R. v. Lagimodiere

2022 BCSC 425 R. v. Lagimodiere

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lagimodiere, 2022 BCSC 425 Date: 20220215 Docket: 27618 Registry: Vancouver Regina v. Tyler Anthony Lagimodiere Restriction on Publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover officer, referred to in this judgment by initials. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Gerow Oral Reasons for Sentence Counsel for the Crown: D.P. Montrichard Counsel for the Accused: J. Heller Place and Date of Hearing: Vancouver, B.C. February 4, 2022 Place and Date of Judgment: Vancouver, B.C. February 15, 2022 [1] THE COURT: On December 12, 2019, Tyler Anthony Lagimodiere pled guilty to the offence of the second degree murder of Lubomir Kunik on February 1, 2017, contrary to s. 235(1) of the Criminal Code. [2] On this sentencing hearing, the Crown takes the position that the appropriate sentence for Mr. Lagimodiere is life imprisonment without eligibility for parole for at least 15 to 18 years. As well, the Crown is seeking the following ancillary orders: · a lifetime prohibition with respect to any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition pursuant to s.

109 of the Criminal Code; · a DNA order pursuant to s. 487.051 of the Criminal Code; · an order pursuant to s. 743.2 of the Criminal Code that a copy of these reasons for sentence and any relevant reports submitted to the court and any other information relevant to administering the sentence be forwarded to the Correctional Services of Canada; and · an order that the weapon used in the commission of the offence be forfeited to be disposed of as the Attorney General directs. [3] The defence submits that this is not a case which should be taken out of the median of cases, and parole ineligibility should be set at 10 years. [4] I will set out the legal parameters to be considered in determining whether Mr. Lagimodiere should be ordered to serve more than 10 years of his life sentence for the second degree murder of Mr. Kunik before he is eligible to apply for parole. [5] The relevant section of the Criminal Code is s. 745.4 which sets out the factors to be considered in determining parole ineligibility as follows: 745.4 Subject to section 745.5, at the time of the sentencing under section 745 of an offender who is convicted of second degree murder, the judge who presided at the trial of the offender or, if that judge is unable to do so, any judge of the same court may, having regard to the character of the offender, the nature of the offence and the circumstances surrounding its

commission, and to the recommendation, if any, made pursuant to section 745.2, by order, substitute for ten years a number of years of imprisonment (being more than ten but not more than twenty-five) without eligibility for parole, as the judge deems fit in the circumstances. [6] The case law makes it clear that in addition to those specific considerations, the court should also consider the fundamental purpose and objectives of sentencing set out in ss. 718 and 718.1 and 718.2 of the Criminal Code. [7] Section 718.2(b) provides that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances", which is often referred to as the parity principle. Other cases should be compared where possible with a view to maintaining a degree of clarity and consistency. Additional factors to be considered when deciding the appropriate period of parole ineligibility include denunciation, deterrence, protection of the public, rehabilitation, and proportionality. [8] In R. v. Shropshire, [1995] 4 S.C.R. 227 at para. 18, the Supreme Court of Canada noted that the determination of parole eligibility is very fact sensitive. As a result of considering the various factors, a judge may determine that an increase of that period of parole ineligibility is warranted. The factors to be considered set out in s. 745.4 are the character of the

offender, the nature of the offence, the circumstances surrounding it, and any recommendation made by a jury. Future dangerousness is considered under the character of the offender and denunciation is considered under the nature of the offence. Both have relevance in determining whether an extended period of parole ineligibility is warranted, but are not determinative or exclusive. Deterrence is also a relevant consideration in determining whether an extended period of parole ineligibility is appropriate. Parole ineligibility is part of the punishment and is concerned with deterrence. See also R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 63. [9] An offender's prospects for rehabilitation should also be considered, along with the separation of an offender from society where necessary: R. v. Purdy, 2012 BCCA 272 at para. 21. [10] In R. v. Bennight, 2012 BCCA 461, the Court of Appeal summarized the principles that apply to the decision to impose an extended period of parole ineligibility at paragraph 18 as follows: The following principles apply to the decision 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). · The general sentencing principles

