R. v. Ramsay

2016 BCSC 1207 R. v. Ramsay IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ramsay, 2016 BCSC 1207 Date: 20160422 Docket: 63986‑2 Registry: Chilliwack Regina v. Walter Joseph Ramsay Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(2) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice N. Brown Oral Reasons for Sentence Counsel for the Crown: R.D. Macgowan Counsel for the Accused: P.S. McMurray Place and Date of Trial/Hearing: Chilliwack, B.C. April 7, 2016 Place and Date of Judgment: Chilliwack, B.C. April 22, 2016 [1] THE COURT: The accused, Walter Joseph Ramsay, is before the court for sentencing following his plea of guilty to the second degree murder of Ms. E.A. He had originally been charged with first degree murder. The mandatory sentence for either first or second degree murder is life imprisonment. [2] Mr. Ramsay has also pleaded guilty to the attempted murders of Ms. E.A.'s children ("I.L." and "J.L."). Counsel agree the sentence for attempted murder should run concurrent with the sentence for first degree murder. Crown submits the sentence of life imprisonment is fitting on the attempted murder charge; or alternatively, a sentence of at least 15 years. [3] Defence counsel submits a sentence of 12 to 15 years for the attempted murder counts are appropriate. AGREED STATEMENT OF FACTS [4] Counsel presented an agreed statement of facts pursuant to s. 724(1) of the Criminal Code, R.S.C. 1985, c. C-46. I will distil or read some significant portions of it as part of my reasons. When these oral reasons are reduced to writing eventually, I may make some redactions and shorten where necessary. STATEMENT OF FACTS Background Identities of the Victims [5] I should note, as well, that the written reasons will be privatized. [6] The victim, Ms. E.A., was born [D.O.B.], 1982, and died April 17, 2015. She was 33 years of age. [7] Ms. E.A. had two children born from a relationship with Mr. M.L.: I.L., aged 11; and J.L., aged nine. Both children resided with Ms. E.A. at the time of her death. In April 2015, Ms. E.A. and her two children resided in a mobile home, sometimes referred to as a trailer, located in a rural part of Mission, British Columbia. Relationship between the Victims and the Accused [8] The accused is 43 years of age. On April 17, 2015, he lived at a residence on Nicomen Slough Road in the community of Desroches, B.C., along with his three children from a relationship with a Ms. R.L., now deceased. Those children are aged 11, 15, and 16. [9] Ms. E.A. and the accused began a romantic relationship in about the spring of 2008. Shortly thereafter, the accused moved in with Ms. E.A. and her children. I.L. and J.L. both came to refer to the accused as their stepfather. [10] In 2011, after the death of Ms. R.L., the accused received custody of his own three biological children, who then also moved into the victim's mobile home, where they resided as a family unit together with Ms. E.A., I.L., and J.L. [11] The accused was described as being strict with both his and Ms. E.A.'s children and being a "screamer", though there is no indication he was previously violent towards I.L. and J.L. [12] In about the summer of 2013, the accused and Ms. E.A. broke up and the accused and his three children moved out of the mobile home. The accused told people that Ms. E.A. had "cheated on him". Nevertheless, according to persons who knew both individuals, after the breakup the accused and Ms. E.A. maintained an off‑again/on‑again relationship of a sexual nature. [13] In addition, according to several people who knew both the accused and Ms. E.A., the accused was fixated on or obsessed with her. [14] Shortly before her murder, Ms. E.A. told Ms. L.L., the sister of I.L. and J.L.'s father, Mr. M.L., that she, Ms. E.A., wanted to try to reconcile with Mr. M.L. for the sake of their children. Ms. E.A. told Ms. L.L. that someone, who she did not name, was not happy about this. [15] In about February 2014, Ms. E.A. began working at a cedar mill where the accused also worked. According to several acquaintances of the accused, he repeatedly expressed his dislike of the fact that Ms. E.A. had begun working there, stating to one individual that he felt that he could not work there any longer because of this; and to another, that he thought he might be fired because of the problems he was having working with her. [16] The accused was described by many who knew him as an alcoholic. At the time of the offences, the accused was an abuser of painkillers, namely Percocet. Cell phone communication between Ms. E.A. and the Accused: April 1-16, 2015 [17] As part of their investigation into Ms. E.A.'s murder, police obtained a production order for the call and text message logs pertaining to the cellular telephone of the accused for the period of April 1 to 17, 2015. These records were analyzed to determine if there was a record of communication between Ms. E.A.'s cellphone number and the cellphone belonging to the accused during that period. This analysis revealed 130 such communications via voice call or text message. The last record of a phone call taking place between the two cellphones was on April 10, 2015. [18] From the period April 12 to April 14, 2015, there were 25 outgoing text messages sent from the accused's cellphone to Ms. E.A.'s cellphone, and no incoming text messages sent from her cellphone to the accused's cellphone. [19] For April 15, 2015, there were no communications between the two cellphones. On April 16, there was one text message sent from the accused's cellphone to Ms. E.A.'s cellphone at 17:40:31 hours, which is 5:40 p.m., and no text messages from Ms. E.A.'s cellphone to the accused's cellphone. Background Events of Thursday, April 16, 2015 [20] In April 2015, the accused did not hold a valid driver's licence. It had been suspended due to an immediate roadside prohibition. The accused owned a motor scooter which he used for transportation. [21] On April 16, 2015, the accused attended a local pub in Mission, after finishing work at the saw mill, as was his usual habit. After consuming one beer, he departed on his motorcycle at approximately 4:15 p.m. [22] After finishing work, Ms. E.A. went out for dinner with her friend, neighbour, and co-worker, Ms. P.S., along with I.L., J.L., and Ms. P.S.'s daughter. Upon returning home, Ms. E.A. spoke on the telephone with Ms. P.S., until approximately 9:00 p.m. In his statement to police, J.L. recalled that he went to bed around 9:00 or 10:00 p.m. that night. THE OFFENCES [23] Sometime after 3:00 a.m. on Friday, April 17, Ms. P.S. awoke to banging at her front door. She opened the door to find I.L. and J.L. there. I.L. was severely burned and her wrists were bound together with plastic "zap straps". There were markings left by other zap straps around her ankles and a towel was tied tightly around her neck. The side of I.L.'s face was bruised and swollen. J.L. appeared unharmed. [24] The children were screaming that their house was on fire and that their mother was still inside. Leaving I.L. and J.L. in the care of her daughter, Ms. P.S. rushed to E.A.'s trailer and tried to get inside, but could not do so due to heat and smoke. She returned to her residence and had her daughter call 9‑1‑1, which call was placed at 3:14 a.m. [25] Emergency personnel arrived on the scene shortly thereafter to find Ms. E.A.'s trailer engulfed in flames. Several neighbouring residences had to be evacuated. Due to the severity of the fire, no attempt at entering the residence could be made by Emergency personnel until the fire was contained and extinguished. [26] The fire destroyed much of the residence. Photographs (along with a diagram) showing the residence were tendered as exhibits at the sentencing submission hearing. [27] Once the fire was out and entry to the residence could be safely made, investigators located Ms. E.A.'s remains in the living room area of the residence, between the master bedroom and the front door. A partially burned piece of cloth with knots was found near the right hand and head of Ms. E.A., another piece of burned cloth was found wrapped around her ankles. A burned zap strap was found around her right wrist. In the master bedroom, investigators found evidence of a significant amount of blood on the bed. [28] A forensic examination of the trailer was undertaken by both Corporal Jeffrey Jackson, an RCMP officer with experience and training in arson