R. v. Elton

2014 BCSC 693 R. v. Elton IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Elton, 2014 BCSC 693 Date: 20140319 Docket: X074270-2 Registry: New Westminster Regina v. Thomas Robert Elton Restricted Publication: Pursuant to s. 539(1) of the Criminal Code for an Order restricting publication of evidence taken at preliminary inquiry. Before: The Honourable Mr. Justice Truscott Oral Ruling on Constitutional Challenge Counsel for the Crown: D. Wilson; B. Kielmann and L. Ruzicka Counsel for the Accused: J.W. Conroy, Q.C. and B.D. Vaze Place and Dates of Hearing: New Westminster, B.C. July 21, 2013 and August 9, 2013 Place and Date of Judgment: New Westminster, B.C. March 19, 2014 [1] THE COURT: On January 20, 2012, I convicted Mr. Elton of the second degree murder of Brenda Turcan on June 22, 2009, contrary to s. 235 of the Criminal Code, R.S.C., 1985, c. C-46. [2] Mr. Elton and Ms. Turcan was a married couple at the time of this murder. [3] In my reasons for judgment of January 20, 2012, I found that at the time of her death Ms. Turcan was suffering from a constellation of progressive medical illnesses and was chronically ill, although not terminally so, with medical issues that were all treatable and manageable. Her weight was less than 100 pounds and generally speaking her quality of life was quite low. [4] Mr. Elton's evidence was that he and Ms. Turcan had formed a mutual suicide pact. He said he received code words from her to indicate it was time for the suicide of both. [5] His evidence was that he intended to help her and to that end took a bayonet that they had in their living premises and stabbed her on the right side before placing his hands around her neck in a stranglehold. [6] He said he then went back to the bayonet and stabbed her again in her chest area. [7] He conceded that Ms. Turcan's death was caused by asphyxiation due to manual strangling and would otherwise have been caused by the second bayonet wound. [8] It was my conclusion that Ms. Turcan was not attempting to commit suicide at the time and Mr. Elton was not entitled to a defence of honest but mistaken belief in law. [9] I concluded that he committed murder by stabbing and strangling her to end her life as the natural consequences of his acts and used the bayonet to stab her in the chest to ensure that she was dead. [10] I said he was not aiding or abetting her suicide but it was in fact acting to cause her death by his own overt actions. [11] I expressed great doubts about whether Mr. Elton himself was attempting to commit suicide by his ingestion of the drugs he said he took. I said he certainly did not attempt to commit simultaneous suicide with her by the same means even if he believed she was attempting to commit suicide. [12] I found the offence was not committed out of anger or hate towards Ms. Turcan; that they loved and cared for each other, and in my view it was a mercy killing by him to put her out of her ongoing suffering. Nevertheless his actions constituted murder of Ms. Turcan and he was guilty of second degree murder as charged. [13] While I did refer to the killing of Ms. Turcan as a mercy killing by Mr. Elton to put her out of her ongoing suffering, this was a recognition of his motive or general state of mind. [14] In R. v. Latimer, [2001] 1 S.C.R. 3 the Court at para. 82 distinguished between the assessment of a criminal fault requirement or mens rea element of the offence rather than the offender's motive or general state of mind. The Court said: ... a greater degree of criminal responsibility or moral blameworthiness is attached to conduct where the accused knowingly broke the law ... the mens rea requirement for second degree murder is subjective foresight of death: the most serious level of moral blameworthiness.... [15] This was Mr. Elton's second time second degree murder conviction. He was convicted of second degree murder for the first time on October 28, 1977 at which time he received a sentence of life imprisonment with ten years before parole eligibility. [16] He was granted full parole for the first time in 1986 and again in 1995 and being on a life sentence was on parole at the time of this offence of which I convicted him. [17] Section 745(b) of the Criminal Code requires that if a person has been convicted of second degree murder after previously being convicted of culpable homicide that is murder, that person be sentenced to imprisonment for life without eligibility for parole until the person has served 25 years of the sentence. [18] If this had been Mr. Elton's only second degree murder conviction, he would have had the opportunity to argue that his parole ineligibility period should be no more than ten years or between ten years and 25 years under s. 745(c) of the Code and not automatically 25 years. [19] Subsequent to my conviction of Mr. Elton for this second degree murder, he has given notice of a constitutional question seeking a declaration pursuant to s. 52 of the Charter to the effect that s. 745(b) of the Criminal Code is unconstitutional as being inconsistent with ss. 7 and 12 of the Charter. [20] Section 7 of the Charter states that: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [21] Section 12 of the Charter states that: "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment." [22] Mr. Elton does not challenge the mandatory life sentence to be imposed on him, in this proceeding. He challenges the automatic mandatory parole ineligibility period of 25 years set out in s. 745(b) that is applicable to his circumstances of having committed two murders, without any consideration of the purposes and principles of sentencing set out in s. 718 of the Code. [23] Mr. Elton submits the court should take into account the purposes and principles of sentencing set out in s. 718 of the Code and in particular the fundamental principle of sentencing set out in s. 718.1, which requires that any sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [24] He submits that s. 745(b) is arbitrary in that it is automatic and grossly disproportionate relative to the totality of the circumstances and goes beyond what is necessary to achieve the objective of denunciation which he submits can be dealt with appropriately under s. 745(c) of the Code. [25] The court is also asked to consider other sentencing principles reflected in s. 718.2 all of which require a consideration not only of the offence and the circumstances surrounding it but also the character of the offender, as required by s. 745.4 when the court determines the parole ineligibility period for a conviction for one second