SUPREME COURT OF Nova Scotia
Citation: R. v. Butcher, 2018 NSSC 194
Date: 2018 08 22
Docket: CRH No. 455873
Registry: Halifax
Between:
Her Majesty the Queen
v.
Nicholas Butcher
PAROLE INELIGIBILITY
| Judge: |
The Honourable Justice Joshua M. Arnold |
| Heard: |
July 20, 2018, in Halifax, Nova Scotia |
| Counsel: |
Tanya Carter and Carla Ball, for the Crown Peter Planetta and Jonathan Hughes, for the Defence |
By the Court:
[1] On March 26, 2016, Kristen Johnston was stabbed in the neck and throat repeatedly while she lay in her bed at her home at 17 Oceanview Drive, Halifax, Nova Scotia. She died in her bed as a result. Nicholas Butcher was found at the scene with multiple stab wounds in his own neck, cuts to his wrists, and with his right arm completely severed above the wrist.
[2] After nine days of pre-trial motions and four weeks of trial, on April 28, 2018, the jury rejected Mr. Butcher’s claims of either self-defence or provocation and found him guilty as charged of second-degree murder. He was therefore automatically sentenced to life in prison. This decision sets his parole ineligibility date, that is, how long Mr. Butcher must serve of his life sentence before he can commence asking the National Parole Board to consider him for parole.
The Facts
[3] Section 724 of the Criminal Code of Canada states:
724 (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
Jury
(2) 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 evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[4] Therefore, in accordance with s. 724(2) of the Criminal Code, as the trial judge I am required and entitled to make my own findings of relevant facts, so long as they are consistent with the jury’s verdict.
[5] Kristin Johnston was 32 years old when she died. She was a business owner and yoga instructor. She had just closed her yoga studio after several years of running it in Downtown Halifax. She owned a house at 17 Oceanview Drive and had a pit bull dog named Charley.
[6] Nicholas Butcher was 34 years old when Ms. Johnston was murdered. Mr. Butcher has a Masters Degree and is a law school graduate. At the time of Ms. Johnston’s death he had been unable to secure articles with a law firm and was working as a driving instructor.
[7] Ms. Johnston and Mr. Butcher were at the tail end of their relationship in March 2016. They had lived together for approximately two months. Ms. Johnston did not announce to all of her family and friends that Mr. Butcher was living with her as her common-law partner. Instead, she implied to some of them that he was living with her for mutual financial benefit. However, as seen in text messages and other evidence called at trial, Mr. Butcher frequently professed his love for Ms. Johnston to her and to others. Ms. Johnston also expressed affection for Mr. Butcher to Mr. Butcher himself, but did not say this publicly or to others.
[8] Although described by friends and family as a positive, fun and upbeat personality, around the time of her murder Ms. Johnston was, at times, introspective and unhappy due to the closing of her business, the resulting financial difficulties and personal issues. She described herself in text messages around that time as stressed, suffocating and trapped due to the closing of her yoga studio and her relationship with Mr. Butcher. She also said she was looking forward to new opportunities in the future.
[9] On February 27, 2016, Ms. Johnston went to Florida to visit her family. While in Florida, she told her brother-in-law, Cameron Dennison, of her interest in breaking up with Mr. Butcher. However, while communicating with Mr. Butcher from Florida, Ms. Johnston used terms of endearment with him and did not mention her intention to end their relationship.
[10] After Florida, Ms. Johnston then went to Costa Rica to stay with her friend, Jennifer Hazard from March 12 to March 23, 2016. She discussed with Ms. Hazard her interest in breaking up with Mr. Butcher. While communicating with Mr. Butcher from Costa Rica, Ms. Johnston used terms of endearment with him. She did not tell Mr. Butcher she wanted to break up with him.
[11] When Ms. Johnston returned to Halifax on March 23, 2016, she told Mr. Butcher that she felt sick and was tired prior to his picking her up at the airport that evening.
[12] On March 24, 2016, Ms. Johnston went out to socialize with friends in the evening without Mr. Butcher.
[13] Ms. Johnston communicated via Facebook Messenger with a former partner, Craig Conoley, on March 25, and expressed her interest in breaking up with Mr. Butcher.
[14] On March 25, Ms. Johnston told Mr. Butcher that her friend, Matthew Whiston, wanted to go out with her that night to discuss something personal. Mr. Butcher was again not invited to come along.
[15] On that same day, March 25, at 10:27 AM, Mr. Butcher sent a text to his friend, Adam Chisholm, saying “I’m needing some serious Butcher Chisholm time. In the worst way.”
[16] That night Ms. Johnston met Matthew Whiston, Heather Townsend, Anna Gilkerson, and Lisa Abramowicz in a bar called Lion and Bright, and discussed with all of them at various times her interest in ending her relationship with Mr. Butcher. She also crossed paths with Michael Belyea, whom she had been romantic with previously, and still maintained an interest in.
[17] Matthew Whiston testified that he had arranged to meet, and did meet Kristin Johnston on March 25, 2016, at approximately 8:05 PM at the Lion and Bright bar. The drive from 17 Oceanview Drive to Lion and Bright takes approximately 15 minutes.
[18] Mr. Butcher accessed Ms. Johnston’s Facebook messages between 7:51 and 8:02 PM on March 25, immediately after Ms. Johnston left her home to meet friends at Lion and Bright. Those Facebook messages contained discussions between Ms. Johnston and her friends about her desire to end the relationship with Mr. Butcher.
[19] After he accessed Ms. Johnston’s Facebook messages in the early evening of March 25, 2016, Mr. Butcher went to Adam Chisholm’s home. He brought Ms. Johnston’s pit bull dog, Charley, with him. He and Mr. Chisholm hugged, drank some alcohol and discussed, among other things, Mr. Butcher’s relationship with Ms. Johnston. Mr. Chisholm fell asleep on his couch around midnight and did not see Mr. Butcher again.
[20] Mr. Butcher left Mr. Chisholm’s home around 1:00 AM without Charley, the dog. He went back to 17 Oceanview Drive.
[21] Ms. Johnston and Ms. Abramowicz left the Lion and Bright bar at approximately 12:20 AM. After Mr. Belyea left the bar, Ms. Johnston and Mr. Belyea had the following exchange on Facebook Messenger between 10:52 PM and 1:12 AM:
Johnston: You’re a funny monkey
Belyea: Haha.
Belyea: Nice seeing you. I thought you were still in the jungle.
