Regina v. Turcotte
[Indexed as: R. v. Turcotte]
48 O.R. (3d) 97
[2000] O.J. No. 1316 No. C31658
Court of Appeal for Ontario
Catzman, Abella and MacPherson JJ.A.
April 19, 2000
Criminal law — Sentence — Conditional sentence — Accused convicted of manslaughter in death of his mother — Accused under influence of alcohol and prescription medication at time of offence — Accused remorseful — Accused having taken extensive steps towards rehabilitation — Trial judge not erring in imposing conditional sentence of two years less a day– Imposition of conditional sentence upon person convicted of manslaughter not in itself constituting error in principle — Sentence appropriate — Appeal dismissed.
The accused was charged with second degree murder in the death of his mother and was found guilty of manslaughter. He and the deceased had been drinking throughout the day and evening of the offence and they were both extremely intoxicated. The accused was also taking prescription painkillers and sleeping pills. He testified that the deceased, who sometimes became verbally aggressive when she drank, confronted him with a knife and then went after him with her bare hands. He did not remember what happened after that. The deceased died as a result of ligature strangulation. There was medical evidence that at the time of the offence the accused was acting under a psychotic condition due to an organic cause and suffered a total amnesia of the actual incident. The most significant organic contributors were a combination of alcohol and the sleeping medication he was taking. One of the accused’s sisters testified that the accused loved the deceased and that they generally got along very well. The accused was remorseful and was taking significant steps towards rehabilitating himself. The trial judge, concluding that the offence was committed under very specific difficult conditions which were unlikely to reoccur, sentenced the accused to two years less a day, to be served in the community. The Crown appealed.
Held, the appeal should be dismissed.
Per Catzman J.A. (Abella J.A. concurring): — The imposition of a conditional sentence upon a person convicted of manslaughter is not, in and of itself, an error in principle, nor was the imposition of such a sentence erroneous in this case.
Per MacPherson J.A. (dissenting): — While the duration of the sentence was not unfit, this was not an appropriate case for a conditional sentence. The crime was violent and terrible and called for a denunciatory sentence. The trial judge erred in describing the circumstances of this case as unique. While there are few cases in which a parent is killed by a son or daughter, domestic violence, especially domestic violence that takes place in the context of serious alcohol and drug abuse, is very prevalent. The trial judge paid insufficient attention to the moral blameworthiness of the accused. Whether or not he was in a state of partial amnesia while he was strangling the deceased, it was his own conduct which placed him in that condition. The sentence should have been a custodial one.
Cases referred to
R. v. Brooks, [1993] O.J. No. 1396 (Gen. Div.); R. v. Emard, [1999] B.C.J. No. 463 (S.C.); R. v. Ferguson, [1997] O.J. No. 2488 (Gen. Div.); R. v. Getkate, Ont. Gen. Div., November 10, 1998 (unreported); R. v. Hariczuk, [1999] O.J. No. 3110 (C.J.); R. v. Inwood (1989), 32 O.A.C. 287, 48 C.C.C. (3d) 173, 69 C.R. (3d) 181 (C.A.); R. v. M. (C.A.), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. Mananghaya (1997), 118 Man. R. (2d) 30, 149 W.A.C. 30, [1997] M.J. No. 267 (C.A.); R. v. McDonnell, [1997] 1 S.C.R. 948, 49 Alta. L.R. (3d) 111, 145 D.L.R. (4th) 577, 210 N.R. 241, 43 C.R.R. (2d) 189, 114 C.C.C. (3d) 436, 6 C.R. (5th) 231; R. v. Oster, [1997] B.C.J. No. 3099 (Prov. Ct.); R. v. Proulx (2000), 182 D.L.R. (4th) 1, 140 C.C.C. (3d) 449 (S.C.C.); R. v. Shropshire, [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269; R. v. Wells (2000), 182 D.L.R. (4th) 257, 141 C.C.C. (3d) 368 (S.C.C.); R. v. Wismayer (1997), 33 O.R. (3d) 225, 115 C.C.C. (3d) 18, 5 C.R. (5th) 248 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 718, 718.2(b), 742.1
Authorities referred to
Clewley and McDermott, Sentencing: The Practitioner’s Guide (Aurora, Ont.: Canada Law Book Inc., 1999), sec. 8.150 Paciocco, Getting Away with Murder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999), p. 63
APPEAL by the Crown from a sentence for manslaughter.