degree murder conviction. [26] In addition, the Court is asked to take into account the fact that Mr. Elton is denied the provisions of the "faint hope" clause in s. 745.6(1) of the Code because of his previous conviction for murder when single murderers are entitled to it. Section 745.6(2) denies this application for relief to multiple murderers as of April 1, 2003. [27] In dealing with the nature of the offence and the circumstances surrounding its commission, Mr. Elton emphasizes the court's finding that he intended to kill his wife as a mercy killing to put her out of her ongoing suffering and out of love and caring for her and not as the result of any anger or hate. Section 7 [28] This same section 745(b) of the Code was under consideration by Madam Justice Humphries of this Court in R. v. Falkner, 2004 BCSC 986 on an application by the defence before her that the section results in arbitrary imprisonment under s. 9 and thus contravenes the principles of fundamental justice set out in s. 7. [29] Under the sub-heading of "Discussion", she said the following: An analysis of constitutional validity begins with an examination of the purpose and effects of the impugned legislation. As stated in Regina v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 334: ...the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test...Thus if a law with a valid purpose interferes by its impact with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. [30] Under her heading of "Analysis" with respect to "Purpose", she said the following: The Supreme Court of Canada has, on many occasions, upheld the right of Parliament to impose minimum sentences, that is, to remove discretion from the sentencing process, as long as those sentences respect constitutional values. I accept the submissions of the Crown as to the constitutionally valid purpose of s. 745(b). The purpose of the section is to punish with severity persons convicted of murder following a prior conviction for murder. It may be argued that Parliament could have broadened the application of the section to include all multiple murderers, but the failure to include all multiple murderers within the purview of this section does not render its purpose indiscernible. Instead, Parliament chose to narrow the class to those with a prior conviction for murder. This provides certainty, both procedurally and substantively. It is a legitimate exercise of its penal power for Parliament to enact such legislation for the purpose of protecting the public and denouncing and punishing those who have murdered a second time following a prior conviction for murder. [31] Under her heading "Analysis" with respect to "Effects", she said the following: It is difficult to consider the effects test in the penal context without lapsing into a consideration of s. 12. It is the potential for a sentence to be grossly disproportionate, excessive enough to outrage standards of decency, that led the Supreme Court of Canada in Smith to strike the offending section and to restore the discretion normally given to a court, which allows a judge to sentence an offender on an individual basis, taking into account the gravity of the offence, the personal characteristics of the offender, the circumstances of the case, and the principles of sentence which are now set out in s. 718 and 718.2 of the Criminal Code. . . . For s. 745(b) to apply, the offender has to have murdered a person after having been convicted of a prior murder. These basic criteria constitute a clear organizing principle and apply only to a narrow class of persons who have committed two extremely serious crimes with a high degree of moral turpitude and culpability. While there are many factual situations that can give rise to a second degree murder conviction, those basic factors remain constant. The requisite intention, that is, the subjective foresight of death, must be proven before there can be a conviction for second degree murder. A prior conviction for murder, for which the same intention must have been proven, is a prerequisite. The section therefore applies to such a narrow class of persons that it accords with the principle of individual gradation of sentences, assuming, as did the Supreme Court of Canada in Luxton, that that principle is incorporated in s. 7. . . . The application of s. 745(b) to the limited class of persons who meet its criteria is not unconstitutional in its effects. It follows a prior conviction for murder, and is in accord with valid penological goals and sentencing principles. The severe sentence is proportionate to the gravity of the repeated crime. Its limited application to a narrow class in strictly regulated circumstances does not result in arbitrary imprisonment or the deprivation of liberty contrary to the fundamental principles of justice. [32] One of the proposed hypothetical scenarios put forward by the defence before Madam Justice Humphries included: a person who is convicted of a second degree murder released on parole after ten years lives an exemplary life for 40 years and is convicted of another murder in unusual circumstances such as a suicide pact with an aging spouse. She said with respect to all the hypothetical scenarios offered by the defence that: With respect to the unusual situations postulated by the offender to demonstrate arbitrariness of effect, none are so likely, reasonable or plausible that the result of the application of s. 745(b) to them would render the section generally unconstitutional. [33] Humphries J. also said: There may be some extreme cases where a constitutional exemption is required, or where the section should be interpreted in such a way as to foreclose an unconstitutional result, but this is not one of them. The application of the section in the circumstances before this court is in accord with its purpose and the result is not disproportionate to the severity of the crime, which follows a prior conviction for second degree murder in 1990. [34] Although the proposed hypothetical scenario that I have outlined above does bear remarkable resemblance to the circumstances of Mr. Elton and Ms. Turcan, it does not mirror the circumstances exactly in that I found that Ms. Turcan was not attempting to commit suicide at the time and the evidence was not sufficient to conclude Mr. Elton was attempting suicide himself. [35] I agree with the Crown's submission that: Killing a spouse for mercy for their own good is contrary to many values fundamental to Canadian society. The Supreme Court of Canada has made clear the risks involved in mercy killing and indicated that in the face of that sort of killing the mandatory minimum will be respected. (R. v. Latimer, supra). [36] It is my conclusion that I am bound by the principle of stare decisis to accept the conclusion of Madam Justice Humphries that s. 745(b) of the Code does not violate s. 7 of the Charter. [37] Further, in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, the comments of Gonthier and Binnie JJ. at paras. 