Johnston: Nice seeing you. I’m back now. In the not so much jungle.
Belyea: You’re in the concrete jungle.
Just kidding. You’re just in Halifax
Johnston: Oh hell you mean? Jah
Juuut kidding
Anyways, nice to see your silly face
Belyea: Yes hell
Johnston: Yes hell
Belyea: How is your night in hell going?
Johnston: It’s pretty much hell
How’s your night in bed going?
Belyea: Hahaha
I ain’t in bed. I’m home jamming on a shitty keyboard
Johnston: Ah shit son. You so cool.
Belyea: Oh damn I know.
So where are you? Still at lb?
Does this rain feel like the tropical rain in the jungle?
Johnston: Tostlay. Is tha the sound of the waves right there?
Totally. Not tostlay.
Just left lb. Looking for fun tiiiimes.
What doing fool?
Belyea: Where too now? I also lie fun times. Do you guys have a plan? I would say come to my place but it might be a teeeeesy bit awkward for heather and Matt hahah.
I do love those guys though.
Johnston: K coming. Just lisa and I m
Those other kids left yo
Belyea: Oh, Just the two of you?
Johnston: Well if you want us. Ya. Those other kids left
No pressure if you wanna sleep
Belyea: Come over.
5718 Willow
Yellow house. Come in the front door. Go straight. Up the stairs.
Johnston: Too many instructions. I’m out
Belyea: Hahaha
They’re more like demands
Johnston: Ha. Fuck ya.
Be there soon.
Having a glass of wine then will come over. Don’t be in yer undies.
Belyea: Undies are all I own.
Johnston: well shit. We can’t come then!!!
Having some vino then coming. Don’t fall asleep. Or if you do, just let me know?
Belyea: I won’t fall asleep. I’m putting on a goddam concert for one here. Me.
I’m in the middle of the set.
I sound so good. To me
Johnston: Ha! Fuck ya!
K coming now. You still alive?
Belyea: Very much
Johnston: Okee
Up the ramp to the right to the left under the bridge on the corner, ya?
Belyea: What? No
Johnston: Oh
Something similar tho
Belyea: Willow street. Across from cyclesmith
Johnston: Same same
I hope Jamie xx is playing when we walk in
Belyea: Yeah it’s kinda like a lollapalooza things here
Johnston: Figured
Belyea: I’m standing outside but I’m going back in. Just leave lb. go left. Take your next left. That’s Willow. Yellow house like 20 feet.
Come in front door. Go up stairs
Johnston: Fine
Belyea: I demand it
Johnston: We are here good sir
[22] There were also text communications in and around the same time between Ms. Johnston and Mr. Butcher between 11:22 PM and 1:48 AM. The text messages said:
Johnston: Hey babe. Had a few too many. Gonna stay at lisa’s tonight..cool?
Hello?
K well phone is gonna die. Hope you’re ok with this.
Butcher: I thought you brought a charger.
Johnston: Yup just plugged it in at lisa’s
Butcher: Great.
Johnston: K gonna sleep now babes. Will text in the morning.
Butcher: Fan fucking tastic.
I hope you had a fun night.
Johnston: It was ok. Night night.
Butcher: I love you.
[23] Ms. Johnston and Ms. Abramowicz went to Mr. Belyea’s home, had drinks, listened to music and chatted.
[24] In the meantime, at Oceanview Drive, between 1:40 and 1:47 AM, Mr. Butcher accessed Ms. Johnston’s computer and saw her Facebook messages with the following user IDs: craig.a.conoley.partusfilms, je.suis.hazard, meannmrmustard, htownsend2, and michaelbelyea.
[25] After reviewing these messages, Mr. Butcher would have known that Ms. Johnston wanted to end their relationship, had said some unflattering things about him to her friends, had not told him the truth about staying at and going to sleep at Ms. Abramowicz’s that night and would also have read that she was actually on her way to Mr. Belyea’s, with whom she had been flirting in the messages.
[26] Harry Lehman testified that he lived in the apartment downstairs at 17 Oceanview Drive and was at home that night. Mr. Lehman said he went to bed at 10:30 PM, that it was dark upstairs, and he did not hear any noises until after 5:00 AM.
[27] Having surreptitiously read Ms. Johnston’s private electronic messages, uninvited, Mr. Butcher then went to Mr. Belyea’s home on Willow Street at approximately 2:00 AM. He went through the front door and into the stairwell without permission at Mr. Belyea’s and, when part way up the stairs, met Mr. Belyea. Following a brief exchange he was invited into Mr. Belyea’s living room.
[28] Once in the living room, Ms. Johnston and Ms. Abramowicz asked Mr. Butcher how he had found them. Mr. Butcher said to Ms. Johnston, “You said you were at Lisa’s”, to which Ms. Johnston replied, “I said I was with Lisa.”
[29] Mr. Butcher and Ms. Johnston spoke in the kitchen, then downstairs at the Willow Street address and then outside that residence.
[30] Neither Mr. Belyea, nor Ms. Abramowicz, could hear what Mr. Butcher and Ms. Johnston were saying to each other.
[31] After approximately 15-30 minutes Ms. Johnston returned to Mr. Belyea’s apartment alone.
[32] Mr. Butcher left Mr. Belyea’s home, but waited on Willow Street, in the dark, watching Mr. Belyea’s apartment from approximately 3:00 AM to 4:51 AM. Mr. Butcher was watching Ms. Johnston, waiting in the dark, on the street, to see if she was going to sleep with Mr. Belyea.
[33] Between 4:00-4:15 AM the following things took place: Ms. Johnston excused herself from the living room and invited herself into Mr. Belyea’s bedroom; Mr. Belyea then joined her there; and Lisa Abramowicz left Mr. Belyea’s home.
[34] Ms. Johnston and Mr. Belyea kissed, removed some of their clothing, and got into bed together.
[35] Ms. Abramowicz was observed by Mr. Butcher leaving Mr. Belyea’s, but he did not speak to her.
[36] Mr. Butcher then tried to call Ms. Johnston at 4:51, 4:52, and 4:53 AM, with no answer.
[37] Receiving no answer, Mr. Butcher, again uninvited, re-entered Mr. Belyea’s apartment. He heard Ms. Johnston moaning and walked through the apartment to Mr. Belyea’s bedroom, where he saw Mr. Belyea on top of Ms. Johnston in Mr. Belyea’s bed.
