R. v. Butcher, 2020 NSCA 50

Nova Scotia Court of Appeal Citation: R. v. Butcher , 2020 NSCA 50 Date: 20200625 Docket: CAC 480054 Registry: Halifax Between: Nicholas Jordan Butcher Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Anne S. Derrick The Honourable Justice Duncan R. Beveridge dissenting in part Appeal Heard: February 12, 2020, in Halifax, Nova Scotia Subject: Second-degree murder. Admissibility of evidence. Antemortem statements. Whether probative value of statements was outweighed by prejudicial effect. Parole eligibility. Domestic homicide. Aggravating factors. Whether sentence is demonstrably unfit. Proportionality. Parity. Deference.

Summary: Mr. Butcher was in an intimate relationship with Kristin Johnston and had been living with her for two months. During a vacation away from Mr. Butcher, and upon her return, Ms. Johnston expressed to family and friends her desire to end the relationship. Within days of getting back to Halifax, Ms. Johnston went out to meet friends for the evening. Mr. Butcher was not invited. He used Ms. Johnston’s computer to read Facebook and instant messages in which she had told friends she wanted to break up with him. Later in the evening he accessed the computer again and located Ms.

Johnston at the apartment of a male friend. He drove to the apartment and entered it uninvited. He and Ms. Johnston spoke but she did not leave with him. He then waited outside the apartment for nearly two hours. He entered again and found Ms. Johnston and the male friend in bed together. Although Ms. Johnston said she was where she wanted to be, she left with Mr. Butcher and they returned to the home where they had been living. A short time later, while Ms. Johnston was asleep, Mr. Butcher retrieved a knife from the kitchen and stabbed her to death. He then tried to kill himself. Mr.

Butcher appealed his conviction for second-degree murder on the basis that Ms. Johnston’s antemortem statements testified to by two witnesses, a family member and a friend, and text messages by him, should not have been admitted into evidence. He also appealed his sentence, a 15-year period of parole ineligibility, arguing it was manifestly unfit. Issues: Admissibility of evidence: Mr. Butcher argued the trial judge erred in law by admitting the antemortem statements. He also submitted his text messages to his landlord and various friends should not have been admitted.

He argued the antemortem evidence was unreliable and could have been viewed by the jury as evidence of bad character (arguments rejected at trial). He submitted the trial judge erred in admitting the text messages by failing to conduct a probative value versus prejudicial effect analysis; not properly considering the bad character implications of the messages; dismissing the risk or moral and reasoning prejudice; and placing too much stock in the effectiveness of mid-trial and final instructions to the jury. Sentence: Mr.

Butcher submitted the trial judge relied on a factual finding that was unsupported by the evidence and gave insufficient attention to the principle of parity in cases of domestic homicide. Mr. Butcher also argued the trial judge fell into reversible error by relying on statutorily aggravating factors that did not apply. He said the appropriate period of parole ineligibility in his case is 12 years.

Result: The appeal against conviction was dismissed by a unanimous Court. The appeal against sentence was dismissed; Beveridge, J.A. dissenting. Admissibility of antemortem statements: the trial judge made no error in admitting the contested antemortem statements of Ms. Johnston on the basis they fell within a recognized exception to the hearsay rule. His assessment of the probative value of the statements versus their prejudicial effect is entitled to deference. The evidence was not unreliable and could not be construed as evidence of bad character.

As the trial judge found, the statements could appropriately be used to establish motive to kill and to identify the killer. Admissibility of Mr. Butcher’s text messages: the trial judge’s decision to admit the text messages was without error. He undertook a probative value/prejudicial effect analysis. The texts had significant probative value and no identifiable prejudicial effect. There was nothing in the texts to suggest bad character or discreditable conduct on the part of Mr. Butcher.

The trial judge gave clear mid-trial and final instructions to the jury strongly cautioning them on the purpose for which the text message evidence could be used. The jury was told the evidence could not be used to infer that Mr. Butcher was guilty of any offence. Sentence: in the view of the majority, the trial judge drew available inferences from the evidence and carefully considered the applicable sentencing principles, including parity. He found that Ms. Johnston’s murder was closer to first-degree murder than manslaughter. And although he did incorrectly describe Mr. Butcher and Ms.

Johnston as common-law partners, which they were not according to the definition in the Criminal Code at the time, this error was inconsequential. The common law has recognized for some time that the murder by a man of a woman with whom he has been in an intimate relationship calls for a more significant period of parole ineligibility. The lethal attack of Ms. Johnston, while she lay asleep in bed, constituted a breach of trust and the trial judge did not err in relying on this statutorily aggravating factor. There were significant aggravating factors here, including Mr.

Butcher’s conduct during the night prior to the murder, and the forethought involved in getting the knife while Ms. Johnston was sleeping and stabbing her to death in her bed. Whether it is through the application of statutory or common law principles, violence perpetrated in the context of intimate relationships requires emphatic denunciation. It was reasonable for the trial judge to view the effect of the aggravating circumstances as elevating the degree of Mr. Butcher’s moral culpability and justifying a 15-year period of parole ineligibility.

There is a broad range of parole ineligibility for second-degree murder and the trial judge’s determination of where Mr. Butcher’s ineligibility should be placed in that range is entitled to deference. In the view of the dissent, the trial judge expressly relied on two statutory aggravating factors which he found overwhelmed the previous good character of the appellant and led him to impose a 15-year period of parole ineligibility. The appellant was not a spouse or common-law partner of the victim, nor was he in a position of trust or authority vis-à-vis the victim.

This error in law impacted sentence, which requires the Court to then determine the appropriate period of parole ineligibility. Even if the fact they were intimate partners acts as an aggravating common-law factor, equivalent to that of a case of spousal murder, the factor cannot be counted twice as also a breach of trust, since the trust arose out of that intimate partner relationship. Further, the appropriate range of sentence for such an offence is not 10-15 year’s parole ineligibility.

The range is determined by the circumstances of the offence and of the offender guided by the relevant principles of sentence, in particular, that of proportionality and parity. The recognized aggravating factors in cases of intimate partner murder such as: prior abuse; the existence of multiple victims; the presence of planning and premeditation; the presence of children; breach of a restraining order; or, post-offence conduct were absent. Significant mitigating factors were present.

Considering the appellant’s breach of trust in the commission of the offence, and the sentences imposed on similar offenders in similar circumstances, nothing justifies a period beyond 12 years’ parole ineligibility. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 77 pages.

Nova Scotia Court of Appeal Citation: R. v. Butcher , 2020 NSCA 50 Date: 20200625 Docket: CAC 480054 Registry: Halifax Between: Nicholas Jordan Butcher Appellant v. Her Majesty the Queen Respondent Judges: Beveridge, Bourgeois and Derrick, JJ.A. Appeal Heard: February 12, 2020, in Halifax, Nova Scotia (Further written submissions: May 22, 2020) Held: Conviction appeal dismissed; sentence appeal dismissed per reasons of Derrick, J.A.; Bourgeois, J.A. concurring; Beveridge, J.A. dissenting in

part Counsel: Jonathan T. Hughes, for the appellant Glenn Hubbard, for the respondent Reasons for judgment: Introduction [ 1 ] On April 28, 2018 a jury convicted Nicholas Butcher of the second-degree murder of his intimate partner, Kristin Johnston whom he had stabbed to death on March 26, 2016. [ 2 ] Mr. Butcher received an automatic life sentence. The trial judge, Justice Joshua Arnold, imposed a minimum period of parole ineligibility of 15 years. Mr. Butcher appeals both this decision and his conviction. [ 3 ] Mr.

Butcher’s grounds of appeal against conviction concern the admissibility of evidence admitted at trial. He submits the trial judge was in error when he allowed the jury to hear statements made by Ms. Johnston to family and friends before her death. Antemortem hearsay evidence is often admitted in domestic homicide trials as an exception to the prohibition against hearsay to show the deceased’s state of mind or present intention. This may be relevant to the issues of motive and identity of the killer. [ 4 ] Mr.

Butcher says in his case the antemortem statements, without more, had no probative value in relation to the issue of motive. (As the facts I will be reviewing shortly disclose, identity was ultimately not an issue as Mr. Butcher admitted to killing Ms. Johnston, claiming he did so in self-defence.) [ 5 ] Mr. Butcher says the trial judge also erred by admitting what he claims was bad character evidence about him contained in text messages he had sent to friends. He says the prejudicial effect of evidence that he was experiencing financial and relationship stresses significantly outweighed its probative value.