investigations; and investigators with the Office of the Fire Commissioner ("OFC"). Reports on their respective findings were prepared and each of these reports was tendered as exhibits on this sentencing hearing. I have read both of them. [29] In short, Cpl. Jackson determined the cause of the fire to be "incendiary", meaning deliberately set. He identified the "area of origin" of the fire as the kitchen and living room area of the residence. From the observable burn patterns, Cpl. Jackson opined that some type of accelerant was used, likely by being spread on the floor. The OFC Report identified the probable "areas of origin" to be the outside front stairs/landing, mudroom, kitchen table area, and sunroom. [30] Neither of the two investigations pinpointed a specific "point of origin". The OFC Report notes burn patterns (in particular, underneath the kitchen table) as indicative of a "pooling shape consistent with a flammable liquid fire" and that the burn patterns overall were "consistent with patterns found where liquid accelerants have been used to accelerate fire growth and spread". The OFC concluded the fire was a result of arson. Police Interview of the children [31] In interviews conducted in the early morning hours of April 17, the children, I.L. and J.L., told police what had occurred in the residence. [32] I.L. told the police the following: a) She was asleep in her bedroom when she awoke to the sounds of her mother screaming for help. She got up and went to her mother's room. Initially she did not see anything, explaining that her vision was blurry from being awoken. She started to go back to her room, but then thought better of it and returned to her mother's room. b) She stood in the doorway of the master bedroom and saw her mother being pinned to the bed by the accused, who was wearing pants and a sweater. The accused was hitting her mother with what she described as a hammer or mallet. There was blood "everywhere", including on the ceiling. c) I.L. told the accused to stop what he was doing. She could not remember exactly what happened next, but recalls being struck by the accused with the mallet and ending up on the floor. The accused bound I.L.'s hands and feet with zap straps and placed her on the floor next to the bed, with a pillow over her face. When I.L. managed to free one of her hands from the zap straps, the accused rebound them. d) She could hear the accused calling her mother "a bitch" and saying, "I loved you." e) At some point, the accused picked I.L. up and placed her on the bed next to her mother. I.L. saw that her mother was also bound with zap straps. f) The accused placed blankets over I.L. and her mother, and told them if they screamed he would, "pound [their] heads in with a mallet". g) The accused left the room for a period of time, during which time I.L. and her mother stated their love for one another. h) The accused then returned and began setting the room on fire by some unknown means. i) After starting the fire, the accused said, "I'll see you in hell" and left the room. j) After the accused departed, I.L. and her mother got up from the bed and started to "panic as they tried to get out. Her mother opened a window and started beating the flames with a blanket. k) I.L. managed to remove the zap straps from her own ankles. J.L. then came and opened the bedroom door. l) I.L. and J.L. ran for the front door with their mother behind them. Their mother fell inside the living room, but I.L. could not help her as she felt she had to get her brother out of the burning house. m) The children ran to Ms. P.S.'s house to get help and remained there until police arrived. [33] J.L. told the police the following: a) He was asleep when he woke to the sound of his mother screaming. His sister, I.L., woke up too and went to their mother's room. J.L. went with her. The accused was beating his mother with what J.L. described as a rusty wooden hammer. J.L. thought he recognized it as a hammer the mother kept in the living room of the trailer. His mother was shouting for them to call the neighbours. J.L. went looking for a phone to call 9‑1‑1. He tried a phone, but it was dead. [34] He could hear both his mother and his sister screaming. J.L. was in I.L.'s room on the bed when the accused came in. J.L. rolled off the bed and saw the accused ripping the blankets off the bed. J.L. believed the accused was looking for him. The accused then stopped looking and left the room. J.L. saw the accused go back into his mother's room. [35] J.L. then saw smoke and went to the front door of his mother's room. He kicked the door, then opened it and saw that the room was on fire. His mother and I.L. came out of the room. He and I.L. ran for the front door, but his mother fell. He touched his mother's hand, which felt hot. He heard his mother say that she was going to vomit. He and I.L. then ran to the neighbour's house. [36] At the time he spoke to police, J.L. did not know what had happened to his mother. [37] The accused does not dispute the accuracy of I.L.'s and J.L.'s accounts of what happened in the residence. INJURIES AND CAUSE OF DEATH [38] J.L. was treated for smoke inhalation, but otherwise was physically unharmed. I.L. suffered second degree burns to approximately 12 percent of her body, mostly to her hands, forearms, and shoulders. She also suffered a contusion and swelling to the right side of her face. She spent five days in hospital and then numerous follow‑up appointments on an outpatient basis. [39] Physical surgery was considered for her burns; but ultimately none was performed. A photograph taken of I.L. at the hospital on April 17 that showed her injuries was tendered as an exhibit on the sentencing submission hearing. [40] An autopsy was performed on Ms. E.A.'s remains on April 22, 2015. Her body was badly burned. Soot was present in her lungs, indicative that she was alive for a time while the fire burned. The state of the body limited the post‑mortem examination; however, some evidence of blunt force trauma to the face was noted, including bruising and a suspected laceration, and some bleeding around the brain. The cause of death was identified as smoke inhalation. POST OFFENCE ADMISSIONS BY THE ACCUSED [41] I will comment briefly or speak briefly on what is referred to as post‑offence admissions and conduct by the accused. I will not include all the other agreed post-offence conduct details. Suffice to say they consist with the accused's responsibility for the offences committed. [42] After setting the trailer on fire with Ms. E.A., I.L., and J.L. inside, the accused left the scene on his motorcycle. He pulled into a driveway of a nearby residence where he was seen by the homeowner there. This witness described the accused as appearing to watch the Emergency vehicles go by before driving off on his scooter. Several of the firefighters responding to the 9-1-1 call recalled seeing a male riding a motor scooter heading in the opposite direction. ARREST OF THE ACCUSED [43] On April 17, 2015 at approximately 12:30 p.m., approximately nine hours after the fire, members of the Police Emergency Response Team attended the accused's residence on Nicomen Slough Road for the purposes of arresting the accused. Upon approaching the property, officers observed a male standing inside the residence. They then lost sight of this male as they approached the residence. Moments later, they observed the accused lying prone on the ground outside the residence, unconscious and unresponsive. It appeared that the accused had exited through a ground floor window and fallen immediately to the ground. No other persons were found on the property. [44] In a search of the property, the police located and seized the accused's motor scooter. Next to the motor scooter was a milk crate with zap straps attached to it. More zap straps were found elsewhere on the property. [45] Police also seized a motorcycle helmet belonging to the accused. Subsequent forensic testing revealed the presence of Ms. E.A.'s blood on the visor of the helmet. [46] The police also seized from the residence the accused's cellphone and later downloaded its contents. The content of various text messages sent and received by the accused in the days leading up to the murder was recovered as part of this download. However, none of the text messages from the accused to Ms. E.A. that were reflected in the telephone records could be located. [47] Police did