R. v. Hardy -, 2012 NSSC 209

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hardy - 2012 NSSC 209 Date: 20120525 Docket: CR. No. 336831 Registry: Halifax Between: Her Majesty the Queen -and- Joseph Daniel Hardy LIBRARY HEADING Judge: The Honourable Justice Robert W. Wright Heard: May 25, 2012 in Halifax, Nova Scotia Oral Decision: May 25, 2012 Written Decision: May 31, 2012 Subject: Sentencing - second degree murder - minimum period of parole ineligibility.

Summary: The offender and the victim were double bunked in a cell at the CNSCF for a number of days without incident before theoffender strangled his cell mate to death, using a strip of bed sheet as a ligature. He was charged with second degree murder to which hechanged his plea to guilty on the second day of his trial. Issue: The sole issue on the sentencing hearing was to determine the minimum period of parole ineligibility between 10 and 25 years. Held: With the guidance of the decisions of the Nova Scotia Court of Appeal in R. v. Hawkins 2011 NSCA 7 , [2011] N.S.J.No. 33 and R. v.

Ward 2011 NSCA 78 , [2011] N.S.J. No. 481 setting the range in most such cases between 12 and 15 years,the offender was sentenced to life imprisonment with no chance of parole for 14 years. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THE COVER SHEET.

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hardy - 2012 NSSC 209 Date: 20120525Docket: CR. No. 336831 Registry: Halifax Between: Her Majesty the Queen -and- Joseph Daniel Hardy Sentencing Decision Judge: The Honourable Justice Robert W. Wright Heard: May 25, 2012 at Halifax, Nova Scotia Oral Decision: May 25, 2012 Written Decision Released: May 31, 2012 Counsel: Crown Counsel - Paul Carver and Melanie Perry Defence Counsel - J.

Patrick Atherton Wright, J. [ 1 ] On the second day of his trial at the end of January, the offender Joseph Daniel Hardy changed his plea to guilty as charged of the second degree murder of Christopher Walker. Sentencing was initially scheduled for April 16, 2012 but had to be adjourned to today’s date.

[2] The facts surrounding the commission of this offence are not in dispute. Mr. Hardy and Mr. Walker had been double bunked in acell at the Central Nova Scotia Correctional Facility for a number of days in the latter part of January, 2009 without incident. Mr. Hardywas on remand for robbery and assault charges while Mr. Walker was on remand for property related offences. They did not otherwiseknow each other. [3] On the night of January 25, 2009 Mr. Hardy jumped Mr.

Walker from behind as he was returning to his bunk from the toilet areaof the cell, and strangled him to death using a strip of bed sheet as a ligature. Mr. Hardy used his knee to force his victim to the floor andto keep him there until he lost consciousness and ultimately died. Mr. Hardy then slid his victim onto his floor mattress and waited untilthe next morning to inform the guards that his cell mate was dead. [4] This incident was not captured by cell video camera because a paper cup had been placed over the lens. However, about a monthlater, Mr.

Hardy gave a complete voluntary confession to a police officer while in the Springhill Institution, in which he simulated thecommission of the murder. He was ultimately charged with the second degree murder of Mr. Walker, contrary to s. 235 of the Criminal Code. [5] Mr. Walker’s murder has had a devastating effect on his parents and sister to the detriment of their own well being, as poured outin their Victim Impact Statements read to the court. [6] Second degree murder carries an automatic sentence of imprisonment for life.

However, s. 745 of the Criminal Code requires thetrial judge to determine the appropriate period for parole ineligibility; that is to say, whether the offender’s parole ineligibility should bemore than the statutory minimum of 10 years of the sentence but not more than its maximum of 25 years. That is the sole issue to bedetermined on this sentencing hearing. [7] The relevant sections of s.745 are set out as follows: Subject to s. 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 withouteligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more thantwenty-five years, as has been substituted therefor pursuant to s. 745.4. 745.4 Subject to s.745.5, at the time of the sentencing under s. 745 of an offender who is convicted of second degree murder, thejudge 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 thecharacter of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, ifany, made pursuant to s. 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not morethan twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [8] Although s.745.4 makes reference to only four specific factors to be considered, it is well established that the sentencing judgemust also take into account the fundamental purpose and principles of sentencing set out in s.718, the proportionality principle set out ins.718.1, as well as any aggravating (or mitigating) circumstances at play pursuant to s.718.2 (see, for example, R. v.

Hawkins 2011NSCA 7 , [2011] N.S.J. No. 33). Indeed, this appellate authority fully sets out the statutory sentencing regime for thedetermination of parole ineligibility in second degree murder cases in paras. 13-17 which, for expedience, I will simply incorporate byreference in this decision. [9] In an even more recent decision of the Nova Scotia Court of Appeal in R. v. Ward 2011 NSCA 78 , [2011] N.S.J. No. 481,the court commented (at paras. 107-108) on its earlier decision in Hawkins as follows: 107.