He submits the trial judge failed to properly consider the bad character implications of the messages, which could not be neutralized by mid-trial and final instructions to the jury. [ 6 ] Mr. Butcher is looking for a new trial. He is also challenging his sentence. He says the 15-year period of parole ineligibility is demonstrably unfit and should be reduced to 12 years. [ 7 ] For the reasons that follow, I would dismiss Mr. Butcher’s appeal. I am not persuaded the trial judge erred in admitting the evidence being impugned nor in imposing a 15-year period of parole ineligibility in this case.

Overview of the Facts [ 8 ] Mr. Butcher and Ms. Johnston became romantically involved in the summer of 2015. She was 32 years old and the owner of a yoga studio in Halifax. Mr. Butcher was 34 and had recently graduated from law school. He was having trouble finding articles and, like Ms. Johnston, was struggling financially. Ms. Johnston’s yoga studio was faltering and Mr. Butcher had accumulated approximately $200,000 in debt pursuing his university education. He was working as a driving instructor to make ends meet. [ 9 ] Mr. Butcher and Ms. Johnston were very stressed by their financial circumstances.

They were having relationship issues. They each communicated with their respective friends about how they were feeling. Witnesses testified at Mr. Butcher’s trial about these communications and a number of electronic messages were also admitted into evidence. [ 10 ] In January 2016, Mr. Butcher began living with Ms. Johnston at her home although he had been spending nights there since the summer of 2015. By March 2016, Ms. Johnston was contemplating ending the relationship for good. They had already had a break-up the previous November. She was aware that Mr.

Butcher was in love with her and wanted a future together. She did not. She was closing her yoga studio and considering selling her house and moving away. Continuing a relationship with Mr. Butcher was not part of her plans. [ 11 ] Ms. Johnston had occasion to talk to family and friends about what was on her mind in February and March 2016. In late February, she went to Florida without Mr. Butcher to visit family and, while there, spent time with her sister, Kim, and her brother-in- law, Cameron Dennison. They discussed Ms. Johnston’s negative feelings about her relationship with Mr.

Butcher. [ 12 ] From Florida, Ms. Johnston flew to Costa Rica to spend time with a close friend, Jennifer Hazard. She talked with Ms. Hazard about wanting to end the relationship with Mr. Butcher. [ 13 ] Although Ms. Johnston exchanged affectionate text messages with Mr. Butcher while on holiday, within a day or so of her return to Halifax she was arranging to socialize with friends on her own. She did not invite Mr. Butcher to join her.

On the afternoon of March 25, 2016 she had a Facebook Messenger conversation with a former partner, Craig Conoley, in which they discussed how she might end her relationship with Mr. Butcher. [ 14 ] On the evening of March 25, Ms. Johnston talked with friends at a local bar about leaving Mr. Butcher. By the end of the night, three of the friends, Matthew Whiston, Heather Townsend, and Anna Gilkerson, had left. Ms. Johnston was then joined around 11:15 p.m. by Lisa Abramowicz. She talked to Ms. Abramowicz about ending her relationship with Mr. Butcher. [ 15 ] After leaving the bar, Ms. Johnston and Ms.

Abramowicz went to Ms. Abramowicz’s nearby apartment. Ms. Johnston, who had been texting Michael Belyea on Facebook Messenger, wanted to keep socializing. Mr. Belyea invited the two women over to his apartment which was close by. He and Ms. Johnston continued to exchange flirtatious texts. [ 16 ] Mr. Belyea had been at the bar earlier and was an acquaintance of Ms. Johnston’s. They had been intimate on one occasion in the past. [ 17 ] Ms. Johnston and Ms. Abramowicz arrived at Mr. Belyea’s apartment shortly after 1 a.m. on March 26. [ 18 ] In the hour before their arrival at Mr. Belyea’s, Ms.

Johnston had texted Mr. Butcher to say she was staying with Ms. Abramowicz for the night, her phone battery was dying and she was going to sleep. His text in response didn’t sound pleased: “Fan fucking tastic”. Ms. Johnston signed off just as she and Ms. Abramowicz arrived at Mr. Belyea’s apartment. [ 19 ] Some time earlier, after Ms. Johnston had left her home for the bar to meet her friends, Mr. Butcher accessed her Facebook account using her computer. Her communications about ending the relationship were in plain view. [ 20 ] While Ms. Johnston was at the bar, Mr. Butcher visited his friend, Adam Chisholm. Mr.

Chisholm testified that Mr. Butcher was upset and anxious about his financial situation, his inability to find articles, and the state of his relationship with Ms. Johnston. Mr. Chisholm recounted Mr. Butcher’s description of Ms. Johnston being distant since her return from Costa Rica and how she was out having drinks with friends that evening without him. [ 21 ] It was Mr. Chisholm’s advice to Mr. Butcher that if Ms. Johnston was not into the relationship he should end it. He said Mr. Butcher was unhappy about the prospect of the relationship being over. [ 22 ] Mr. Butcher left Mr.

Chisholm’s house to return to the home he shared with Ms. Johnston. He again used her computer to access her Facebook account and learned from her Facebook Messenger exchanges with Mr. Belyea where she was. [ 23 ] Ms. Johnston, Ms. Abramowicz and Mr. Belyea were in Mr. Belyea’s living room talking and listening to music when Mr. Butcher arrived unexpectedly, at approximately 2 a.m. Mr. Butcher and Mr. Belyea were not acquainted. Nonetheless, Mr. Butcher entered the apartment uninvited. Ms. Johnston and Ms. Abramowicz did not know how Mr. Butcher had known where to find them. Mr. Butcher told Ms.

Johnston he thought she was at Ms. Abramowicz’s, which is what she had told him in her earlier text. [ 24 ] Mr. Butcher and Ms. Johnston left the apartment together to talk outside. Only Ms. Johnston returned. She and Ms. Abramowicz and Mr. Belyea started talking about how strange it was that Mr. Butcher had found her. They speculated that he had accessed her Facebook Messenger texts. [ 25 ] After Mr. Butcher had left, Ms. Johnston, Ms. Abramowicz and Mr. Belyea continued talking and listening to music for a bit. Then Ms. Johnston stood up and announced she was tired and intending to sleep at Mr. Belyea’s.

She headed into his bedroom. Mr. Belyea said goodnight to Ms. Abramowicz and followed her. [ 26 ] It was past 4 a.m. on March 26. Ms. Abramowicz left the apartment. She did not notice Mr. Butcher sitting in his car. He had

been there for almost two hours. [27] After Ms. Abramowicz left, Mr. Butcher returned to Mr. Belyea’s apartment unannounced. He went into the bedroom whereMr. Belyea and Ms. Johnston were in bed together, partially clothed. Mr. Belyea was on top of Ms. Johnston. Mr. Butcher pushed Mr.Belyea’s shoulder and asked Ms. Johnston: “Why are you doing this?” She responded: “I want to be here”. [28] The situation was awkward. Mr. Belyea thought Ms. Johnston had ended her relationship with Mr. Butcher when he had been atthe apartment earlier. He got out of bed, dressed, and left the apartment to give Mr. Butcher and Ms.

Johnston some privacy. When hereturned, they had gone. At 5:36 a.m. he received a text from Ms. Johnston that said: “Jesus fuking [sic] christ I’m sorry”. [29] At 7:36 a.m., 911 dispatch received a call from Mr. Butcher in which he said: “I killed my girlfriend and I tried to kill myself, Icut off my hand. I think I’m dying”. When police attended Ms. Johnston’s home, they found the injured Mr. Butcher and arrested him.Ms. Johnston was lying on her back in her bed with a pillow over her face and deep lacerations to her throat. She was dead. [30] Mr. Butcher testified at trial.

His evidence was consistent with the narrative provided by Lisa Abramowicz and Michael Belyeaabout the events at Mr. Belyea’s apartment in the early morning hours of March 26, 2016. He said he had driven Ms. Johnston homewhere they went to sleep together as was customary. He testified on cross-examination that he knew when he left Mr. Belyea’s withMs. Johnston the relationship was over. [31] Mr. Butcher described waking up sometime later in the pitch-dark bedroom straddled by an unknown assailant who wasattacking him with a kitchen knife.

