R. v. A., 2020 NLSC 151

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. A. (M.) , 2020 NLSC 151 Date : December 10, 2020 Docket : 201801G5448 Her Majesty The Queen v. A. (M.) Restriction on Publication: By court order made under subsection 486.5 and 486.7 of the Criminal Code , information that may identify the person described in this judgment as the Offender and the Complainant shall not be published, broadcasted, or transmitted in any manner. Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 19, 2020

Summary: The Offender was convicted of an attempt to commit murder pursuant to

section 239 of the Criminal Code . As a result of the extraordinary nature of this case, he is sentenced to serve a term of imprisonment of four years less credit for time served. Appearances:

Michael G. Murray Appearing on behalf of the Crown Mark J. Gruchy Appearing on behalf of the Offender CASES CONSIDERED: R. v. A. (M.), 2020 NLSC 93; R. v. Logan, (SCC), [1990] 2 S.C.R. 731; R. v. Coady, 2019NLSC 7; R. v. Campbell, 2018 ONCJ 736; R. v. Oelkuch, [2006] O.J. No. 3172, 70 W.C.B. (2d) 543 (Sup. Ct.); R. v. Hagendorf, [2000]O.J. No. 6072, 49 W.C.B. (2d) 454 (Sup. Ct.); R. v. Cooper (1997), (NL CA), 153 Nfld. & P.E.I.R. 106, 35 W.C.B.(2d) 359 (Nfld. C.A.); R. v. Nolin, [1987] B.C.J. No. 2255, 3 W.C.B. (2d) 174 (S.C.); R. v. H. (G.M.) (1998), (NLSC), 166 Nfld. & P.E.I.R. 245, 39 W.C.B. (2d) 308 (Nfld.

S.C.(T.D.)); R. v. Gagne, 2011 ABPC 220; R. v. Tokhi, 2014 ONSC 3142; R. v. Gionet (1977), (NS CA), 22 N.S.R. (2d) 316, 31 A.P.R. 316 (C.A.); R. v. Pham, 2013 SCC 15; R. v. Murphy(1981), (NS CA), 43 N.S.R. (2d) 676, 81 A.P.R. 676 (C.A.); R. v. Rondeau (1999), 103 O.T.C. 31, 43 W.C.B. (2d)277 (Ct. J. (Gen. Div.)); R. v. Lai (1988), (NL CA), 69 Nfld. & P.E.I.R. 297, 4 W.C.B. (2d) 364 (Nfld. C.A.); R. v.Mills (2006), (ON CA), 218 O.A.C. 67, 72 W.C.B. (2d) 692 (Ont. C.A.); R. v. Cragg, 2009 BCPC 156; R. v. Kaleki,2016 QCCQ 1276 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46; Immigration and Refugee Protection Act, S.C. 2001, c. 27 REASONS FOR JUDGMENT (Sentencing) Khaladkar, J.: INTRODUCTION [1] I found the Offender guilty of an attempt to murder the Complainant at Ladies’ Lookout, on Signal Hill, in the City of St.John’s, in the Province of Newfoundland and Labrador on April 7, 2017. [2] Briefly, I found that the Offender, while suffering from acute depression, concocted a scheme to commit a murder-suicide overa period of two days.

He enticed the Complainant to go to Signal Hill with him on two consecutive days – under the guise of skiing.Unbeknownst to the Complainant, there was no facility for skiing on Signal Hill. [3] On the second day, while at a place called Ladies’ Lookout, and after the Complainant said that he did not wish to go anyfurther, the Offender tackled the Complainant over the edge of a cliff. Their fall was broken by vegetation and, ultimately, they fell upona slope which, while steep, was not fatally so. Neither of the men suffered serious injuries as a result of the fall.

The Offender did notmake any further attempt to carry out his intention to commit the murder-suicide. [4] It is important to note that the Complainant attributed the Offender’s actions to his mental depression. He did not feel that theOffender harboured any hostility against him. He said that the Offender was not a murderer. He did not want any charges laid against theOffender – he involved the police only because, at the time, he was concerned for his ongoing safety. [5] A more detailed accounting of the facts in this case can be found at R. v.