locate on the cellphone a program that can be used to delete or "wipe" the content of text messages from a cellphone. It is believed that the accused had utilized this program to wipe the cellphone clean of his communications with Ms. E.A. leading up to her death. [48] The accused was taken to hospital where after regaining consciousness he was assessed and then released to police custody. He smelled strongly of alcohol and his blood‑alcohol content was determined to approximately 266 milligrams at 1419 hours, which is 2:19 p.m., on April 17, 2015. The accused's blood was also found to contain a high level of Oxycodone, a narcotic analgesic commonly contained in prescription drugs such as Percocet. [49] He had a laceration on his face and blood around his ear. The blood around his ear was subsequently tested and found to belong to Ms. E.A. [50] After being taken into police custody, an undercover officer was placed into a cell with the accused. During his interactions with the undercover officer, the accused did not speak about the murder, but did express concern the police would find and seize his motor scooter. [51] Police attempted to interview the accused. He declined to speak about the events at that time. BACKGROUND PROVIDED BY DEFENCE COUNSEL [52] The following information was submitted by defence counsel on behalf of Mr. Ramsay. The Crown took no position on the truth of the statements, as it was not possible to verify or contradict them with independent evidence; the only person who could fully do so was the victim. [53] Counsel for Mr. Ramsay pointed out that for most of his life, the accused had provided for his children and had been steadily employed. His life is not entirely defined by this horrific murder and its consequences. [54] He related the following additional information on behalf of the accused. [55] The accused was born in Sudbury, Ontario, living his childhood there in what counsel characterized as a hardscrabble existence. His mother is still alive, but he never knew his father. He was the youngest of six children. His childhood experience was immersed in alcoholism and physical abuse. His mother became involved in trafficking in marihuana to earn income. He came to British Columbia for a fresh start. [56] He had a common-law relationship, as we saw earlier, with the mother of his children. After they separated, he began a relationship with Ms. E.A. After the death of his former partner, he assumed custody of his own children; and as we saw earlier, they then began to live as one family with Ms. E.A. and the children of her former marriage, I.L. and J.L. [57] Mr. Ramsay owned a business for several years until he suffered serious injuries from a multiple motor vehicle accident. Then, while working as a roofer, he fell and broke his back. The motor vehicle accident and back injury occurred about two years before April 17, 2015. [58] Mr. Ramsay's injuries proved irreparable. Percocet was prescribed for pain. He became addicted to it. This allegedly contributed to the breakup of his relationship with Ms. E.A. [59] After the accused and Ms. E.A. broke up, they continued to be close. This is on Mr. Ramsay's account, just to clarify the source of the narrative. He left the roofing business and started to work at a saw mill in Mission. Mr. Ramsay advised Ms. E.A. still had feelings for him and he was not aware that she was still working out things related to her children with her former husband. Mr. Ramsay wanted to resume a relationship. He advised he still cared for Ms. E.A.'s children. He wanted to resume the blended family that they had before. [60] Turning now to the circumstances of Ms. E.A.'s murder, counsel advised Mr. Ramsay had lunch with Ms. E.A.in his car, parked at mill where they both worked. They agreed he would see her in her mobile home after work, as they had done other times. He would usually visit her after the children were in bed. [61] As for the zap straps, counsel advised the accused had carried out some alterations in the mobile home. He had removed a wall in the master bedroom, leaving some wires hanging, which Ms. E.A. had asked him to fix. The court was advised he had purchased some zap straps for that purpose of tying up loose electrical wires. I note in passing the zap straps police officers found in different locations in Mr. Ramsay's property at the time of his arrest. [62] He arrived on April 17, 2015, after the kids had gone to bed, bringing with him a 26‑ounce bottle of vodka. My note on this is not clear, but I understood he felt he had to tie up the electrical outlet wires. He consumed 16 to 20 ounces of vodka and some Percocet pills. [63] He stated he and Ms. E.A. went to bed, became intimate and while intimate Ms. E.A. mentioned her former spouse's name. Mr. Ramsay became angry. They argued. They threw things at one another, one of which struck him in the head. After that, he has little recollection of what happened. The blow, he said, stunned him. He does not dispute anything that happened after that point. [64] He said he started the fire using cooking oil he found at the scene. He denied taking anything with him. He left the home while it was in flames. He offered no excuse or explanation why he did not attempt to stop the fire, except that he was in a jealous rage and intoxicated. [65] He left the scene and later told his son he had just done something stupid, and then took his children to a friend's residence. He then continued to drink. VICTIM IMPACT STATEMENTS [66] I now turn to the victim impact statements. For the determining of the sentence to be imposed on an offender, s. 722 of the Criminal Code requires the court to consider any statement prepared in accordance with subsection (2) of that same section by a victim of the offence describing the harm done to or loss suffered by the victim from the commission of the offence. [67] A victim is a person who has suffered physical or emotional loss as a result of the commission of the offence: s. 722. The court was presented with victim impact statements that complied with subsections (2) and (3) in the Criminal Code, two from the children of Ms. E.A., one from her mother, and one from an uncle. [68] Considered as a whole, the statements left a strong impression of Ms. E.A. as cheerful, positive, affectionate, giving, and hard-working person, devoted to her children, close to her extended family. A person who faithfully kept old friends and easily made new ones. In short, a loving mother, daughter, sister, niece, and loyal friend. [69] Ms. E.A.'s mother, Ms. C.W., has now become the children's principal caregiver; assuming as a grandmother the mothering role so amply filled by Ms. E.A. before April 17, 2015. [70] Ms. C.W. struggles to meet some of the expenses that come with the responsibility she has now assumed. She stated in her victim impact statement that she is sustained in her role by her loving memory of her daughter's love and by her own love for her grandchildren. She stated in part: The ache of knowing she will never see her grandchildren grow up, never see them graduate, never see them marry, never meet her grandchildren, never know all the happiness that this all brings. It hurts to the very core. If it weren't for the love of [Ms. E.A.] we would be in sad shape, but from the generosity of others we have been able to make a comfortable home for the three of us. [71] Mr. J.W., Ms. E.A.'s uncle, was 12 years old when Ms. E.A. was born. Ms. E.A. was like a little sister to him. He had known her for all of his life. He spoke of how she was able to make friends effortlessly, people naturally gravitating towards her. He stated in part: [Ms. E.A.] was a great mother to her two children and she tried hard to give them everything they needed for a happy life. She especially enjoyed camping with her kids and taking them out for sushi. She had a lifelong love of music and passed it on to her children. She was beautiful inside and out. I treasure all the little moments I had with her. [72] He also stated: As devastating as this senseless tragedy was I can't imagine the consequences to our family had we lost [Ms. E.A]'s children also. Our family and [Ms. E.A.]'s friends have all rallied together and tried our best to comfort them. [73] Crown counsel advised the court the children have continued to suffer emotionally from the trauma, likely from post-traumatic stress disorder. J.L.'s emotional development