[38] Mr. Butcher entered the bedroom and pushed Mr. Belyea’s shoulder. Mr. Belyea then rolled off of Ms. Johnston.
[39] Mr. Belyea did not know what to do. Mr. Butcher asked if he could speak to Ms. Johnston. Mr. Belyea got out of bed, got dressed and left Mr. Butcher and Ms. Johnston. Before Mr. Belyea left Mr. Butcher said “What are you doing” to Ms. Johnston to which Ms. Johnston said “I want to be here” and “This isn’t Mike’s fault.”
[40] Mr. Belyea left Ms. Johnston and Mr. Butcher in his apartment and walked around the block. When he returned home, they were gone.
[41] Mr. Butcher told Ms. Johnston that he was not leaving without her.
[42] Mr. Butcher drove Ms. Johnston to 17 Oceanview Drive.
[43] Mr. Belyea received a text message from Ms. Johnston at 5:36 AM that said, “Jesus fuking christ I’m sorry”.
[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.
[45] After murdering Ms. Johnston, Mr. Butcher then attempted suicide by cutting his own arm with the knife and a razor lying next to Ms. Johnston in bed. When this did not work, he stabbed himself in the neck 13 times. When this did not work, Mr. Butcher retrieved a mitre saw from storage in the basement, brought it to the bedroom and then cut his own arm off.
[46] After cutting his arm off, Mr. Butcher called 911 and said, “I killed my girlfriend, I cut my arm off, I tried to kill myself and I need help”.
[47] When the police arrived Mr. Butcher said “I’m sorry” to Sergeant MacGillivray.
[48] At the hospital, while awaiting surgery to repair the wounds to his neck and to re-attach his arm, he said, “I really messed up” or “I fucked up” to the anaesthetist.
[49] Kristin Johnston was a yoga instructor and business owner. She was a daughter, a sister, and an aunt. She had many friends. Her family and friends are emotionally devastated by her murder.
[50] I have read and/or heard Victim Impact Statements from: Katrina D’Artois, Tim Hutchings, Craig Conoley, Lisa Abramowicz, Cameron Dennison, Michael Johnston, Thomas Lapote Aust, Jennifer Hazard, Rosalynn Luliucci, Robert Johnston, Kaitlin Anderson, Kate Pitfield, Thomas Bourne, Kimberly Johnston, and Victoria Connelly Bourne.
[51] Kristin’s family, friends and community loved her and miss her. People gravitated to her. She was the glue that bonded her family and bonded many other groups of friends, including the peaceful yoga community. Her death has forever torn the fabric of humanity within her family and her friends.
[52] I have heard that some of those who filed Victim Impact Statements had their pain exacerbated during the trial when Mr. Butcher attempted to blame Ms. Johnston for her own death by alleging she attacked him with a knife and stabbed him in the neck while he was helplessly sleeping. The jury rejected Mr. Butcher’s claims of provocation and self-defence through their verdict.
Sentencing Provisions
[53] The Criminal Code of Canada, R.S.C., 1985, c. C-46, sets out the punishment for murder. Section 235 of the Code states:
235 Everyone who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.
[54] Subsection (2) states:
For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
[55] Relevant also is s.745.1(c) of the Code:
(c) in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 745.4; …
[56] Section 745.4 of the Code states:
745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. (emphasis added)
[57] Section 746 of the Code states:
746. In calculating the period of imprisonment served for the purposes of section 745, 745.1, 745.4, 745.5 or 745.6, there shall be included any time spent in custody between
(a) in the case of a sentence of imprisonment for life after July 25, 1976, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to imprisonment for life and the day the sentence was imposed…
Crown Recommendation
[58] The Crown says that Mr. Butcher’s parole ineligibility date for the second degree murder charge should be set at 17 years.
Defence Recommendation
[59] Mr. Butcher says that his parole ineligibility should be set at 10 years.
Parole eligibility for second degree murder
[60] Section 718 of the Criminal Code describes considerations that have to be applied when determining sentence, including denouncing unlawful conduct, deterring the offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitation of offenders, providing reparations for harm done to victims or to the community and promoting a sense of responsibility in offenders, an acknowledgement of the harm done to victims and to the community.
[61] Section 718.2 states that a court that imposes a sentence “shall”, so that section imposes a mandatory duty on a judge to also take into consideration the following principles:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
…
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
…
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
…
shall be deemed to be aggravating circumstances; …
[62] In 1995 the Supreme Court of Canada, in R. v. Shropshire, [1995] 4 S.C.R. 227, had to consider parole eligibility or ineligibility. In Shropshire, the Supreme Court of Canada said variously:
[23] The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility. This clearly indicates that parole ineligibility is part of the “punishment” and thereby forms an important element of sentencing policy. As such, it must be concerned with deterrence, whether general or specific. The jurisprudence of this Court is clear that deterrence is a well-established objective of sentencing policy.
…
[27] In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in then s. 744, the offender should wait a longer period before having his [or her] suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be “unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.
…
[64] Section 742(b) [as it was] of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible for parole “until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, as has been substituted therefor pursuant to section 744”. In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates toward the 10-year minimum does not, ipso facto, mean that any other period of time is “unusual”.
…
[31] If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that with a second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the “judge deems fit in the circumstances”, the content of this “fitness” being informed by the criteria listed in s.744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.
…
[34] On another note, I do not find that permitting trial judges to extend the period of parole ineligibility usurps or impinges upon the function of the parole board. I am cognizant of the fact that, upon expiry of the period of parole ineligibility, there is no guarantee of release into the public. At that point, it is incumbent upon the parole board to assess the suitability of such release, and in doing so it is guided by the legislative objectives of the parole system. However, it is clear that the parole board is not the only participant in the parole process. All it is designed to do is, within the parameters defined by the judiciary, decide whether an offender can be released. A key component of those parameters is the determination of when the period of parole eligibility (i.e. when the parole board can commence its administrative review function) starts to run. This is the manner in which the system is geared to function - - with complementary yet distinct input from both the judiciary and the parole administrators.
[63] In R. v. Hawkins, 2011 NSCA 7, Beveridge J.A. stated, on behalf of the unanimous court:
2 Life imprisonment is the maximum sentence of incarceration in Canada. Since the abolition of capital punishment, the only penalty for any accused convicted of murder is life imprisonment. Subject to a grant of clemency from the executive, the offender will always be subject to this sentence for the rest of his natural life.
