R v Schuff, 2021 MBCA 54

Citation: R v Schuff, 2021 MBCA 54 Date: 20210528 Docket: AR20-30-09404 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Madam Justice Karen I. Simonsen BETWEEN : ) M. T. Gould and HER MAJESTY THE QUEEN ) Z. B. Kinahan ) for the Appellant ) (via videoconference) Respondent ) ) D.

Sahulka - and - ) for the Respondent ) (via videoconference) BRENDA LEE SCHUFF ) ) Appeal heard: ) February 9, 2021 (Accused) Appellant ) ) Judgment delivered: ) May 28, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. steel JA [ 1 ] The accused was convicted after trial by judge and jury of second degree murder. The trial judge then imposed the mandatory sentence of life in prison and set the period of parole ineligibility at 15 years.

She is appealing the period of parole ineligibility. FACTS [ 2 ] The victim was viciously beaten and stabbed in her own home. She received 23 stab wounds in the head, neck and chest, had three broken ribs and extensive blunt-force trauma. The accused testified that she had no recollection of the attack and could not explain the murder. When asked for their recommendation regarding parole eligibility, two jurors abstained from making a recommendation, six recommended 10 years and four recommended 15 years.

A pre-sentence report and a psychological assessment were prepared, and several victim impact statements were filed. The Crown sought a parole ineligibility period of 17 years. The defence argued for the minimum period of 10 years, pointing to the accused’s lack of a criminal record, the support the accused had in the community and her difficult upbringing. THE TRIAL JUDGE [ 3 ] The trial judge imposed a parole ineligibility period of 15 years.

In doing so, he highlighted several factors but, in particular, in assessing the accused’s credibility for the purposes of sentencing, he found that the accused’s expressions of remorse were not genuine and he did not take that into account as a mitigating factor. He did consider her positive behaviour while incarcerated and her lack of a criminal record. [ 4 ] The accused appeals the sentence, arguing that it is harsh and excessive. She submits that the trial judge erred by

making findings of fact that were not supported by the evidence and using them as aggravating factors. Specifically, she argues that the prolonged nature of the incident and elements of sadism and torture considered by the trial judge were not proven to the degree required as aggravating factors. Moreover, she submits that the trial judge erred by considering her lack of explanation for the murder; by ignoring the concept of parity; and by failing to place sufficient weight on the principle of rehabilitation. DECISION AND ANALYSIS [ 5 ] The pertinent provisions of the Criminal Code (the Code ) are the following: . . . Sentence 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 be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to

section 745.4; . . . . . . Ineligibility for parole 745.4 Subject to

section 745.5 [regarding young offenders], at the time of the sentencing under

section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission , and to the [jury’s] recommendation , if any, made pursuant to

section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. . . . [emphasis added] [ 6 ] Aside from the factors mentioned in the Code itself, a number of relevant considerations arise from an analysis of appellate cases over the last decade involving the imposition of a 15-year parole ineligibility period in second degree murder cases. [ 7 ] The aggravating factors include the following: • the accused’s criminal record (see R v St Paul , 2021 MBCA 31 ; R v Newborn , 2020 ABCA 120 , leave to appeal to SCC refused, 39319 (21 January 2021); R v Boukhalfa , 2017 ONCA 660 , leave to appeal to SCC refused, 37928 (15 November 2018); R v Monckton , 2017 ONCA 450 ; R v Kayaitok , 2017 NUCA 1 ; R v Jackson , 2013 ONCA 632 , aff’d 2014 SCC 30 ; R v Bell , 2013 BCCA 463 ; R v Shand , 2011 ONCA 5 , leave to appeal to SCC refused, 34319 (19 January 2012); and R v Hawkins , 2011 NSCA 7 ); • the viciousness of the attack (including the use of multiple weapons) ( see Newborn — 1 0-minute beating; R v King , 2019 ONCA 530 — stabbed in head with screwdriver; R v Daigle , 2017 BCCA 86 — 12 stab wounds; Kayaitok — stabbed with mop handle; Boukhalfa — knives and baseball bat; R v Khairi , 2015 ONCA 279 — two knives; R v Hamade , 2015 ONCA 802 — 90 wounds with multiple weapons; R v Dahr , 2012 ONCA 433 — 50 stab wounds; and R v Czibulka , 2011 ONCA 82 — brutal beating); • the accused was in breach of a court-ordered condition or on probation at the time of the murder ( see St Paul ; Daigle ; Monckton ; Boukhalfa ; R v Doucette , 2015 ONCA 583 ; Jackson ; and Hawkins );