He got the upper hand, seizing possession of the knife and stabbing his attacker. He then discoveredhe had killed Ms. Johnston. Overcome with shock and grief he tried to kill himself, ultimately cutting his hand off with a mitre saw hehad retrieved from the basement. Bleeding and panicked, he reconsidered ending his life and called 911. [32] Mr. Butcher’s claim of killing Ms. Johnston in self-defence was rejected by the jury. The Issues [33] The issues in this appeal are:

(1) Did the trial judge err in law by admitting the antemortem hearsay statements of Ms. Johnston?

(2) Did the trial judge err in law by admitting Mr. Butcher’s electronic messages for the improper purpose of establishing his badcharacter and were they incorrectly found by the trial judge to not be evidence of bad character?

(3) Is the 15-year period of parole ineligibility demonstrably unfit? Standard of Review [34] The standard of review for the first two issues – the admissibility of Ms. Johnston’s antemortem statements and Mr. Butcher’selectronic messages – is the same. As noted by Beveridge, J.A. in R. v. Eisnor, 2015 NSCA 64, the admissibility of evidence is aquestion of law and therefore, [162] …reviewable on the standard of review of correctness. A trial judge must be right in his or her identification and application ofthe rules on the admissibility of evidence (see R. v. Underwood, 2002 ABCA 310 at para. 61; R. v.

Smith; R. v. James, 2007 NSCA 10 atpara. 166, aff’d 2009 SCC 5). But considerable deference is afforded to trial judges with respect to issues such as determination ofprobative versus prejudicial effect (R. v. Handy, [2002 SCC 56]; R. v. Pasqualino, 2008 ONCA 554; R. v. Poulette, 2008 NSCA 95). [35] The appropriate standard of review for the appeal against the 15-year period of parole ineligibility has been succinctly stated bythe Supreme Court of Canada in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, acourt of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [...] [36] This Court recently discussed in R. v. Potter, 2020 NSCA 9, the standard of review in sentence appeals: [827] An appellate court is not to take "an interventionist approach" to a sentencing appeal: ...

An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought tohave been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of havingseen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentenceshould only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearlyunreasonable. [R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, para. 46] [828] This Court recently explained in R. v. Espinosa Ribadeneira: [34] Sentencing involves the exercise of discretion by the sentencing judge. An appellate court should only interfere if the sentence wasdemonstrably unfit or if it reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of the appropriatefactors. An error of law or an error in principle will only justify appellate intervention if the error had an impact on the sentence.

Anappellate court is not to interfere with a sentence simply because it would have weighed the relevant factors differently. See R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90; R. v. Nasogaluak, 2010 SCC 6 at para. 46; R. v. Lacasse, 2015 SCC 64

at para. 43-44 and para. 49. [2019 NSCA 7] … [830] As stated by the Supreme Court of Canada in R. v. Lacasse: [52] It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned,writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is "demonstrably unfit":"clearly unreasonable", "clearly or manifestly excessive", "clearly excessive or inadequate", or representing a "substantial and markeddeparture" (R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720).

All these expressions reflect the veryhigh threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.[2015 SCC 64, para. 67] [37] As Justice Beveridge noted in R. v. Hawkins, a parole ineligibility appeal, Shropshire has “made it clear that an appellate courtdoes not have free rein to modify a sentencing decision simply because it feels a different order ought to have been made”. [2011 NSCA7, at para. 9] Issue #1 - The Admissibility of Ms. Johnston’s Antemortem Statements [38] Statements made by Ms.

Johnston to family and friends shortly before her death were hearsay statements and thereforepresumptively inadmissible unless they came within a recognized hearsay exception or qualified for admission following a principledanalysis that took into account their necessity and reliability. [39] The statements came in two forms: as statements recalled by witnesses who testified to what Ms. Johnston had told them, and aselectronic messages showing her state of mind. In the course of a voir dire to determine the admissibility of the antemortem statements,Mr.

Butcher conceded the admissibility of some of the recalled statements and all of the electronic messages. In his factum, this partialconcession shifted to a position that the trial judge erred in admitting any of the statements. [40] However, before us at the appeal hearing, Mr. Butcher’s lawyer, Mr. Hughes, who had been co-counsel at trial, clarified thatthe antemortem statements conceded to be admissible at trial are not the subject of this appeal. Mr. Butcher is not trying to revisit hisposition that certain statements made by Ms. Johnston were properly admitted into evidence. [41] Mr.

Butcher’s concessions about the admissibility of statements Ms. Johnston had made about wanting to end the relationshipwith him covered the testimony provided by her friends Jennifer Hazard, Matthew Whiston, Heather Townsend, and with one exception,that of Lisa Abramowicz and Michael Belyea. [42] These statements included Ms. Johnston: • Asking Mr. Whiston about how to break up with someone, saying she was unhappy in the relationship with Mr. Butcher, indicatingshe still cared about Mr.

Butcher but did not love him the way he loved her and talking about moving away. • Talking to Heather Townsend about ending the relationship with Mr. Butcher and saying she did not want to see him that night (thenight of March 25). • Telling Ms. Abramowicz that she didn’t want to see Mr. Butcher that night. • Telling Mr. Belyea she didn’t want to “settle” in her business or personal life anymore. [43] Mr. Butcher agreed that all of the electronic communications between Ms. Johnston and her friends, and introduced at the voirdire by the Crown, showing Ms. Johnston’s state of mind were admissible.

He agreed that all of the communications between Ms.Johnston and Mr. Conoley on March 25, which were exclusively made via Facebook Messenger, were admissible. [44] The evidence Mr. Butcher took issue with was that of Anna Gilkerson and Cameron Dennison. Anna Gilkerson [45] It was Mr. Butcher’s position that Ms. Gilkerson was an unreliable witness who had difficulty differentiating between her ownopinions, what was an encapsulation of Ms. Johnston’s statements, and what Ms. Johnston actually said. Cameron Dennison [46] Mr. Butcher objected to much of what Ms. Johnston’s brother-in-law, Mr.

Dennison had to say about her state of mind on thebasis that it was double hearsay, conjecture or conflated recollections. He did not contest the admissibility of certain statements recalledby Mr. Dennison including that Ms. Johnston wanted to end the relationship and that Mr. Butcher did not make her laugh the wayMr. Dennison made her sister laugh. [47] The trial judge admitted antemortem statements from Ms. Johnston in addition to the ones Mr. Butcher had agreed wereadmissible. He noted the Crown’s position that they were relevant to “proving the identity of Mr. Butcher as Ms. Johnston’s killer andMr.

Butcher’s motive for killing Ms. Johnston”. (R. v. Butcher, 2018 NSSC 74, at para. 16 – Voir Dire #1) He rejected Mr. Butcher’sargument that certain statements could be construed as evidence of bad character.

[ 48 ] In his voir dire decision, the trial judge explained Mr. Butcher’s objection to the admission of certain statements, including his position that some of the evidence fell under a “rare case” exception justifying exclusion: [10] The Crown says the antemortem hearsay statements attributed to Ms. Johnston fall within a traditional hearsay exception and therefore there is no need to embark on a principled analysis. The Crown says the hearsay comments explaining Ms. Johnston's feelings about her relationship with Mr.

Butcher and her desire to break up with him fall under either the state of mind exception or the present intention exception. … [13] Mr. Butcher does not challenge the "state of mind" or "present intention" exception. Since Ms. Johnston is deceased, necessity is not challenged by Mr. Butcher. However, he does say that some of the proposed hearsay evidence falls into the "rare case" category described in Mapara , on the ground that indicia of reliability are lacking. [ 49 ] The trial judge explained the “rare case” exception discussed by the Supreme Court of Canada in R. v.

Mapara , 2005 SCC 23 : [15] The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. (

c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire . [ 50 ] The trial judge quoted Mapara on the issues of threshold and ultimate reliability: [16] Admissibility of evidence is determined on the basis of "threshold reliability" provided by circumstantial indicators of reliability.

The issue of "ultimate reliability" is for the trier of fact, in this case the jury. [ 51 ] The trial judge was well aware that he was dealing with threshold reliability not ultimate reliability. (para. 68) [ 52 ] After a careful review of relevant law, the trial judge talked about the relevance of Ms. Johnston’s antemortem statements: [26] Antemortem hearsay evidence in domestic homicides is often admitted as an exception to the hearsay rule to show the deceased's state of mind or present intentions.