3 Parole is a possibility. For an offender convicted of first degree murder, there is no eligibility for parole prior to serving 25 years incarceration…
…
98 It must be remembered that the appellant will forever be subject to a sentence of imprisonment. He may never be released on parole. Whether his risk of re-offending is such that he be permitted to be released conditionally will be up to the Parole Board. If he is released, it is only on his satisfactory compliance with whatever conditions the Board places on him to ensure his respect for a peaceful and safe society.
[64] In R v. Nash, 2009 NBCA 7, Robertson J.A. discussed the range of sentences imposed in second degree murder cases:
[54] ... Not only are these cases instructive, they provide support for a general thesis: more often than not, trial and sentencing judges work with three time frames when fixing the period of parole ineligibility: (1) 10 to 15 years; (2) 15 to 20 years; and (3) 20 to 25 years. In practice, the third time frame is reserved for the "worst of offenders" in the "worst of cases". The first is reserved for those offenders for whom the prospects of rehabilitation appear good and little would be served by extending the period of parole ineligibility other than to further the sentencing objectives of denunciation and retribution. The second time frame is reserved for those who fall somewhere in between the first and third. Obviously, these time frames are not cast in cement and represent a basic starting point for analysis.
[65] In addition to the various parole ineligibility cases reviewed in Hawkins, Nash and Shropshire, in R. v. Beaver, 2014 NSSC 10 and R. v. Oland, 2016 NBQB 43, the Courts also extensively reviewed various cases dealing with parole ineligibility. I have read them. There is no need to review the myriad gruesome facts of all of those previous murder cases in this setting. Suffice to say that those cases assist in providing a range of parole ineligibility second-degree murder cases.
[66] The Criminal Code and the many cases provided instruct that I consider the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made by the jury pursuant to section 745.2. I must also consider dispositions for similar offenders in similar circumstances. Of the many additional authorities provided to me by counsel, I wish to refer to the following cases:
[67] R. v. Edgecombe, [1991] O.J. No. 2044 (Ont. Ct. J. (Gen. Div.)): The accused was a cocaine addict with a prior criminal history, including convictions for violence and breaches of court orders. He did not suffer from any major mental illness that would make him an ongoing danger to the public. He murdered his common law partner. She was beaten and then strangled to death. The murder occurred after both the accused and the victim were significantly impaired. The accused kept the deceased’s body in his tent for a day, then, after contemplating suicide, called 911 and confessed. As Watt J. noted:
17 The accused is solely responsible for the death of the deceased. The fatal attack included at least two (2), perhaps three (3), discrete types of violence. No weapon was brought to the scene of the fatal attack, though it would appear that one may have been used there. The case is not one in which the violence used to cause the death may be characterized as gratuitous, excessive or sadistic. There was no mutilation or dismemberment. There is no evidence of any preconcerted activity, nor of any attempts to interfere with the administration of justice to avoid detection. The accused called emergency personnel, albeit some time after the death of the deceased, and surrendered voluntarily to the investigating police force.
[68] In determining that parole ineligibility should be set at 10 years, Watt J. also stated:
24 … There is no pattern of domestic violence with the deceased or any other common law partner. To be certain, the present case displayed it. The killing, I am satisfied, though murder, was spontaneous. It was one dominated by emotions gone awry. It was senseless, without rational motive and yielded the accused no other return but a life sentence in the penitentiary.
25 There is no sentence which I can impose which would fully assuage the feelings of the deceased's family. What I do cannot, and is not designed to restore the deceased to the living. Every murder leaves, in its wake, varying amounts of sorrow, grief, anger and frustration, not only on the part of the family of the deceased but on the part of other right-thinking members of society. In all cases a life or lives is or are extinguished. Others, quite often, are ruined. The imposition of sentence is, however, governed by statute and fixed principle, not by emotional reaction. It does not measure the value of the life extinguished, either in absolute or in relative terms. I am not persuaded, in light of the principles enumerated by the Ontario Court of Appeal, that there is anything in this offence or this offender which justify an increase in the period of parole ineligibility. Society's revulsion at domestic violence will be adequately here expressed by the imposition of the statutory minimum term.
[69] R. v. Irving, [2015] N.B.J. No. 77, 2015 NBQB 70: Grant J. summarized the facts:
[14] According to Mr. Irving’s statement which he gave to the police and which was unchallenged at trial, at approximately midnight on March 22nd – 23rd, 2014 he had been arguing with his wife Cynthia Irving in their living room when she told him she did not love him anymore and was going to get a divorce. He states that he then “lost it” and started choking her. In the end he choked her to death. He then dragged her body from the living room to the bedroom, used an extension cord to strangle her again by wrapping it around her neck twice, then put her on the bed and crawled into bed with her lifeless body until about 7:00 a.m. At that time he got up and moved the family car so his children would think their mother, who usually drove the car, had gone out. At about noon on Sunday March 23rd, 2014 he called 911 and reported what happened.
[15] The evidence at trial also reveals that prior to this Mr. and Mrs. Irving had been arguing for approximately a month and that they had separated at least twice before in their 23-year relationship. Most of the arguments revolved around his inability or unwillingness to help support the family while Cynthia Irving worked very hard. The other major irritant in their relationship was Mr. Irving’s apparently unfounded obsession with the notion that Cynthia was being unfaithful to him, to the point where he monitored her every movement by stalking her at work and refusing to allow her to have a cell phone. The Pre-sentence Report relates:
… during 2013 and the early part of 2014 he became increasingly frustrated over Mrs. Irving’s use of social media in fear of who she might come in contact with. This was the source of frequent arguments. The accused admitted to having suspicions but “no proof” that she was involved in an extra-marital affair. Joseph Irving related having “caught” Mrs. Irving in online conversation with a former partner and in response to this he reported breaking the screen of her computer. The accused mentioned his former partner continually played online games to the point where he felt she was ignoring him.
In addition to the arguing and insecurities presented by the social media, Joseph Irving stated on one occasion he prevented Mrs. Irving from going to Nova Scotia with a friend as he feared she might leave him.
[70] Justice Grant went on to consider a number of other murder cases involving domestic violence and stated:
[31] In the case of R. v. McKnight 1999 CanLII 3717 (ON CA), [1999] OJ No. 1321 the Ontario Court of Appeal reduced a period of parole ineligibility imposed by the trial judge from 17 years to 14 years. It was a case of second degree murder by a husband of his spouse using a 10-inch bread knife. The deceased was found with more than 50 defensive wounds on her body. The accused had no previous convictions and was suffering from severe depression at the time of the murder.