• current or former romantic relationship with the victim (see R v Butcher, 2020 NSCA 50, leave to appeal to SCC refused,39344 (4 February 2021)—lived together; Daigle—former common-law partner; Kayaitok—common-law spouse; R v OV, 2016 BCCA454—estranged wife; Khairi—spouse; and Czibulka—spouse); • use of a firearm (see R v Mills, 2019 ONCA 940; R v Kirkpatrick, 2014 BCCA 102; Bell; and Shand); • breach of trust (see Butcher; Monckton; Boukhalfa; and Hamade); • victim was killed in their own home (see Butcher; Daigle; OV; and Hawkins); • vulnerable victim (see R v Herntier, 2020 MBCA 95; Monckton; Khairi; and Hawkins); • the amount of planning done before the murder (see Butcher; Kirkpatrick; and Shand); • the murder occurred in a public place (see Newborn; Mills; and Doucette); • a prior history of violence in the relationship between the accused and the victim (see Kayaitok—domestic violence;Monckton—child abuse; and R v Sunshine, 2014 BCCA 318, leave to appeal to SCC refused, 36430 (15 October 2015)—child abuse); • the victim’s age (see Monckton—two and one-half years old; Boukhalfa—62 years old; and Sunshine—two and one-halfyears old); • victim impact statements (see St Paul; and Sunshine); • the presence of child(ren) at the scene (see Kayaitok; and OV); • lack of motive (see Herntier; and Bell); • besmirching the victim’s reputation (see Khairi; and Czibulka); • lack of insight (see Khairi; and Dahr); and • the murder was gang-related (see Mills). [8] The following mitigating factors also appear to be relevant: • no criminal record (see Butcher; Daigle; Khairi; Hamade; and Kirkpatrick); • Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688; and see St Paul; Newborn; Herntier; Monckton;and Sunshine); • family/community support (see Mills; Boukhalfa; Kayaitok; Monckton; and Bell); • mainly pro-social lifestyle (see Butcher; Herntier; and Czibulka); • the accused’s age (see Mills—relative youth; Boukhalfa—26 years old; and Khairi—65 years old); • remorse (see St Paul; and Sunshine); and • positive behaviour while incarcerated (see St Paul). [9] The factors arising from these cases are similar to those listed in the academic literature.

Gary R Clewley, Paul GMcDermott & Rachel E Young in Sentencing: The Practitioner’s Guide (Toronto: Thomson Reuters, 1995) (loose-leaf updated 2021,release 2), ch VIII (online: WL Can (date accessed 26 May 2021)), identify the following factors as relevant (at

section 8.170): . . . Key aggravating factors include brutal or gratuitous violence and the circumstances of the victim, including age and the relationship tothe offender (for example, spousal homicide).

Relevant offender characteristics include a prior criminal record for violence. [10] As well, some of the factors discussed in Clayton C Ruby, Sentencing, 10th ed (Toronto: LexisNexis, 2020) at ch 23,include the jury’s recommendation; disparity between co-accused; post-sentence conduct; guilty plea; the accused’s age; criminal record;brutality; elements of planning and deliberation or impulsiveness; motive; role in the offence; sexual assaults; the domestic context;vulnerability of the victim; mental illness; drugs and alcohol; bad character; and remorse of the offender. [11] In this case, the jury rejected the accused’s argument of self-defence and provocation.

The trial judge specifically

rejected the accused’s testimony that she had a blackout and could not remember anything regarding the murder itself. He carefullyreviewed all the evidence and stated, “I do not accept the accused’s testimony of what led to the killing and her inability to rememberwhat happened in the critical moments when the killing took place.” [12] When a guilty verdict is returned by a jury, it is impossible to know exactly which facts the jury accepted or rejected.