A. (M.), 2020 NLSC 93. [6] The range of sentencing for attempted murder is very broad – from suspended sentences on the low end to life in prison at thehigh end. crown’s position on sentence [7] Mr. Murray filed a number of sentencing precedents. [8] He indicated that the mens rea required for attempted murder is exactly the same as that required for murder. He cited R. v.Logan, (SCC), [1990] 2 S.C.R. 731 as providing the guiding principle for sentencing. In that case Lamer, CJ wrote atparagraph 21, for the majority, as follows: 21.

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals thatalthough no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murdereris no less a killer than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he stillhas the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, theoffence is punishable by life and the usual penalty is very severe. [9] Mr.

Murray acknowledged that there are mitigating circumstances in this case. The Offender has no previous convictions. Noweapon was used in carrying out the actus reus, and no permanent injury or, for that matter, serious injury was suffered by the

Complainant. Mr. Murray acknowledged, as well, that after going over the cliff the Offender did not follow up by further attempts to killthe Complainant. In fact, the Offender assisted the Complainant up over the cliff to safety and went back down the cliff to retrieve theComplainant’s glove – which he had lost during the incident. [10] Mr. Murray stated, however, that the degree of premeditation in this case was aggravating. The Offender invented anenticement, namely skiing, that was sure to get the Complainant to go to Signal Hill.

On the date of the offence, the Offender positionedhimself behind the Complainant to carry out his plan. And, from the place where the two men went over the edge of the cliff, no onecould have anticipated any outcome short of immediate death. [11] Mr. Murray acknowledged that there were mental health issues involved. The Offender was suicidal. However, he indicatedthat the mental health issues the Offender was undergoing were insufficient to absolve him of criminal responsibility. [12] Mr. Murray cited to me the case of R. v. Coady, 2019 NLSC 7 - a sentencing case in which I presided in 2019.

In that case Ihad stated, at paragraph 20, the following: 20. I have reviewed the extensive precedents provided to me by counsel. The range of sentence for attempted murder varies from asuspended sentence at the very low end to life imprisonment at the high end. Many of the precedents are in the six to eight year range. [13] In Coady the offender was sentenced to a term of six years’ incarceration. It was pursuant to a joint submission. [14] In R. v. Campbell, 2018 ONCJ 736, the complainant was stabbed 14 times in the neck and the head. He was left permanentlyand severely disabled.

The offender was undergoing depression and delusions concerning the complainant’s harassment. He was not aCanadian citizen and would likely be deported without right of appeal. The offender was sentenced to 17 years less credit for timeserved. [15] In R. v. Oelkuch, [2006] O.J. No. 3172, 70 W.C.B. (2d) 543 (Sup. Ct.), the offender stabbed his employer repeatedly butstopped after the complainant pleaded for his life. The assault was premeditated and occurred at the complainant’s home. The offendersurrendered immediately to police and gave a full confession.

The offender was remorseful and had only one previous conviction from 20years earlier. He had a long history of drug abuse and aggression. He had a borderline personality disorder and had gone off hismedications because he did not like the side effects. The offender was sentenced to serve three years in addition to 40 months credit forpre-trial custody. [16] In the case of R. v. Hagendorf, [2000] O.J. No. 6072, 49 W.C.B. (2d) 454 (Sup. Ct.) the offender struck a visiting friend with asledgehammer, striking her on the back of the head more than six times.

The offender then attacked her husband with a hammer, meatcleaver and a knife before he managed to subdue her. The friend died without regaining consciousness. The offender pleaded guilty tomanslaughter and attempted murder but denied any recollection of the events. She was sentenced to serve three years for the attemptedmurder charge, to be served concurrently with a five and one-half year sentence for manslaughter (reduced to three years in light of 19months pre-trial custody). Evidence at trial indicated that the offender was suffering from a major depression and possible dissociativeamnesia regarding events.

It is of interest that the offender’s husband did not suffer any injuries as a result of her attacks upon him. [17] Durno, J. stated at paragraph 54 of Hagendorf as follows: 54. … Reported cases support the position that a person who commits an offence while suffering from a major mental illness whichis at least a contributing factor in the commission of the offence receives a shorter term than those who commit the same offenceunaffected by mental illness. [18] In R. v. Cooper (1997), (NL CA), 153 Nfld. & P.E.I.R. 106, 35 W.C.B. (2d) 359 (Nfld.