[32] In McKnight the Court refers to a number of other cases involving second degree murder in a domestic setting including,
a) R. v. Munroe (1995), 1995 CanLII 8921 (ON CA), 96 C.C.C. (3d) 431 (Ont. C.A.), which was a case where a husband strangled his wife after becoming overwrought with anger during an argument. During the marriage he had exhibited a previous pattern of violence and emotional abuse extending over several years. In that case the trial judge imposed a 12-year period of parole ineligibility which was upheld by both the Ontario Court of Appeal and later the Supreme Court of Canada.
b) R. v. McMaster (1998), 1998 CanLII 4118 (ON CA), 122 C.C.C. (3d) 371 (Ont. C.A.), a case in which the accused stabbed his girlfriend while she was sleeping. The trial judge imposed a 12-year period of parole ineligibility, which was upheld by the Court of Appeal.
c) R. v. Muir 1995 CanLII 805 (ON CA), [1995] O.J. No. 670 (C.A.), where the accused murdered his wife by shooting her when she was asleep. He had no criminal record and no history of abusing his wife and was remorseful. The trial judge imposed a period of 12 years of parole ineligibility but the Court of Appeal reduced that to the minimum of 10 years finding no justification for the increase.
d) R. v. McCormack 1995 CanLII 1435 (ON CA), [1995] O.J. No. 1897 (C.A.), where the accused brutally and without provocation killed his wife after a lengthy period of inflicting verbal and physical abuse on her. He also had a criminal record and had been convicted of assaulting his wife a year before the murder when he chased her with a knife. The trial judge imposed 14 years and the Court of Appeal reduced that to 12 years before he was eligible to apply for parole.
e) R. v. Ferry [1991] O.J. No. 2666, where the accused inflicted 62 stab wounds to his girlfriend in killing her, many of which were defensive. He had no criminal record but attempted to convince authorities that he had been attacked by the victim. The trial judge imposed a 12-year period of parole ineligibility, which was upheld by the Court of Appeal.
f) R. v. Parmar [1997] O.J. No. 3302 where the accused, who had a history of domestic assault, stabbed his girlfriend to death in her house after locking her children outside. The trial judge imposed a 15-year period of parole ineligibility.
[33] In the case of R. v. Jiminez-Acosta, 2013 ONSC 5524 (CanLII) the parties were arguing and the victim told the accused that she was leaving him. He killed her with both blunt and sharp force trauma. The accused tried to contaminate the scene and mislead the murder investigators. He had no criminal record and good references and the Court imposed a period of 13 years of parole ineligibility.
[34] In R v. Folker 2013 N.J. No. 434 the accused was convicted of second degree murder of his common law spouse and indignity on a human body. He killed her when he threw her during a violent altercation and she struck her head. He then disposed of her body in a remote wooded area, filed a missing persons report and lied to the police, family and friends. He had no prior record and expressed remorse but the trial judge found the substantial force used in the murder and his post offence conduct particularly aggravating. His period of ineligibility was set at 15 years.
[35] In R. v. Czibulka 2011 ONCA 82 (CanLII), the accused was convicted of second degree murder in the death of his wife. He called 911 claiming she was having trouble breathing and when the paramedics arrived she was dead, having been beaten to death. Her ribs were fractured in 25 places, her breast bone was broken and her diaphragm was lacerated. The trial judge set the period of parole ineligibility at 15 years and the Court of Appeal upheld this affirming that there is no set “range” for what it called “brutal spouse murders” but that each case must be decided on its particular facts. The Court also felt the trial judge’s decision was justified in view of what the trial judge in the first trial called “ … the savage cruelty reflected in the terrible injuries to this defenceless woman”
[36] In R v. VanEindhoven 2013 NUCJ 30 (CanLII) the accused stabbed his common law spouse in the heart after a severe assault and while he was under a court order to have no contact with her. He had been emotionally and physically abusive towards her when drinking and had punched and bit her the night before the murder. She had tried to end the relationship on many occasions but she always came back. The court set his parole ineligibility at 13 years.
[37] In R v Panghali 2011 BCSC 421 (CanLII) the accused strangled his pregnant wife then burned her body on a beach where it was found several days later. He was convicted of second degree murder. In the aftermath he made disparaging comments to the police about his wife and suggested members of her family may have been involved in her murder. His parole ineligibility was set at 15 years.
[38] In R v. Angelis 2011 ONSC 462 (CanLII) the accused was convicted of second degree murder for strangling his wife in front of their two young children during an argument. He had no criminal record and was of previously good character. His parole ineligibility was set at 12 years.
[39] In R v. Lenius 2007 SKCA 65 (CanLII) the accused strangled his estranged wife during an argument in front of their children, then took the children to a neighbor’s returned and cleaned up his wife’s body and covered it with a sheet and called the police. The trial judge set his period of parole ineligibility at 15 years but the Court of Appeal reduced it to 12.
[40] In R v. Getson 2011 NBQB 51 (CanLII), 2011 NBQB 051 the accused stabbed his wife 14-15 times in a particularly brutal murder. His controlling and possessive nature was causing their marriage to break down; he had told people that if he couldn’t have her nobody could. The Crown and defence made a joint submission on parole ineligibility of 20 years which the court accepted.
[41] R v. Hales 2014 NSSC 408 (CanLII) was also a case of a domestic homicide caused by multiple stab wounds. In that case as well there was joint submission on parole ineligibility(17 years) which the court accepted.
[42] In the case of R. v. Nash 2009 NBCA 7 (CanLII), the accused, who had got the worst of an altercation with his brother, decided to pursue his brother who had gone hunting with their nephew. When he caught up with him he fired two shots, killing his brother in front of their nephew. He ended up in a standoff with police before surrendering but eventually showed remorse concerning the murder. The trial judge found his behaviour callous and did not accept his remorse and imposed a period of parole ineligibility of 20 years saying that the degree of planning involved made the crime closer to first degree murder than manslaughter. The accused had been abused as a child, had anger management problems, and substance abuse problems. On appeal the period of parole ineligibility was reduced to 12 years. The Court stated that Mr. Nash’s disregard for the safety of his nephew and the police was the only factor that warranted an extension of the period of parole ineligibility beyond the minimum 10 years.