has regressed, as has his social behaviour. He is receiving ongoing counselling. [74] J.L.'s statement was filled out with the help of a social worker, who asked him questions about what he felt about what had happened and what changed for him. She wrote it down and read it out to him to ensure everything he wanted to say was in the statement. J.L. remembers his mother being funny and that when he thinks about what happened to her, it makes him feel sad. He stated: Sometimes I get nightmares. Sometimes I feel angry about what happened. I don't get holidays and my birthdays with my mom. Most of the time I just try to forget. [75] He was sad at the loss of his cat, Stormy, which made him feel sad. Stormy was a much loved family pet, loved by both children, and it perished in the fire. [76] Finally, J.L. stated he felt alone because it is just him, Grandma, and I.L. now; and "kind of sad because I can't play violent video games anymore. I never want to see Wally again" referring to the accused. [77] I.L. did not want to read out her statement in court and preferred to appear by video. She remembered how her mother taught her "how to make a steak at [2:00 a.m.] and happy times with [her mother]". She sometimes has nightmares, finds it easier to cry now, and feels both sad and angry about what happened. She feels "paranoid if [she] is home alone" and she "start[s] to think someone is going to break in." She has "a bigger fear of the dark now and sleep[s] with the light on." She puts "more effort into her schoolwork because before mom was always there to tell me to do it and now she's not there." She has become closer to her family. She mentions the things about her mother that children often cherish, the kind of memories all of us fortunate to have had a loving parent throughout their childhood could not imagine not having. [78] I.L. still has the remnants of the serious burns she suffered when escaping the fire. She says people ask her about the burn scars to her hands, which makes her have to think about what happened. She talked about her experience in the hospital, being treated for her burns; and having to go twice a week to Children's Hospital to get her hands cleaned and bandages changed. She said it really hurt, felt like it was burning, and one time she sobbed because it hurt so badly. She had lost her iPod in the fire that had lots of memories on it, and she stated she did not want to see the accused ever again. [79] I.L. will have the constant reminder of her scarring and her first‑hand witnessing of what occurred for the rest of her life. Crown's Position [80] I turn now to Crown's position on the joint submission for second degree murder. Although counsel jointly submitted a sentence for the second degree murder count, they differed over the strength of the case for a first degree murder conviction. Practically speaking, the differences are moot, but given the facts of the case and the importance of a complete court record, the issue does have to be addressed. [81] Crown submitted the probability of a conviction for first degree murder was overwhelming, considering the eyewitness testimony, the agreed statement of facts, and the forensic evidence. Even without those considerations, he pointed out that the murder is elevated from second to first degree murder because Mr. Ramsay committed the offence in the course of an unlawful confinement of Ms. E.A. and I.L.: s. 231(5)(e) of the Criminal Code; R. v. Pritchard, 2008 SCC 59 [Pritchard]. [82] At para. 19 of Pritchard, Justice Binnie speaking for the court, stated: [19] Section 231(5) reflects Parliament's sentencing policy to treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment. The phrase "while committing or attempting to commit" "requires the killing to be closely connected, temporally and causally, with an enumerated offence": R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53 [83] I agree the confinement of Ms. E.A. was part of one connected series of actions coextensive with her murder and therefore opens a path from second to first degree murder. [84] Further, in my view, I.L.'s confinement is connected to the confinement and murder of Ms. E.A. - although it is not necessary to find that to elevate the offence from second to first degree murder. [85] Defence counsel submitted, however, that a conviction for first degree was not a foregone conclusion, considering the accused's consumption of alcohol and narcotic pain medication. He submitted Mr. Ramsay did not go to the victim's residence with ill intent, rather for a romantic evening, but grossly overreacted to what counsel characterized as the uncertainty of his relationship with Ms. E.A., submitting these factors legitimately make for a triable issue on a charge of second degree murder, albeit at the top level of that offence. I note this submission does not address the implications of s. 231(5) of the Criminal Code. [86] Mr. Ramsay's version of events is doubtful in a number of respects, perhaps most tested by some of the findings in the forensic report, most notably the extent and depth of the burn at the front door, the wooden landing, the mud room, and the sunroom: see Photos 12, 13, 14, 15, and p. 17 of the Fire Cause/Determination Report, and the statement: In the opinion of the undersigned upon examining the fire scene, observing the fire and heat pattern indicators present, the probable major areas of origin are the outside front stairs and landing, and within this residential structure, the mudroom, the kitchen table area, and sun room area. The living room also shows signs of liquids trailing. [87] However, it was also noted at p. 18 of the Fire Cause/Determination Report that "a single point of origin could not be determined due to the extent of structural and content fire damage." [88] At p. 9, it was noted: [T]he front steps and landing showed deep charring with some of the flooring material burned right through. The burn patterns show that the fire travelled from the top down and not from underneath. [89] As mentioned earlier, the fire investigators could not determine the "form of heat of ignition at the area of origin due to the extent of structural, water, and content fire damage." [90] At point number 5 of the report at p. 18, the report noted that the burn patterns consisted with patterns where liquid accelerants have been used to accelerate fire growth and spread. It was also noted that the amount of water flowing to the residence from fire suppression and broken water lines diminished the quality of the samples taken to determine the type of accelerant used. [91] The reasonable inference to draw from this is that the fire was started at the front entrance where the stairs, sunroom, and mudroom are; although, another possible place of origin is in the living room area, as indicated earlier. But the front entrance, with the stairs and other adjoining rooms, was the exit area through which Ms. E.A. and the children would have to go through. Also notable is the extensive trail of accelerant, the large areas of pooling, and the areas they cover. [92] Mr. Ramsay indicated he used cooking oil present at the scene; but as noted, the type of accelerant used could not be determined. What is apparent is the effort required and the thoroughness of the effort to ensure enough accelerant was spread to ensure a widespread fire. [93] It is also noteworthy that when J.L. kicked in the door of the bedroom his mother and sister were confined in, there was already smoke coming out and the room was in flames. [94] Crown counsel stressed that while the Crown agreed to the accused's guilty plea to the included offence of second degree murder, it was not because the offender committed a lesser offence or because of a weakness in its case for first degree murder; rather, because it was in the public interest, considering the damaging impact of a trial on the children's having to testify, both families' children. [95] Defence counsel stressed, however, that the guilty plea was not based on a last‑minute decision, pointing out that the accused had admitted responsibility from the outset, wished to spare the families, particularly the children, from having to testify, and the discussions about a guilty plea featured early in discussions with the prosecution. He submits Mr. Ramsay's guilty pleas should be considered for mitigation purposes. APPLICABLE SENTENCING PRINCIPLES [96] I now turn to