Michal Fairburn, for the Crown, appellant. Richard Addelman, for respondent.
CATZMAN J.A. (ABELLA J.A. concurring): —
The Appeal
[1] Robert Turcotte took his mother’s life. He was tried for second degree murder. The jury returned a verdict of manslaughter. He was sentenced to two years less a day, to be served as a conditional sentence. The Crown appeals from that sentence. The Circumstances of Olive Turcotte’s Death
[2] At the time of Olive Turcotte’s death, she was 71 years old. Robert, her son, was 47. His father had died some three years before. Robert had moved into his parents’ apartment to assist in his ailing father’s care. He had promised his father that he would look after his mother, and continued to live with her in the apartment after his father died. He was unmarried, although engaged to be married, and had two younger sisters.
[3] Both Olive and Robert Turcotte had problems with alcohol. When Olive drank, she sometimes became verbally aggressive. Robert consumed beer almost every day and attended, with his mother, at the Royal Canadian Legion at least five times a week.
[4] Robert had not worked in the three years before his mother’s death. He was on a disability pension for work-related injuries that caused him chronic pain. He regularly took five prescription medicines: an anti-inflammatory; two protective agents for the stomach; a pain medication; and a sleeping medication.
[5] After having lunch together on August 30, 1996, Robert and his mother went to the Royal Canadian Legion to drink. They were there from 1:00 or 2:00 in the afternoon until about 11:00 p.m. Robert estimated that he drank 16 to 18 pints of beer throughout the day. He took his prescribed medication. Blood alcohol readings taken from him later that night were 230 milligrams of alcohol in 100 millilitres of blood.
[6] Robert drove himself and his mother from the Legion back to their apartment. His mother had difficulty walking from the car to the apartment and fell several times. It took 15 or 20 minutes for them to get into the building.
[7] Once inside the apartment, Robert took some medication and prepared for bed. Shortly afterward, according to his evidence, his mother confronted him with a knife. He removed the knife and put it away. His mother went into her bedroom and began moaning. He went in to see her and she confronted him with the knife again. He left briefly and, when he returned, she went after him with her bare hands. He did not recall anything that happened after that until he saw his mother on the floor with blood coming from her nose.
[8] From other witnesses, the jury heard that Olive Turcotte had been strangled with two cords: a television cable cord and a telephone cord. Neighbours in the building testified that, between midnight and 12:20 a.m., they heard cries for help and a woman pleading “Bobby, stop. Don’t Bobby, please”.
[9] When Robert saw his mother on the floor, apparently dead, he phoned his sister. At 12:34 a.m., having received no answer at his sister’s home, he phoned his fiance and told her he thought he had killed his mother. She told him to call 911. He again called his sister and left a message for her to call right away. He then phoned his fiance again and asked her to come and pick him up. At 12:41 a.m., he called 911 and the police were dispatched. He was still talking to the 911 operator when the police arrived and placed him under arrest. He was fully co-operative with the arresting officers, who noted that he was visibly intoxicated and that his knuckles were bloodied and scraped.
[10] The police arrived at 12:47 a.m. The cords were still wrapped tightly about Olive’s throat. The telephone cord had half-knots in two places. With difficulty, a policewoman removed the cords and commenced CPR. At 1:09 a.m., ambulance attendants arrived and managed to get a faint pulse. Olive was transported to hospital. She remained on life support until she died, four days later. A post-mortem examination confirmed that she died as a result of ligature strangulation. Her blood readings were also 230 milligrams of alcohol in 100 millilitres of blood.
[11] Dr. Tessier, a forensic psychiatrist, was called as a witness by the defence. He was treating Robert for severe depression. In Dr. Tessier’s opinion, at the time of the offence, Robert was acting under a psychotic condition due to an organic cause, and suffered a total amnesia of the actual incident. The most significant organic contributors were a combination of alcohol and benzodiazepine, the sleeping medication he was taking.
[12] One of Robert Turcotte’s sisters also testified. She said that Robert loved their mother and that mother and son generally got along very well. She described them as “best friends”. She testified that, in her view, Robert was not capable of intentionally killing their mother.
