[1]               On October 14, 2005, a jury convicted Mr. Purdy of the second degree murder of his estranged wife.  No recommendation was made regarding the appropriate period of parole ineligibility.  On November 25, 2005, the trial judge sentenced the appellant to mandatory life imprisonment without eligibility for parole for 19 years.

[2]               On March 7, 2008, this Court dismissed the appellant’s appeal from conviction: 2008 BCCA 95.  The appellant’s application to re-open his conviction appeal was also dismissed: 2010 BCCA 413.  On February 2, 2012, the Supreme Court of Canada dismissed the appellant’s application for leave to appeal his conviction.

[3]               The appellant now appeals the 19-year period of parole ineligibility on the basis the sentencing judge erred by relying on the appellant’s lack of remorse and poor prospects for rehabilitation.  The appellant submits such error produced an unfit sentence that is outside the appropriate range for the second degree murder of a spouse.  He asks this Court to reduce the period of parole ineligibility to 12-15 years.

[4]               I conclude there is no basis upon which to interfere with the sentence and for the reasons that follow, would dismiss the appeal.

[5]               On the morning of December 12, 2003, the appellant travelled some 40 minutes on Vancouver Island from Duncan to Nanaimo to confront his estranged wife with whom he had been angry for months regarding their separation, her relationship with a new partner, and what he perceived as her attempts to alienate their two children from him.  Mrs. Purdy had continued to reside in the matrimonial home after the separation.  The appellant had learned from a phone call between Mrs. Purdy and their eldest daughter the previous evening that Mrs. Purdy would be staying at her home alone and not at the residence of her new partner.  She would therefore be following the same route and routine in travelling to work in the morning as during the marriage.  At approximately 6:20 a.m. on December 12, while Mrs. Purdy was walking to work, Mr. Purdy attacked her with a knife, stabbing her 21 times and killing her.

[6]               The appellant and the victim married in 1993, and separated in April 2003.  As the sentencing judge put it, the appellant began to hate Mrs. Purdy and perpetrated incidents of harassment and minor non-personal violence towards her and her new partner that escalated to an incident involving assault upon her partner. 

[7]               The sentencing judge noted that the appellant’s antagonism towards his estranged spouse “waxed and waned over the months following April [2003] up until late November [2003], but would involve acts or statements that resulted in Mrs. Purdy fearing him and what he might do to her” (para. 15).  The court in family proceedings issued a restraining order to put a stop to the appellant’s harassing conduct.

[8]               The judge also observed that by December 11, 2003, the RCMP had obtained a warrant for the appellant’s arrest for breaches of the restraining order, which they intended to execute the following day.  However, Mrs. Purdy was killed in the early hours of the morning, so the planned intervention came too late. 

[9]               At the sentencing hearing, the Crown sought a period of parole ineligibility of 17 to 22 years, whereas the appellant sought either no increase or only a modest increase from the minimum 10-year period required by the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).

[10]           The sentencing judge described the offence as “a brutal and viciously performed murder that has about it elements of pre-thought-out planning.  While not first-degree in the sense of being planned and deliberate, it is apparent that Mr. Purdy went to Nanaimo to confront Mrs. Purdy, and was prepared to kill in the course of that confrontation.” (para. 25)

[11]           The judge considered the mitigating and aggravating factors on sentencing as follows:

[12]           Under s. 745(c) of the Code, the period of parole ineligibility for second degree murder is 10 years unless the sentencing judge substitutes a greater period under s. 745.4, to a maximum of 25 years.

[13]           Section 745.4 provides that the sentencing judge may, “having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission”, as well as the recommendation, if any, made by a jury, substitute a period greater than 10 years “as the judge deems fit in the circumstances”.  These considerations were discussed in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657, where the Court further said that the general sentencing principles of denunciation and deterrence are relevant to the decision to impose an extended period of parole ineligibility, as well as the judge’s assessment of the offender’s future dangerousness.  See also R. v. Seyed-Fatemi, 2006 BCCA 310, 228 B.C.A.C. 41 at para. 3.

