel. THE FACTS [ 5 ] The defendant is 47 years old. Mr. Araujo is 49. The men have known each other for many years and became close friends through their shared interest in motorcycles. In 2012, Mr. Araujo suffered a serious motorcycle accident and was hospitalized. The defendant offered to help, including watching over Mr. Araujo’s daughter, S.A. At this time the defendant was 44 years old and the girl was 14 years of age.

Commencing in September 2012 and over a period of several years the defendant engaged in a series of sexual acts with S.A. which occurred in a number of different locations. As a result of discovering text messages on their daughter’s phone, the parents of S.A. learned about the relationship and called the police. [ 6 ] On February 23, 2015 the defendant was charged with a number of sexual offences related to his actions with S.A. He did not then have a criminal record. He was released on bail. In August, Mr. Araujo and Ms. Cher attended court for one of the defendant’s

appearances. Just after the lunch break, they went to their motor vehicle and noticed a black device attached to the underside of their rear bumper. Police were called, and it was determined that a “Trackimo” tracking device had been attached to their vehicle. One week later, another tracking device was discovered on a second vehicle belonging to these victims. A fingerprint was obtained by police from the device and it proved to be that of the defendant. He was charged with criminal harassment. [ 7 ] On January 22, 2016 the defendant entered a guilty plea to sexual interference and criminal harassment.

He was sentenced to three years in custody for the sexual interference and six months in custody, concurrent, for the other offence. [ 8 ] At the sentence hearing, the court was told that S.A.’s family was “terrified Alex would try to find her”. Mr. Araujo added that “I did everything possible to protect my family, did a midnight move, asking who I could, if I could stay with them so my family and I could get away from that monster”. He and other family members talked about living in fear and “not feeling safe being in Mississauga.” Their insecurity was such that Mr. Araujo, Ms.

Cher, and S.A. secretly moved from their home in Mississauga, to the town of Smithville. They told few people about their new location. [ 9 ] The defendant held Mr. Araujo and Ms. Cher responsible for his arrest and harboured significant resentment toward them. On February 1, 2018 he was released on parole with a warrant expiry date of February 11, 2019.

While on conditional release, the defendant was subject to a number of statutory release conditions, including not to travel outside Peel Region without authorization, a prohibition against possessing weapons and an order prohibiting contact with S.A. or her family. [ 10 ] On December 19, 2018 the defendant rented a pick-up truck in Mississauga. He loaded the vehicle with several jackets and coats, several pairs of gloves, several hats, and a pair of running shoes. Some of these items had previously been used by the him in the course of his employment.

The truck also contained the following items: A black garbage bag with numerous plastic zip ties, a pair of bolt/wire cutters, a cannister of Capsaicin dog spray, an orange handled “Milwaukee” brand folding knife, a black metal extendable baton and a notepad with the address and telephone number for the victim’s home in Smithville. [ 11 ] On December 21, 2018 in the early morning hours, the defendant drove the pick-up truck to the victim’s home. He carried a black imitation handgun on his person. On arrival, he disabled the vehicles owned by the victims by cutting the valve stems of one tire on each car.

The defendant waited nearby in his pick-up truck. [ 12 ] Around 7:30 am, Ms. Cher came outside and discovered that her vehicle had flat tires and alerted Mr. Araujo. Her father came by to drive her to work. Before leaving, both victims discussed their fear that the defendant had caused the mischief. They promised to maintain regular communication with each other during the day. The victims had installed two security cameras outside their home. After finding the damage to the tires, they activated those cameras. [ 13 ] The following is captured on video: At 9:00am, Ms. Cher and her father leave the residence. Mr.

Araujo begins to change the right rear tire of one of the vehicles. Eight minutes later, the defendant approaches him from behind. He wears a coat with a hood over his head and something covering his chin and neck. A long thin cylinder-shaped object is seen dangling from his right pocket of his coat and both hands are in his pockets. The defendant tells Mr. Araujo that he had a gun in his pocket and produces it for the victim to see. The defendant wears black gloves. He orders the victim into the residence. Both men enter it at 9:10 am. [ 14 ] Upon entry into the home, the defendant bound Mr.

