Report on sentencing for manslaughter in cases involving intimate relationships

Conclusions/Recommendations

The event that gave rise to this report was the sentencing of Fred Sheppard in P.E.I. for killing his common-law partner, Kimberly Ann Byrne, on December 10, 2000. Mr. Sheppard was sentenced to 10 years in prison - a sentence that was seen by many who work in the legal system as substantial for this type of offence in Canada. (The median prison sentence for men convicted of manslaughter in 1999-2000 was 5.0 years.)⁴⁷

Many people, however, were outraged at the length of sentence, taking to the streets of Charlottetown in protest. Since spousal homicide is relatively rare in P.E.I., it is possible that the same offence and sentence would not have received the same attention in some of Canada's other cities. From 1974 - 2000, P.E.I. had the lowest rate of spousal homicide involving men and the second lowest for women.⁴⁸

The sentencing judge was criticized for handing out such a short sentence, as was the Crown prosecutor both for agreeing to reduce the charge from second-degree murder to manslaughter and for being part of a joint submission on the length of sentence that was subsequently accepted by the court. Public opinion appeared to favour a life sentence for the accused in this case,⁴⁹ which is indeed provided for in section 236 of the Criminal Code:

Every person who commits manslaughter is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.

It is clear that the issues raised by the Sheppard decision are not peculiar to P.E.I. The same sorts of criticisms can be heard throughout the country in relation to sentencing for intimate homicide, as well as for other crimes. Unfortunately, there are no easy answers or "quick fixes" with respect to these issues. Judges have often said that sentencing is the most difficult part of their job. They are faced with diverse and complex situations that may require careful consideration of interests that are at times difficult to reconcile. Furthermore, sentences will vary in response to the variety of factual situations and the unique circumstances of each accused. What can be hoped for, however, is a uniformity of approach in arriving at an appropriate sentence.

To this end, as part of the 1996 sentencing reforms, Parliament enacted a statement of the purpose and principles of sentencing in sections 718 - 718.2 of the Criminal Code. The statement is meant to guide judges in making sentencing decisions, rather than to prescribe or preclude specific sentences for specific offences. These provisions state that the fundamental purpose of sentencing is to provide for the maintenance of a just, peaceful and safe society. Judges are expressly required to consider the sentencing objectives of accountability, deterrence, denunciation, rehabilitation of the offender, reparations to victims and the community, and separation of the offender from society where necessary. As well, they are to observe the principle of proportionality between the sentence and the gravity of the offence and the degree of responsibility of the offender, to consider all mitigating and aggravating circumstances, and to consider any victim-impact statements.

Sentencing

Given the myriad of circumstances that can arise in relation to a manslaughter charge, it is very difficult to draw any conclusions on the appropriateness of the sentences imposed in the cases reviewed. As stated on page 13, male offenders were likely to receive sentences in the range of 6 - 12 years in prison, whereas female offenders were more likely to receive sentences of 2 years less one day incarceration or less.

What the case law review did illustrate is that the courts consistently took into account the domestic nature of the offence. This was specifically mentioned as an aggravating factor in 21 of the 30 cases involving male offenders. The other 9 cases were all decided prior to 1996 - the year that the deemed aggravating factor came into effect. It therefore appears that this change to the Criminal Code is having the desired effect.

On the other hand, anecdotal information received during the preparation of this report, suggested that the courts do not take the issue of domestic violence seriously enough. For example, such views were expressed during a workshop attended by individuals who either worked in or were involved with the criminal justice system. There have also been media reports of judges making inappropriate comments that suggest that the Judge does not understand the factors and issues related to domestic violence.

In an attempt to deal with such concerns, the National Judicial Institute (which receives funding from the Department of Justice Canada) has undertaken a major initiative to educate judges about family violence. In 1996, the Institute began the Social Context Project, part of which involves the development of judicial education on domestic violence. For example, on April 12, 2002, Her Honour Judge Nancy K. Orr of P.E.I., organized a training session on family violence and the justice system for seven judges of the provincial and supreme courts and 47 Crown and defence lawyers. In addition to these individualized workshops, the Institute is currently working on a modularized curriculum on domestic violence that will be widely available for training, as well as a desk book for judges on domestic violence.

Recommendation No. 1 - It is recommended that Ministers encourage the National Judicial Institute to continue to develop, deliver and evaluate the Social Context Program on family violence.

Reduction in Charge to Manslaughter

In 35 of the 49 court decisions reviewed for this report the offender was originally charged with murder and pleaded guilty to manslaughter; in all of these cases the plea was eventually accepted. There are many possible reasons for accepting such a plea. For example, at the initial stage of laying the information, the investigation may not have been complete. As more information becomes available, the Crown may realize that a murder charge is unlikely to be successful and may enter into a plea-resolution for that reason.

The subject of plea-resolutions (or plea-bargaining as it is more commonly known) is one that has been talked about extensively, but little has been done in the way of research, in Canada or elsewhere. The criminal justice system is often criticized for the private manner in which such resolutions are arrived at and the fact that the public has no way of knowing what has taken place or why. It is possible that the public would be more accepting of plea-resolutions if they understood more about the reasons behind them.

Recommendation No. 2 - It is recommended that research be undertaken on the subject of plea-resolutions respecting intimate partner homicides; furthermore, that Crown prosecutors and others who are working within the criminal justice system make every effort to enhance awareness and understanding in relation to the sentencing process in cases of domestic violence; and finally, that jurisdictions make resource material available to Crown prosecutors on the dynamics of family violence.