consider the sentencing principles, including those relating to parole ineligibility, which a judge has to take into account when imposing sentence. [97] Section 745 of the Criminal Code requires I sentence Mr. Ramsay to life imprisonment without eligibility for parole until he has served at least 10 years of his sentence, or such greater number of years I otherwise determine, pursuant to s. 754.4 of the Criminal Code. Parole ineligibility [98] In R. v. Bennight, 2012 BCCA 461, at para. 18, Justice MacKenzie summarized the principles applicable to a decision on whether to impose an extended period of parole ineligibility: - Under s. 745.4 of the Criminal Code, the sentencing judge must consider the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence, and the recommendation of the jury (if any), [which is not the case here; no recommendation of the jury] - The general sentencing principles of denunciation and deterrence and the judge's assessment of the offender's [further] dangerousness are relevant factors - Parole ineligibility greater than 10 years is justified when there is some particularly aggravating feature - There are two broad groupings of cases where parole ineligibility is extended beyond 10 years: parole ineligibility periods from 12 to 15 years and parole ineligibility periods from 15 to 20 years. The latter group of cases relates to cases at the highest order of moral culpability or dangerousness - The possibility of a parole ineligibility period greater than 20 years remains in exceptional circumstances - Orders extending the period of parole ineligibility are highly discretionary and are part of the sentence pursuant to s. 673 of the Criminal Code. - The wide discretion granted to sentencing judges is fettered by the case law and general ranges of sentences for particular offences. However, while courts must consider ranges, they are guidelines rather than strict rules. A sentence outside the regular range is not necessarily unfit, if it is in accordance with the principles and objectives of sentencing [Internal citations omitted.] [99] The principles of sentencing set out in s. 718 of the Criminal Code must be considered, both when determining the length of sentence and parole eligibility: R. v. White, 2008 BCSC 230 at para. 5. [100] The key sentencing factors applicable in this case are denunciation, specific and general deterrence, and separation of the offender from the community. Rehabilitation of the offender is a consideration, but a much lesser one in this case. MITIGATING AND AGGRAVATING FACTORS [101] A fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [102] Section 718.2 of the Criminal Code requires the court to impose a sentence that takes into consideration aggravating or mitigating circumstances relating to the offence or the offender. The aggravating circumstances set out in that section applicable here are as follows: · abusing a former common-law partner; · abusing children under the age of 18 years; · abusing the victim's two children to whom, as their stepparent, he was in a position of trust in relation to them; · causing significant physical and psychological harm to I.L., and significant and continuing psychological harm to J.L., and to the emotional development of both children; · binding and restraining Ms. E.A. and her child, I.L., in the commission of the offence; · striking Ms. E.A. with a weapon, a mallet, causing her serious bodily harm; · killing through arson, and the cruel and terrifying use of fire to commit the offence, being burned to death by fire, a deeply instinctive fear of every human being, an aggravating factor and one that caused great risk to the victims and to surrounding structures. [103] I also find that the particular circumstances in this case, notably the fact Ms. E.A. was murdered while in the prime of her life, leaving her children motherless and causing them emotional pain and suffering, with the knowledge imprinted on their minds of how their mother died, which they partly experienced first‑hand, a memory likely to have a profound effect on their emotional development and childhood happiness, increases the accused's moral culpability, particularly as he was their stepfather. [104] Also requiring strongest condemnation is the suffering to which the accused subjected Ms. E.A., leaving her in an almost helpless state, as smoke and flames consumed the house, the children managing to escape just in time. [105] The Crown's position is that there are no meaningful mitigation considerations in this case, considering especially Mr. Ramsay has benefited from a reduced period of ineligibility for parole. [106] Defence counsel noted, however, the accused's acceptance of responsibility from early on and his plea of guilty to spare the children having to testify. That is a mitigating consideration. [107] As for rehabilitation, Crown submitted that considering the heinous nature of the crime, carried out with deliberation and knowledge of the consequences, Mr. Ramsay should be rightly considered an extremely dangerous person and separated from the community for as long as possible. As I mentioned earlier, rehabilitation of the offender is not a significant consideration in this case. Mr. Ramsay will have the benefit of counselling in the federal system, and it will be up to the parole board to determine the benefits he receives from it. Further, I note counsel's advice that he is making some positive progress while incarcerated, performing work in the institution and receiving counselling. Criminal Record of the Accused [108] Depending on the nature of the record, a criminal record may be an aggravating factor. The accused's prior criminal record in this case consists of two youth and six adult convictions, all but the most recent from Ontario. His youth convictions are for breaking and entering, 1984; trafficking in a narcotic, 1989; and his adult record consists of two convictions for possession for the purpose of trafficking, 1991 and 1999; theft, 1992; and two counts of possession of stolen property, 2005. His most recent conviction is for driving while impaired in Abbotsford, B.C., 2008. A copy of his criminal record was admitted into evidence at the sentencing hearing. [109] While granting that no significant violence appears in Mr. Ramsay's criminal record, it does exhibit an extended pattern of antisocial behaviour that reflects badly on his character and his prospects for rehabilitation without a fundamental change at the core of his being, personality, and character. [110] Defence counsel submitted it was relevant Mr. Ramsay had no prior history of violence or domestic abuse that culminated ultimately in a criminal act. As I just mentioned, he stressed, as well, some of the progress Mr. Ramsay has made while incarcerated, trying to understand what has happened and, as counsel put it, he has been helped in studying Christianity. However, I cannot find any of these matters effectively diminishes his moral culpability, considering the nature of the offence and all the other circumstances placed before the court. PAROLE INELIGIBILITY [111] I will focus further attention for a few more minutes on parole ineligibility which I touched on earlier. First, the decision of R. v. Cerra, 2004 BCCA 594 [Cerra]. [112] In Cerra, the offender, over a prolonged period, had brutally and severely beaten a young woman over a petty drug dispute. But for the fact Cerra eventually threw her in a pond where she drowned, she would have died from her severe head injuries. The Court of Appeal noted it was apparent the trial judge had found the deliberation involved in resuming the attack to be a particularly egregious circumstance. [113] What cut off the offender's reach for a lower period of parole ineligibility in the judge's mind was the fact the offender had an opportunity to stop what he was going about, but instead he went back to the victim and completed "his murderous attack upon her"; and then, as she was unconscious and, on medical evidence, in the process of dying, threw her body into the pond where she was later found drowned. [114] At paras. 