[14]           In Shropshire, the Court also articulated the limited standard of review applicable to discretionary orders extending the period of parole ineligibility.  Such orders are properly considered part of the sentence pursuant to s. 673 of the Code and are therefore appealed pursuant to s. 687(1), which provides for consideration of the “fitness” of the sentence imposed.  Justice Iacobucci for the Court described the justification for allowing only limited appellate intervention on sentence, stating at para. 46:

[15]           The Supreme Court of Canada recently reiterated the importance of appellate deference and restraint on sentence appeals in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.  Justice LeBel for the Court said:

[16]           The appellant submits the judge erred in principle in relying on the appellant’s perceived lack of remorse as an aggravating factor (R. v. Zeek, 2004 BCCA 42, 193 B.C.A.C. 104 at paras. 24-26) and on his poor prospects for rehabilitation in order to increase the period of parole ineligibility that was ultimately imposed.  He relies on R. v. Mafi, 2000 BCCA 135, 142 C.C.C. (3d) 449, to argue that although the rehabilitation of an offender is identified as an objective of sentencing under s. 718 of the Code, the jurisprudence establishes that it is not the role of the sentencing judge in setting the period of parole ineligibility to determine when the offender may be rehabilitated.  This task instead rests with the Parole Board.  Citing Mafi at para. 20, the appellant says that if the Parole Board does not consider that rehabilitation has been achieved after the minimum 10-year period, then the offender will not be released from custody and may very well remain in prison for the rest of the offender’s life.  Consequently, the courts ought to increase the period of parole ineligibility for reasons other than poor rehabilitative prospects.  As stated by Mr. Justice Lambert at para. 21 of Mafi:

[17]           The particular paragraphs of the judge’s reasons of which the appellant complains are as follows:

[18]           The appellant did not testify at trial but, as the Crown points out, his counsel’s submissions on sentence confirmed his ongoing denial of responsibility.  The judge’s reasons further indicate that the appellant “steadfastly accused” Mrs. Purdy’s new partner of perpetrating the killing, despite the fact that there was “not one scintilla of evidence to suggest any culpability on [the new partner’s] part” (para. 31).

[19]           I agree with the Crown that the judge merely noted that the absence of expressed remorse on the part of the appellant was consistent with ongoing denial, made in the face of what the judge described as “overwhelming evidence of his complicity” (para. 29).  The judge recognized there may have been legal reasons for such denial of responsibility but said, “...there has simply been no expression of remorse or sadness at the death of his wife, absent an acceptance of responsibility.  The two are mutually exclusive.”  I take those words to mean that the appellant did not display any remorse in the sense of grief or sorrow at the death of his estranged wife.  The judge was not referring to “remorse” in the sense of guilt or regret for killing her.

[20]           When the judge reviewed the aggravating circumstances at paras. 43 and 44, he did not mention the appellant’s absence of remorse or lack of acceptance of responsibility.  Furthermore, as previously quoted, the judge, at para. 29, expressly did not take into account these considerations as aggravating factors on sentence:

[21]           I disagree with the appellant that an offender’s prospects for rehabilitation should not be considered by the sentencing judge in determining whether to extend the period of parole ineligibility.  Rehabilitation is a statutory objective of sentencing under s. 718, along with the need to separate offenders from society where necessary, and cannot be considered the exclusive realm of the Parole Board.  I consider the passages from Mafi relied upon by the appellant to be inconsistent with the Supreme Court of Canada’s decision in Shropshire, in particular para. 34 of Shropshire:

[22]           This passage makes clear the joint functioning of the Parole Board and the sentencing judge.  There is no majority judgment in Mafi that would exclude from consideration the offender’s prospects for rehabilitation.  Rather, Shropshire makes it clear that rehabilitation is a legitimate consideration in determining the period of parole ineligibility. 

[23]           In the case at bar, the judge reviewed the statutory objectives of sentencing, and said the following with respect to the objective of rehabilitation: “In terms of separation from the community and rehabilitation, in my view Mr. Purdy, because of his self-focus, continues to be a dangerous person to those who may confront him” (para. 41).  This “self-focus” described by the judge is fleshed out in previous paragraphs through reference to the appellant’s breach of the restraining order against his wife, as well as his breach of a subsequent court order made during a bail hearing restraining him from contacting his new partner, and his insistence in assigning blame for Mrs. Purdy’s death to another man.  The judge found the appellant to be “a man who simply does what he wishes without regard to others or any restraints placed upon him” (para. 32), and described him as not just headstrong but “unrestrictable” (para. 37).  After all, Shropshire identifies future dangerousness as a relevant consideration in determining the appropriate period of parole ineligibility.