C.A.), the offenderattacked his estranged wife and her lover with a baseball bat. Although the estranged wife was not seriously injured, her male companionsuffered severe brain damage that left him functioning at the level of a two year old. The offender was sentenced to four years on theattempted murder charge after being given credit for pre-trial custody of three years. The sentence was upheld by the Newfoundland andLabrador Court of Appeal on appeal by the Crown. The Crown submitted that a period of incarceration of six years was appropriate inthis case. defence’s position on sentence [19] Mr.

Gruchy cited a number of sentencing precedents. They are, perhaps, best laid out in tabular format. Name of Case Facts DispositionR. v. Nolin, [1987] B.C.J. No. 2255, 3W.C.B. (2d) 174 (S.C.) Offender shot the complainantin the head from a distance oftwo feet. He was convicted ofattempted murder. There wasno clear motive for theshooting. The offender was 19years of age, had an unsettledupbringing and had a minorcriminal record. The offenderwas described as a gentleperson with no history ofviolence. Four years’ incarceration withancillary orders.

R. v. H. (G.M.) (1998), (NL SC),166 Nfld. & P.E.I.R. 245, 39W.C.B. (2d) 308 (Nfld. S.C.(T.D.)) The offender attacked thecomplainant during the courseof an argument with a samuraisword. Both the offender andcomplainant had been drinkingheavily. The complainantrequired a hospital stay andphysiotherapy. The offenderhad a criminal record - whichthe Court found aggravating.Also aggravating were theslight degree of premeditationand the complainant’s injury -which was severe. Mitigatingfactors included the influenceof alcohol and provocation bythe complainant. The offenderhad good potential forrehabilitation.

Four years’ incarceration. R. v. Gagne, 2011 ABPC 220 The offender was found guiltyof attempting to murder herhusband by trying to run himover with her vehicle. Thecomplainant sustained noinjuries. The offender was sentenced tofive months in addition to theequivalent of 22 months she hadalready served. R. v. Tokhi, 2014 ONSC 3142 The offender hired anundercover police officerposing as a hitman to kill herhusband. Mitigating factorswere the offender’s lack of acriminal record, lack ofeducation and difficult personalbackground.

Aggravating wasthe serious nature of theoffence, planning anddeliberation and her previousattempt to hire a hitman. The offender was sentenced tothree and one-half years’incarceration less credit for timespent in pre-sentence custody.Ancillary orders were also made. R. v. Cooper (1997), (NL CA), 153Nfld. & P.E.I.R. 106, 35W.C.B. (2d) 359 (Nfld. C.A.) The offender beat his estrangedwife and her boyfriend with abaseball bat. See paragraph 18above for a more fullsomedescription. A sentence of four years forattempted murder, less credit forpre-trial custody, was upheld bythe Court of Appeal. R. v.

Gionet (1977), (NS CA),22 N.S.R. (2d) 316, 31 A.P.R.316 (C.A.) The offender went to hisgirlfriend’s home in order tocommit suicide in her presence.They argued. When thegirlfriend tried to escape, theoffender shot at her andwounded her. He then turnedhimself into police. A sentence of two years less aday was affirmed by the AppealDivision of the Nova ScotiaSupreme Court. A period of twoyears’ probation was added. Thecrime was said to be akin to animpulsive crime of passion. Alengthy term of imprisonmentwas not necessary to deter theoffender from committingsimilar acts.R. v.

Pham, 2013 SCC 15 The offender, a non-citizen wasconvicted of two drug-relatedoffences. Under theImmigration and RefugeeProtection Act, S.C. 2001, c. 27a non-citizen sentenced to aterm of imprisonment of atleast two years loses the rightto appeal a removal orderagainst him or her. A sentencing judge may exercisehis or her discretion to takecollateral immigrationconsequences into account,provided that the sentenceultimately imposed isproportionate to the gravity ofthe offence and the degree ofresponsibility of the offender.