of denunciation and deterrence and the judge's assessment of the offender's future dangerousness are relevant factors: R. v. Shropshire, [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193. · Parole ineligibility greater than 10 years is justified when there is some particularly aggravating feature: Cerra, at para. 17 (per Donald J.A.). · 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: Cerra, at para. 26 (per Donald J.A.). · The possibility of a parole ineligibility period greater than 20 years remains in exceptional circumstances: Cerra, at para. 36 (per Ryan J.A.). · Orders extending the period of parole ineligibility are highly discretionary and are part of the sentence pursuant to s. 673 of the Criminal Code. Such orders are therefore appealed pursuant to s. 687(1). An appellant court should only interfere with a trial judge's sentencing order if the court is convinced it is not fit or it is clearly unreasonable: Shropshire, at paras. 47-48. · 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: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 44. · Similarly, the two groups of parole ineligibility cases described in Cerra are intended as guidelines, not as binding categories within which a particular case must be placed: R. v. White, 2011 BCCA 328 at para. 24. [11] Mr. Lagimodiere is Métis and, as a result, s. 718.2(e) is relevant. In considering a fit and appropriate sentence for an Indigenous offender, a judge must consider the following: (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [12] In R. v. Ipeelee, 2012 SCC 13 at para. 59, the Supreme Court of Canada reiterated the following guidelines from R. v. Gladue, [1999] 1 S.C.R. 688: The Court held, therefore, that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing . . . It does more than affirm existing principles of

sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders . . . When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection . . . Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report . . . [13] The court in Ipeelee made it clear that the sentencing judge has a statutory duty to apply the Gladue principles in all cases, including cases involving serious offences. [14] In R. v. Wells, 2000 SCC 10 at para. 44, the Supreme Court of Canada stated that while s. 718.2(e) requires a different methodology for assessing a fit sentence for an Aboriginal offender, it does not mandate necessarily a different result. Section

718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. [15] The role of an offender's mental health and drug addictions are also relevant considerations at sentencing and can reduce an offender's moral culpability at the time of sentencing. Even if the mental illness of an offender does not support an NCRMD finding, it is nonetheless relevant: Bennight at paras. 24-27. [16] The weight to be given to a factor depends on the circumstances: R. v. Whitlock, 2017 BCSC 1998 at para.

64. In Whitlock, the court found that the fact that the offender's mental condition fueled his behaviour on the night of the offence attenuated his moral culpability for the murder of his mother. The period of parole ineligibility in that case was increased to 12 years. [17] The evidence of mental disorder is not always a mitigating factor. In R. v. Diebel, 2007 ABCA 418 at para. 19, the court found that the offender was aware he could act out unpredictably and dangerously when in a bipolar disorder, and had refused treatment for it. The court at paragraph 23 found that the offender's mental disorder and refusal to accept treatment for it created an ongoing dangerousness that justified an increased period of parole ineligibility of 20 years. [18] A similar conclusion was reached in R. v. Miel, 2017 BCSC 1446 at para.

62. In Miel, the court found that the offender's failure to recognize or acknowledge her mental health issues made her a very dangerous individual and justified an increased period of parole ineligibility of 14 years. [19] In R. v. Haly, 2012 ONSC 2302 at para. 34, the court found that even when there is a link between the mental illness and the offence, if the mental illness makes the offender a continuing danger, the mental illness is not necessarily a reason to reduce what would otherwise be an appropriate sentence. [20] I have reviewed the following cases for guidance in determining a fit sentence: Shropshire; R. v. Purdy, 2012 BCCA 272; R. v. Cerra, 2004 BCCA 594; Bennight; Diebel; R. v. Klein, 2021 BCSC 1391; R. v. Scott, 2014 NBQB 146; R. v. Newborn, 2018 ABQB 47; R. v. Bhandher, 2010 BCSC 1812; R. v. Liang, 2019 BCSC 1196; R. v. Brewer, 2016 BCSC 2172; R. v. Robinson, 2013 BCSC 772; Whitlock; R. v. Barry, 2013 BCSC 937. [21] Although I do not intend to refer to them all, I have reviewed them thoroughly. As noted, the determination of parole ineligibility is very fact sensitive. As stated earlier under the parity principle, a sentence should be similar to sentences imposed on similar offenders for similar offences, and the cases provided have been helpful in that regard. In determining the appropriate period of parole ineligibility, I have considered the cases provided

and the factors set out in s. 745.5, as well as the sentencing principles and purposes of sentencing set out in s. 718, 718.1, and 718.2 of the Criminal Code. [22] I turn now to the factors to be considered in determining parole ineligibility, starting with the character of the offender. [23] Mr. Lagimodiere was born on August 22, 1988, and was 28 years old at the time of the offence. He is currently 33 years old and identifies as Métis. A Gladue report was prepared. It is apparent from the report that Mr. Lagimodiere's upbringing was impacted by some of the negative factors identified in R. v. Gladue, including loss of his Métis heritage, a family history of substance abuse and neglect, physical abuse and violence in his home, lack of opportunity, low level of education, and unemployment and sporadic employment. As well, Mr. Lagimodiere suffered the death of a close friend. [24] The report sets out that Mr. Lagimodiere is the youngest of three brothers, all of whose mother is Gwen Lagimodiere. Gwen Lagimodiere's father resided at Brandon Indian Residential School. Her parents were both alcoholic. Ms. Lagimodiere experienced sexual abuse from family members and others when she was growing up. Mr. Lagimodiere's upbringing was chaotic. Ms. Lagimodiere is an alcoholic and drank and used drugs in front of her children when they were growing up. Mr. Lagimodiere's father was a drug