160 and 161 are apposite: Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12? We do not think so. To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesser degree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected "legal rights" set out in ss. 7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter. Such a result, in our view, would be unacceptable. Accordingly, even if we were persuaded by our colleague Arbour J. that punishment should be considered under s. 7 instead of s. 12, the result would remain the same. In both cases, the constitutional standard is gross disproportionality. In neither case is the standard met. [38] Mr. Elton submits the distinguishing feature of Falkner, supra, is the fact that at that time a constitutional exemption for the particular offender was available, although not applied in Falkner whereas since R. v. Ferguson, [2008] 1 S.C.R. 96, this constitutional exemption is no longer available to him. [39] I do not consider this to be a distinguishing feature for Mr. Elton's benefit. If he is entitled to a declaration of invalidity of s. 745(b), it matters not that he is not entitled to a constitutional exemption. [40] If he is not entitled to a declaration of invalidity, then he would not be entitled to a constitutional exemption either. [41] The challenge to the 25-year parole ineligibility period of s. 745(b) under s. 7 of the Charter is dismissed. [42] If I am in error that the decision in Falkner, supra, dictates this result on s. 7 in this case I conclude that it is unnecessary to further consider s. 7 as my conclusion on s. 12 will cover s. 7 as well. Submissions of Mr. Elton on Section 12 of the Charter [43] Mr. Elton submits that to impose a 25-year period before he is allowed to apply for parole for this offence would amount to cruel and unusual punishment of him, contrary to s. 12 of the Charter. He says he will be 78-and-a-half years old before being entitled to apply for parole, if the 25-year parole ineligibility period is imposed. [44] He acknowledges the law requires under s. 12 that a sentence of 25 years before parole eligibility must be considered so excessive or grossly disproportionate as to outrage standards of decency, and not simply be harsh, excessive, or demonstrably unfit before it can be said to constitute cruel and unusual punishment. [45] He submits the 25-year parole ineligibility period was intended by Parliament to be reserved for individuals with the greatest amount of moral blameworthiness, those who have committed the most heinous of crimes, either once or more, but not for those engaged in mercy or compassionate killings such as him. [46] Mr. Elton cites the decision of Chief Justice Bayda of the Saskatchewan Court of Appeal, in dissent in R. v. Latimer, [1995] S.J. No. 402 where he said he would have granted Mr. Latimer a constitutional exemption on the basis that Mr. Latimer was a devoted family man, devoted to his wife and children, and a loving, caring, and nurturing person with no criminal record and no risk to society. [47] Chief Justice Bayda found that: While the killing was a purposeful one, it had its genesis in altruism and was motivated by love, mercy, and compassion or a combination of those virtues. (para. 119). Mr. Elton submits these comments apply to him as well. [48] Mr. Elton acknowledges that he has a previous criminal record including his previous second degree murder conviction from 1977, and concedes that at one time he was entrenched in a criminal lifestyle. However, he submits that he put that lifestyle behind him as of 1995 for good and moved on to live a clean lifestyle, improve his education, marry Ms. Turcan in 2004, and care for each other until her death on June 22, 2009. [49] He submits again the Court should take into account the purposes and principles of sentencing in s. 718 of the Code, including that the sentence be proportionate to the gravity of the offence and the degree of the responsibility of the offender, and sentence him in accordance with those principles of sentencing. [50] Mr. Elton submits that he committed voluntary euthanasia by administering death to Ms. Turcan as per her wishes, although he concedes there is no specific or clear document in which she requested to be put out of her misery, or indicated a suicide pact with him, but he refers to various notes she left which indicated her desire to pass, her intention of leaving the world, and bidding farewell to those she loved. Several of her friends testified of her clear wishes to leave this world. [51] Considering his reformed character, he submits an automatic minimum 25-year parole ineligibility period pursuant to s. 745(b) without any consideration of all these circumstances and without any opportunity for a 15-year "faint hope" review, or for a constitutional exemption, would result in a grossly disproportionate sentence that would outrage standards of decency and result in cruel and unusual punishment of him. [52] He also submits that the same set of facts could make out the charge of aiding suicide or murder in the context of a mercy killing and for that purpose relies upon the decision of R. v. Kirk, [2006] O.J. No. 5292 where the accused pleaded guilty to the offence of aiding suicide in circumstances where his wife wished to end her life. When the time came, her husband placed her in the bathtub and filled the tub with water and she drowned. [53] It is submitted on those facts the accused could have been found as having caused his wife's death and intended that death for compassionate reasons and yet was allowed to plead guilty to aiding suicide. [54] Mr. Elton submits it is not necessary in the circumstances to construct hypotheticals to demonstrate that in his circumstances the 25-year parole ineligibility period under s. 745(b) would be grossly disproportionate and outrage standards of decency. However, if that comparison is considered to be necessary then he points to the hypothetical examples used in R. v. Falkner, supra, that he submits will suffice including the one hypothetical that comes close to his circumstances here. Submissions of the Crown [55] The Crown submits that murder being the most serious