There, my colleague Justice Beveridge meticulously examined leading cases in this and other jurisdictions before stating whatthis Court sees as being the appropriate current range for parole ineligibility following conviction for second degree murder in caseswhere similar circumstances may be ascribed to both the offence and the offender. In such cases as those, this Court has declared that theappropriate period of imprisonment before eligibility for parole can be considered ranges between 12 and 15 years. 108.

While there will always be exceptional cases where judges might be persuaded that there is good reason to move below or beyond

that range, the judge will be obliged (as would be expected in any other type of sentencing decision) to articulate the reasons fordeparture, which might then form a basis for meaningful review on appeal. [10] Another useful authority to be referred to is the earlier decision of the Nova Scotia Court of Appeal in R. v. Mitchell (1987) (NS CA), 39 C.C.C. (3d) 141.

In that case, Hart, J.A. began his analysis of the duty of a trial judge in imposing such asentence in this fashion (at p.16 of the Quicklaw version): It must be kept in mind that the sentence for murder is a mandatory minimum sentence and not one which requires the trial judge toexercise his discretion in accordance with normal principles of sentencing. That privilege or responsibility, depending upon how oneviews it, has been taken away from the trial judge by Parliament.

The trial judge has, however been given a new responsibility and that isto determine under s. 671 whether, having regard to the character of the offender, the nature of the offence and the circumstancessurrounding its commission, the minimum period of ineligibility for parole in the case of conviction for second degree murder should beincreased beyond the ten year period to as much as twenty-five years.

Parliament must have considered that there were ways ofcommitting second degree murder that would be equally serious to first degree murder and that the court should be free to ensure that thepurpetrator remained in prison for an appropriate number of years. [11] He went on to say (at p. 24): In my opinion, the Code gives to the trial judge a discretion to increase the minimum period without eligibility for parole whichdiscretion should be exercised in accordance with the ordinary principles of sentencing but, in particular, in accordance with theguidelines set forth in the Code.

These guidelines are slightly different than those which would apply in the ordinary case of a sentencingand in the majority of cases have little to do with the rehabilitation of the accused. The judge must be the representative of the public inexpressing the view that people who commit horrendous crimes not be permitted back into society for a prolonged period of time.

It ishoped that this type of decision will deter others from committing similar acts and ultimately result in a greater protection of the public.Thus deterrence of the type of crime committed must be the main emphasis of the sentence. [12] Indeed, in their submissions before me, Crown counsel have asserted, and I agree, that the sentencing principles and objectives tobe emphasized in this case are denunciation of the crime, deterrence (both general and specific) and the need for separation of theoffender from society. [13] Also to be recognized in this sentencing are a number of aggravating factors present, relating to the offence or the offender.

First ofall is the extreme and gratuitous violence with which this murder was committed. It was a horrific death of an unsuspecting victimattacked from behind. It is further aggravational that the murder took place in a correctional facility (an aggravating factor recognized ina like situation in R. v. Paskimin [2009] S.J. No. 576). This also plays into the sentencing principle of general deterrence. [14] Another aggravating factor is Mr. Hardy’s lengthy criminal record.

He has been incarcerated for more than 10 years in theaggregate prior to the commission of this offence for offences ranging from assault, to break and enter, to drug trafficking. At the time ofthe murder, he was being held on remand for charges of bank robbery and assault on a police officer, to which he plead guilty and wassentenced about a month after committing the murder of Mr. Walker. Mr. Hardy has essentially lived a life of crime with an escalation inhis criminal activity and aggression. [15] There is little offset by way of mitigating factors. Although Mr.

Hardy did change his plea to guilty on the second day of his trial,that carries little weight given the timing of his change of plea and having regard to the strength of the Crown’s case. The Court doesnote, however, that Mr. Hardy accepted responsibility for his crime in a voluntary confession given to the police about a month after itoccurred and has in court today expressed his remorse and apology to the family members of the victim. [16] I now turn to the factors required to be considered under s.745.4 above mentioned. I interject here that on the opening day of trial,Mr.

Hardy re-elected to be tried by judge alone so that there is no jury recommendation to consider.

[ 17 ] Little more need be said about the nature of the offence and the circumstances surrounding its commission. As to the character of the offender, the Court has the benefit of the following documents: (

a) a forensic psychiatric assessment and opinion by Dr. Stephen Hucker dated November 24, 2010; (

b) an earlier pre-sentence report dated December 8, 2008 prepared in relation to an earlier offence; (

c) an update to that pre-sentence report which is dated May 23, 2012 and was prepared by a Probation and Parole Officer in New Brunswick who interviewed Mr. Hardy at the penitentiary in Renous. [ 18 ] What these reports tell us is that Mr. Hardy (now age 35) lived through a very difficult childhood. He was adopted at age three and is said to have endured physical and verbal abuse by his adoptive parents. Prior to his adoption, he was placed in foster homes which he again found himself living in later in his early teen years. He did not adjust well in school where he exhibited behavioural problems.