Araujo’s hands behind his back with the zip ties. He took him to the partly finished basement and zip tied his ankles. The victim was made to remain on a bed. In a calm voice, the defendant asked about the whereabouts of S.A. Her father provided vague answers. [ 15 ] The defendant repeatedly stated that it would be “nice” if he had found Mr. Araujo, Ms. Cher, and S.A. together. He was upset that Ms. Cher had left for work. He also repeated that he [i.e. the defendant] had nothing to live for. Mr. Araujo saw the gun produced again and felt he was going to be killed.

After a couple of hours, the defendant allowed Araujo to use the toilet. He cut the zip ties with the wire cutter he brought into the house. Once finished at the toilet, the defendant again zip tied Mr. Araujo’s wrists and ankles and now added zip ties around his neck. [ 16 ] While these events unfolded, Ms. Gallandt telephoned several times. Receiving no answer, she went to the home and entered. Mr. Araujo heard her voice upstairs. She left the home and returned again 20 minutes later. Once again, she left. [ 17 ] The defendant picked up Mr. Araujo’s cell phone and obtained the passcode from him.

He communicated with Ms. Cher, posing as her spouse. During this exchange of text messages, he asked her to come home because something was wrong and they needed to talk. The content of the messages alerted Ms. Cher to the fact that she was not communicating with her spouse. She called her mother to drive her home from work. When they arrived, feeling fearful, she obtained an aluminum baseball bat from the garage before entering the home. [ 18 ] Ms. Cher walked down the basement stairs, with her mother close behind. At the bottom of the stairs she saw her spouse on the floor bound and gagged.

She looked sideways to see the defendant lurking in the corner of the room beside the furnace. As he motioned toward her, Ms. Cher threw the baseball bat at him and fled past her mother out of the residence, to the home of a neighbour, and called 911. [ 19 ] The defendant chased after Ms. Cher but was met by Ms. Gallandt, who was still on the stairs. With gun in hand, he took hold of her and put a zip tie around her neck. He directed her to the basement, bound her hands and feet, and placed her beside Mr. Araujo.

As the victims lay on the bed, the defendant waived the gun, pointed it at their faces, and threatened, several times, to shoot them. He said, “You’re going to meet your maker today” and “Meaghan better get back here cause all I want is you three guys”. Mr. Araujo asked to him to spare Ms. Gallant. [ 20 ] At this point, the defendant left the basement. Mr. Araujo was able to get a knife and free himself and Ms. Gallandt from the ties that bound their necks, wrists and feet. As they attempted to escape, the defendant appeared with the aluminum bat in hand.

He repeatedly struck both victims about the head to kill them. They fell to the ground and he fled the scene by jumping over a backyard fence.

[ 21 ] Uniform patrol officers responding to the 911 call observed the defendant walking in the area and attempted to identify him. The defendant walked toward his parked rental vehicle. He produced his imitation handgun and pointed it at the police. Fearing that they would be shot, the officers fired several rounds at the defendant. As a result, he is now a paraplegic. [ 22 ] Ms. Gallandt was transported by ambulance to Hamilton General Hospital where she was treated for her injuries. She was released on December 24, 2018. Mr. Araujo was initially taken to Dunnville hospital and then transferred to Hamilton.

He was discharged from hospital on December 25, 2018. On May 7, 2019, he was once again admitted to Hamilton Health Sciences having suffered a brain aneurysm of the carotid artery. Two surgeries were performed on May 7 and May 17. The attending surgeon, Dr. Van Adel noted the aneurysm was related to the head trauma suffered by Mr. Araujo at the hands of the defendant. [ 23 ] The experience endured by the victims caused serious harm. Mr.

Araujo sustained these injuries: • Skull fracture • Hematoma, concussion and brain bleed • Three scalp lacerations up to 5 cm in length • Bruising to the back of the head and neck • Scratches, swelling and bruising to the right hand • Ligature marks about the neck and wrists. • Vision, auditory and olfactory impairment • Cognitive impairment, including dizziness, headaches and confusion [ 24 ] Ms.

Gallandt sustained these injuries: • Head injuries with loss of consciousness • Thirty staples required to suture wounds to the head • Black eyes and bruising on the face and neck • Ligature marks about neck and wrists • Minor scratches to right thigh and abrasions to left foot • Vertigo and infections VICTIM IMPACT STATEMENTS [ 25 ] Ms. Gallandt, her husband, Gerald Gallandt, Mr. Araujo, Ms. Cher, and S.A. told me what these crimes have done to them. They are compelling accounts by a family whose world has been shaken. A few excerpts will illustrate this point. [ 26 ] Ms.