addict and never lived in the family home. [25] When Mr. Lagimodiere was 10 years old, he saw his mother assaulted by a drunk guest of their neighbour. Mr. Lagimodiere reported he felt scared and helpless. He also witnessed his mother's boyfriend beat up his brother. Mr. Lagimodiere was placed in foster care due to his mother's drinking before he started school, and again when he was 14 years old when his mother disappeared. When Mr. Lagimodiere was five years old, he experienced sexual assault from a 12‑year‑old girl. [26] Mr. Lagimodiere's father disappeared when he was 12 years old. Both of his brothers started using hard drugs early and suffered from mental health issues. Mr. Lagimodiere told the report writer he felt he had suffered from depression in his life. [27] When Mr. Lagimodiere left his last foster home, he did not know where his mother was. Mr. Lagimodiere has since reconnected with his mother and she is supportive of him. Ms. Lagimodiere provided a letter of support and spoke in support of her son at the sentencing hearing. [28] Mr. Lagimodiere dropped out of high school and did not complete Grade 9. Since being incarcerated, Mr. Lagimodiere has completed his Dogwood diploma. [29] Mr. Lagimodiere's substance use began when he was 12 years old with smoking marihuana and drinking alcohol, which was permitted in his home. He also used LSD and mushrooms as a

teenager. In his twenties, Mr. Lagimodiere tried cocaine, methamphetamine, and heroin, but did not continue to use them. His substances of choice are marihuana and alcohol. [30] Mr. Lagimodiere's employment during his adult life has been sporadic. He has worked in the construction industry and for a moving company. Mr. Lagimodiere has suffered from mental health issues. He started hearing voices in his twenties and told his mother. Ms. Lagimodiere reported that she wanted Mr. Lagimodiere to see a psychiatrist. Mr. Lagimodiere attended a community health centre but would not give his name and did not obtain any treatment. Prior to this offence, Mr. Lagimodiere was not diagnosed with any mental health or learning disorders. [31] Mr. Lagimodiere pled guilty to second degree murder on December 12, 2019. A sentencing hearing was commenced in July 2020, but did not complete. Sentencing was suspended pending a determination of Mr. Lagimodiere's application for a finding that he was not criminally responsible on account of a mental disorder pursuant to s. 16 of the Criminal Code. The defence argued that Mr. Lagimodiere was incapable of appreciating that his acts were morally wrong. [32] I concluded that although Mr. Lagimodiere was suffering from a mental disorder at the time of the offence, he had not established, on a balance of probabilities, that he was incapable of appreciating

his acts were both legally and morally wrong. [33] During the NCRMD hearing, two psychiatrists testified, Dr. Johann Brink and Dr. Todd Tomita. Both psychiatrists found that Mr. Lagimodiere suffered from a mental health disorder at the time of the offence. Mr. Brink opined that Mr. Lagimodiere suffered from schizophrenia, whereas Dr. Tomita opined that Mr. Lagimodiere suffered from other specified schizophrenic spectrum and other psychotic disorder. [34] I found it was more likely that Mr. Lagimodiere suffered from other specified schizophrenia spectrum and other psychotic disorders at the time of the offence. [35] Mr. Lagimodiere has a criminal record. On April 5, 2007, Mr. Lagimodiere was convicted of break and enter into a residence and robbery with a firearm. The male victim was at home in a semi‑rural property. There were threats of violence and the victim was struck on the head with a handgun and wounded. [36] In August 2012, Mr. Lagimodiere intervened when police were attempting to arrest an individual. Mr. Lagimodiere was charged with obstruction of justice and uttering threats. In September 2012, Mr. Lagimodiere pled guilty to uttering threats and a suspended sentence was imposed. [37] On January 18, 2013, Mr. Lagimodiere was charged with eight offences related to the possession of firearms. The firearms were discovered in a suite in which Mr. Lagimodiere lived. At the