The declarant's state of mind must be relevant and the statement must be made naturally and not under circumstances of suspicion. Such evidence is often probative, going to the identification of the accused and to motive. [27] In this case, the Crown proposes to tender hearsay evidence to show that Ms. Johnston was unhappy in her relationship with Mr. Butcher and that she wanted to end the relationship. They also want to tender evidence that Ms. Johnston said she ended the relationship with Mr. Butcher just a couple of hours before she was killed. The Crown says this evidence indicates Mr.

Butcher had a motive for killing Ms. Johnston. [28 ] The Crown says all the proposed hearsay statements occurred during natural conversation among family and friends, and that there were no circumstances of suspicion. They say none of the hearsay statements cast Mr. Butcher in a bad light. The Crown says that without the antemortem evidence, the trier of fact will be left without a clear picture of the dynamic between Ms. Johnston and Mr.

Butcher… The Evidence of Cameron Dennison and Anna Gilkerson [ 53 ] The trial judge was not satisfied there were reliability issues that brought any of the proposed evidence within the Mapara “rare case” exception to make it inadmissible. He examined Mr. Butcher’s objections to aspects of Cameron Dennison’s evidence and the evidence of Anna Gilkerson. In the case of Mr. Dennison, Mr. Butcher argued it was impossible to sort out what he was told by Ms. Johnston and what his wife, Kim, had told him Ms. Johnston had said. However, the trial judge was satisfied Mr. Dennison was clear in recalling that Ms.

Johnston had told him: • She was struggling with Mr. Butcher’s emotions and did not want to hurt his feelings by telling him the relationship was over. • She wanted to break up with Mr. Butcher but was unsure of how best to do so. • She and Mr. Butcher had broken up previously but around Valentine’s Day he had begged her to reconcile with him [1] . • The rent for her yoga studio was very high and the business was failing. [ 54 ] Having assessed the evidence, the trial judge found it satisfied the requirements of threshold admissibility and directed the Crown to ensure that its direct examination of Mr.

Dennison did not “stray into areas that are inadmissible”. (para. 38)

[ 55 ] The trial judge also found Mr. Dennison could testify to Ms. Johnston telling him that Mr. Butcher had been just “sitting around” and “doing nothing”. He dismissed Mr. Butcher’s suggestion that these statements could be construed as evidence of bad character. He characterized them as admissible hearsay going to Ms. Johnston’s “state of mind or present intention” and “one reason why Ms. Johnston wanted to end the relationship with Mr. Butcher”. (para. 42) [ 56 ] Testimony about Mr. Butcher’s inability to secure articles was also found by the trial judge not to be evidence of bad character.

He said: [43] The reference to Mr. Butcher's inability to secure articles is not evidence of bad character. The probative value of this hearsay evidence lies in its relevance to explain another one of Ms. Johnston's reasons for wanting to end the relationship with him. This sentiment is corroborated by Ms. Hazard's report of what she was told by Ms. Johnston. There is little prejudicial effect in having the jury hear that although Mr. Butcher had graduated from law school, he had not yet secured articles. His employment situation would not lead to impermissible bad character reasoning on the part of the jury.

A mid-trial and final jury instruction regarding this evidence would inoculate the jury against impermissible reasoning. [ 57 ] The trial judge took account of Mr. Butcher’s concerns about the reliability of Anna Gilkerson’s evidence. However he rejected Mr. Butcher’s position that none of what she recalled from talking to Ms. Johnston at the bar on March 26 was admissible. He accepted that Ms. Gilkerson was not intoxicated during the conversation with Ms. Johnston and could hear her clearly. He noted that Ms. Gilkerson testified she could specifically remember three distinct statements made by Ms.

Johnston and found them to be admissible: • Ms. Johnston was not happy in the relationship with Mr. Butcher. • Ms. Johnston wanted to leave Mr. Butcher and did not want to go home. • Ms. Johnston replied “I know” when Ms. Gilkerson told her she should break up with Mr. Butcher. (para. 52) [ 58 ] The trial judge concluded that Ms. Gilkerson would be given “a caution…before she testifies, reminding her to testify about what she actually saw and heard, and not give summaries or opinions of her impression of Ms. Johnston’s feelings”. (para. 52) Ms. Gilkerson was cautioned in this manner. The Evidence of Why Ms.

Johnston Allowed Mr. Butcher to Move in With Her [ 59 ] In his voir dire ruling, the trial judge determined that evidence about Ms. Johnston agreeing to Mr. Butcher living with her because he was in financial straits was admissible. He described the evidence: [74] Mr. Dennison says that Ms. Johnston told him Mr. Butcher was living with her because he could not pay his rent. Ms. Hazard said that Ms. [ sic ] told her that Mr. Butcher was a good friend and that she wanted to ask him to increase his rent for financial help. The witnesses, such as Ms. Hazard and Mr. Dennison, who speak to Ms.

Johnston's explanation for having Mr. Butcher live with her, are consistent insofar as they each state that Ms. Johnston indicated that she had Mr. Butcher living with her for financial reasons. Mr. Chisholm confirms that Mr. Butcher was having financial issues. Several witnesses state that Ms. Johnston was having financial issues herself, in that her business, the yoga studio, was either closing or was closed. [ 60 ] The trial judge accepted the Crown had satisfied the requirements for threshold reliability that justified the admission of evidence from witnesses about why Mr. Butcher was living with Ms.

Johnston. He held that: [77] …on a balance of probabilities it is more likely than not that this evidence is sufficiently inherently trustworthy. The ultimate reliability of what Ms. Johnston said as to why Mr. Butcher was living with her will be left to the jury. [ 61 ] Finally, the trial judge assessed the probative value of the hearsay statements versus the prejudice associated with admitting them. He found as follows: [79] The probative value of Ms. Johnston's statements of intention regarding her relationship with Mr. Butcher is significant.

They tend to describe the nature of the relationship between herself and Mr. Butcher. They reveal her desire to end the relationship. They provide evidence of possible animus and a possible motive on the part of Mr. Butcher and go to the identity of Ms. Johnston's killer. The trier of fact should have this information in order to make an accurate decision. [80] Mr. Butcher points out no prejudicial effect. [ 62 ] The trial judge was satisfied Ms. Johnston’s antemortem statements were admissible “under a recognized exception to the hearsay rule”.

He noted the appropriate use of the evidence was to establish motive to kill and the identity of Mr. Butcher as Ms. Johnston’s killer. [ 63 ] It is important to note that, contrary to submissions made in Mr. Butcher’s factum on appeal, the admissibility of the antemortem statements did not depend on supporting evidence to show Mr. Butcher was aware of Ms. Johnston’s possible intentions or state of mind. ( R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), at para. 12 , per Doherty, J.) That being said, there was abundant evidence in this case to support the inference that Mr. Butcher knew Ms.

Johnston was unhappy and wanted to end the relationship; for example, her distancing behaviour on returning from her vacation, the Facebook messages Mr. Butcher accessed on her computer, her lie about spending the night at Ms. Abramowicz’s, and her conduct at Michael Belyea’s apartment where she explicitly signaled her rejection of Mr. Butcher. Conclusion on Issue #1 [ 64 ] The trial judge’s reasoning in relation to the admissibility of the antemortem statements was entirely sound. He identified and applied the correct law. He made supportable findings of fact.

Deference should be shown to his assessment of the probative value of the

statements versus their prejudicial effect. His analysis cannot be faulted. He made no error in permitting the Crown to place Ms.Johnston’s antemortem statements before the jury. I would dismiss this ground of appeal. Issue #2 - The Characterization and Admissibility of Mr. Butcher’s Text Messages [65] In Voir Dire #11 (R. v. Butcher, 2018 NSSC 105), the trial judge dealt with the admissibility of text messages between Mr.Butcher and his landlord and various friends. The Crown was seeking to have the texts admitted on the basis that they were relevant andprobative of Mr.

Butcher’s motive and possible intent. (para. 2) Mr. Butcher was opposed to their admission saying the texts were stale,irrelevant, related to collateral issues, and carried a prejudicial effect that outweighed their probative value. (para. 3) [66] The trial judge found the texts to be admissible. Noting that they had been written between August 2015 and March 2016, heconcluded they were not stale. (para. 10) He identified their subject matter as relating to Mr. Butcher’s financial difficulties, jobprospects, and his relationship with Ms.

