R. v. Lalonde

2013 BCSC 1349 R. v. Lalonde

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lalonde, 2013 BCSC 1349 Date: 20130711 Docket: X075621-2 Registry: New Westminster Regina v. Dustin Lee Lalonde Before: The Honourable Madam Justice Gray Oral Reasons for Sentence Counsel for the Crown: C. McPherson Counsel for the Accused: P. McMurray Place and Dates of Hearing: New Westminster, B.C. July 11, 2013 Place and Date of Sentence: New Westminster, B.C. July 11, 2013 [1] THE COURT: Mr. Lalonde entered a plea of guilty and was convicted of the second degree murder of Ms. Williams. [2] Pursuant to s. 235(1) of the Criminal Code, Mr. Lalonde must be sentenced to life imprisonment. Section 745(c) requires that Mr. Lalonde serve a minimum of ten years before becoming eligible for parole. The issue that I must determine is whether I should exercise the discretion given to me under s. 745.4 to require Mr. Lalonde to serve more than ten years before being eligible for parole. [3] It is important to bear in mind that the question for the court is not whether Mr. Lalonde will receive parole in a certain period of time, but simply when he would be eligible to apply and have the Parole Board determine whether he will receive parole. [4] Section 745.4 lists criteria which I am to consider in assessing the appropriate period of parole ineligibility. Those are: (a) the character of the offender; (b) the nature of the offence;

and (c) the circumstances surrounding the commission of the offence. [5] In this case, Crown and defence have jointly submitted that an appropriate period of parole ineligibility would be the minimum period of ten years. [6] The position of the Crown is that this is appropriate in particular in light of Mr. Lalonde's serious mental health issues. The Crown's submission is that the Parole Board will be best able to assess in ten or more years whether the risk to the public of releasing Mr. Lalonde can be managed in the community. Both counsel suggested it will be a difficult road for Mr. Lalonde to manage his problems so that he can be released in the community, but that will be better determined by the Parole Board and after the passage of time. [7] I will briefly set out the circumstances of the offence and what led to the conviction. [8] The victim, Ms. Williams, was a 43-year-old sex trade worker and her body was found in a bush in an area off 104A Avenue, just east of King George Boulevard in Surrey. When Ms. Williams' body was found, she was on her back, naked from the waist down, without shoes, her legs spread open, and there was something covering her upper torso like a jacket or a shawl. [9] The victim herself was, as I have said, 43 years old. She had a tragic history. Ms. Williams had been addicted to drugs; it is unclear which drugs, but she became addicted as a

young teenager. She had also worked as a sex trade worker since she had been a young teenager, doing that for a long time in Alberta and also in British Columbia. Ms. Williams rented a bedroom in Surrey and the person who rented it to her found her to be pleasant and that she only smoked outside. [10] On examination, Ms. Williams' body had some injuries of bruises and abrasions and scratches. It also appeared that she had been asphyxiated. It was not entirely clear if that was the cause of death, but that was a strong possibility. The autopsy found that very far back in her throat there was a tampon still in a package and a wad of Kleenex. Those items obstructed her airway. [11] The police commenced some investigations and pursued in particular one suspect but that investigation essentially stalled. [12] Around December 2010, Mr. Lalonde started telephoning people and talking about the offence. He called a number of different people including police officers. He spoke as well to nurses and psychiatrists and psychologists and he even called the Crown. [13] Ultimately, Mr. Lalonde admitted in his confessions that he had seen Ms. Williams at a bus stop, she had asked him if he was looking for company (which he took to mean she was offering to sell sex to him), and he agreed that he would pay her $30.00 for full sexual intercourse. Mr. Lalonde said that he grabbed Ms. Williams,