offence set out in the Criminal Code, a second murder by the same offender would presumably occur while that offender already has an appreciation for the gravity and moral blameworthiness of the offence from the committal of the first murder. [56] As both murders require a life sentence to be imposed and it is impossible in Canada to order consecutive life sentences, it is submitted the only way that Parliament can express the principle of moral blameworthiness for the second murder and express the principles of denunciation, deterrence, retribution and prevention, is to increase the parole ineligibility period as it did in s. 745(b). [57] It is submitted that this increase in parole ineligibility period for Mr. Elton may be severe, but it is not grossly disproportionate so as to infringe s. 12 of the Charter. [58] In R. v. Latimer, supra, at para. 73 it was said by the Court: This Court first interpreted s. 12 of the Charter in R. v. Smith, [1987] 1 S.C.R. 1045, where Lamer J. (as he then was) adopted the standard articulated by Laskin C.J. in Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, as the starting point for the s. 12 scrutiny. Specifically, Lamer J. stated at p. 1072: The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. [59] The Crown cites Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 where Cory J. at para. 80 said: It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter. [60] In R. v. Latimer, supra, at para. 77 it was said: In emphasizing the deferential standard for the s. 12 review, this Court has repeatedly adopted the following passage from R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont. Dist. Ct.), at p. 238, per Borins Dist. Ct. J. (cited at Smith, supra, at p. 1070; Luxton, supra, at p. 725; Goltz, supra, at p. 502): It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. [61] The Crown points out that the Court must give deference to Parliament and not hold "Parliament to a standard so exacting, at least in the context of s. 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender." (R. v. Lyons, [1987] 2 S.C.R. 309 at para. 82.) [62] The Crown submits that it is for Parliament to identify the moral turpitude of the offender and the malignity of the offence, and the enhanced parole ineligibility period established by Parliament in s. 745(b) is not, it is submitted, standing alone, grossly disproportionate. [63] The Crown submits that s. 12 cannot reasonably be read to mean that a sentence that is not otherwise grossly disproportionate becomes grossly disproportionate simply because Parliament has an alternative to the one it chooses. If that were the case, it is submitted no mandatory minimum term of imprisonment or parole ineligibility would withstand constitutional scrutiny. [64] Citing R. v. Morrisey, [2000] 2 S.C.R. 90 the Crown submits that in determining whether a sentence meets the threshold of gross disproportionality, the court must examine all relevant contextual factors which includes the requirement to examine the gravity of the offence, the personal circumstances of the offender, and the particular circumstances of the offence to determine whether the impugned sentence would appropriately address the applicable sentencing objectives of the Criminal Code. [65] Again from Morrisey, supra, the Court must also consider the actual effect of the punishment on the offender, the penological goals in sentencing principles upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed and the comparison of punishments imposed for other crimes. Not all of the factors will necessarily be relevant in each case nor will the presence or absence of any one of them be determinative of the question of gross disproportionality. [66] With respect to the gravity of this offence, the Crown cites Morrisey, supra, that provides that an assessment of the gravity of the offence requires an understanding of the character of the offender's actions and the consequences of those actions. [67] Again citing Morrisey, supra, the Crown submits there are two aspects to a s. 12 analysis. The first aspect is an individual or particularized inquiry which focuses on the individual circumstances of the offender. Where a sentence is grossly disproportionate to an individual offender, then a prima facie violation of s. 12 is established and the Court should go on to consider whether the infringement can be justified under s. 1 of the Charter. The second aspect arises where a sentence is not grossly disproportionate for the individual offender. In those circumstances, the Court must nevertheless go on to consider whether a breach of s. 12 arises from "reasonable hypothetical circumstances" advanced by the offender. The "reasonable hypotheticals" must be examples that "could commonly arise in day-to-day life". They should not be "far-fetched", "marginally imaginable" or "remote or extreme examples." [68] The Crown submits the gravity of the offence of all murders, regardless of degree, is reflected in the fact they are punishable by a minimum sentence of life imprisonment. [69] Quoting from R. v. Arkell, [1990] 2 S.C.R. 695 the Crown cites a portion of that judgment at para. 10 that says: Therefore, when we reach the stage of classifying murders as either first or second degree, we are dealing with individuals who have committed the most serious crime in our Criminal Code, and who have been proven to have done so with the highest level of moral culpability, that of subjective foresight. [70] In R. v. Latimer, supra, at para. 84 it was said: However, even if the gravity of second degree murder is reduced in comparison to first degree murder, it cannot be denied that second degree murder is an offence accompanied by an extremely high degree of criminal culpability. In this case, therefore, the gravest possible consequences resulted from an act of the most serious and morally blameworthy intentionality. It is against this reality that we must weigh the other contextual factors, including and especially the particular circumstances of the offender and the offence. [71] In Latimer, supra, a father was charged with first degree murder of his 12-year-old daughter who had a severe form of cerebral palsy. She was quadriplegic and her physical condition rendered her immobile and she was said to have the mental capacity of a four-month-old baby. [72] He committed this murder through the insertion of a hose from his truck's exhaust pipe into the cab, whereby the child died from carbon monoxide poisoning. [73] He was convicted of second degree murder and sentenced to life imprisonment with a