R. v. Murphy (1981), (NS CA),43 N.S.R. (2d) 676, 81 A.P.R.676 (C.A.) Offender fired a shotgun at ataxi, blowing out the backwindow. The taxi driver wasnot injured. There wasevidence that the offender hadbeen drinking on the night inquestion. The offender wassaid to be of borderlineintelligence. The Court of Appeal reduced thefive year sentence imposed bythe trial judge to three years. Itstated that general deterrencecould be served with the reducedsentence and that it would assistin the rehabilitation of theoffender. R. v. Rondeau (1999), 103 O.T.C. 31, 43 W.C.B. (2d)277 (Ct. J. (Gen.

Div.)) The 36 year-old offenderpleaded guilty to attemptedmurder. He had no previousrecord. He attempted to drownhis wife while holding her headunder water in the shower. Hewas depressed at the time andcontemplating suicide. A community service order oftwo years less a day wasimposed along with a three yearprobation order. R. v. Lai (1988), (NL CA),69 Nfld. & P.E.I.R. 297, 4W.C.B. (2d) 364 (Nfld.

C.A.) The offender threw his sonfrom the top of a landing downthe stairwell and, then, took hisson up the stairs to the top andjumped down the stairwell withhis son - all with the intentionof killing himself and his son.At the time the offender wasdepressed. The son recovered,but the offender became aparaplegic as a result of theinjuries he suffered. The 10 year sentence imposedby the trial judge was reduced,on appeal, to a suspendedsentence and probation for threeyears. The Court of Appeal heldthat the principle of deterrencewas not relevant in this case andthat specific deterrence was,likewise, unnecessary.

Anenvironment other than prisonwould give the offender the bestchance of rehabilitation.Through his injuries the offenderhad already suffered a greatpunishment and, as a result,would be unable to repeat hisoffences.R. v. Mills (2006), (ON CA),218 O.A.C. 67, 72 W.C.B. (2d)692 (Ont. C.A.) The offender attempted to runthe complainant over with hishalf-ton truck on threeoccasions - striking him thethird time and causing seriousinjuries and ongoing trauma. The three year sentence imposedby the trial judge was increasedto six years on appeal.

Theattempted murder was notplanned and deliberate – whichwould have been an aggravatingfactor. The offender had anexcellent work record and was acontributing, productive memberof the community. R. v. Cragg, 2009 BCPC 156 The offender pleaded guilty toattempted murder. He hadstabbed another inmate in jail. The Court considered theoffender’s young age, the factthat this was his first adultsentence and his prospects forrehabilitation. He was sentencedto serve four years’incarceration.R. v.

Kaleki, 2016 QCCQ 1276 The offender, upset by herteenaged daughter attendingnight clubs, used a meatcleaver to wound thecomplainant and tried to chokeher as she attempted to leavethe family home. The offencewas out of character for theoffender - she had no previousconvictions or history ofviolence. She was remorseful.The complainant and theoffender had reconciled. The offender intended to kill hercomplainant. Therefore, hermoral blameworthiness wassignificant. There is no risk thatthe offender will re-offend. TheCourt imposed a sentence ofthree years’ incarceration. [20] Mr.

Gruchy submitted that this conviction will destroy the Offender’s life. He is neither a Canadian citizen nor a landedimmigrant. He will undoubtedly be deported when his sentence is concluded. He requested that the Court’s sentence be merciful.

[ 21 ] The Pre-Sentence Report filed in this matter portrays the Offender in positive terms. His employer, while awaiting the outcome of these Court proceedings, describes the Offender as the best employee she has ever had. [ 22 ] Mr. Gruchy submitted that, unlike some of the cases, there was no pattern of a sustained, committed effort to kill. On that point I must disagree. After the Offender decided that he was going to commit suicide and murder his friend, he did evince a sustained effort to lure his Complainant to Signal Hill under the guise of taking him to a skiing venue.

He did intimate to his brother, in text messages, that he was contemplating a murder-suicide. He did send his brother a text message telling him what to do in the event that the Offender was not at the airport to greet him upon his arrival. The brother was expected to arrive a day or two after the incident on Signal Hill. The Offender sent the message believing that he would be dead when his brother arrived and wanted to ensure that his brother had the information necessary for him to get settled upon his arrival. [ 23 ] Mr.