The Trial and the Sentencing
[13] On his arraignment, Robert entered a plea of not guilty to the charge of second degree murder but guilty to the offence of manslaughter. The Crown refused to consent to the acceptance of his plea, and the trial proceeded. After a seven-day trial, Robert was acquitted of second degree murder and convicted of manslaughter.
[14] At the sentencing hearing, the Crown suggested a sentence between 10 and 12 years. The defence sought the imposition of a conditional sentence. After hearing evidence from both of Robert’s sisters, his fiance, his fiance’s mother and Dr. Tessier, and considering a pre-sentence report and the submissions of counsel, Mercier J. reserved his decision. He subsequently rendered oral reasons in which he imposed a sentence of two years less a day, to be served in the community.
Evidence Filed on the Appeal
[15] On consent, evidence was filed before us to indicate Robert’s present circumstances. He is living with his fiance, now his common-law wife. He has served over half of his conditional sentence. A post-sentence report indicates that he has been abiding by all of the conditions. He continues to see Dr. Tessier for treatment and is showing steady progress. His history of alcohol and drug abuse is behind him.
The Limitations on Appellate Courts on Sentence Appeals
[16] The limitations on an appellate court in considering an appeal against sentence have been stated and recently restated by the Supreme Court of Canada. The sentencing judge’s disposition must be “not fit” or “clearly unreasonable”: R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193, at para. 46. It must fall “outside the acceptable range”: Shropshire, at para. 50. In the absence of “an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”: R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327, at para. 90. The sentence must be “in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”: M. (C.A.), at para. 92. The sentence imposed at trial “is entitled to considerable deference from appellate courts”: R. v. Proulx (2000), 140 C.C.C. (3d) 449, 182 D.L.R. (4th) 1, at para. 123. “Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so”, appellate courts should not “second-guess sentencing judges unless the sentence imposed is demonstrably unfit”: Proulx, at para. 125.
[17] Ms. Fairburn urged us to find that this is one of those cases in which this court should intervene. She advanced two submissions on behalf of the Crown. She argued, first, that only a penitentiary sentence was appropriate and, second, that a conditional sentence was demonstrably unfit. In her submission, a fit sentence in this case would have been in the range of five to seven years (although she acknowledged that, having regard to the passage of time, a somewhat lesser sentence of three to five years should be imposed by this court if it were now minded to substitute a penitentiary term). Alternatively, she submitted that, if we were not disposed to interfere with the sentence of two years less a day, we should require that the sentence be served in a custodial setting rather than by way of conditional sentence.
[18] I am unable to accept either of Ms. Fairburn’s submissions.
[19] While many, if not most, sentences for manslaughter are in the penitentiary range, maximum reformatory sentences are not unknown and are clearly within the acceptable range: Clewley and McDermott, Sentencing: The Practitioner’s Guide (Aurora, Ont.: Canada Law Book Inc., 1999), at sec. 8.150. Conditional sentences of that duration and, indeed, of shorter duration, have been passed against persons found guilty of manslaughter both in this province and elsewhere: R. v. Ferguson, [1997] O.J. No. 2488 (Gen. Div.); R. v. Mananghaya, [1997] M.J. No. 267, 118 Man. R. (2d) 30 (C.A.); R. v. Emard, [1999] B.C.J. No. 463 (S.C.); R. v. Oster, [1997] B.C.J. No. 3099 (Prov. Ct.); R. v. Hariczuk, [1999] O.J. No. 3110 (C.J.). The Supreme Court of Canada has recently rejected the suggestion that conditional sentences are inappropriate for serious offences, including manslaughter: R. v. Proulx, supra, at paras. 80-81. The imposition of a conditional sentence upon a person convicted of manslaughter is not, in and of itself, an error in principle.
[20] Nor, in my view, is the imposition of such a sentence erroneous in the present case. It is evident from a reading of Mercier J.’s comprehensive, sensitive reasons for sentence that he put much thought and care into their preparation. Because I find them compelling, I consider it useful to indicate the manner in which Mercier J. addressed the task of sentencing and the conclusions he reached in performing that task.
[21] After reviewing the facts, he set out and considered, individually, each of the objectives of sentencing set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46: denunciation of unlawful conduct; specific and general deterrence; separation of offenders from society, where necessary; rehabilitation; reparations for harm done to victims or to the community; and promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. He then adverted to the further sentencing principle set out in s. 718.2(b) (“a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”). He considered, and distinguished, a number of the cases cited to him by the Crown, determined that “a non-penitentiary term of imprisonment [would] satisfy the principles of sentencing as set out in the Criminal Code”, and decided to impose a sentence of imprisonment of two years less a day, the maximum reformatory term.