Johnston that included “breaking up and fighting”. [67] There were two texts in which Mr. Butcher had described himself, alternately, as having a “nervous breakdown” and “goingcrazy” in November 2015. The trial judge found that neither of these texts nor the ones referring to “breaking up” and “fighting” couldbe viewed as evidence of discreditable conduct by Mr. Butcher or bad character. (paras. 15 and 17) After reviewing case law discussingmoral and reasoning prejudice, including R. v.

Taweel from this Court (2015 NSCA 107), the trial judge concluded: [23] In this case, the text messages are not evidence of bad character or of discreditable conduct on the part of Mr. Butcher. There isno risk of moral prejudice or reasoning prejudice on the part of the jury. Any possible concern about reasoning prejudice (and thereshould be none) can be cured with a mid trial and a final jury instruction. [24] The probative value of this text message/electronic evidence far outweighs any prejudicial effect. Society has an interest indetermining the truth of the charges.

This text message/electronic evidence is relevant to provide the jury with the entire context of theevents leading up to March 26, 2016. There is no impact to Mr. Butcher' s right to a fair trial by the admission of this evidence. [68] Mr. Butcher submits the trial judge erred in admitting Mr. Butcher’s text messages revealing stress over financial andrelationship worries.

He says the trial judge: • Failed to conduct a probative value versus prejudicial effect analysis. • Did not properly consider the bad character implications of the text messages. • Dismissed the risk of moral (the potential stigma of bad character) and reasoning (the potential distraction of the jury from theoffence with which the accused has been charged) prejudice. • Placed too much stock in the effectiveness of mid-trial and final instructions to the jury. [69] I would not give effect to Mr. Butcher’s criticisms.

As I have noted, the trial judge did undertake a probative value/prejudicialeffect analysis, at paragraphs 18 through 22 of his decision. He was satisfied there was nothing in the texts that suggested bad characteror discreditable conduct on the part of Mr. Butcher. This finding is amply supported by the texts themselves. The texts show Mr. Butcherto have been very conscientious about his financial obligations, regularly reassuring his landlord that he would be providing his rentpayments, and doing so, and working at four or five part-time jobs to pay the bills. He expressed love and concern for Ms.

Johnston,helped her with issues relating to the yoga studio and encouraged her to take the trip to Costa Rica after visiting her family in Florida. [70] There is equally nothing that discredits Mr. Butcher in the texts where he refers to feeling despondent about relationship conflictwith Ms. Johnston and their breakup in November 2015, and the mention in one text of them having a fight in October. As the trial judgenoted, there is no suggestion of the fight involving any physical violence. The texts show Mr.

Butcher to have been stressed andfrustrated about his grim financial situation and sad and anxious about the strains in his relationship with Ms. Johnston, none of whichcould be said to have cast him in a bad light. [71] There was significant probative value in the texts, which indicated Mr. Butcher’s state of mind, as revealed by his own words,and no identifiable prejudicial effect. Furthermore, the trial judge complied fully with the requirement for careful instructions to the jury,as emphasized by the Supreme Court of Canada in R. v.

S.G.G, (SCC), [1997] 2 S.C.R. 716: [65] …Even if the evidence is admissible under this exception, it is clear that it still cannot be used to determine guilt simply on thebasis that the accused is the type of person to commit the crime…The trial judge has a duty to charge the jury in this regard, and to warnthem against the improper use of the evidence. [72] The trial judge gave both mid-trial and final instructions to the jury, strongly cautioning them on what would constitute theimproper use of the evidence.

Such instructions are the appropriate tool to assist juries and ensure fair trials even where bad characterevidence is admitted as directly relevant to the Crown’s theory of the case. As Watt, J.A. stated in R. v. Moo, 2009 ONCA 645, at para.100: Where evidence of extrinsic misconduct is admitted, one antidote to ensure that prejudice does not substitute for proof are mid-trial andfinal cautions that educate jurors about the permitted and prohibited use of the evidence… [73] Here the trial judge gave a very clear limiting instruction to the jury on the purpose for which the text message evidence couldbe used.

He crafted his instructions with input from Crown and Defence counsel. He cautioned that the evidence could not be used toinfer that Mr. Butcher was guilty of any offence.

Conclusion on Issue #2 [ 74 ] The trial judge’s decision to admit Mr. Butcher’s text messages discloses no error. He identified the correct law and applied it appropriately. He conducted a careful analysis of the relevance and probative value of the texts. He correctly concluded the texts did not contain evidence of bad character nor risk creating moral or reasoning prejudice. He appropriately cautioned the jury about the proper use of the evidence. I would dismiss this ground of appeal.

Issue #3 – The Imposition of a 15-year Period of Parole Ineligibility [ 75 ] As a result of being found guilty of second-degree murder, Mr. Butcher received an automatic sentence of life imprisonment pursuant to s. 235 of the Criminal Code , R.S.C. 1985, c. C-46 . The remaining sentencing issue was how long he would have to wait before being eligible to apply for parole. Parole ineligibility for second degree murder ranges from a minimum period of 10 years to a maximum of 25. ( s. 745.1 (c), Criminal Code ) The Crown sought 17 years. Mr.

Butcher’s lawyers recommended 10. [ 76 ] The trial judge imposed a 15-year period of parole ineligibility. ( R. v. Butcher , 2018 NSSC 194 ) Mr. Butcher says 15 years is demonstrably unfit and should be reduced to 12 years.

He says the trial judge committed two errors in his analysis: (1) he relied on “a factual finding unsupported by the evidence” as an aggravating factor; and (2) he gave insufficient attention to the principle of parity. [ 77 ] After the appeal hearing, counsel for the parties were asked to address three questions, which I reproduce below. 1) Did the trial judge rely on ss. 718.2(a)(ii) and (iii) as statutory aggravating factors? 2) If so, did he commit an error in law or principle and did that error impact the sentence he imposed? 3) What are the consequences if the answers to questions 1 and 2 are in the affirmative? [ 78 ] Subsections 718.2(a)(ii) and (iii) of the Criminal Code will, if applicable, operate as aggravating circumstances on sentencing.

At the time of Mr. Butcher’s sentencing, the provisions specified a sentence should be increased on the basis of evidence that in committing the offence, the offender “abused the offender’s spouse or common-law partner” (s. 718.2(a)(ii)), and “in committing the offence, abused a position of trust…in relation to the victim” (s. 718.2(a)(iii)). (In September 2019, that is, after Mr. Butcher’s sentencing, Parliament amended the Code to expand s. 718.2(a)(ii) by substituting “intimate partner” for “common-law partner”.

An intimate partner is defined as including a “current or former spouse, common-law partner and dating partner”. The Criminal Code provision that applied at the time of Mr. Butcher’s sentencing referred to abuse of “the offender’s spouse or common-law partner”.) [ 79 ] In his response to the questions, Mr. Butcher argues the trial judge relied on statutorily aggravating factors and fell into reversible error. I will be returning to discuss this submission. [ 80 ] Before I do so, I will address Mr. Butcher’s complaints about two factual underpinnings in the trial judge’s reasons.

He says the trial judge: (1) relied on a fact not supported in the evidence, and (2) drew an inference he did not explain. The Factual Finding – The Pillow on Ms. Johnston’s Face [ 81 ] The trial judge began his sentencing decision with a recital of the facts on which he was relying. He recognized he was both entitled and required to make his own findings of relevant facts, as long as they were consistent with the jury’s verdict. He referred to s. 724 of the Criminal Code as authority: 724

(1) Information accepted - In determining sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any fact agreed on by the prosecutor and the offender.

(2) Jury - Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by the evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. [ 82 ] With one exception, Mr. Butcher does not take issue with the trial judge’s factual findings. The one exception is a reference made by the trial judge to Mr. Butcher putting a pillow over Ms. Johnston’s face before he murdered her. [ 83 ] The trial judge mentioned the pillow twice in his reasons: [44] Shortly after they arrived at 17 Oceanview Drive, Kristin Johnston changed her clothes and was lying in bed, at her most vulnerable. Mr.

Butcher murdered Ms. Johnston. He put a pillow over her face and stabbed, slashed, and cut her in the neck ten times. The force used to cause the wounds was significant. Kristin Johnston died of sharp force injury. She had 10 sharp force injuries to her neck and throat and also had significant cuts on her hands that the forensic pathologist described as defensive wounds. And later: [91] Ms. Johnston was in her own home, in her own bed and at her most vulnerable when Mr. Butcher put a pillow over her face and stabbed her repeatedly in the neck and throat until she died. [ 84 ] Mr.