ten-year parole ineligibility period. He sought a constitutional exemption from the mandatory minimum sentence for second degree murder on the basis such a sentence would be cruel and unusual in the circumstances but the Supreme Court of Canada denied him this relief as had the Saskatchewan Court of Appeal in its majority. [74] On consideration of the particular circumstances of the offender and of the offence, R. v. Morrisey, supra, at this stage says that aggravating and mitigating circumstances are to be considered. [75] The Crown submits the first and most significant aggravating feature is that Mr. Elton has already been convicted and sentenced previously for another murder and as a repeat offender should bear a very specific and high moral blameworthiness which is captured by s. 745(b) of the Code. [76] The Crown submits other aggravating features of the circumstances of the offence include the murder to his wife as a significant breach of trust, the offence was a considered deliberate decision on his part and in no sense spontaneous or part of any suicide attempt by Ms. Turcan, in order to end her life he had to engage in the persistent conduct of strangling and then stabbing her, neither can be considered as compassionate methods for inflicting death but rather represent considerable violence, her poor health put her in a position of vulnerability that he took advantage of, and he has other previous convictions for violence including robbery and break and entry. [77] Mitigating factors accepted are that Mr. Elton and Ms. Turcan were at all times in a loving relationship, he has considerable regret or remorse over her death, and he had not been convicted of any criminal offences for a number of years prior to this offence, although it is submitted that can be expected to some extent by the fact that he was under a previous life sentence for murder with no immediate risk to the public. [78] It is also accepted as relevant to consider the nature and condition of the sentence, the duration of the sentence, the availability of escorted absences, and the possibility of day parole and full parole. [79] The Crown concedes that being convicted of a second murder, Mr. Elton is not eligible to apply for judicial review of the "faint hope" clause under s. 745.6(2) of the Code. As a result he will be required to serve 25 years before being eligible to apply for full parole and he will not be eligible to apply for day parole or unescorted temporary absences until three years prior to parole eligibility. In calculating his parole eligibility period he is entitled to credit for his time in pre-trial custody but he may only be released earlier than provided for if he is terminally ill. [80] On balance the Crown submits that the aggravating factors outweigh the factors in mitigation and the serious gravity of the offence is not outweighed by the particular circumstances of Mr. Elton. [81] The Crown submits that the enhanced period of parole ineligibility is consistent with the penological goals and sentencing objectives upon which the period of parole ineligibility is fashioned. [82] It is submitted Parliament has fairly determined that to treat a second conviction in the same manner as a first conviction will not achieve the penological goals. A lesser period of parole ineligibility is not an equally valid alternative. [83] The Crown cites R. v. Shropshire, [1995] 4 S.C.R. 227 where the Court recognized the objectives of deterrence, denunciation and retribution as important elements of sentence policy proportionately achieved by the parole ineligibility range established by ss. 745(c) and s. 745.4. There it was said that lengthened periods of parole ineligibility could reasonably be expected to deter some people from re-offending and Parliament's purpose in adding a minimum period of parole ineligibility to a life sentence is to deter and denounce crime. [84] The Crown points out that in R. v. Latimer, supra, the Court said it was mindful of the important role that the mandatory minimum sentence plays in denouncing murder, and the Crown submits that this applies equally to the parole ineligibility period of s. 745(b). [85] The Court in Latimer at para. 86 quoted from R. v. M. (C.A.), [1996] 1 S.C.R. 500, where it was said that: The objective of denunciation mandates that a sentence should communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic Code of values as enshrined within our substantive criminal law. [Emphasis in original.] [86] The Crown submits that an increased penalty for subsequent offending is a well-accepted principle of sentencing, reflected statutorily in other offences where a second or subsequent offence attracts greater punishment, as well as in the common law of sentencing where prior offending conduct is considered relevant to factors such as the need for deterrence, prospects for rehabilitation, need to protect the public, and principles of denunciation and retribution. [87] The Crown submits that Parliament has always viewed a conviction for murder as the most heinous and egregious for sentencing purposes. Murder has the highest moral culpability known to law and it is submitted 25 years for parole ineligibility for a second murder conviction is coherent with the purposes of the Criminal Code. [88] It submits that a repetition of murder requires stronger penal measures both to achieve sentencing objectives such as protection of the public and deterrence but also to reflect society's expression of denunciation and retribution. [89] The Crown submits the proportionality focus, and organizing principle, under s. 235 and s. 745(b) of the Code is on the offender's moral culpability, which is increased as a result of the offender having a prior conviction for murder. The Crown submits the increased parole ineligibility period under s. 745(b) is not to re-punish the offender for the first murder but relates primarily to the enhanced moral culpability that imbues to the offender for committing the second murder. [90] The Crown submits the fact of a prior conviction and life sentence infuses the offender with aggravated culpability because he has killed before; he knows the consequences of his acts from a physical, social, legal and moral perspective, yet he kills again with a subjective intention to do so. [91] The Crown points out that even under s. 745(4), one murder can bring about a 25-year parole ineligibility period and the Crown submits the enhancement in the parole ineligibility period from a sentence for a first conviction for second degree murder to a second conviction for second degree