17 and 18, the Court of Appeal said this: [17] It has often been said that sentencing is an individualized process and comparisons with other cases are difficult. But difficult as they may be, comparisons must be made when reviewing sentences for fitness. Patterns may emerge from an examination of sentencing decisions. I have discerned a pattern from decisions of this Court suggesting, in broad terms, the following: parole eligibility greater than 10 years is justified when there is some particularly aggravating feature; for a penalty of greater than 15 years, egregious circumstances of a higher order of moral culpability are present. So in this case, the savage and prolonged beating raises the penalty above 10 years eligibility. That much is conceded by Mr. Cerra's counsel who urged us to go no higher than 15 years in adjusting the penalty. The key issue is whether there was something more in this case lifting it into a still higher level of blameworthiness. [18] In my opinion, there were such extraordinary aggravating factors. It was Mr. Cerra's persistence and the deliberation manifest in the killing. [115] That same kind of persistence, elements of deliberation and other extraordinary aggravating factors are also present here, exhibited in the binding of Ms. E.A. with zap straps and strips of sheeting, some still found knotted in the area of her neck and ankles; and the striking of her head with a mallet causing significant injury, including bleeding around the brain; and in the striking also of I.L. with a mallet, causing her to fall to the floor, and the binding of I.L. with zap straps; and covering her and her mother with a sheet, threatening more mallet blows if they screamed; and leaving the room momentarily, and then returning and starting a fire, I.L. and her mother still lying on the bed, bound. [116] I find the facts in this case bring the offence well within the compass of the highest degree of moral culpability, comparable to, but even more morally culpable than the offender's actions in Cerra and: · in R. v. K.W.M., 2003 BCCA 688 [K.W.M.], where the offender killed his wife and mother‑in‑law in front of his two children and was sentenced to life imprisonment with no eligibility for parole for 20 years; and · in R. v. Trotman, 2007 BCCA 209, where the offender committed what the judge called "vicious intentional killing" in which the accused inflicted between 34 and 37 knife wounds to the deceased in the context of a history of increasingly violent, escalating crimes; and · in R. v. Purdy, 2012 BCCA 272, where Purdy unsuccessfully appealed a 19‑year ineligibility for parole imposed for second degree murder of his wife in the context of a marital separation, one preceded by months of harassment, and his breach of a court‑ordered protection order. He followed her to work in a thought‑out plan and stabbed her to death with a knife 21 times. EFFECT OF JOINT SUBMISSION [117] Where on a principled basis counsel have entered into a joint submission on parole ineligibility for the admitted offence, in this case the second degree murder guilty plea, I should give it effect, unless there are sound, objective reasons for not doing so; or unless I find the submission would result in an unfit sentence, or bring the reputation of the justice system into disrepute. [118] I find the guilty plea for second degree murder was acceded to on a sound and principled basis. A greater period than 20 years for parole ineligibility is certainly arguable, but 20 years' ineligibility is a fitting and proportionate period for parole ineligibility. Accordingly, I confirm the joint submission and impose a period of parole ineligibility of 20 years. [119] As mentioned by defence counsel, the parole board decides whether it will actually grant parole when the offender is eligible to apply for it. ANCILLARY ORDERS [120] I will now make what are called ancillary orders, and then I will turn to the attempted murder counts. [121] The following ancillary orders are confirmed: 1) There shall be a publication ban under s. 486.4 of the Criminal Code, as follows: Any information that could identify the victims, I.L. or J.L., shall not be published in any document or broadcast or transmitted in any way, subject only to s. 486.4 of the Criminal Code, which allows its use within the court system for legitimate purposes. 2) Mr. Ramsay is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance for the remainder of his life. 3) Corrections officers have cause to have taken from Walter Ramsay a number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis and are authorized to do so pursuant to s. 487.051(1) of the Criminal Code. 4) Walter Ramsay is prohibited from communicating directly with any victim, or witness: including Ms. C.W., the victim's mother; the victim's children, I.L. and J.L.; Mr. J.W., the victim's uncle; and any extended family of the victim, pursuant to s. 743.21 of the Criminal Code. ATTEMPTED MURDER OF THE CHILDREN [122] I turn now to the sentencing for the attempted murder counts. [123] The accused has pleaded guilty to Count 2, i.e. he attempted to commit the murder of I.L., by intentionally causing a fire; and Count 3, that he attempted to commit the murder of J.L., by intentionally causing a fire, both contrary to s. 239(1)(b) of the Criminal Code, making him thus liable to a sentence of life imprisonment. [124] Both counsel agree the sentences for attempted murder should run concurrent to the sentence for life imprisonment for second degree murder, but disagree on the length of the sentence for the two counts of attempted murder. [125] On the facts of this case and its aggravating factors, Crown submitted a life imprisonment sentence concurrent with the sentence for second degree murder is fitting. If the court disagrees, Crown counsel submitted a sentence somewhere in the range of between 15 and 20 years would constitute a fit sentence. [126] Crown counsel acknowledged again, given the life sentence for second degree murder, that the question of the length of the sentence for attempted murder might at first look seem academic, but he reminded the court that the record should index a sentence that, while concurrent, remains a separate offence, one that should be proportionate to Mr. the offender's moral culpability and the impact of the offences he committed against the children. [127] Defence counsel agreed a substantial sentence for Counts 2 and 3 was required, but opposed a concurrent sentence of life imprisonment. He submitted that the mitigating factor of the victimization of the children had already contributed to a higher period of parole ineligibility for the second degree murder conviction; and should not then form the basis for setting a higher range for the attempted murder convictions. I agree it would not be fitting to allow such a factor, standing alone, to shift a sentence outside the range of comparable cases, but relevant mitigating and aggravating circumstances attached to one count may attach to other counts, where they are relevant to the count, particularly in circumstances such as these, where the offences occurred within the same period and share common factual ingredients, and in circumstances that form part of a continuing set of actions relevant to the offender's moral culpability for both the murder and attempted murder offences. AGGRAVATING FACTORS [128] Some aggravating factors relevant to the second degree murder offence apply here also. At the risk of repetition, I am going to state them: · abusing a former common-law partner in her home when the children were present; · harming children under 18 years of age; · harming the victim's two children to whom, as their stepparent, he was in a position of trust in relation to them; · causing significant physical and psychological harm to I.L., and significant and continuing psychological harm to J.L., and to the emotional development of both children; · binding and restraining Ms. E.A. in the presence of I.L., and binding and restraining I.L. in the commission of the offence; · threatening I.L. with harm; · striking I.L. with a weapon, a mallet, causing her bodily harm; · attempting to kill the children through arson, the cruel and terrifying use of fire to commit the offence, being burned to death by fire being a deeply instinctive fear of every human being, and causing great risk to the victims and to surrounding structures; and · showing no mercy to young, innocent children for whose care he had been formerly party responsible, and exposing them to risk of a horrible death. Rather, spreading accelerant in a pattern that would tend to hinder their escape. [129] The children were not just present, as was the case in K.W.M., a second degree murder case we looked at