[71] In Hawkins, Beveridge J.A. set out the facts:
59 The strongest mitigating factor is the fact that the appellant had demonstrated in his life he was a skilled tradesman. He demonstrated a consistently strong work ethic and was well thought of as an employee. His downfall was substance abuse, in particular, an addiction to cocaine. It was uncontested that he had, since arrest, been drug free. No one suggested that the offence of murder was in any way planned, but likely was committed due to resistance to the appellant's insistence of obtaining money or property belonging to the deceased. The appellant was not considered to have a reputation for violence. He had but one incident that led to charges of assault with a weapon. This had been explained in his statement to the police as being a bar room dispute in Edmonton in 2002, [check] for which he received a 90-day intermittent sentence.
60 The aggravating factors are that the murder was committed during the course of a robbery of a vulnerable victim in his own home. While the appellant may have been a welcome visitor initially, the fact remains the murder was committed in the home of the deceased. The death of the victim may have followed from the knife wounds to his neck, nonetheless, it could also have been caused by the ligature strangulation from a towel and telephone cord placed around the victim's neck, apparently done to prevent interference in the robbery or access to help by phone. The appellant demonstrated callousness by using the proceeds of the robbery to buy cocaine, and later selling cigarettes taken from the deceased, and in trying to disguise his involvement in the offence. The appellant was on 18 months probation commencing May 9, 2006 for the property offences of theft and fraud and breach of probation.
[72] In determining that parole ineligibility should be set at 15 years, Beveridge J.A. stated:
95 The facts speak of a brutal and callous murder of a vulnerable victim in his own home by an offender driven by the scourge of addiction to a corrosive drug. Most murders are brutal and callous. As recognized by many cases, the imposition of a sentence of life imprisonment without parole ineligibility for at least ten years already carries with it a significant element of denunciation and general deterrence. However, here the appellant recognized at trial and on appeal that some additional period beyond the automatic minimum ten years was appropriate and suggested 15 years. I agree that in light of the circumstances of this offence, some increase in the period of parole ineligibility is warranted. In my opinion, the acceptable range of sentence in these circumstances is between 12 and 15 years. I would accept the suggestion of the appellant and set it at 15 years.
[73] R. v. Calnen, 2016 NSSC 35, [2016] N.S.J. No. 29, appeal allowed on other grounds, 2017 NSCA 49, application for leave to appeal reserved, February 12, 2018: Mr. Calnen murdered his victim and then burned her body to hide his crime. He did other things in order to obscure his crime and divert police suspicion. In discussing the aggravating and mitigating factors, Chipman J. stated:
Once again, s. 718.2(a) requires me to consider any aggravating factors or mitigating circumstances in my determination of the nature and extent of sentence.
Aggravating Factors
1. The crime was particularly horrific as it involved the secret moving, hiding, repeated burning and disposal of Ms. Jordan’s body;
2. Despite Mr. Calnen’s overt attempts to minimize his relationship with Ms. Jordan, I have found that they lived together in a domestic relationship and that the crimes he perpetrated amount to the ultimate acts of domestic violence;
3. Not only were Mr. Calnen’s actions which involved incinerating Ms. Jordan’s body shocking, they amounted to concealing and destroying evidence relating to how he murdered her, which obstructed justice; and
4. By not disclosing the truth to the police along with Ms. Jordan’s family, Mr. Calnen prolonged the agony for them of not knowing what happened to her.
Mitigating Circumstances
1. Mr. Calnen has no prior criminal record;
2. He has a good work history;
3. Mr. Calnen has expressed remorse and at the outset of trial he plead guilty to interfering with human remains; and
4. The P.S.R. is generally positive and includes background indicating:
a) solid family support;
b) grade 12 diploma and machinist’s certificate;
c) no present issues with drugs or alcohol; and
d) good overall health.
[74] Justice Chipman set 15 years for Mr. Calnen’s parole ineligibility.
[75] R. v. MacCrae, CRH No. 336925 (March 2, 2011) (N.S.S.C.): Mr. MacRae beat, strangled and murdered his wife, left her body in the trunk of a car and diverted suspicion from himself for five years. He was caught by way of a Mr. Big operation. Mr. MacRae entered a guilty plea to second-degree murder. In imposing a 15-year parole ineligibility date, Coady J. stated variously:
… My only discretion today is to decide how long it will be before Mr. MacRae is eligible to be considered for parole. Whatever my decision is, that does not mean that Mr. MacRae will be approved for parole at that time or will suddenly be released from prison. I am not making an order as to when Mr. MacRae is paroled. Rather, my order deals only with the issue of ineligibility for a period of time.
…
We are not a society that locks people in a cell for the remainder of their lives as retribution. We are a society that recognizes that people can learn from their mistakes and sins and become contributing members of our society. We are a society that recognizes rehabilitation as a goal of sentencing and we are a society that recognizes rehabilitation as a goal of sentencing and we are a society that sees rehabilitation of an offender as the most effective was to protect society.
Not all offenders find rehabilitation while in jail for those long periods of time. Those persons who do not, stay in jail until the end of their sentences, but many offenders are rehabilitated. It is all up to the offender. Some reach for the light at the end of the tunnel and others do not, for a wide of reasons.
…
In relation to the character of Mr. MacRae, in many cases this factor usually amounts to a mitigating factor. In the case of Mr. MacRae, that is not as much the case, though not aggravating. He is not an addict, as we often see. He had a solid employment history and I understand that he enjoys strong family support. As the Crown stated in their brief, he enjoyed a normal middle class life. But his true character came out when he killed his spouse and took steps to avoid detection. He obviously presented as a normal person, but the reality is that he is a very dangerous person under certain sets of circumstances. Mr. MacRae’s potential for violence is real. He did not kill his spouse in a rage or after provocation. He just decided to do it, more or less to settle an argument.
…
A man with Mr. MacRae’s character would have to search hard for any excuse or explanation for what he did to his wife. On the other hand, those characteristics should assist Mr. MacRae in his long-term rehabilitation, should Mr. MacRae avail himself of those opportunities. If he does not, he’ll probably spend the rest of his life in jail.
…
In light of these authorities which I have reviewed and applying the principles that have been provided to me and the submissions that have been made to me, I have determined that the appropriate range of parole ineligibility is between 12 and 15 years, so I sentence Mr. MacRae to life imprisonment with parole ineligibility set at 15 years.