placed his hand over her mouth because she was screaming, and hit her a couple of times with his elbow. He stated that he heard people from a nearby strip bar saying "Kill her now" and "Don't pay her". The Crown doubts that there were any such people because investigations were made at the nearby bar and no one came forward. It is likely that Mr. Lalonde was having delusions about the presence of other people and about people saying things to him. [14] In his statements to the police, Mr. Lalonde said that he grabbed the tampon and the tissue from Ms. Williams' purse. He also reported that he was told if he did it, he would get purple wings, apparently referring to Hell's Angels membership. Mr. Lalonde said he had sex with Ms. Williams after she had died and he threw items in a dumpster including her purse and shoes. [15] The police made investigations. They found women's shoes and a shoulder bag and tampons in a dumpster. They reviewed a video surveillance tape which showed Mr. Lalonde going into a drop-in centre called "The Front Room" at about the appropriate time, and they also found that his DNA matched some of the DNA found on Ms. Williams and I believe also on the items found in the dumpster. [16] It was a tragic offence. Ms. Williams' mother provided a victim impact statement. She has been deeply affected. She unfortunately lost another child through illness. She wrote

about the pain that she felt from Ms. Williams' death as well as the pain that her mother, being Ms. Williams' grandmother, felt and also the pain felt by Ms. Williams' younger brother. Ms. Williams' mother closed by writing that, "[b]efore the drugs, before the lifestyle, there was a funny, witty girl who made everyone laugh and I will miss her forever". [17] The charge was set for trial and the issue was anticipated to be whether Mr. Lalonde had the specific intent required for murder. Ultimately, Mr. Lalonde entered a plea of guilty. [18] I will turn briefly to the circumstances of Mr. Lalonde. [19] I will not go through his history at any length, but I will say that he has serious mental health issues and has had them for a long time. Mr. Lalonde has also had substance abuse issues for a long time. He was neglected in his upbringing and may suffer from a disorder on the fetal alcohol spectrum which has not been well controlled. [20] Mr. Lalonde is a status member of a reserve of the Cree Nation located in northern Alberta. Mr. Lalonde's mother also holds status. His father is not aboriginal. Mr. Lalonde's maternal grandparents attended residential schools. Mr. Lalonde has been involved in the aboriginal community including attending programs such as sweat lodge ceremonies and other programs through Corrections. [21] Mr. Lalonde commenced his drug use at about the age of 11,

and he has been involved with a number of drugs, notably crack cocaine and crystal methamphetamine. [22] I will not go through Mr. Lalonde's record in any detail. I will say that Mr. Lalonde was 13 when he received the first of his nine youth convictions. He has received 17 additional convictions as an adult. His offending history includes seven breaches of various court orders, seven property offences, three personal harm offences, two robbery offences, and three additional possession of weapons offences. In addition, federal records indicate that Mr. Lalonde was released on statutory release on three different occasions, two of which were suspended due to his return to drug use and deteriorating behaviour. Several of Mr. Lalonde's convictions were for violent crimes. The victims have been men and women, known and unknown to him. In some cases, Mr. Lalonde has been under the influence of drugs at the time of the offences, but not so in others. [23] I am not going to attempt to detail Mr. Lalonde's mental health history. I will say that various assessments have been made, some to determine whether he was fit to stand trial, and later, whether he might satisfy the requirements for being not criminally responsible on the basis of a mental disorder at the time of the offence, and later, whether he was fit for sentencing. I will summarize those by simply saying that Mr. Lalonde

presents as having serious mental health issues and yet he is fit for sentencing, and so I will proceed with the sentencing today. [24] I will also mention that Mr. Lalonde spoke in Court today and he said that he cannot sleep because of what he did and that he seeks forgiveness. I am satisfied that Mr. Lalonde is remorseful concerning his offence. [25] I am going to read some paragraphs from the decision of Mr. Justice Savage in R. v. Tan, 2011 BCSC 595, [Tan] which are equally applicable to Mr. Lalonde's situation. I will begin at para. 57 and read to para. 64, omitting part of para. 61: [57] The authorities establish that the principles of denunciation and general deterrence are paramount in a case such as this. [58] The principle of retribution is also a factor to consider in conjunction with the other sentencing objectives. As the Supreme Court of Canada said in the case of M.(C.A.), retribution is an accepted and important principle of sentencing. [59] Retribution is neither vengeance nor denunciation. It requires a sentence to be commensurate with the offence and to "properly reflect the moral blameworthiness of the particular offender". [60] Second degree murder is always a violent and terrible act. The senseless nature of this murder suggests a need to deter the offender and others from similar offences. The offender poses a danger to the community, as evidenced by his