Only through taking education programs while incarcerated did he attain the equivalence of grade 10. He has minimal work experience because of his extensive incarceration history and otherwise mostly sold drugs to support himself. [ 19 ] Mr. Hardy has demonstrated a history of violence dating back to his teenage years. Throughout his adult life, he has also demonstrated a history of mental illness with behavioural disorders and suicidal thoughts (and indeed suicide attempts) which appear to have been largely untreated. [ 20 ] Dr. Hucker engaged in a number of psychological tests in his assessment of Mr.

Hardy after he was charged with Mr. Walker ’ s murder. He discerned a broad range of clinical features indicative of multiple diagnoses. The testing suggests a person who is impulsive, emotionally labile and unempathetic. It also suggests that Mr. Hardy ’ s interpersonal relationships are likely to be short-lived and characterized by marked conflict from his hostile and self-centered style. Dr. Hucker observed a combination of impulsivity, ego- centricity and anger which can cause him to lash out impulsively at those he feels have slighted him in some way.

These same traits also place him at increased risk for acting-out behaviours. Dr. Hucker writes that it is likely that these behaviours have lead to severe impairment in his ability to maintain his social role expectations, and that he may see himself as incapable of controlling such acting out behaviour, viewing it as a reaction to stressful circumstances. [ 21 ] Dr. Hucker went on to describe a number of problematic personality traits which he observed, namely, that Mr. Hardy experiences rapid and extreme mood swings and episodes of poorly controlled anger.

This pattern of behaviour is said to be consistent with a diagnosis of Borderline Personality Disorder. [ 22 ] Dr. Hucker further writes that Mr. Hardy displays numerous antisocial features typically associated with Antisocial Personality Disorder, as well as a significant depressive experience. The testing performed also indicates considerable problems with temper and aggressive behaviour and the potential for physical violence marked by impulsivity and a limited capacity for empathy. [ 23 ] As a result of this testing, Dr. Hucker expressed the following psychiatric diagnoses: Mr.

Hardy does not have a serious mental illness such as schizophrenia. He has some symptoms of post-traumatic stress disorder most likely related to his experience of childhood abuse. There are also symptoms of residual attention deficit disorder which may have been identified when he was a child. He also has some severe personality difficulties and he justifies diagnoses of antisocial, borderline and paranoid personality disorders, as well as polysubstance abuse, in remission while incarcerated. [ 24 ] In the concluding Opinion

section of his report, Dr. Hucker noted that Mr. Hardy has three distinct personality disorders that make him vulnerable to inappropriate episodes of anger and aggression; and that even minor irritation could precipitate a severe and sometimes disproportionate outburst of rage. Dr. Hucker opined that given Mr. Hardy ’ s personality make-up, an episode such as that constituted by the present offence was a highly likely outcome. [ 25 ] The foregoing opinions offer the best insight to the Court (and to the members of the victim ’ s family) as to why Mr. Walker ’ s life was taken.

According to the transcript of his confession, Mr. Hardy perceived some sort of threat or warning from Mr. Walker earlier in the day (something said about going to sleep that night) which, through his mental illness, caused him to react in the abnormal and horrific way that he did.

[ 26 ] In the recent pre-sentence report addendum filed two days prior to this hearing, the information update from Mr. Hardy ’ s parole officer is that he has been involved in various programming as outlined in his Correctional Plan and has successfully completed several programs of a lengthy duration. Mr. Hardy has indicated to his parole officer that he can only redirect his life and energy at this time toward a more positive end and looks forward to molding himself into a more productive member of society while he serves out his sentence.

He has also apologized for the self-destructive direction which he has chosen over the years. [ 27 ] What Mr. Hardy makes of these rehabilitation programs and his professed redirection in life will be up to him over the course of time during which he is incarcerated. That will be for the Parole Board to consider in due course. [ 28 ] All in all, Crown counsel have recommended to the Court that Mr. Hardy ’ s period of parole ineligibility be set at 14 years.

The suggestion of defence counsel, on the other hand, is that the period of parole ineligibility be fixed at 12 years. [ 29 ] I conclude that the Crown has it right in its recommendation that the period for parole ineligibility be set at 14 years. That period is in the upper part of the range of 12 to 15 years for most such cases indicated by the Nova Scotia Court of Appeal in Ward , which is justified here after giving due consideration to the statutory criteria set out in s.745.4 along with the general principles and objectives of sentencing earlier reviewed. [ 30 ] Accordingly, Mr.

Hardy is hereby sentenced to life imprisonment with no eligibility to apply for parole for a period of 14 years. [ 31 ] The Court will also grant an order authorizing the taking of bodily substances for forensic DNA analysis under s. 487.051 of the Criminal Code , along with a lifetime weapons prohibition order under s.109 . Those orders are not contested by defence counsel. In the circumstances, the victim surcharge will be waived. [ 32 ] In concluding this decision, the Court recommends to the Correctional Service of Canada responsible for administering this sentence that Mr.

Hardy be given the benefit of mental health and anger management programs. The Court thereby endorses those recommendations made by Dr. Hucker in his report which shall also be forwarded to Correctional Services in keeping with s.743.2 of the Criminal Code . J.