time of the charges, Mr. Lagimodiere was bound by a lifetime firearms prohibition. Mr. Lagimodiere pled guilty and was sentenced to the mandatory minimum sentence. [38] Mr. Lagimodiere has completed substance abuse and violence programming while in custody. Since being in custody, Mr. Lagimodiere continues to hear voices. While in custody, Mr. Lagimodiere has seen a psychiatrist, Dr. Emlene Murphy. The evidence is that Mr. Lagimodiere has been resistant to Dr. Murphy's recommendations. He is currently not taking medication or being treated for his mental health issues. [39] I turn next to the nature of the offence. The evidence establishes that Mr. Lagimodiere viciously attacked Mr. Kunik with a machete on February 1, 2017, causing his death. At the time of the offence, Mr. Lagimodiere was 28 years old and Mr. Kunik was 61 years old. Mr. Lagimodiere and Mr. Kunik were strangers to one another. [40] Mr. Kunik's body was found on the rocky shore below the seawall in Stanley Park on February 1, 2017, at approximately 11:01 p.m. When Mr. Kunik was found, his body was still warm to the touch. A pathology report of the autopsy findings was admitted during the hearing for NCRMD. Mr. Kunik suffered at least 67 stab wounds and incise wounds. The majority of the wounds were concentrated in the torso area. There were a number of perforating wounds where the machete penetrated and passed

through Mr. Kunik's torso and exited the other side. Mr. Kunik suffered multiple injuries to his face, indicating he was face down in the rocks when Mr. Lagimodiere stabbed him repeatedly. [41] The machete used to inflict the wounds was located by the police on February 3, 2017, close to where Mr. Kunik's body was found. [42] After his DNA was identified on the machete, the investigators targeted Mr. Lagimodiere with an undercover operation. During the undercover operation, Mr. Lagimodiere told the undercover officers that he had been hearing voices for about five or six years, but that he did not obtain medical assistance because he did not want to end up in a psychiatric institution. [43] Mr. Lagimodiere told the undercover officers he murdered Mr. Kunik because he wanted to make an example to the voices in his head which had been telling him to molest children. He also told the officers he had planned the murder for weeks. Mr. Lagimodiere said he attempted to communicate telepathically with Mr. Kunik before he attacked and would have stopped if he had gotten a response, but he got none. [44] Mr. Lagimodiere described how he attacked Mr. Kunik from behind. Mr. Kunik turned around and started fighting back. Mr. Lagimodiere told the undercover officer that he was determined to kill Mr. Kunik and did not stop his attack on Mr. Kunik until he was certain he was dead. After

killing Mr. Kunik, Mr. Lagimodiere disposed of the machete and his clothes which were bloody after the attack. [45] Mr. Lagimodiere told the undercover officer he would be prepared to kill again, but not a random person. [46] I find the circumstances of Mr. Lagimodiere's murder of Mr. Kunik reflect a high degree of moral culpability. Mr. Kunik was an innocent stranger who Mr. Lagimodiere viciously and brutally murdered. This was not an impulsive murder. Mr. Lagimodiere told the undercover officers that he had planned the murder for several weeks. Mr. Lagimodiere deliberately left his house with a concealed weapon to kill someone. Unfortunately he encountered Mr. Kunik. [47] Although he told the police officers and Dr. Brink that he would have stopped if Mr. Kunik had told him telepathically not to do it, Mr. Lagimodiere did not stop the attack when Mr. Kunik fought back. After he fell over the seawall, Mr. Lagimodiere continued with the attack when Mr. Kunik also fell over the seawall. Mr. Lagimodiere told the undercover officer that if Mr. Kunik had not fallen over the seawall, he would have chased Mr. Kunik down and killed him. After Mr. Kunik fell over the seawall, Mr. Lagimodiere deliberately continued to stab Mr. Kunik with the machete until he was sure he was dead. After the fact, he took steps to avoid detection. [48] In my opinion, the facts of the offence and the

circumstances surrounding it, together with Mr. Lagimodiere's attitude towards his mental health, shows a high level of future dangerousness. [49] I turn next to the victim impact statement. A victim impact statement was provided by Mr. Kunik's sister, Maria Peskova. Mr. Kunik was her only sibling. Ms. Peskova resides in rural Slovakia. The victim impact statement describes the devastating effect Mr. Kunik's death has had on his family. Mr. Kunik was in weekly contact with his sister before his death. [50] The pain and suffering Ms. Peskova and the rest of Mr. Kunik's family is going through and will continue to go through is apparent in the statement. Mr. Kunik was much loved by his family. [51] A community impact statement was filed. The statement writer indicated that the offence had a chilling effect on residents of the West End. According to the statement writer, what made this crime particularly unforgettable is that it occurred in a place of refuge for many West End residents, while the victim was enjoying an innocent hobby of taking photographs. The statement writer indicated that the crime had the effect of causing some residents to be fearful about going out by themselves, particularly at night. [52] I turn next to the aggravating and mitigating factors I have considered. [53] I have considered the following aggravating factors in determining the appropriate period of