earlier. Rather, particularly in I.L.'s case, she saw and experienced first‑hand the accused's brutal treatment of her mother and had her own share in it, as she was struck in the head with a mallet, fell to the ground, then lifted up and put on the bed to lie beside her mother, both of them restrained, both doubtlessly terrified and instinctively sensible of the danger they faced and that they could be killed. [130] Justice Hall's concern in K.W.M. about the children being "scarred forever", as he put it, is that much greater in this case. [131] Further, as I have noted several times, the offence occurred in the context of domestic violence committed by their stepfather, who was in a position of trust, and in a place where the children expect to feel safe and protected from violence, instead, finding themselves brutalized; and in J.L.'s case, having to hide from the danger. [132] The cases I will be considering involve domestic violence in almost every case. They involve brutal attacks on a former wife; and in some cases, their new partner. The condemnation of such domestic violence has been made unmistakably clear by Parliament and by the courts. Still, this tragedy occurred. [133] The nurturing, protection, and healthy emotional development of children in their families is a foundation of any healthy community, and of the children's development into healthy adults. PARITY AND OTHER CASES [134] The denunciation and deterrence of domestic violence, especially when it involves children, is a major sentencing objective in a case such as this. I will now consider some other attempted murder cases. [135] In R. v. Nguyen, 2014 BCSC 338, the accused pleaded guilty to second degree murder and attempted murder. Nguyen was sentenced to life imprisonment with 15 years' parole ineligibility, and a concurrent sentence for the second count, attempted murder. No specific reasons were given for the court's sentence of a concurrent life imprisonment, so it offers little precedential value for sentence parity. [136] In R. v. Vukaj, 2013 BCSC 79 [Vukaj], the offender was found guilty of one count of attempted murder, a count of breaking and entering a dwelling place, one count of operating a motor vehicle in a manner dangerous to the public, and one count of knowingly uttering or conveying a threat to the complainant to cause death or bodily harm. He was sentenced to 14 years' imprisonment concurrent with five years for breaking and entering a dwelling place, one year and six months for operating a motor vehicle in a manner dangerous to the public, and one year concurrent for uttering a threat. [137] That offence took place in the context of a marital dispute. The complainant had been seeking secret refuge from Vukaj, the offender, in a series of transition centres and secret homes. He had previously pleaded guilty in Provincial Court to assaulting and threatening the complainant wife. [138] The offender somehow learned where the complainant was living with her three children. He attacked her in her home, striking her head three times with a metal stick, opening up her skull. He then fled from the scene where she laid unconscious in a pool of her blood, the children in their nearby bedroom. After fleeing, he drove his car wildly. There was a significant and prolonged history of domestic violence. The judge noted at para. 29 that the offender appeared to have little regard for the courts or for court orders. [139] The complainant's physical injuries left her feeling weaker and vulnerable, as if handicapped. She experienced dizziness and light-headedness, etc. She lost her apartment, left her school program, and fell into dire financial circumstances after the offences. There is no evidence the children witnessed the assaults, but they were affected by the mother's need to move schools, leave behind their friends, and to lead unstable lives. There were few mitigating circumstances in the case. [140] The Crown in Vukaj submitted a sentence of life imprisonment was justified, pointing the court to other cases where a sentence of life imprisonment had been imposed: R. v. Nippard (1993), 83 C.C.C. (3d) 410 (Nfld. C.A.) [Nippard]; R. v. Lieug (1995), 82 O.A.C. 317 (Ont. C.A.) [Lieug]; R. v. Mesgun, 121 C.C.C. (3d) 439 (Ont. C.A.) [Mesgun]. [141] In Vukaj, Justice Griffin noted at para. 104 that in Nippard what the victims, one stabbed 33 times, another stabbed, and a third threatened with death, underwent was a more violent and sustained attack than in Vukaj. She noted, as well, a prior criminal record that included threats of death, pointing a firearm, and non‑compliance with a court order. [142] Further at para. 104 in Vukaj, Griffin J. noted the trial judge in Lieung had described the facts of the attack as constituting "stark horror" involving the use of a hammer, a knife, and a bottle containing sulphuric acid the offender poured on the victim. Another person was threatened with a knife when he tried to intervene. [143] Also at para. 104, in Vukaj, Justice Griffin noted the circumstances of the attack in Mesgun were exceedingly gruesome and "more violent and sustained" than in the case before her, the facts of which I have already covered. [144] The number of stab wounds and other details of an attempted murder and its consequences may convey a sense of the violence perpetrated, but neither those indicators, nor the use of the most extreme of adjectives to describe the brutality of the offender's actions, standing alone, can determine a fit sentence, as the Supreme Court of Canada explained in R. v. L.M., 2008 SCC 31 [L.M.]; and R. v. Cheddesingh, 2004 SCC 16. Griffin J. also discussed this in Vukaj as follows at paras. 105 to 108): [105] Some of the older cases have attempted to summarize the circumstances when the maximum sentence of life has appropriately been imposed as involving either circumstances of the offence that are particularly brutal and cruel, often described as involving "stark horror", or circumstances of the offender that indicated extreme dangerousness, with a history of past violent offences and a likelihood of continued dangerous offending, as addressed in R. v. Brown, 2001 NFCA 8 at para. 29 [Brown (Nfld CA)]. [106] The Crown correctly submits that more recently the Supreme Court of Canada has clarified the approach to the imposition of the maximum sentence. The maximum sentence is not reserved for the worst offender and worst circumstances, as noted by the Supreme Court of Canada in R. v. L.M., 2008 SCC 31 at paras. 18‑23 [L.M.]. The Supreme Court of Canada held in R. v. Cheddesingh, 2004 SCC 16, that the inquiry into whether the maximum sentence should be imposed must proceed on a case by case basis. The Court stated at para. 1: terms such as "stark horror", "worst offence" and "worst offender" add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code, R.S.C. 1985, c. C-46, must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, The Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. [145] At para. 108, Justice Griffin stated she did not find conduct of the offender in the cases relied on by the Crown for the maximum sentence were sufficiently close to the offender's conduct considering all the circumstances in the case before her; but at para. 115, she imposed a sentence of 14 years for the attempted murder count. [146] In R. v. Jiany-Yaghooby, [1998] B.C.J. No. 2389 (C.A.) [Jiany-Yaghooby], the accused appealed his sentence of 10 years' imprisonment for the attempted murder of his wife. The trial judge found the accused intended to destroy his business by fire, murder his wife, and commit suicide. The fire he started severely brain damaged his daughter. He showed no remorse and blamed his wife for what he had done. [147] At para. 9 of Jiany-Yaghooby, the Court of Appeal noted the judge's description of the impact of the injuries on the daughter, now destined to live out her lifespan with severe brain damage from which she was likely to never recover, rather, remain forever disabled in a persistent vegetative state. He noted the offender's wife had escaped the fate intended for her; but her quality of life was reduced to caring for her severely damaged daughter. In her victim impact statement, she stated: Although I am still alive, I feel I am dead. My life is over. I am alive just for my children, otherwise there is no point of living like this. [148] The Court of Appeal noted the judge regarded the crimes as being of a heinous nature. His 10‑year sentence imposed was upheld. [149] In R. v. Bryan, 2008 NSCA 119 [Bryan], the accused appealed his sentence of 15 years' imprisonment for the attempted murder of his wife, who he mercilessly attacked with a sword causing her grievous injuries. He targeted her abdomen, pregnant with their child, without regard for the child's life, consequently terminating the pregnancy. The appellant kept a diary in which he recorded that he wanted the baby to die and wanted to stab the victim, and that he would then stab himself. The consequences of the crime were atrocious, as he continued to stab the victim as she begged him to stop, but the offender stopped only after he noticed a neighbour watching. Besides the loss of her unborn child, the wife suffered mild brain damage, serious injuries to her lungs, spleen, diaphragm, and bowel and was left with profound permanent disabilities. [150] At paras. 