murder is neither arbitrary nor irrational because there is a vastly increased moral blameworthiness of the offender having been proven beyond a reasonable doubt for a second time of subjectively intending to kill. [92] Reference is made to the judgment of Humphries J. in R. v. Falkner, supra, where it was said the moral blameworthiness of a second murder following a conviction for a prior murder is enhanced. [93] It is submitted the enhanced parole ineligibility period is necessary for deterrence, denunciation, and retribution objectives. Denunciation condemns conduct and retribution reflects the moral blameworthiness of the offender which stems from the offender's purposeful taking of a life, the intentional violation of the victim's and society's rights, with the knowledge of the sanctity of life having been brought home to the offender by his previous murder conviction and the life sentence he received for that previous murder. It is submitted common sense suggests the need for deterrence of second time killers is higher than first time killers while rehabilitation is substantially less important. [94] When this context is properly understood, it is submitted the distinction in parole ineligibility periods between the sentence for a first conviction for second degree murder and a second conviction for second degree murder is neither arbitrary nor irrational. The organizing principle is the vastly increased moral blameworthiness of the offender, having been proven beyond a reasonable doubt for a second time of subjectively intending to kill and is clearly linked to the necessity of increased parole ineligibility to fulfil sentencing principles and objectives. [95] It is submitted that there is no principle of fundamental justice that prevents Parliament from classifying a murder committed by a person with a prior conviction for murder as being more serious and attaching a more serious penalty. It is submitted that Parliament has deemed a prior conviction for murder as an aggravating feature, attributable in no small part to its effect on the moral culpability of the offender, warranting a parole ineligibility period for the second murder equal to that of a first murder. Some murderers are so threatening to the public that Parliament has chosen to impose exceptional penalties on the perpetrators. People who sequentially commit more than one murder are such perpetrators. It is submitted through their acts they have demonstrated a repeated disregard for both the sanctity and fundamental right to life of others and also a disregard for the legal and social frameworks that establish the lives of others as invaluable. [96] There is proportionality between the blameworthiness of the offender and the punishment and it is consistent with the individualization of sentencing since it only applies to the relatively small group of those who have killed with subjective foresight of death, having been convicted on another occasion previously for murder and punished with a mandatory life sentence. Reference is again made to the judgment in R. v. Falkner, supra, for this statement. [97] The Crown submits there is a distinction from multiple coincidental second degree murders that are not subject to the s. 745(d) parole ineligibility, but rather have the usual scale of parole ineligibility between ten and 25 years set out under s. 745.4. Crown submits this distinction is appropriate as the multiple coincidental murderer at the time of sentencing does not have a previous conviction while the second time offender as in the case of Mr. Elton is one for whom guilt has previously been established and the offender is not before the Court as a first offender. [98] The Crown responds to Mr. Elton's suggestion that his loss of the "faint hope" clause under s. 745.6, because he is a second time offender of murder, is also to be considered under s. 12 as a factor of cruel and unusual punishment. The Crown says that this decision by Parliament was a policy decision that included consideration of some of the principles of sentencing. [99] Crown also relies upon the decision of the Ontario Supreme Court in R. v. Hunter, [2009] O.J. No. 3174 where it was said at para. 8: The early parole of multiple murderers is likely to bring the administration of justice into disrepute. For that reason the Criminal Code was amended effective January 9, 1997 to preclude applications of this type under s. 745.6(2) of the Criminal Code. [100] R. v. Hunter, supra, was a case in which the offender committed one murder on January 21, 1986 followed by a second murder for which he was sentenced to life imprisonment again on May 17, 1991. [101] In R. v. Cliff, 2011 BCSC 1177 Mr. Justice Ehrcke of this Court at para. 55 added this: Because Mr. J.M.C. is being sentenced for two murders, not one, s. 745.6(2) provides that he will not be eligible to apply for a reduction in his period of parole ineligibility, the so-called "faint hope" clause. I do not consider that to be a circumstance that should reduce or mitigate what would otherwise be a fit period of parole ineligibility. I agree with the comments of Cameron J.A. in Cousins at para. 32: [32] The appellant argues that the inapplicability of the faint hope clause should mean a lesser period of ineligibility for parole. It would be tantamount to undermining the intention of Parliament, if one were to arrive at an appropriate level of punishment and then reduce it because Parliament had decreed that the offender could not take advantage of the faint hope clause. [102] The Crown submits that Parliament clearly viewed that the "faint hope" clause would contradict the sentencing objectives of s. 745(b) and thus its inclusion would not be a viable alternative. [103] To provide the Court with some guidance, the Crown cites a number of domestic murder cases where the parole ineligibility periods imposed were significantly more than ten years and as well multiple murder cases where the offenders were sentenced for more than one murder at the same time and the parole ineligibility periods were still in the order of 20 to 25 years. [104] As to the finding that I made that this was a mercy killing by Mr. Elton to put Ms. Turcan out of her ongoing suffering, the Crown submits the concern for the risk of wrongful death in assisting suicide has increased many fold for the vulnerable victims of such "mercy killings" because of the absence of verifiable, objective indicia that the victim's death was a result of their personal choice both as to the act and the timing of it. It is submitted was the situation here where