Insuch circumstances, the trial judge is permitted to interpret the jury’s verdict and to determine the facts applicable to sentencing himself(see R v Woodard, 2009 MBCA 42 at para 60). Aggravating facts must be proven beyond a reasonable doubt.

Given his assessment ofthe accused’s credibility and his factual findings, the trial judge was entitled to use these findings in assessing the accused’s risk andperiod of parole ineligibility. [13] The accused argues that the trial judge erred in finding that there were elements of sadism in the attack and that theincident was prolonged. [14] It is correct that one of the factors the trial judge considered was the brutality of the murder, which was confirmed inthe evidence of the pathologist.

In discussing the law on the concept of brutality, he noted that the concept of brutality could include“extended, excessive, or uncommon violence, including torture or sadism”. However, he did not find that sadism existed. His focus wason the extreme and prolonged degree of violence used on an intoxicated and vulnerable victim in her own home, all of which wassupported by the evidence.

The evidence of the duration of the incident came from the tendered statement of another tenant in thebuilding, the testimony of that tenant’s teacher and that of Constable Roy-Haegeman. [15] It is true that the accused in this case had no prior criminal record and her letters of support, including a letter from TheElizabeth Fry Society of Manitoba Inc., show a significant amount of support from her family, friends and in the community generally. Her actions were bizarre and out of character for her. She argues that the trial judge placed insufficient weight on the principle ofrehabilitation.

The trial judge referred to all of these points, as well as the comprehensive pre-sentence report and psychologicalassessment he had in front of him. He chose to place greater weight on the principles of deterrence and denunciation, finding that thekilling was particularly violent and gratuitous. [16] While parity is a sentencing principle, sentencing is a highly individualized exercise, and no two cases will be exactlyalike. It is not possible to engage in a precise comparison of cases for sentencing purposes (see R v Cassan (ER), 2012 MBCA 46 at para85).

The trial judge reviewed the plethora of cases provided and relied on two, in particular, that he felt were most applicable. He wasentitled to do so. CONCLUSION [17] In the end, this appeal falls to be decided on the standard of review.

While this period of parole ineligibility appears tobe on the high side, given all the facts of this case, an appellate court must show great deference to a trial judge’s exercise of discretionand may only intervene if the sentence is demonstrably unfit or if there has been an error in principle that has had a material impact onarriving at the sentence (see R v Lacasse, 2015 SCC 64). [18] As the Supreme Court of Canada noted in R v Nasogaluak, 2010 SCC 6 at para 46, appellate courts may not intervenejust because they would have weighed the relevant factors differently. [19] In Lacasse, the Supreme Court stated (at para 78): . . . [D]etermining the weight to be given to aggravating or mitigating circumstances falls strictly within the sentencing judge’sdiscretion.

The decision to weigh such factors in a given way is not in itself an error that opens the door to appellate intervention unlessthe weighing is unreasonable. [20] In R v Shaw, 2019 ABCA 106, the Court stated (at para 13): An appellate court may not modify a parole ineligibility period merely because it feels that a different order ought to have been made. Out of respect for the trial judge’s advantage in having seen and heard the witnesses, the parole ineligibility period should be varied onlyif it is clearly unreasonable: Shropshire [R v Shropshire, (SCC), [1995] 4 SCR 227] at para 48.

See also R v Dooley, 2009 ONCA 910 at para 179. [21] The trial judge reviewed the relevant considerations, acknowledged the mitigating factors, including the steps theaccused had taken to rehabilitate herself, but concluded that “caution is necessary and future public safety is a real present-day factor inher sentencing.” This was a brutal stabbing of a vulnerable victim in her own home, with no known motive or provocation.

Consequently, the trial judge imposed a parole ineligibility period of 15 years as a reasonable balance when all factors were considered. [22] In my view, the trial judge made no error in principle. Further, I cannot say that the trial judge’s weighing of thefactors was so unreasonable as to allow appellate intervention. The appeal is dismissed.

JA I agree: JA I agree: JA