Gallandt described how the defendant dragged her down the stairs and placed a zip tie around her neck. She said he “tightened it so hard that I could not take a breath to the point of losing consciousness. Never before have I felt such horrifying terror….”. Ms. Gallandt noted that, among the repercussions to her, is “a considerable dent in my skull” and “ongoing nightmares”. Mr.

Gallandt, expressed his alarm at being told, by medical staff at the hospital, that “my wife was within 4-5 minutes of becoming brain dead from oxygen deprivation” and added that “staples were required to sew and stitch my wife’s head back together”. [ 27 ] Mr. Araujo explained that because of the attack upon him, I have now experienced a brain aneurysm and had multiple procedures and surgeries performed….I will now be more susceptible to strokes ….The road to recovery will be years. I have multiple doctors, specialist and surgeon appointments on a monthly basis.

This feels like it will never come to an end….I was hit numerous times across the back of my head to the point that I blacked out. I was left for dead. These night terrors haunt me now in my sleep. [ 28 ] Ms. Cher stated that, Our world has been affected in 2012, 2013, 2014, 2015, 2016, 2017, 2018, and 2019 by this man. The obsession and depravity Alexander has for our family is immense. I can’t help but always think where does it stop. Who will finally see him for who he is and what his real intentions are? Who will help us be safe?

Who will help us move on from these horrific crimes without the worry that Alexander is still planning our deaths?....I feel extreme anxiety all the time. [ 29 ] S.A. told me that the defendant “wanted to take my family away from me, I can’t imagine how my dad and nana felt in those moments downstairs. I can’t help but blame myself, it was me he was after”. She noted that as a result of this experience, “My depression and anxiety are a wicked combination.

To feel worthless, sad, irritated, tired, but also to experience trembling, sweating, a high heart rate, a sense of impending danger or panic….I can’t think, I can’t breathe, I can’t sleep, I can’t eat without some sort of difficulty arising”. [ 30 ] This is a close family. The ties that bind them together are stronger than the destabilizing actions of the defendant. It is my hope that, with time, they will overcome the impact of his crimes.

ANALYSIS [31] Both counsel described this case as “horrific”. The Defence submitted that the appropriate sentence is 10 to 11 years in thepenitentiary. The Crown argued that the sentence should be 15 years. I will not repeat the submissions made by counsel. Suffice it tosay, if it were not for one fact, I would give effect to the Crown’s compelling argument. [32]

Section 239 of the Criminal Code provides that, Every person who attempts by any means to commit murder is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of theoffence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, toimprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishmentof imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [33] In arriving at an appropriate sentence, I am required to consider

Part XXIII of the Code, dealing with sentencing generally. Twoprovisions are especially important in this case. 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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

b) to deter the offender and other persons 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 or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [34] In R v Tan 2008 ONCA 574 , the Court of Appeal for Ontario upheld a 15 year sentence for a first offender found guiltyof forcible confinement, rape and attempt murder.

In so doing, the court noted as follows: [35] The sentences for attempted murder imposed or upheld by this court have varied widely…. [39] In some cases, these widely varying sentences for attempted murder reflect the principle of appellate deference. In all cases, thevariations reflect the differing circumstances of the offence and offender, and the differing effects on the victim…. [40] I accept that a 15-year sentence for an offender who pleaded guilty early on, who has no previous criminal record, and whoexpressed remorse to the victim, is a high sentence.

However, the sentence is justified by the following considerations: • The domestic-like context: This court considers violence in a domestic context to be an aggravating consideration on sentence. Here, the context for these offences, while not strictly domestic, resembled a domestic situation. The appellant’s heinous conduct beganwhen the victim said no to his request to be her boyfriend. As Ms.

Stuart for the Crown put it, women ought to be able to say no to aromantic advance without being in fear of their lives unless they acquiesce. • Specific intent to kill: The appellant acknowledged to his probation officer that he specifically intended to kill the victim. • Elements of planning and deliberation: The appellant’s actions showed elements of planning and deliberation. He picked up a tarpfrom his car that he later used to conceal the victim’s body. He then drove to a remote location that he knew about. • Prolonged duration of the attack: The appellant’s reign of terror lasted for several hours.