Butcher challenges the trial judge’s finding that he put a pillow over Ms. Johnston’s face on the grounds that: • There was no evidence to support it.

• It was treated as an aggravating factor by the trial judge without it being proven beyond a reasonable doubt as required in law. ( s. 724(3) (e), Criminal Code ) [ 85 ] It is undisputed that Ms. Johnston was discovered with a pillow over her face. The first police officer to enter the bedroom saw Ms. Johnston lying on her back in her bed with her head covered by a pillow. He testified to lifting one side of the pillow to see if she was alive. He saw that she was dead with “a large amount of trauma to her throat”.

He then lowered the pillow back down to the position in which he found it. [ 86 ] The trial judge made the reasonable inference that Mr. Butcher had placed the pillow on Ms. Johnston’s face while she was still alive and being stabbed. This inference was available to him on the evidence. [ 87 ] The forensic pathologist, Dr. Marnie Wood, testified that Ms. Johnston’s fatal neck wounds and the crime scene evidence led her to conclude Ms. Johnston had been stabbed repeatedly in the front of her neck while lying on her back. She had defensive wounds to her hands and was lying in a large pool of blood. [ 88 ] Ms.

Johnston’s neck wounds had been inflicted with deadly accuracy, severing the jugular veins on either side of her neck. A pillow on her face would have enabled Mr. Butcher to control her head, which otherwise Ms. Johnston could have tried to move. This point was raised by the Crown in cross-examination of Mr. Butcher, although he did not recall placing the pillow on Ms. Johnston. [ 89 ] The underside of the pillow, the side lying across Ms. Johnston’s head, was heavily saturated with blood. This suggests that when it was put into position, the blood source, Ms.

Johnston, was still alive, her heart pumping blood out of the wounds in her neck. [ 90 ] Ms. Johnston’s downstairs tenant heard nothing in the early morning hours of March 26 when she was being murdered. The pillow would have stifled any screams. [ 91 ] The evidence I have noted supports the inference drawn by the trial judge that Mr. Butcher placed a pillow over Ms. Johnston’s face while he set about stabbing her or, at least, at the point when she was bleeding to death. [ 92 ] Significantly however, the trial judge’s reasons do not indicate that he treated this finding as an aggravating factor.

He mentioned it as part of his description of the murder but did not reference it as an aggravating factor. [ 93 ] The aggravating factors noted by the trial judge were: the nature of the Butcher/Johnston relationship – that it was an intimate one; it was a relationship of trust; Ms. Johnston was murdered in her own home, lying in her bed; Mr.

Butcher had stalked her by reading her Facebook messages, tracked her down, lain in wait for her, and brought her back with him to the house where he attacked her after she had gone to sleep. [ 94 ] There was no mention by the trial judge of the pillow as an aggravating factor. The Inference – “Some Indication of Forethought” [ 95 ] Mr. Butcher takes issue with the trial judge having said in his reasons there was “some indication of forethought on the part of Mr. Butcher prior to murdering Ms. Johnston”.

He says the trial judge inferred forethought without elaborating on what justified that inference. [ 96 ] There was no need for the trial judge to elaborate. It is obvious Mr. Butcher applied forethought to stabbing Ms. Johnston. He agreed under cross-examination there were no knives in the bedroom. Ms. Johnston was stabbed to death with an 8-10 inch steak knife. The police investigators located the other household knives in the kitchen. To arm himself for his deadly assault, Mr. Butcher had to go to the kitchen and retrieve the knife he then repeatedly plunged into Ms. Johnston’s neck. [ 97 ] The stabbing of Ms.

Johnston was not a spontaneous, impulsive act in the midst of a heated argument. It involved purposeful acts by Mr. Butcher. These acts were relevant to the trial judge as they located the second-degree murder of Ms. Johnston further along the continuum of moral culpability, closer to first-degree murder than to manslaughter. [ 98 ] Mr. Butcher’s lethal attack of Ms. Johnston was executed with deadly precision and effect. Both her jugular veins were punctured. A vertebrae was nicked. Death would have occurred in 5 minutes or less according to the forensic pathologist, Dr. Wood.

Unconsciousness would happen slightly prior to death, which Dr. Wood estimated would have been a minute or two before although “It’s difficult to say exactly how much”. The injuries to Ms. Johnston’s hands were, according to Dr. Wood, classically characterized as “defensive” injuries: “They are most commonly seen in people who are warding off blows or sharp force injuries”. [ 99 ] The record indicates Ms. Johnston was lying in her bed when Mr. Butcher attacked her. There can be no doubt she was or had been asleep. The first police officers on the scene after Mr.

Butcher’s 911 call found the bedroom dark with the curtains closed. Ms. Johnston had to have awakened just enough to try and fight off her killer. Her final moments were spent in terror and agony as Mr. Butcher repeatedly stabbed her and she bled to death. The 15-Year Period of Parole Ineligibility [ 100 ] The trial judge undertook his sentencing analysis in accordance with the requirements of s. 745.4 of the Criminal Code which mandated him to have regard for Mr. Butcher’s character, the nature of the offence and the circumstances surrounding its commission, and the recommendations of the jury.

The Recommendations by the Jury [ 101 ] Pursuant to s. 745.2 of the Criminal Code , the jury members were asked by the trial judge if they wished to make any recommendation on the number of years, between 10 and 25, that Mr. Butcher would have to serve before being eligible for release on

parole. Their recommendations were as follows: 2 jurors – 10 years; 1 juror – 12 years; 1 juror – 15 years; 1 juror – 18 years; 3 jurors – 20 years; and 4 jurors – 25 years. The trial judge noted this in his reasons: [94] Therefore, of those jurors who chose to make a recommendation about a parole ineligibility date, eight suggested a date in the 18-25 year range, one at 15 years and three suggested 12 years or less.

I am not bound by the jury's recommendation, but must consider it, which I have done. [ 102 ] Although judges have questioned the jury’s ability to make informed recommendations (see, for example, Watt, J. in R. v. Barry , [1991] O.J. No. 2666 (Ont. C.J.) ), recommendations are to be taken into account, which the trial judge here indicated he had done. Mr.

Butcher’s Character, the Nature of the Offence and the Circumstances Surrounding Its Commission [ 103 ] The trial judge’s reasons for imposing a parole ineligibility period of 15 years is encapsulated in the following paragraphs from his sentencing decision where he addresses Mr. Butcher’s character, the nature of the offence and the circumstances surrounding its commission: [95] Nicholas Butcher is sentenced to imprisonment for life. That must never be forgotten. [96] Considering Mr.

Butcher's previously mainly pro-social lifestyle, positive Pre-Sentence Report, as well as his lack of prior involvement with the criminal justice system, he falls into the first category as described in Nash [ R. v. Nash , 2009 NBCA 7 ] and by other courts of appeal, that is the 10-15 year range for parole ineligibility. [97] On the continuum of second-degree murder facts relating to moral culpability, at the lower-end offences closer to manslaughter and at the higher end cases closer to first-degree murder, this case is at the higher end. There is some indication of forethought on the part of Mr.

Butcher prior to murdering Ms. Johnston. The nature of his offence and the circumstances surrounding its commission, the actions of Mr. Butcher in stalking Ms. Johnston during the evening he murdered her, and murdering his common-law partner while she was at her most vulnerable, in her own home and in her own bed, warrant a significant increase beyond the 10 year minimum. [98] Mr. Butcher's personal circumstances do not outweigh the aggravating factors in this case.

Put another way, the circumstances of his crime overwhelm his previous good character. [99] Considering cases that involve similar offenders and similar situations, and considering that domestic murder cases generally involve parole ineligibility in the range of 12 to 15 years, I set Nicholas Butcher's parole ineligibility at 15 years. [ 104 ] On appeal, the parties agreed that, as noted in R. v. Nash , 2009 NBCA 7 , (which the trial judge referenced at para. 64 of his decision) sentencing for second-degree murder falls within three time frames for parole eligibility: 10-15 years; 15-20 years; and 20-25 years.