[76] R. v. Sodhi (2003), 179 C.C.C. (3d) 60, [2003] O.J. No. 3397 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 31: Mr. Sodhi murdered his wife by strangling her to death. He then dumped her body on the side of a rural road in an effort to make it look like a stranger had robbed and killed her. Her body was discovered by a passing motorist. In upholding a 14-year period of parole ineligibility, Moldaver J.A., (as he then was), speaking for the unanimous court, stated:
130 I see no basis for interfering with that finding. That said, it is at least arguable that the trial judge overstated the case when he described the scene as one of the worst fact situations. In my view, however, what separates this case from others and takes it out of the twelve-year range is the appellant's conduct after the event.
131 The appellant's attempt to cover-up his crime and his persistent efforts to create suspicion that someone else had committed it were despicable and cowardly. This conduct amounted to a serious aggravating feature and, in and of itself, warranted a significant increase in the period of parole ineligibility. Combining that with the domestic nature of the crime and the brutality associated with it, I cannot say that the trial judge erred in imposing the sentence he did.
[77] In R. v. Praljak, 2013 ONSC 298, the court stated:
[17] Undoubtedly, it has become commonplace to increase the minimum period of parole eligibility in domestic homicide cases beyond the ten year level, to reflect the seriousness of the breach of trust in such cases. As Laskin J.A. stated for the majority in R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41, at para. 48, “No two cases are the same but similar cases from this province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.” In this brief passage, Laskin J.A. both announced a principle of sentence and established a range.
[18] However, in subsequent cases, the ceiling of the range established by McKnight has been breached many times. It is true, of course, that ranges are not cast in stone, that they are guidelines and not hard and fast rules, and that sentencing remains an individualized process. But the ceiling in McKnight has been breached so often that, as recognized in R. v. Czibulka, 2011 ONCA 82 (CanLII), 267 C.C.C. (3d) 276, the range must now be accepted to be 12 to 17 years.
[78] In R. v. Chareka, 2013 NSSC 320, Justice Scaravelli stated:
[11] The sentence must communicate the community’s revulsion and abhorrence of this type of domestic violence. The victim was a vulnerable spouse who resided in the matrimonial home with her children when she was murdered. Mr. Chareka’s actions destroyed the family unit and deprived his younger children the opportunity to live in a nurturing environment with their mother. This calls for a parole ineligibility period in excess of the minimum range set out in the authorities and I find a period of 13 years parole ineligibility to be in the acceptable range.
[79] In R. v. Doyle (1991), 108 N.S.R. (2d) 1, 1991 CarswellNS 268 (S.C.A.D.), leave to appeal refused, [1992] 2 S.C.R. vi, [1992] S.C.C.A. No. 18, a case that pre-dates Shropshire, Chipman J.A. outlined the facts:
3 The respondent was charged with committing first degree murder upon the person of his wife Catherine Lee Doyle on August 6, 1989. At the time of her death she was 32 years of age and the respondent was 33. The parties had been married 15 years and had three children, one of whom died in 1982. They resided in Eastern Passage.
4 There were problems in the marriage. The respondent was an alcoholic and at the time of the murder was undergoing treatment for that disorder. There were financial problems. The parties had grown somewhat apart and the respondent suspected his wife was having an affair. She had become friendly with someone at her work place, although the evidence falls short of showing that the respondent's suspicions were well-founded. There were indications that he was a jealous person and that the state of his relationship with his wife was causing him stress.
5 At the time of the murder the children were away from the family home staying with the respondent's parents. On the evening of August 5, the respondent and his wife had a long discussion. She went to bed at approximately 10:30 p.m. At around 2:30 a.m. on August 6 the respondent entered her bedroom and shot her three times with a high power 30-30 lever action rifle as she lay asleep. Death was instantaneous. The respondent then called the R.C.M.P. and advised that he had shot his wife. He was subsequently arrested and taken to the Cole Harbour Detachment where he was interviewed at 4:30 a.m., again confessing to the murder.
[80] Justice Chipman went on to explain variously:
40. … The husband/wife relationship in this case is of great importance, and is a factor to be taken into account in moving towards the upper end of the range of parole ineligibility. Family and spousal violence are all too prevalent, and if courts have not sufficiently shown their stern disapproval of such conduct the time has now come to do so. In R. v. Publicover (1986), 74 N.S.R. (2d) 23, Macdonald, J.A.
speaking for this court said at p. 24:
Incidents of wife beating appear to be more prevalent in our society than at one time believed. The courts have an obligation to show society's denunciation of such conduct by the imposition of sentences that primarily emphasize the element of deterrence.
41 The Crown also submits that a relationship of trust existed between the respondent and his wife which enabled him to gain ready access to her for the purpose of committing the crime. Such a relationship is a factor in the sentencing process. …
42 In my opinion, the murder of a wife while she is sleeping in the family home is an aggravating factor of the highest degree and one which was given no weight by the trial judge. …
…
47 Having reviewed the circumstances in the context of the guidelines set out in the Code, I have come to the conclusion that this was a most repugnant and indefensible crime, committed in cold blood by an offender from whom society deserves protection. ... Taking all the factors into account, I would vary the order for parole ineligibility by raising the period from ten to 17 years. …
Character of the Offender
[81] The Pre-Sentence Report indicates that Mr. Butcher had never been in contact with the criminal justice system prior to murdering Ms. Johnston and describes Mr. Butcher’s significant education, including:
Mr. Nicholas Butcher reported he graduated from Queen Elizabeth High School, in Halifax, in 2000. As noted earlier in this report, the subject has attended various universities for over ten years. After graduating high school, Mr. Butcher attended McGill University, in Montreal, then went on to the University of New Brunswick to complete a Master’s program. The subject also mentioned he attended Lavalle University in 2005 for a summer semester, in order to complete a French program. As previously indicated, Mr. Butcher enrolled in a PhD program at McMaster University, in Ontario; however, he dropped out of the program after two months. Most recently, the subject completed a Law degree in 2015 from Dalhousie University.
[82] According to the Pre-Sentence Report, Mr. Butcher’s mother is in disbelief at his participation in this offence and requests leniency on behalf of Mr. Butcher.
[83] Mr. Butcher’s Pre-Sentence Report is about as positive as could be, given the circumstances. However, the Pre-Sentence Report was comprised of information from very limited sources including: Nicholas Butcher; Dale Butcher, Mr. Butcher’s mother; Amanda Andrews, Social Worker, Central Nova Scotia Correctional Facility; Dr. Risk Kronfli, Psychiatrist, Central Nova Scotia Correctional Facility; and Shannon Fergusson, Case Manager, Central Nova Scotia Correctional Facility.