Ms. Turcan did not seek Mr. Elton's mercy. Rather he presumed that when he was wrong as Ms. Turcan was not attempting to commit suicide. [105] The Crown submits that while the Crown referred to it as a "mercy killing", there was nothing painless or quiet or easy about Ms. Turcan's death and the killing does not fit the definition of voluntary euthanasia because there is no evidence that Mr. Elton caused her death as her wish when the Court has found that she was not attempting to commit suicide at the time. [106] At most, it is submitted this was involuntary euthanasia performed against the wishes expressed by Ms. Turcan or non-voluntary euthanasia performed without knowledge of her wishes. [107] The Crown submits it is for this reason that crimes against vulnerable individuals are considered an aggravating factor and warrant increased punishment, to protect the vulnerable, to deter both specifically and generally those who would victimize the vulnerable and to denounce such conduct. [108] The Crown submits that the circumstances of this murder were so brutal that even absent the mandatory minimum of parole ineligibility of ten years, a parole ineligibility period in excess of 20 years would have been in order. [109] The Crown points out once again that the sentence must be so excessive as to outrage standards of decency and be disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable. Given that Mr. Elton has now been found guilty of murder on a second occasion, the Crown submits 25 years parole ineligibility is neither so excessive as to outrage the standards of decency nor one that Canadians would find abhorrent or intolerable. [110] In considering the hypothetical that Mr. Elton has suggested that is close to the circumstances of his murder of Ms. Turcan, the Crown submits that the circumstances of this hypothetical are too close to the circumstances of Mr. Elton and should not be considered as hypothetical separately from Mr. Elton's circumstances in the death of Ms. Turcan, for that reason. [111] The Crown also disagrees that this is an inappropriate hypothetical to consider as killing a spouse for mercy for their own good is contrary to many values fundamental to Canadian society. [112] As to the second hypothetical proposed by Mr. Elton of a person who is convicted of second degree murder when constructive murder was still available (prior to R. v. Martineau, [1990] 2 S.C.R. 633) and was subsequently convicted of another murder and therefore bound by s. 745(b) even though the first conviction did not meet the constitutional standard for the degree of culpability required to support the validity of the legislation, the Crown submits that this hypothetical is no longer a reasonable one because it is not one that can commonly arise in day-to-day life since constructive murder is no longer available and since those offenders who were convicted of second degree murder when constructive murder was still available have undoubtedly succeeded on appeal because of R. v. Martineau and probably have all cleared the criminal system by now. [113] The third reasonable hypothetical proposed by Mr. Elton to support his claim that application of s. 745(b) would constitute cruel and unusual punishment under s. 12 is a young offender who commits murder and is sentenced to life imprisonment with a five to seven year parole ineligibility period will be bound by s. 745(b) for a second murder. [114] Under s. 745.1 of the Criminal Code, it states: The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served (a) such period between five and seven years of the sentence as is specified by the judge presiding at the trial, or if no period is specified by the judge presiding at the trial, five years, in the case of a person who was under the age of sixteen at the time of the commission of the offence.... [115] For that sentence to be pronounced the Crown submits it must have been decided that a youth sentence was not of sufficient length to hold the young person accountable and was displaced by this adult charge under the Criminal Code. [116] In that circumstance, if the offender commits a second murder, it is submitted the offender will either at that time be an adult in custody or on parole for the previous adult sentence imposed on him and the Crown submits that it would not be grossly disproportionate for that offender to be subject to the increased period of parole ineligibility of s. 745(b). [117] As to the reliance on R. v. Kirk, supra, as being either assisting suicide or murder, the Crown submits that while Mr. Kirk filled the bathtub, his wife genuinely committed suicide by various voluntary actions including the weakening of herself with carbon monoxide poisoning, placing herself in the tub, and slashing her wrists as well as apparently taking a drug overdose. [118] The Crown submits that Mr. Elton's challenge to s. 745(b) as violating s. 12 of the Charter should be dismissed. [119] Alternatively, the Crown submits that if the Court should agree with s. 745(b) violates s. 12 of the Charter, prior to declaring s. 745(b) to be inconsistent with the Charter under s. 52 of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (UK), 1982, c. 11, the Crown requests an opportunity to consider its position under s. 1 and the potential calling of evidence in that regard. [120] Further, in that circumstance the Crown submits there are a variety of remedies that are available under s. 52 of the Constitution Act including but not limited to striking the legislation down with immediate or delayed effect, reading down or reading into the legislation, or limiting the application of the legislation in a particular way. In all of these regards, the Crown requests an opportunity to consider its position as well with respect to remedy and to make submissions in that regard. Analysis and decision [121] Mr. Elton focuses on my comments about this being a mercy killing to support his submission that the 25-year parole ineligibility period would be disproportionate to his particular circumstances and the circumstances of the offence and constitute cruel and unusual punishment. He submits it would only be appropriate for his sentencing to take into account the principles of sentencing under s. 718 of the Code and institute a parole ineligibility period in accordance with s. 745.4. [122] On consideration of his particular circumstances, he submits that he was only trying to help Ms. Turcan and her ongoing suffering as he considered she was commencing to end her life on her own. [123] While in my view this was a mercy killing on the part