Gruchy submitted that a period of incarceration of two to three years meets the circumstances of this case. The Complainant did not want the Offender to be charged. He wanted the Offender to receive the help that he needed. However, like the Quebec Court in Kaleki , I must be guided by the law and not by the Complainant’s wishes. analysis [ 24 ] I understand, and acknowledge, that the Offender was suffering from depression when he concocted the scheme to kill himself and the Complainant. I believe that he would not have committed these acts but for the effects of the mental illness he was experiencing.

I acknowledge that, under the circumstances, medical advice to stop taking anti-depressants and, instead, “go for walks and enjoy nature” may not have been the best course of treatment for the Complainant. I agree with Durno, J.’s conclusion in Hagendorf that persons suffering from a major mental illness while committing a crime ought to receive reduced sentences. [ 25 ] I acknowledge, as well, that the Offender is an intelligent person who will, undoubtedly, one day obtain his doctorate in the field of engineering.

He has a good work ethic, as evidenced by the Pre-Sentence Report, and will one day be a contributing member of society. I do not believe that specific deterrence is a factor in sentencing this individual. I have no doubt that, after serving his sentence, the Offender will become, once again, a productive member of society. [ 26 ] I am certain that, as a result of his conviction and sentence, the Offender will be deported from Canada.

And therein lies the conundrum: but for the fact that he will be deported upon serving his sentence, I would impose a term of imprisonment of five years - which takes into account some diminished responsibility as a result of the effects of severe depression that he was undergoing. [ 27 ] But the reasonable person strolling along the St.

John’s harbour-front promenade might ask, “Why are we, as a society, paying to house this person in prison at substantial cost when he could be sent back to his country of origin at a substantially reduced cost?” [ 28 ] The Supreme Court of Canada has said, in Pham at paragraphs 14, 15 and 16 : 14. The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.

In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. 15. The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will. 16.

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.

Moreover, it must not lead to a separate sentencing scheme with a defacto if not a de jure special range of sentencing options where deportation is a risk. [ 29 ] The answer to the reasonable stroller on the harbour-front, therefore, is that while I can take these collateral consequences into account, I cannot engineer my sentencing decision in such a way as to either skew the process in favour of the Offender being able to appeal a deportation decision, or the obverse, which is to speed up the deportation process.

The final decision must remain defensible and proportionate to the gravity of the offence and the degree of responsibility of the Offender. [ 30 ] Taking into consideration the fact that any sentence I impose will be of trifling consequence, as opposed to the harm that the Offender has done to his own future and himself, I am of the view that the sentence I am about to impose will answer society’s need to ensure that general deterrence remains the paramount consideration, tempered by the Offender’s circumstances and the negligible need for rehabilitation in this case.

The sentence takes into consideration the fact that the Offender will be deported upon its completion. conclusion [ 31 ] I sentence you to a term of incarceration of four years. I give you credit for 162 days of time served at the rate of 1.5 days to 1.0 or 243 days. This leaves 1,217 days remaining to be served. The sentence that I am imposing does not affect your immigration status in any way.

It does take into account your mental state at the time of the offence and, as well, the fact that you will be deported without appeal upon the conclusion of your sentence. [ 32 ] I also make the following ancillary Orders:

a) An Order under

section 109 of the Criminal Code , R.S.C. 1985, c. C-46 that you are prohibited from possessing any firearm or ammunition for a period of 10 years after your release from prison.

b) An Order under

section 109 of the Criminal Code that you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

c) The offence is a primary designated offence and there shall be a mandatory DNA Order pursuant to

section 487.051 of the Criminal Code requiring the Offender to provide the number of bodily substances that are reasonably required for the purpose of forensic DNA analysis.

d) Pursuant to

section 743.21(1) of the Criminal Code , the Offender is to have no contact or communication with the Complainant, K. (M.), or Dr. Hodjat Shiri during the custodial period of sentence. _____________________________ Vikas Khaladkar Justice