capacity on this occasion for deadly violence, so the sentence must protect the public. [61] While he has this capacity the evidence does not suggest it is a propensity, as in other cases. [I am not reading the next sentence from R v. Tan because Mr. Lalonde has a history of violence in the criminal record as I have referred to]. [62] In my view the sentence must denounce the conduct, deter others and promote a sense of responsibility in the offender and in others. [63] As Chief Justice McEachern remarked in Mafi at para. 67, the imposition of a life sentence plus a period of at least ten years of parole ineligibility satisfies this requirement. [64] I must also consider the sentencing purpose of rehabilitation and the sentencing principle of minimal deprivation of liberty. [26] I should also say that I must consider the general principles of sentencing found in ss. 718, 718.1 and 718.2 of the Criminal Code when determining Mr. Lalonde's parole ineligibility. I will not read out those paragraphs, but I have taken them into consideration. [27] I have also considered the authorities that Mr. McMurray provided to me of other cases where an offender has been sentenced to the minimum period of parole ineligibility of ten years. Those cases are R. v. Lincoln, 2009 BCSC 1181; Tan; and R. v. Yliruusi, 2011 BCSC 268. [28] I have considered in this case the fact that the circumstances of

the offence were not only tragic but deeply disturbing. They included stuffing items down the victim's throat apparently when she was screaming and having sexual intercourse with her following the killing. [29] The mitigating circumstances include Mr. Lalonde's guilty plea which was preceded by significant cooperation with the police, Mr. Lalonde's expression of remorse that I referred to, and most importantly, his mental health issues and substance abuse issues. [30] I am satisfied that ten years is a fit period of parole ineligibility in this case. I will quote and paraphrase more from the reasons of Mr. Justice Savage in the Tan case, which also applies to Mr. Lalonde's sentencing. I will read paras. 68 through 71 with alterations to refer to Mr. Lalonde: [68] To protect the public it is appropriate that he be separated from society for a minimum period of ten years. Beyond that, in my view, as the sentence is life, it must be assumed that the parole board will do its job: see R. v. Ly (1992), 78 Man. R. (2d) 209, 72 C.C.C. (3d) 57 (Man. C.A.). [69] I am satisfied that this is a case where I should not extend the period of parole ineligibility beyond the statutory requirement. That is, after serving the statutorily required period of incarceration of ten years, parole eligibility shall be determined by the corrections officials who monitor [Mr. Lalonde's] progress towards

rehabilitation. In those circumstances, if [Mr. Lalonde] fails to make progress he will not be released. [70] About such a sentence Madam Justice Fisher in Yliruusi recently noted something entirely apt. To paraphrase her, it cannot be forgotten that the sentence that is to be imposed in this case is life imprisonment. If [Mr. Lalonde] is not rehabilitated, he will not be released when his period of parole ineligibility expires. [71] It also cannot be forgotten that the years of parole ineligibility imposed by this Court are not subject to reduction through statutory release or early parole, as with other types of sentences. [Mr. Lalonde] will be required to serve all of those years fully. [31] Mr. Lalonde, would you please stand up. [32] Mr. Lalonde, I sentence you to life imprisonment for the second degree murder of Ms. Williams. I have concluded that a period of parole ineligibility of ten years is appropriate. [33] In addition, I make these orders under s. 109 and s. 487.051 of the Code: I prohibit you from the possession of any firearm, crossbow, prohibited weapon, ammunition, or explosive substance for life. A prohibition order will be prepared by the appropriate authority and served on you. I delegate to that authority the duty to inform you of the consequences of a violation of my prohibition order. [34] I am satisfied that it is in the best interests of the

administration of justice to make an order in Form 5.03 authorizing the taking from you for the purpose of forensic DNA analysis any number of samples of one or more bodily substances that are reasonably required for that purpose by means of the investigative procedures described in s. 487.06(1). [35] I waive the victim surcharge. [36] Is there anything else, counsel? [37] MR. McPHERSON: No, thank you. [38] MR. McMURRAY: No, thank you, My Lady. [39] THE COURT: Thank you counsel. You can sit down, Mr. Lalonde. Thank you. "Gray J."