[24]           I read the judge’s references to the connection between the appellant’s lack of acceptance of responsibility and his poor prospects of rehabilitation as further reflecting the judge’s concern for the danger the appellant continues to pose to the public.  R. v. Seyed-Fatemi, at para. 14, establishes that denial of responsibility may be properly considered as relating to the future dangerousness of an offender rather than the impermissible consideration of lack of remorse.  The remarks of Mr. Justice Low for the Court, made in the context of an offender convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 15 years, are apt in the present case:

[25]           I would further observe that an offender’s acceptance of responsibility, or lack thereof, is properly considered on sentencing as an independent statutory objective under s. 718 of the Code.

[26]           In summary, I agree with the Crown that the judge considered the factors that are the subject of the appellant’s complaint only to the extent that his denial of responsibility indicated future dangerousness and suggested that his prospects for rehabilitation were not promising.

[27]           The appellant submits this Court has upheld periods of parole ineligibility of 18 to 20 years in only extreme cases of second degree murder.  He cites R. v. Cerra, 2004 BCCA 594, 192 C.C.C. (3d) 78, in support of this proposition, and specifically the following statement of Mr. Justice Donald, writing for the majority, at para. 17: “...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.”  While conceding that a period beyond the minimum 10 years may be appropriate, the appellant submits the cases in the 18-to-20-year range involve more severe circumstances than those in the present case.  The appellant submits the appropriate range for parole ineligibility for the second degree murder of a spouse is 10 to 15 years: R. v. Tan (1996), 1996 CanLII 2500 (BC CA), 75 B.C.A.C. 181.

[28]           The Crown referred the Court to a number of cases, almost all from this Court, in support of its position that the sentencing judge properly considered all the relevant factors and imposed a period of parole ineligibility within the appropriate range.  The Crown emphasized the cases in the 17-to-21-year range, drawing a favourable comparison with the circumstances of this case: R. v. Rushton, 2000 YTCA 5, 143 B.C.A.C. 295; R. v. Van Osselaer, 2004 BCCA 3, 190 B.C.A.C. 313; R. v. Machell, 2003 BCCA 688, 190 B.C.A.C. 294; R. v. Trotman, 2007 BCCA 209, 239 B.C.A.C. 215; and R. v. Price, 2001 BCCA 323.

[29]           As the Court emphasized in Shropshire, the sentencing exercise is a “profoundly subjective process”.  Further, as described in Van Osselaer at para. 24, citing R. v. Grimsson (1997), 100 B.C.A.C. 253, “reference to other cases is of limited value since the fixing of a period of parole ineligibility is a very fact-sensitive process.”  It is therefore not helpful to examine the gruesome details of individual murders to finely distinguish the degree of moral culpability in determining whether the sentencing judge set an appropriate period of parole ineligibility, or, otherwise stated, whether the sentence is fit.  I repeat what the Court said in Nasogaluak at para. 44:

[30]           The cases to which counsel have referred us reflect that the present case falls within the appropriate range for parole ineligibility given the circumstances in which the crime was committed.  As observed by the judge, this brutal murder had about it “elements of pre-thought-out planning” preceded by months of fear-inducing harassment and the breach of a court order designed to protect the victim.  The circumstances demonstrate an extreme breach of trust in that the appellant exploited his knowledge of Mrs. Purdy’s morning routine to ambush her on her way to work, relying on information obtained from their eldest daughter that she was not at her partner’s residence and would therefore be following her usual route to work.  The appellant subsequently attempted to conceal the murder and actively blamed it on another man.  Moreover, the appellant’s infliction of severe violence upon his estranged spouse left their two children tragically bereft of their mother.

[31]           The judge’s reasons reflect his careful consideration of all the relevant provisions of the Criminal Code.  He applied them to the circumstances of this offence and this offender, and imposed a period of parole ineligibility within the appropriate range.  His determination, which is entitled to deference in this Court, is the result of a proper exercise of discretion that produced a sentence I consider to be fit in light of all the considerations outlined in Shropshire.  In my view, there is no justification for this Court to interfere.

[32]           I would dismiss the appeal.