[22] Mercier J. then turned to s. 742.1 of the Code and the question whether a conditional sentence should be imposed. He referred to some of the cases, noted above, where conditional sentences were imposed on persons convicted of manslaughter. He quoted passages from the decision of this court in R. v. Wismayer (1997), 33 O.R. (3d) 225 at pp. 241-42 and 249-50, 115 C.C.C. (3d) 18 at pp. 36 and 44-45, and rejected the submission of Crown counsel that a conditional sentence would be “outrageous” and would render “a disservice to the community”. With specific reference to the Crown’s suggestion of 10 to 12 years’ imprisonment, he asked himself these cogent questions:
What does society stand to gain by such a sentence? Who benefits from this type of sentence? The daughters of the victim do not benefit; they have made that clear. The offender would not benefit. His rehabilitation would be greatly hindered, if not totally destroyed, by such a sentence. Society or the community gains nothing. It will end up supporting the offender while in prison and may well be faced with a person whose rehabilitation will have been seriously negatively affected when he is eventually released.
[23] Reflecting on the nature of a conditional sentence and on the passages from Wismayer quoted above, Mercier J. concluded that, in his view:
. . . this is a proper case for a conditional sentence.
This offence was committed under very specific difficult conditions unlikely to ever reoccur. This offender has expressed sincere remorse for his actions. This offender has taken very extensive and positive steps towards his rehabilitation and it is most important that his treatment and counselling be continued without interruption. This offender’s siblings, the surviving victims of the offence, understand the circumstances under which the offence occurred and wish him to be allowed to continue his rehabilitation. This offender presents no risk to the community.
Robert Turcotte will then be permitted to serve his sentence in the community.
[24] He then imposed, in addition to the compulsory conditions set forth in s. 742.3(1) of the Code, a number of conditions relating to residence, abstention from alcohol, counselling, treatment and community service.
[25] In my view, the sentence imposed by Mercier J. reflects none of the errors that would warrant interference by an appellate court, and I therefore defer to his assessment of the particular circumstances of the offence and the offender: R. v. Wells (2000), 141 C.C.C. (3d) 368, 182 D.L.R. (4th) 257 (S.C.C.), at para. 48.
Disposition
[26] I would grant the Crown leave to appeal against the sentence passed upon the respondent, but I would dismiss the appeal.
[27] MACPHERSON J.A. (dissenting): — I have had the opportunity to read the reasons prepared by my colleague, Catzman J.A., in this appeal. I regret that I do not reach the same conclusion as my colleague. I would allow the appeal from the sentence imposed by Mercier J. and impose a sentence on Mr. Turcotte of two years less a day to be served in custody. I will attempt to state, in brief fashion, my reasons for this conclusion.
[28] I begin with a brief recitation of the points on which I agree with my colleague’s analysis.
[29] First, the sentence imposed by a trial judge is entitled to considerable deference by appellate courts: see R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193; R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327; and R. v. McDonnell, [1997] 1 S.C.R. 948, 114 C.C.C. (3d) 436.
[30] Second, judicial deference to sentences imposed by trial judges extends to all types of sentences, including conditional sentences: see R. v. Proulx (2000), 140 C.C.C. (3d) 449, 182 D.L.R. (4th) 1 (S.C.C.).
[31] Third, a conditional sentence can be an appropriate sentence for some offenders who have committed violent crimes. Specifically, a conditional sentence can be imposed on a person who has been convicted of manslaughter: see Proulx, at pp. 484-86; and R. v. Wismayer (1997), 33 O.R. (3d) 225 at p. 237, 115 C.C.C. (3d) 18 at p. 31 (Ont. C.A.).