Although the trial judge made nospecific finding on its duration, the drive to Bancroft alone, during which the victim was bound and gagged, lasted three hours. • The victim’s identity and body concealed: The appellant stole from the victim all of the documents that might identify her and then

hid her body so she would not be found. • The victim left to die: Not only did the appellant stab the victim twice, the appellant then left her to die in a remote area. • Serious physical and psychological injuries: The appellant’s brutal and callous attack caused the victim serious physical andpsychological injuries, injuries that are likely permanent for this young woman.

The damage to her lung and resulting shortness ofbreath, the disfigurement and resulting embarrassment, the fear and resulting insomnia, are not likely to go away. [35] The present case contains many of the aggravating features identified in Tran; the specific intent to kill, the planning anddeliberation, the prolonged duration of the attack, and the serious physical and emotional l injuries. Two additional factors aresignificantly aggravating.

First, the defendant attempted to kill justice participants; having preyed upon the innocence of a young girl, thedefendant set out to murder those who assisted in holding him accountable for that crime. Second, he did this while on parole and inviolation of the conditions of that parole. [36] A guilty plea is always a mitigating factor. At the very least, it acknowledges the victims and means they do not have to testify. Itake this into account in favour of the defendant. Whether the defendant’s guilty plea is also an expression of remorse is not clear.

Atthe end of submissions, when I asked if he had anything to say, he responded as follows; “I am remorseful, and I want to apologize to allmy victims”. These brief comments must be taken in context. I watched the defendant sit passively, his chin resting in the palm of hishand, during the account of his crimes and the statements by his victims. I am aware of the danger of demeanour evidence but I mustnote that I did not see obvious signs of empathy. [37] The aggravating factors cited above convince me that the position advocated by the Crown is a measured response to thisoffence.

It serves to condemn the crimes in strong terms. It also stands as an example of what awaits others who might be tempted toengage in similar misconduct. However, this offender is a paraplegic. That he brought this on himself by pointing an imitation firearm atthe police – hoping, perhaps, to be killed by them – does not mean I should ignore this fact. At the very least, it means that jail will beharder on him. THE SENTENCE AND ANCILLARY ORDERS [38] The defendant is sentenced to 13 years in the penitentiary.

As of the release date of these reasons, the presentence custodyamounts to 184 days, for an effective pre-sentence custody (at 1.5 to 1) of 276 days – or 9 months and 1 week. Accordingly, thedefendant is sentenced to an additional 12 years, 2 months and 3 weeks, to be served concurrently on both counts of attempted murder. [39] While in custody, the defendant is prohibited, pursuant to

section 743.21 of the Code, from communicating directly or indirectlywith the victims or any member of their family. He must provide a sample of his DNA and is bound by a prohibition order, pursuant tosection 109, for life (i.e. firearms and other weapons). The offence related property seized from him is to be forfeited to the Crown. [40] The Crown also urges me to restrict the defendant’s parole eligibility in accordance with

section 743.6(1) of the Code. Thatsection provides as follows: Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1,1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as aminimum punishment, on conviction for an offence set out in

Schedule I or II to that Act that was prosecuted by way of indictment, thecourt may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of theoffender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, orderthat the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or tenyears, whichever is less. [41] In R v Zinck 2003 SCC 6 , [2003] S.C.J.

No. 5, the Supreme Court of Canada, held that delayed parole is a decision thatremains out of the ordinary and must be used in a manner that is fair to the offender. The sentencing judge must first determine theappropriate punishment for the crime, taking into account and weighing all relevant factors. The analysis then may shift to the exerciseof the power to delay parole.

Section 743.6 should not be applied in a routine manner. The judge must once again apply the sentencingfactors. In the course of the second balancing, priority is given to the factors of general and specific deterrence as well as denunciation.The prosecution has the burden of establishing that additional punishment is required. Delayed parole should not be ordered withoutnecessity; it should be invoked only on the basis of demonstrated need. [42] Without minimizing the terrible suffering inflicted by the defendant on his victims and notwithstanding my question about theextent of his remorse, I am not satisfied that this is one of those extraordinary cases that engages

section 743.6. The defendant will be injail for a long time. During that period, he may demonstrate greater insight into what he has done. Moreover, there is the matter of hisphysical disability. How such considerations affect his release date are best left to the expertise of the Parole Board down the road. Released: August 12, 2019 Signed: Justice J. De Filippis