39 - 41 of Bryan, the Nova Scotia Court of Appeal discussed the inherently serious nature of the offence of attempted murder: [39] The offence of attempted murder is punishable by a maximum sentence of imprisonment for life (s. 239(1)(d) of the Criminal Code). Clearly the offence, in all cases, is considered to be an inherently serious crime. This reality reflects not the actus reus of the offence which may vary from modest acts of preparation with no resulting physical injury, to an egregious life threatening assault where it is simply fortuitous that the victim survived at all. [40] What is inherently serious in all cases of attempted murder is the requirement of a mens rea of a specific intent to kill (R. v. Ancio, [1984] 1 S.C.R. 225). Discussing the importance of the mens rea component, Chief Justice Lamer observed in R. v. Logan, [1990] 2 S.C.R. 731 at para. 20: The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky - the ambulance arrived early, or some other fortuitous circumstance - but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe. (Underlining mine) [41] In my view the appellant in this case is a "lucky murderer" in the sense defined by Chief Justice Lamer. Consequently I think it entirely inappropriate to refer analogously to cases of aggravated assault as providing helpful sentencing precedents for attempted murder. The mens rea in all cases of attempted murder is a specific intent to kill. The mens rea for the offence of aggravated assault is in all cases not a specific intent to kill. Whatever the resulting damage in the commission of either offence, there is simply no mens rea link between these different crimes. [Emphasis in original.] [151] Mr. Ramsay could aptly be characterized as a "lucky murderer". It was only because I.L. had the courage to get the zap straps around her ankle off, and J.L. the courage to come out from where he was hiding, run to his mother's door, kick the door open, the fire having started to spread, not yet having intensified into the inferno it soon became, that they were able to escape. The fire was already hot enough that they could not go back inside and help their mother. The heat of the fire on her face and arms is evident in the photographs of I.L. taken in the hospital. Had they gone in to help their mother, they likely would have perished. [152] As for intention, there is no question that the accused had the intention to commit murder. That is an essential element of the offence and is encompassed by the agreed statement of facts. [153] In R. v. K.G., 2010 ONCA 177 [K.G.], the accused appealed a 14‑year sentence for the attempted murder of the offender's estranged wife who he had openly threatened to kill. The accused, his wife, and the two young children were on their way to a grocery store. After they stopped along the way, they started to argue. The accused struck his wife so hard her blood splattered onto the children. The argument continued outside the vehicle. The wife walked away, but the accused went back to the car and drove into and over the wife, accelerating as he did so. She became caught up in the undercarriage for 82 feet, until she was finally thrown free, having suffered severe injuries. The accused sent the children home in a taxi, fled the scene, and threatened to machine gun the wife's family. The sentence judge's sentence of 14 years' imprisonment, which reflected 28 months' credit for pre‑trial custody, was upheld on appeal. [154] In R. v. Carelse, 2013 SKQB 15 [Carelse], the offender was sentenced to 16 years' imprisonment for attempted murder. When he visited his estranged wife, he got into an argument with her. He assaulted and stabbed her multiple times, causing at least three life‑threatening injuries. The children were home. He had been previously convicted for assaulting the victim. The court found this violent offence a more impressive aggravating factor than was the absence of a large criminal record. At para. 20, Justice Danyliuk stated: [20] The issue of lack of a criminal record in the context of an extreme case of domestic violence was specifically considered in R. v. Bryan [the court said at para. 48]: [48] Any casual review of case law across Canada involving sentences imposed for attempted murder in the context of a domestic relationship will typically involve an offender who has no previous record. Whether that fits a "profile" for such offences is not before us on appeal, but where it is so often reflected in such precedents, it hardly impresses me as deserving special consideration as a significant mitigating feature following conviction for attempting to kill another human being. [155] At para. 25, Justice Danyliuk noted one of the children was a witness to what the father had done to his mother, causing him continuing emotional and psychological harm. [156] I was struck by the judge's comment at para. 25 that the offender's actions had "endowed an inter-generational legacy of fear and harm." [157] Having taken into account the aggravating factors, the accused's moral culpability, the aggravating factors, and denunciation and deterrence as key factors, the judge imposed a sentence of 16 years. [158] In R. v. Ryan, 1996 B.C.J. No. 2878 (S.C.) [Ryan] the accused was being sentenced for attempted murder and intentionally causing damage to property by fire. The Crown in that case was seeking a dangerous offender designation, which was the main focus in that case. The accused had previously been convicted on four arson charges and minor convictions. His arson offences showed a pattern of escalation. He suffered from a severe psychological disorder. [159] It was found, however, that Ryan had intended to kill an occupant of the building he set on fire. Justice Melvin imposed a sentence of 15 years. [160] In R. v. Quance, 2000 O.J. No. 2243 (C.A.) [Quance], the accused appealed his sentence of 15 years and six months, which included time spent in pre‑trial custody for the attempted murder of his estranged wife and her boyfriend. He began to make threats and started to stalk her home. He went to his estranged wife's home and splashed four containers of gasoline around it. In the course of an altercation that developed at the scene with his former wife's boyfriend, gasoline was spilt or poured on him and the estranged wife, burning both horribly. The wife was in a seven‑week coma, her boyfriend for two weeks. Both endured long and painful treatments and remained significantly disabled. The court of appeal upheld the sentence of 15 years and six months. CONCLUSION [161] I turn now to the sentences for Counts 2 and 3 that I find fitting in this matter. [162] Considering the nature of the offence, the principles of sentence I have discussed, the aggravating factors, the minimal presence of mitigating factors, except for the guilty plea, which I give some weight to, the dominant need to denounce the accused's conduct, to deter him and others from committing similar offenders, to separate the accused from the community for a lengthy period, to acknowledge the lasting psychological harm done to the victims, I find a sentence proportionate to the gravity of the offences and the moral culpability of the accused is a sentence of 18 years on Count 2 and 18 years on Count 3. [163] Both of these sentences are to run concurrent, one with the other; and both with Count 1, second degree murder. I confirm the sentence of life imprisonment on Count 1, as pleaded. It was to second degree murder. "N. Brown J."