[32] Fourth, an appeal court should interfere with a sentence imposed by a trial judge only if it is “not fit” or “clearly unreasonable”: see Shropshire, at p. 210. Or, as expressed by Lamer C.J.C. in M. (C.A.), at p. 565 S.C.R., p. 374 C.C.C.:
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
[27a] Against the backdrop of these points of agreement with my colleague’s reasons, I turn to a consideration of the sentence imposed by the trial judge. The respondent, Robert Turcotte, was found guilty of the crime of manslaughter following a trial before a judge and jury. The victim was Mr. Turcotte’s 71-year-old mother, Olive Turcotte. The circumstances surrounding the crime are well-described in the reasons of the trial judge and of Catzman J.A. on this appeal. I need not repeat their descriptions. The question is: was the sentence imposed by the trial judge, namely, a conditional sentence of two years less a day, “demonstrably unfit”?
[28a] I do not think that the duration of the sentence was demonstrably unfit. As the trial judge pointed out, there is no minimum sentence for manslaughter and “sentences imposed on persons convicted of manslaughter have varied from suspended sentences to life imprisonment and all points in between.” Although a sentence of two years less a day for Mr. Turcotte strikes me as being at the very low end of the range, I cannot say that it is so low as to attract the label “demonstrably unfit”.
[29a] With great respect to the trial judge, who wrote full and careful reasons for sentence, I have reached the reluctant conclusion that the conditional component of the sentence he imposed was demonstrably unfit. I reach this conclusion for several reasons.
[30a] First, this was a violent and terrible crime. The victim was a thoroughly drunk 71-year old woman. The offender was her adult son. Mrs. Turcotte was completely defenceless. The son used not one, but two, cords (a telephone cord and a television cable cord) to strangle his mother. He tied half- knots in one of the cords. He wrapped them so tightly around his mother’s neck that the police officers had trouble removing them when they arrived at the scene. The strangulation went on for several minutes and was accompanied by the mother’s screams. Neighbours testified that between midnight and 12:20 a.m. they heard banging noises and a woman’s cries: “help”, “help me, please help me”, “Bobby stop. Don’t Bobby, please.”
[31a] The trial judge recognized that denunciation was one of the objectives of sentencing. Early in his reasons he stated:
This is a factor which I must consider. A charge and any sentence are denunciations in themselves. In these circumstances, a penitentiary term of imprisonment is not required to achieve that denunciation.
Later, when he turned to considering whether he should impose a conditional sentence, the trial judge said nothing about denunciation. The focus of this later part of his reasons is almost entirely on the rehabilitation of Mr. Turcotte.
[32a] In my view, the circumstances of Mrs. Turcotte’s death called out for more than the statement that a “charge and any sentence are denunciations in themselves.” In R. v. Brooks, [1993] O.J. No. 1396 (Gen. Div.), Moldaver J. (as he then was) imposed a six-year sentence in a manslaughter case where the accused had experienced a difficult and sad life. In imposing sentence, Moldaver J. drew attention to the circumstances of the offence, stating at para. 10:
As well, I cannot ignore the manner by which he caused Ms. DeRosie’s death. Death by ligature strangulation can only be described as grotesque. Mr. Brooks undoubtedly applied significant force to the person of Ms. DeRosie for a significant period of time. During that time, it would seem that Ms. DeRosie was conscious, and she begged Mr. Brooks to desist. Unfortunately, her pleas went unheeded.
In my view, almost every word of this passage applies to Mr. Turcotte and his mother. The trial judge should have recognized that the terrible circumstances surrounding Mrs. Turcotte’s death required a stronger condemnation of the person who caused it.
[33] Second, the trial judge relied on other cases in which conditional sentences were imposed following manslaughter convictions: R. v. Mananghaya, [1997] M.J. No. 267, 118 Man. R. (2d) 30 (C.A.); R. v. Oster, [1997] B.C.J. No. 3099 (Prov. Ct.); R. v. Ferguson, [1997] O.J. No. 2488 (Gen. Div.); and R. v. Getkate (unreported, Ont. Gen. Div., November 10, 1998).
[34] In my view, in all of these cases there were profound mitigating circumstances in favour of the offender. In Mananghaya, Mrs. Mananghaya killed her niece who was living in the family home and openly carrying on an affair with her husband. In Oster, Mr. Oster used a chair to beat to death a man who had sexually abused Oster’s wife and was taunting him about it. In Ferguson and Getkate, Mrs. Ferguson and Mrs. Getkate killed husbands who had engaged in years of physical, sexual and emotional abuse.