They diverge on where Mr. Butcher should be placed within the 10-15 year range. Mr. Butcher says the trial judge should not have found he belonged at the high end. [ 105 ] Mr. Butcher points to this Court’s decision in R. v. Hawkins , 2011 NSCA 7 , as an example of a second degree murder that warranted a period of parole ineligibility at the high end of the 10-15 year range. I do not see how Mr. Hawkins represents a higher order of moral culpability than Mr. Butcher. Indeed, there are similarities even though Hawkins did not involve the murder of an intimate partner. The victim trusted Mr.

Hawkins who murdered him in his home. I do not view the result in Hawkins , a 15-year period of parole ineligibility, as assisting Mr. Butcher’s position in this appeal. [ 106 ] Mr. Hawkins stabbed and then strangled his victim to death in the course of robbing him. His victim was a vulnerable, intellectually-disabled man murdered in his own home by someone he must have trusted enough to invite in. These were aggravating factors, as was the robbery, Mr. Hawkins’ “callousness” in using the proceeds of the robbery to buy cocaine, and his post-offence conduct of lying and leaving the province.

His skill as a tradesperson with a consistently strong work ethic and a good reputation as an employee were mitigating factors. [ 107 ] Beveridge, J.A. reduced Mr. Hawkins’ parole ineligibility from the 20 years imposed by the trial judge. He found the trial judge had erred in various respects, such as by failing to consider the appropriate sentencing principles mandated in the Criminal Code , including the principles of restraint and parity. He held a trial judge is required to consider the principle of parity enshrined in s. 718.2 (

b) of the Criminal Code , that a sentence being imposed be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. (para. 53) [ 108 ] Unlike the trial judge who sentenced Mr. Hawkins, Mr. Butcher’s trial judge considered the issue of parity along with the other sentencing principles he was required to take into account. [ 109 ] Mr. Butcher submits the 15 years imposed by the trial judge is disproportionate to sentences for domestic murders not involving efforts by the perpetrator to conceal the crime or obstruct the police investigation.

He references cases that earned periods of parole ineligibility of 12 or 13 years as “demonstrating more aggravating circumstances” such as murders committed in the presence of others, including the victim’s young children. His complaint is that the trial judge failed to justify “his departure from what was clearly set out in the case law”. In other words, according to Mr. Butcher, the trial judge paid inadequate attention to the principle of parity.

And, as I noted earlier, he says the trial judge erred by relying on statutorily aggravating factors that did not apply. [ 110 ] Later I will review cases referred to by Mr. Butcher. Analysis [ 111 ] As I have said, Mr. Butcher’s principal criticism of the trial judge’s imposition of a 15-year period of parole ineligibility is that it is a manifestly unfit sentence for this particular second-degree murder. He says he should be at the lower end of the range of parole ineligibility for murder committed in the context of an intimate relationship.

[112] Mr. Butcher has abandoned his position at trial that his parole ineligibility should be set at the mandatory minimum 10 years. Henow says 12 years is justified. [113] In support of a 12-year period of parole ineligibility, Mr. Butcher relies on cases where parole eligibility was set at 12 to 13 yearsand argues that cases in the 14 to 15 year range involved “something beyond the mere killing of a domestic partner”.

He mentions inparticular cases referred to by the trial judge that involved attempts to conceal the crime by disposing of the body or obstructing thepolice investigation. [114] Before proceeding further, it is important to reiterate the standard of review this Court must use to assess the fitness of Mr.Butcher’s sentence. Standard of Review [115] In its recent decision R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada re-emphasized the standard of review to be appliedin sentencing appeals. Appellate courts must “generally defer to sentencing judges’ decisions”.

Sentencing judges have “regular front-line experience” and are usually familiar with the “particular circumstances and needs of the community where the crime wascommitted”. An appellate court is not to substitute its own decision for a sentence without “good reason” to do so. (at para. 25) Appellateintervention is not justified unless a sentence is demonstrably unfit or the sentencing judge made an error in principle that had an impacton the sentence (Friesen, at para. 26, citing R. v. Lacasse, 2015 SCC 64, at paras. 41 and 49).

An error in principle includes an error oflaw. [116] Sentencing is a profoundly individualized exercise. As the Supreme Court of Canada stated in R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500: [92] Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed bysentencing judges for similar offenders and similar offences committed throughout Canada…But in exercising this role, courts of appealmust still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested insentencing judges.

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime…Sentencing isan inherently individualized process, and the search for a single appropriate sentence for similar offender and a similar crime willfrequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to somedegree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals willdepend on the needs and current conditions of and in the particular community where the crime occurred.

For these reasons, consistentwith the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene to minimize thedisparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentencescustomarily imposed for similar offenders committing similar crimes. [cites omitted] [117] To successfully challenge the period of parole ineligibility imposed, Mr.

Butcher must show that 15 years was a “substantial andmarked departure from the sentences customarily imposed for similar offenders committing similar crimes” or that the trial judge madean error in principle that had an impact on the sentence. I am satisfied he has failed to do so. No Justification for Appellate Interference [118] For the reasons to follow, I find there is no basis to justify interfering with the trial judge’s conclusion that, in Mr. Butcher’s case,the period of parole ineligibility should fall at the higher end of the range for the murder of an intimate partner.

As he noted, Ms.Johnston’s murder was closer to first-degree murder than manslaughter. Furthermore, the common law has understood for some time thatthe murder by a man of the woman with whom he has been in an intimate relationship calls for a more significant period of paroleineligibility. I will return to discuss the common law in more detail. The Broad Range of Parole Ineligibility for Second-Degree Murder [119] The trial judge sentenced Mr. Butcher in accordance with the requirements of the Criminal Code and the principles established byR. v. Shropshire, (SCC), [1995] 4 S.C.R. 227.

The Shropshire principles include: • A case does not have to be “unusual” for the period of parole ineligibility to be extended past the statutory minimum of 10 years.(para. 27) • The 10-year minimum period of parole ineligibility can be “ousted” where a trial judge determines, pursuant to the criteria in whatis now s. 745, that the offender should wait to have his suitability for parole assessed after a longer period of incarceration. (para. 27) • The “sliding scale” of parole ineligibility established by Parliament recognizes that for second degree murder there will be “a broadrange of seriousness reflecting various degrees of moral culpability”. (para. 29) • A judge’s power to extend the period of parole ineligibility “need not be sparingly used”. (para. 31) [120] Shropshire described the parole-ineligibility determination to be “a very fact-sensitive process” that must bear in mind “thediscretionary power conferred on the trial judge”. (para. 18) The Evidence Considered by the Trial Judge [121] It was the “nature of the offence and the circumstances surrounding its commission” that drove up Mr.

Butcher’s paroleineligibility. The trial judge laid out the evidence he considered: [89] Nicholas Butcher and Kristin Johnston were common-law partners living together when the murder occurred.

[90] Mr. Butcher read Ms. Johnston's electronic communications without permission. He read that Ms. Johnston wanted to end herrelationship with him. He entered Mr. Belyea's stairwell without permission on the first occasion when he believed Ms. Johnston wasinside socializing with Mr. Belyea. He then watched Mr. Belyea's apartment from the street between approximately 3:00 AM to 4:51 AMto see what Ms. Johnston was doing. After he saw Ms. Abramowicz leaving Mr. Belyea's apartment without Ms. Johnston he againentered Mr. Belyea's residence without permission. He saw Mr. Belyea and Ms.

Johnston being intimate in bed together. Instead ofleaving, Mr. Butcher walked into the bedroom and pushed Mr. Belyea. After Ms. Johnston told Mr. Butcher that she wanted to be at Mr.Belyea's, Mr. Butcher told her he would not leave without her. [91] Ms. Johnston was in her own home, in her own bed and at her most vulnerable when Mr. Butcher put a pillow over herface and stabbed her repeatedly in the neck and throat until she died. The Nature of the Butcher/Johnston Relationship [122] The trial judge treated the nature of the relationship between Mr. Butcher and Ms.

Johnston as a significant factor in hisdetermination of Mr. Butcher’s parole ineligibility. As I set out in para. 103 above, it was his view that Mr. Butcher’s moral culpabilitywas heightened by the fact of the murder occurring in the context of an intimate relationship. [123] The trial judge’s description of Mr. Butcher and Ms. Johnston as common-law partners was, strictly speaking, incorrect. The trialjudge found they had been living together for two months when Ms. Johnston was murdered. At the time of Mr.