of Mr. Elton as his motive or intention, there are some features of the circumstances of Ms. Turcan's death that need to be further examined. [124] In the first place, this was not voluntary euthanasia as per her wishes, as Mr. Elton has submitted. There is no evidence Ms. Turcan asked Mr. Elton to do this to her. His motive may have been understandable but his method of achieving that was a violent murder. [125] Even if she had asked him to kill her, he could not have done this as a matter of law because it would still have constituted murder, and she, as a matter of law, could not have consented to her own murder. [126] Mr. Elton says he considered that Ms. Turcan had started to commit suicide and he was going to finish it. [127] His explanations for not letting her complete her suicide, if that is what he thought she was doing, are questionable. [128] He says he did not let her complete her suicide because he did not think that they had much time, the pharmacist was coming, although he had to be buzzed in, and it would have been totally uncharacteristic to simply ignore the pharmacist. [129] In my view, if he honestly thought that Ms. Turcan had started the process of suicide, he had no reason to speed it up by stabbing and strangling her and causing her death himself. If the pharmacist rang the buzzer, he could simply have ignored it to allow Ms. Turcan to complete her suicide. [130] If he had a suicide pact with her, as he says, his responsibility under the pact was to commit suicide himself. [131] However, the amount of drugs found in his body leaves great doubt that he was attempting to commit suicide himself. [132] While I do not question his motive or intention in causing the death of Ms. Turcan, I have to question whether he just took it upon himself to decide her fate. [133] Compassionate grounds are not a valid basis for declaring a sentence mandated by an act of Parliament to be cruel and unusual punishment. (R. v. W. (L.W.) (1998), 125 C.C.C. (3d) 43 at p. 59). [134] As to the various notes of Ms. Turcan in evidence indicating the desire to pass and bidding farewell to people, I do not consider these notes to be sufficient evidence to indicate that she intended to commit suicide when Mr. Elton stabbed and strangled her. [135] It is impossible to know how sincere Ms. Turcan was about ending her life when she wrote these notes but even if she was sincere at that time, she had not taken steps to do that when Mr. Elton caused her death. [136] The right to life of everyone is inviolate in the absence of a law that takes it away. [137] In R. v. Latimer, supra, at para. 41 the Court said: ... The harm inflicted in this case was ending a life; that harm was immeasurably more serious than the pain resulting from Tracy's operation which Mr. Latimer sought to avoid. Killing a person -- in order to relieve the suffering produced by a medically manageable physical or mental condition -- is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition. [138] These comments in my view are apposite to the conduct of Mr. Elton in the death of Ms. Turcan. [139] Taking into account all the aggravating factors as set out by the Crown, including Mr. Elton's previous record for murder and as well the violence he committed in the murder of Ms. Turcan, I do not consider the enhanced period of 25 years for his parole ineligibility to be so disproportionate as to constitute cruel and unusual punishment in all the circumstances. It may be severe but it is not grossly disproportionate so as to infringe s. 12 of the Charter. [140] To a considerable extent this result under s. 12 and under s. 7 has been determined by Madam Justice Humphries already in R. v. Falkner, supra, in her conclusions under s. 7. [141] In her analysis, she said it was difficult to consider the effects test in the penal context without lapsing into a consideration of s. 12 that the basic criteria for s. 745(b) to apply is that the offender has murdered a person after having previously been convicted of a prior murder constitutes a clear, organizing principle and applies only to a narrow class of persons who have committed two extremely serious crimes with a high degree of moral turpitude and culpability. [142] She went on to say that while there are many factual situations that could give rise to a second degree murder conviction, those basic factors remain constant. The sentence applies to such a narrow class of persons that it accords with the principle of individual gradation of sentences and is in accord with valid penological goals and sentencing principles as well as proportionate to the gravity of the repeated crime. [143] These comments apply equally to the consideration of s. 745(b) in my view under s. 12 as I expect she probably thought as well. [144] A second degree murder conviction carries with it a high level of moral culpability and a second murder conviction carries with it an enhanced moral culpability that justifies an increased period of parole ineligibility. [145] This completes my particularized enquiry which does not give rise to a prima facie violation of s. 12. [146] I turn next to the hypotheticals offered by Mr. Elton to determine whether s. 745(b) is grossly disproportionate as evidenced by these hypotheticals. [147] The first hypothetical is so close to the circumstances of Mr. Elton and the death of Ms. Turcan that I do not consider that to be a proper hypothetical to consider separately. [148] The second hypothetical is no longer a reasonable hypothetical to consider now that constructive murder has been eliminated. [149] The third hypothetical may still be possible but my conclusion is the same as the Crown, that when sentenced as an adult in the first place and having been convicted of a second murder while an adult, regardless of his or her young age, s. 745(b) should apply to the second murder conviction. [150] The declaration sought that pursuant to s. 52 of the Constitution Act and s. 745(b) of the Criminal Code is unconstitutional as being contrary to or inconsistent with ss. 7 and 12 of the Charter, is dismissed. [151] Finally with respect to R. v. Kirk, supra, cited by Mr. Elton, although in that case it was found that the husband filled the bathtub with water, the Court in its judgment only said it was with his assistance that his wife drowned in the bathtub shortly thereafter. [152] This leaves uncertain whether he pushed her head under water and held it there or whether she held it there on her own. [153] As a consequence, it is not clear to me that the circumstances would have amounted to murder. "Truscott J."