[35] Nothing close to these factors exists in the present appeal. By all accounts, mother and son were extremely close. They lived together and cared for each other. On the night in question, Mrs. Turcotte was seriously drunk and had difficulty walking from the car to the house. Inside the house, she was truly defenceless — elderly and drunk and capable only of pleading for mercy. In short, there was nothing in Mrs Turcotte’s behaviour, in the years before or on the night of the attack, to provide even a slight reason for Mr. Turcotte’s assault.
[36] Third, the trial judge was clearly influenced by what he regarded as the uniqueness of this case. He said, “This offence was committed under very specific difficult conditions unlikely to ever reoccur.” From this sentence, the trial judge moved directly to a consideration of Mr. Turcotte’s remorse and rehabilitation.
[37] With respect, I think the trial judge erred in his description of the uniqueness of this case. Fortunately, there are few cases in which a parent is killed by a son or daughter. However, domestic violence, especially violence that takes place in the context of serious alcohol and drug abuse, is, sadly, very prevalent in Canadian society. The essential features of the events in the Turcotte home are all too familiar. To take but one example, I return to the strangulation manslaughter in Brooks. Here is Moldaver J.’s description:
Mr. Brooks took the life of another human being absent any lawful excuse or justification. He did so absent any provocation on the part of Ms. DeRosie and at a time when she was completely vulnerable, helpless and incapable of defending or even attempting to defend herself. At the time of the killing, Mr. Brooks had severely compromised his thought processes due to self-induced intoxication. But for this, I am confident that Ms. DeRosie would not have perished that night at his hands.
[38] In my view, if “Mr. Turcotte” and “Olive Turcotte” are substituted for “Mr. Brooks” and “Ms. DeRosie”, this description fits perfectly to the present appeal. In short, the events giving rise to this case are not unique; they are all too common. Accordingly, although I do not criticize the trial judge’s attention to rehabilitation, I do find fault with his silence about the principles of denunciation and general deterrence in the conditional sentence component of his reasons.
[39] Fourth, in my view, the trial judge paid insufficient attention to the moral blameworthiness or responsibility of the respondent. In the first paragraph of his reasons, the trial judge said that Mr. Turcotte admitted that he had killed his mother but that “he did not really recall what had occurred.” Later he relied on the evidence of Dr. Pierre Tessier, a psychiatrist, that Mr. Turcotte “suffered a total amnesia of the actual incident.”
[40] Whether Mr. Turcotte was in a state of partial or total amnesia while he was strangling his mother, the fact remains that it was his own conduct that placed him in that condition. He drank copiously throughout the afternoon and evening and mixed the alcohol with several prescription drugs. He could remember the events inside the house up to the moment he snapped. During the strangulation, he had enough presence of mind to use two different cords and to tie knots in one of them. He also ignored his mother’s pleading which was loud enough for neighbours to hear. Very soon after the strangulation stopped, Mr. Turcotte called 911. The operator said he sounded intoxicated but calm. He provided accurate information. When the police arrived at 12:47 a.m., they described him as co-operative, coherent, nonchalant and emotionless. In my view, this description of Mr. Turcotte’s behaviour before, during and immediately after the strangulation of his mother suggests that he must bear a high degree of moral responsibility for his conduct.
[41] For these reasons, my conclusion is that “[w]hile the circumstances call for some compassion and mitigation, they do not bear the full burden of converting a homicide sentence into a community sentence”: see D.M. Paciocco, Getting Away with Murder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999), at p. 63.
[42] Some years ago, this court addressed the question of sentencing in the context of family violence in R. v. Inwood (1989), 48 C.C.C. (3d) 173, 69 C.R. (3d) 181. Howland C.J.O., speaking for a five-judge panel, stated, at p. 181:
This court has acted on the principle that where there is a serious offence involving violence to the person, then general and individual deterrence must be paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not mean that in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct.
(Emphasis added)
[43] The present appeal differs factually from Inwood in that the domestic violence occurred in a child-parent, not a spousal, context. And it differs legally in that specific deterrence is not a factor. However, in my view, the general rule set out in the italicized passage is as valid today as it was in 1989. Crimes involving significant bodily harm, especially crimes involving violent death, need to be repudiated and denounced. Absent significant mitigating circumstances, a conditional sentence is inappropriate for such crimes.
[44] I would allow the appeal and convert Mr. Turcotte’s sentence to a custodial sentence of two years less a day. I would give him credit for the portion of the conditional sentence he has already served since it was imposed.
Appeal dismissed.