Butcher’s sentencing,the Criminal Code defined a common-law partnership as requiring a conjugal cohabitation of “at least one year”. The Butcher/Johnstonrelationship did not qualify as common-law under this statutory definition. However, I am satisfied the trial judge’s error had no effect atall on the calculus of Mr. Butcher’s moral culpability and the fitness of his sentence. It was an error of no consequence. [124] It does appear that by describing Mr. Butcher and Ms. Johnston as common-law partners, the trial judge was referring to theaggravating factor enumerated in s. 718.2(a)(ii).

The Crown concedes he relied on ss. 718.2(a)(ii) and (iii), both of which he had recitedearlier in his reasons as aggravating factors a court is mandated to consider. However, the trial judge did not sentence Mr. Butcher to a15-year period of parole ineligibility because his relationship with Ms.

Johnston came within the definition of a common-law relationshipunder the Criminal Code. (He never mentioned the definition in his reasons.) It was the nature of the relationship – that it was anintimate one – not its status according to a statutory definition that aggravated this murder in the trial judge’s view. [125] The nature of the Butcher/Johnston relationship and the breach of trust inherent in that relationship were relevant, indeed,essential considerations for the trial judge in his analysis of what constituted aggravating factors in this case.

Whatever the trial judgechose to call the relationship, he was justified in finding it was a domestic homicide that required a significantly elevated period of paroleineligibility. His treatment of Mr. Butcher’s moral culpability for the murder of Ms.

Johnston, the woman he lived with in an intimaterelationship, was entirely consistent with the common law. [126] My colleague, Justice Beveridge, in his dissent, concludes I am saying that the amendments to the Criminal Code that madeabuse of a “spouse or common-law partner” an aggravating factor on sentencing “meant nothing” and were “superfluous” because thiswas already recognized by the common law. To be clear, Parliament mandated what only some judges had recognized previously, thatthe murder of an intimate partner is an aggravating feature of the offence.

My point is the trial judge in this case was not required to fitthe Butcher/Johnston relationship into a Criminal Code definition in order to justify increasing Mr. Butcher’s sentence. Domestic Murder, the Common Law, and Parole Ineligibility [127] The range for parole ineligibility in domestic murders is quite fluid. In the leading Ontario Court of Appeal case, R. v. McKnight(1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.

C.A.), a majority of the court found that “similar cases from this provinceof brutal second degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years” of parole ineligibility. (para. 48) Asubsequent decision of the Ontario Court of Appeal viewed McKnight as “not cast in stone for all brutal spousal murders”. (R. v.Czibulka, 2011 ONCA 82, at para. 67) The unanimous court in Czibulka held: [67]…Sentencing ranges "are guidelines rather than hard and fast rules": see R. v. Nasogaluak 2010 SCC 6 at para. 44. Sentencingremains an individualized process.

The range stipulated in McKnight was driven by previous case law in this province and by severalmitigating considerations in the case itself. These considerations included McKnight's remorse, his many contributions to thecommunity, and his mental illness, considerations absent in the present case. [128] In Nova Scotia, parole ineligibility for the second degree murder of an intimate partner has ranged as high as 17 years (R. v.Doyle, 108 N.S.R. (2d) 1 (N.S.S.C., App. Div); R. v. Hales, 2014 NSSC 408 (joint recommendation and 21 years); R. v.

Hutchinson,2014 NSSC 155). [129] I do not find that Hales and Hutchinson are instructive in assessing the fitness of Mr. Butcher’s sentence. As I will explain, it isthe Doyle case that more closely parallels the domestic murder committed by Mr. Butcher. I disagree with the Crown’s submission thatthe facts in Mr. Butcher’s case are similar to those of Hales and Hutchinson. There are distinctive differences. Mr. Hales lured his wife toa secluded location where he stabbed her to death. At the very least, it was Mr.

Hales’ intention to confront his wife about child custodyand financial issues that remained unresolved between them. The sentencing judge described the meeting as “planned” and theconfrontation as “premeditated”. (para. 22) Mr. Hales came armed with a knife and during the confrontation, repeatedly stabbed his wifewho bled to death. Mr. Hutchison also stabbed his intimate partner to death. In the week before the murder, he had threatened to kill her.The relationship had been characterized by his “bouts of jealousy, name-calling, pleas for forgiveness, threats of suicide and promises ofreform”. (para. 3) Mr.

Hutchison had a lengthy criminal record, including for violence. Cacchione, J. found that Mr. Hutchinson’s“criminal antecedents clearly show an escalation of violence in the crimes he has committed culminating with this murder”. (para. 29) [130] Other than the much longer duration of the Doyle relationship, it is the facts and circumstances in Doyle that bear a closerresemblance than Hales and Hutchinson to the facts and circumstances in Mr. Butcher’s case. There were financial problems. The

Doyles had grown apart. Catherine Doyle had told her husband she had a friendship with a man at work although she did not know theextent of her feelings for him. Mr. Doyle was a jealous, possessive man who was stressed by the state of his relationship with his wife.After a long discussion one night, Catherine Doyle went to bed. Approximately three-and-a-half hours later, Mr. Doyle entered thebedroom and shot her three times with a high-powered rifle as she lay asleep. He then called the RCMP and advised them he had shot hiswife. [131] Although charged originally with first-degree murder, Mr.

Doyle pleaded guilty to second degree murder. His only priorconviction was for impaired driving. He received the mandatory minimum period of parole ineligibility of 10 years. On appeal that wasincreased to 17 years. (The Crown on appeal suggested 15 years which the Court rejected.) [132] One difference in the circumstances of the Doyle murder and Mr. Butcher’s murder of Ms. Johnston is that Catherine Doyle’sdeath was “instantaneous”. Ms. Johnston bled to death over a matter of minutes after sustaining defensive wounds in her futile attempt toward off her attacker. Another difference is that Mr.

Doyle acknowledged having deliberated on the killing of his wife although he toldpolice there had been no plan. That said, as I noted earlier, Mr. Butcher’s murder of Ms. Johnston was not a spontaneous act. [133] Doyle was decided before the Criminal Code amendments that made abuse of a spouse or common-law partner an aggravatingfeature of an offence.

In the absence of any statutory provision, Chipman, J.A. still clearly recognized the special harm of intimatepartner violence: [40] Although Parliament has not singled out wives for special protection, sentencing jurisprudence recognizes that courts attachsignificance to the relationship between the perpetrator of an offence and the victim, with special emphasis on crimes involving victimsin positions of vulnerability and to whom the perpetrator is in a position of trust.

With respect, it is wrong to say that one cannot consideras an aggravating factor the spousal nature of this murder simply because Parliament did not specifically say it should be done. Thehusband/wife relationship in this case is of great importance, and is a factor to be taken into account in moving towards the upper end ofthe range of parole ineligibility.

Family and spousal violence are all too prevalent, and if courts have not sufficiently shown their sterndisapproval of such conduct the time has now come to do so… [134] Although Justice Chipman focused his comments around Catherine Doyle’s marital status, the harm he was identifying wasdomestic homicide of women and the condemnation it required from the courts. [135] As the Supreme Court of Canada said in R. v.

Stone, (SCC), [1999] 2 S.C.R. 290: “It is incumbent on thejudiciary to bring the law in harmony with prevailing social values”. (para. 239) Doyle can be seen as an example of what the Court hasarticulated in Friesen as the leadership role of appellate courts: [35] Sometimes, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding ofthe gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone, (SCC), [1999] 2 S.C.R.290, at para. 239).

When a body of precedent no longer responds to society's current understanding and awareness of the gravity of aparticular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges maydeviate from sentences imposed in the past to impose a fit sentence (Lacasse, at para. 57).

That said, as a general rule, appellate courtsshould take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craft fit sentences. [136] Parliament’s inclusion of domestic violence as an aggravating factor on sentencing codified what the common law already tookinto account. Whether it is through the application of statutory or common law principles, violence perpetrated in the context of intimaterelationships requires emphatic denunciation. The murders of women in shorter intimate relationships, like Ms.

Johnston, are no lessaggravating because the relationships fell outside the statutory definition applicable at the time. [137] There was nothing except duration to distinguish the intimate relationship between Mr. Butcher and Ms. Johnston with itsfinancial and emotional components, the mutual expressions of affection and support, from a common-law partnership. The moralculpability for murder in the context o

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