[84] The Crown argued that the Pre-Sentence Report was somewhat misleading as the limited sources did not accurately discuss any of Mr. Butcher’s previous relationships with women, an issue pertinent to this hearing. Therefore, during the sentencing hearing the Crown called two of Mr. Butcher’s former girlfriends. The first was Kathleen Byford-Richardson. Ms. Byford-Richardson dated Mr. Butcher in 2008 and 2009. She described Mr. Butcher as being very affectionate, outgoing and fun at the outset of their relationship but becoming moodier, less social and more controlling as time wore on. She described his prolonging arguments, holding a grudge, and even spitting on her during the course of a disagreement.
[85] After they ended their relationship, Mr. Butcher moved to a new city to start his PHD. They remained in contact, although Ms. Byford-Richardson had started a new relationship. Two months later Mr. Butcher lied to her and said things were going well in school, that he would be in town to attend a museum exhibit, would be staying with friends and asked her if they could go out for the evening. Ms. Byford-Richardson agreed and arranged to have Mr. Butcher pick her up. She lived in a secure apartment building. Mr. Butcher bypassed the security and arrived at the interior door of her apartment without being buzzed in. During the course of the evening, with Ms. Byford-Richardson’s approval, Mr. Butcher drove her to a secluded park area. There, he produced a ring and asked her to resume the relationship. When she declined, his mood changed, he became agitated, he confessed his lies, advising that school was not going well, he was not in town to go to a museum exhibit and he was not staying with friends. He also confessed to reading Ms. Byford-Richardson’s personal emails and Facebook account. He confronted her about dating someone else and said he had gone through her garbage and found used condoms. Ms. Byford-Richardson became concerned about Mr. Butcher’s well-being as a result of his behavior. She asked him to drive her home.
[86] She went home and within the next 24 hours Mr. Butcher began to text her, calling her a slut and a bitch.
[87] Ms. Byford-Richardson called Mr. Butcher’s mother the next day to tell her that she was concerned about Mr. Butcher. Several days later Mr. Butcher told her that he had been admitted to psychiatric unit, was ending his Ph.D. studies, and was returning to Nova Scotia.
[88] The Crown also called Olivia Hassler, who dated Mr. Butcher from 2013 to 2015. Ms. Hassler testified that there was no violence in their relationship, but explained that Mr. Butcher would prolong arguments and would hold a grudge for days over what would normally be minor relationship conflicts.
The nature of the offence and the circumstances surrounding its commission
[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 her relationship with him. He entered Mr. Belyea’s stairwell without permission on the first occasion when he believed Ms. Johnston was inside socializing with Mr. Belyea. He then watched Mr. Belyea’s apartment from the street between approximately 3:00 AM to 4:51 AM to see what Ms. Johnston was doing. After he saw Ms. Abramowicz leaving Mr. Belyea’s apartment without Ms. Johnston he again entered Mr. Belyea’s residence without permission. He saw Mr. Belyea and Ms. Johnston being intimate in bed together. Instead of leaving, 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 her face and stabbed her repeatedly in the neck and throat until she died.
Recommendation by the jury
[92] Section 745.2 of the Code states:
745.2 Subject to section 745.3, where a jury finds an accused guilty of second degree murder, the judge presiding at the trial shall, before discharging the jury, put to them the following question:
You have found the accused guilty of second degree murder and the law requires that I now pronounce a sentence of imprisonment for life against the accused. Do you wish to make any recommendation with respect to the number of years that the accused must serve before the accused is eligible for release on parole? You are not required to make any recommendation but if you do, your recommendation will be considered by me when I am determining whether I should substitute for the ten year period, which the law would otherwise require the accused to serve before the accused is eligible to be considered for release on parole, a number of years that is more than ten but not more than twenty-five.
[93] In accordance with s. 745.2, the court received the following recommendation from the jury in relation to Mr. Butcher’s parole ineligibility date:
2 Jurors: 10 years before eligibility
1 Juror: 12 years before eligibility
1 Juror: 15 years before eligibility
1 Juror: 18 years before eligibility
3 Jurors: 20 years before eligibility
4 Jurors: 25 years before eligibility
[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.
Parole Ineligibility
[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 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.
Time spent in custody
[100] Section 746 of the Criminal Code states:
746. In calculating the period of imprisonment served for the purposes of section 745, 745.1, 745.4, 745.5 or 745.6, there shall be included any time spent in custody between
(a) in the case of a sentence of imprisonment for life after July 25, 1976, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to imprisonment for life and the day the sentence was imposed; or …
[101] Mr. Butcher was arrested on March 26, 2016. He has never requested bail and has been in custody since the date of his arrest. Therefore, he will be given credit for 880 days in custody, which includes today, August 22, 2018.
Conclusion
[102] With regard to the Victim Fine Surcharge, as per the Criminal Code there is a fine of $200. Mr. Butcher has been sentenced to life in prison and has no source of employment. I will therefore order the Victim Fine Surcharge to be paid in five years.
[103] Additionally, as requested by Crown counsel and agreed upon by defence counsel, I will order a primary DNA order and a Firearms Prohibition Order for life in relation to any prohibited firearm and 10 years in relation to any other firearm pursuant to section 109 of the Criminal Code.
[104] The imposition of life imprisonment already carries with it a significant element of denunciation and general deterrence. Mr. Butcher may never be released on parole. He might spend the rest of his life in prison. However, the National Parole Board might eventually determine that he can return to society sometime in the future. If the Parole Board does determine that Mr. Butcher can leave prison, he will be subject to strict conditions and supervision. Even then, that supervision and those strict conditions would be in place be for the rest of his life.
[105] Mr. Butcher has already been sentenced to life in prison. I set his parole ineligibility at 15 years, that is, he must serve 15 years before he can apply for parole. That is not the date he gets parole. It is merely the date he can start applying for parole. That 15-year time frame starts on the date of his arrest, March 26, 2016.
[106] In imposing these sentences, I ask Mr. Butcher to keep in mind that he will be subject to a sentence of imprisonment forever. He may never be released on parole.
[107] Whether his risk of reoffending is such that he will be permitted to be released conditionally will be up to the parole board. If he is released it will only be on his satisfactory compliance with whatever conditions the Parole Board places on him to ensure his respect for a peaceful and safe society.
Arnold, J.