parole ineligibility: · the offence involved significant premeditation, preparation, and planning by Mr. Lagimodiere; · the offence was completely unprovoked, Mr. Kunik and Mr. Lagimodiere were strangers. This was a killing of a completely innocent man; · the offence was extremely violent and prolonged; · Mr. Lagimodiere used a machete to attack an unarmed 61‑year‑old man and inflicted at least 67 wounds on his body; · Mr. Lagimodiere has a criminal record including violent offences. [54] The mitigating factors I have considered are: · that Mr. Lagimodiere pled guilty to the offence; · that Mr. Lagimodiere has expressed remorse and accepted responsibility for the offence; · that while in custody, Mr. Lagimodiere has taken courses and been employed; · Mr. Lagimodiere's Indigenous background, as I outlined under character of the offender, it is apparent from the Gladue report that Mr. Lagimodiere suffered from some of the systemic and background factors unique to Indigenous offenders; and · that Mr. Lagimodiere has support from his mother. [55] The defence argues that Mr. Lagimodiere's mental issues should be considered a mitigating factor. It is apparent from the evidence that there is a causal connection between Mr. Lagimodiere's mental illness and the offence, and that Mr. Lagimodiere's mental health fueled his behaviour. As noted in the case law, generally mental illness is a

mitigating factor in sentencing if there is a causal link between the illness and criminal conduct. However, even where a link is established, if the offender's illness makes him a continuing danger, the illness is not necessarily a mitigating factor. [56] The evidence is that Mr. Lagimodiere did not seek help to deal with his mental health issues, either prior to or following the offence before his arrest. Although Mr. Lagimodiere asserts he is willing to seek help for his mental health issues, there is evidence that he has been resistant to the treatment for his mental health problems while incarcerated. [57] While mental health illness may attenuate his moral culpability, Mr. Lagimodiere's resistant to treatment limits its attenuating effect. In my view, this case is similar in Miel and Haly where the mental illness was not considered a mitigating factor. Even though there is a causal link between his illness and his criminal conduct, Mr. Lagimodiere's resistance to being treated for his mental illness makes him a continuing danger and is not, in my opinion, a reason to reduce what is otherwise an appropriate sentence. [58] This is a very serious offence. The obvious elements of deliberation and planning, as well as the predatory nature of the offence are of great concern. This was a prolonged attack following a decision to kill an innocent stranger. [59] While no single

sentencing objective trumps others, it is my view that in the particulars of this case, the sentencing principles of deterrence, denunciation, and the protection of the public are paramount and call for a setting of the parole ineligibility above the minimum range. [60] Determining the appropriate period of parole ineligibility, I have taken all of the factors into consideration, including the offence and the circumstances surrounding it, the character of the offender, and the additional factors of denunciation, deterrence, future dangerousness, and the possibility of rehabilitation. As well, I have considered the restrain and balance required in determining the appropriate period of parole ineligibility and the submissions and the cases provided. [61] I have concluded that given the offence, the circumstances surrounding it, the character of Mr. Lagimodiere, and the aggravating and mitigating factors, a period of parole ineligibility of 14 years is appropriate. In my opinion, setting parole ineligibility at 14 years appropriately balances the aggravating and mitigating factors of this case, gives meaningful effect to the objectives of sentencing, including the protection of public, and strikes a proportionate balance between the gravity of the offence committed by Mr. Lagimodiere and his moral culpability. [62] Mr. Lagimodiere, I sentence you to life imprisonment with no

eligibility for parole for 14 years for the second degree murder of Lubomir Kunik. [63] I am making the following ancillary orders: · a prohibition order for life pursuant to s. 109(a) and (b) of the Criminal Code with respect to any firearm, cross-bow, restricted weapon, ammunition, and explosive substance; · an order authorizing the taking of samples for DNA analysis pursuant to s. 487.051(1) of the Criminal Code; · the victim surcharge will be waived pursuant to s. 737(2.1) of the Criminal Code on the basis it will cause undue hardship to the offender; · an order pursuant to s. 490.1 of the Criminal Code that the weapon used in the offence be forfeited to be disposed of as the Attorney General directs; and · an order pursuant to s. 743.2 of the Criminal Code that the reasons for sentence and any other relevant reports and relevant information to the administering of the sentence be forwarded to Correctional Services of Canada. "Gerow J."