The process of plea-resolutions involves Crown and defence counsel weighing the merits of their respective cases. With respect to intimate partner homicide, at least some of these negotiations have focused on the defences of provocation and self-defence. Although this research project did not have a mandate to investigate the subject, many of the cases that were examined hinged on how the courts dealt with these defences. During the 1990s, the Department of Justice Canada undertook extensive consultations on these very issues, but without reaching any final resolution.

Recommendation No. 3 - It is recommended that the federal Department of Justice re-open discussions based on its 1998 consultation document entitled Reforming Criminal Code Defences: Provocation, Self-Defence, and Defence of Property.

Media reports about the Sheppard case in P.E.I. indicated that the public was very upset not only about the length of the sentence but also about the reduction in charge from second-degree murder to manslaughter. The Honourable Judge Kenneth MacDonald, in his decision, clearly articulated why it would not have been possible to secure a conviction for murder, primarily because Mr. Sheppard was too intoxicated to form intent.⁵⁰ We do not know whether the information provided by Judge MacDonald resulted in anyone who was initially upset about the decision to reduce the charge changing his or her mind. However, there is overwhelming evidence from research conducted by the University of Toronto's Professor Anthony Doob⁵¹ and others that the more information provided about the reasons for giving a particular sentence, the more the public accepts the sentence as being reasonable.

Other surveys have indicated that the public lacks understanding of the criminal justice system. For example, a representative sample of 1,000 Canadians by Ipsos-Reid in February 2002 found that slightly less than half of the respondents (48%) were able to identify the correct definition of a conditional sentence. Furthermore, a Compas phone survey of 1,502 Canadians in March 2002 found that most respondents consider themselves not very well informed about the justice system.

The government of New Brunswick is in the midst of a three-year action plan to reduce violence against women. Part of the plan involved a random telephone survey last March about violence and abuse. The survey indicated that, among other things, domestic violence is still seen in a different light than other forms of violence by some and more education is needed. On August 12, 2002, New Brunswick's Minister of Public Safety, Margaret-Ann Blaney, announced that her government is developing a "massive" public education campaign on the subject of domestic violence based on the survey results.⁵²

Following the Sheppard decision, the P.E.I. government held public and private consultations across the province to develop a family violence strategy that was implemented through the Premier's Action Committee on Family Violence. A key component of the strategy is awareness, education and training in the area of domestic violence. ⁵³

Recommendation No. 4 - It is recommended that jurisdictions work together in developing and designing approaches to public and justice system education concerning sentencing in domestic violence cases.

Research

Although statistical information on criminal justice has become more available in recent years through the publications of Statistic Canada's Canadian Centre for Justice Statistics, this information is very limited and not uniform across the country, and there continues to be very little in the way of empirical research on Canadian sentencing practices.

During the examination of material in the preparation of this report, it quickly became evident that there is no systematic, coordinated method of data collection or common terms for analyzing domestic violence issues within the jurisdictions. As these issues continue to gain prominence, and demands on governments and agencies increase, it is essential that appropriate data is available so informed decisions can be made.

Myrna Dawson, author of the Literature Review that examined declining intimate partner homicide rates, has called attention to this problem. Ms. Dawson has been attempting to respond to this lack of research and is in the process of publishing two studies herself. The first compares sentencing patterns for those who are involved in an intimate relationship and those who are not. The second examines whether there is a difference in the way courts treat intimate partners who have separated and those who still share an intimate relationship. There is a need to encourage this type of Canadian research if we are to have a better understanding of where changes are required.

Recommendation No. 5 - It is recommended that Canadian research be undertaken to look more closely at sentencing patterns in case law respecting intimate partner homicide and, in particular, the factors judges give most weight to in rendering their decisions; furthermore, that jurisdictions, working in conjunction with the Canadian Centre for Justice Statistics, inquire into the feasibility of developing a coordinated, user-friendly data-collection system to aid in the analysis of domestic violence sentences.

In conclusion, although some, such as the New Brunswick Council on the Status of Women, have called for increased prison time for those who kill or abuse intimate partners, other feminists such as Lenore Lukasik-Foss, Director of Women's Services at Hamilton's Good Shepherd Centre, and Denise Brown of the Cross-Sectoral Violence Against Women Strategy Group believe that tougher sentencing is not the answer to reducing domestic violence. They argue that strategies need to be developed to prevent violence against women and that resources need to be made available for affordable housing, employment initiatives and childcare. They point out that longer sentences will not bring back the many women who have lost their lives.⁵⁴

⁴⁸ Pottie Bunge, Supra, at p.p. 4-5

49 The Sheppard decision and the community reaction were reported in a number of P.E.I. newspapers on May 29 and 30, 2002.

50 R. v. Sheppard, Supra at para. 14

51 For example, see "Social Psychology, Social Attitudes, and Attitudes toward Sentencing," Canadian Journal of Behavioural Science, Oct. 1984, Vol. 16(4), p.p. 269-280.

52 As reported in The Saint John Telegraph Journal on August 13, 2002

53 The strategy can be found at http://www.gov.pe.ca/hss/familyviolence.php3

54 As reported in The Moncton Times and Transcript on March 7, 2002 and The Hamilton Spectator on June 20 and 24, 2002

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