Ken to Wen Hill Transcript

8/6/2019 Ken to Wen Hill Transcript

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CITATION: R. v. Hill, 2011 ONSC 4382COURT FILE NO.: 49/09DATE: 2011-07-28

ONTARIOSUPERIOR COURT OF JUSTICE

BETWEEN:

KENT OWEN HILL

))))) Robert KindoniColette Good, for the Crown)))) Bernard Shier, for the Defendant)))))) HEARD: June 21 and 24,2011

HER MAJESTY THE QUEEN

-and-


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Page: 2of the jury. Of the 12 members of the jury, 10 recommended the minimum of 10 years and 2made no recommendation. Mr. Kindon submits that parole ineligibility should be increased to15 years. Mr. Shier submits that there should be no increase in parole ineligibility beyond theminimum of 10years.

THE FACTS[2] Kent was born on August 10, 1987. He is 23 years of age. He was 20 at the time of theoffence. He lived with his parents, Jon and Shelley Hill and his sister Joni Lynn Hill ("JoniLynn"), in a house with several acres of land on the Six Nations Indian reserve south ofBrantford Ontario. Joni Lynn is 21. Kent is a First Nations person. Tashina was also a FirstNations person. She also lived on the Six Nations Indian reserve. Kent excelled both in schooland sports. He is an outstanding athlete. He is an excellent lacrosse player. For about two yearsprior to the offence, he was attending Onondaga Community College outside of Syracuse,New


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neighbour. He directed Kent to the correct address. Tashina did not return home. Denisereported her missing to the police. The police questioned Kent on March 20th and April 7th. Hedenied any knowledge of Tashina's whereabouts. He denied that he had killed her. On April 25,2008, the police discovered the naked body of Tashina, in a shallow grave in a wood lot behindthe house where Kent lived with his parents.

[4] After the police discovered the body, Kent drove to North Bay. The police had himunder surveillance. On April 28, 2008 in North Bay, the police arrested Kent for the murder ofTashina. Detective Bickerton questioned him in an interview that was audio and video taped.Kent Hill confessed to killing Tashina General. He said that on January 22, 2008, after he pickedher up at about 10:30 a.m., he took her to his parents' house. She claimed to be pregnant withhis child. They spent several hours in the house. As they were leaving the house Tashina fell.He stated the following:


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(Kent HILL) And like I turned on the light by then and she was sitting there andshe looked at me, just told me if this baby's, like, this babys gone, its your fault,I'm telling everyone it was you.(DetBICKERTON) Mmhm.(Kent HILL) I didn't know what to do.

(Det BICKERTON) I know. What happened next?(Kent HILL) Urn, like we were gonna go outside some (U/IL to get in thevehicle.(Det BICKERTON) Pardon?(Kent HILL) Like we were about to get in the vehicle.(Det BICKERTON) Mm.(Kent HILL) Like I was gonna take her back home.(Det BICKERTON) Mm hm.(Kent HILL) And then said no, and then like walking back towards the back door


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(Kent HILL) I never wanted anything like this to happen.(Det BICKERTON) I believe you Kent. I believe you, I know that. Whathappened next?(Kent HILL) Urn, I wasn't really too sure what to do after, like I don't know Ijust, I just urn, took her into the barn and I covered her up. And like went in thehouse, washed up and I ah, went and stayed over at my cousin Darryl's that night

. cause, I don't.know it was just hard to be alone,(Det BICKERTON) I bet. She was still in the barn?(Kent HILL) Yeah.(Det BICKERTON) Okay. What happened?(Kent Hill) And the next day when I went back I just, well I just, 1put her in ah,ah, sleeping bag and I just dragged her back. I didn't know what to do.(Det BICKERTON) I know. I know. So when you say you dragged her back,what did you mean? Where did you drag her to?(Kent HILL) Ah, back behind my house a bit.


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(Kent HILL) Nope.(Det BICKERTON) So how did you drag her back?(Kent HILL) I had that urn, that ah, sleeping bag and I just grabbed hold of the.(Det BICKERTON) Okay. And you buried her?(Kent HILL) Yeah.(Det BICKERTON) What else did you with her?(Kent HIll) Ah, I just like took off all her clothes.(DetBICKERTON) Okay.(Kent HILL) And Ijust buried her.(Det BICKERTON) Why did you take off her clothes Kent?(Kent HILL) I don't know I just, Ijust did. I didn't, I don't know Ijust did.(Det BICKERTON) Okay. So what did you do with her clothes?


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(Det BICKERTON) No?(Kent HILL) Uh ah.(Det BICKERTON) How do you feel now that you've told the truth?(Kent HILL) I just wish I could take everything back.(Det BICKERTON) I believe you. There's a lot of people that I sit across theroom from that I don't believe. But I do believe you Kent, alright? What did youdo with the sleeping bag?(Kent HILL) I burnt itwith the, with the other stuff.(Det BICKERTON) Okay. When she came over to your house that day when allthis stuff happened, what time of day was it?(Kent HILL) It was probably around ah, eleven thirty, around there.(Det BICKERTON) In the morning or at night?(Kent HILL) In the morning.


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(Kent HILL) No. I wasn't even really in the room yet.(Det BICKERTON) Mm. I appreciate you telling the truth Kent. It takes a bigman. And its important, very important. When you say you took her to the barn,is there only the one barn on the property?(Kent HILL) Yeah.(Det BICKERTON) Okay. What'd you do with the clothes you were wearing?(Kent HILL) Urn, urn, I just threw them in the laundry.(Det BICKERTON) Do you remember what they were? What you werewearing?(Kent HILL) No I don't remember.(Det BICKERTON) You don't remember what you were wearing on your feet oryour hands?(Kent HILL) My feet urn, a pair of like, their Nike turf shoes or something likethat, they have little wee bumps on the bottom.(Det BICKERTON) Mm hm, I know the style. You still have those?


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(Det BICKERTON) With your hands up to her throat?(Kent HILL) Yeah,(Det BICKERTON) I mean you're a big strong guy and things probably didn'tlast too long. How long do you think it, the whole thing lasted?(Kent HILL) Like three minutes or something like that.

(Det BICKERTON) Three minutes?(Kent HILL) Maybe yeah, (Emphasis added)

[5] Dr. John Fernandes is a forensic pathologist. He testified at the trial. It was his opinionthat the cause of Tashina's death was "external neck compression". He was of the opinion thatthe time from the application of force to death was between two and four minutes. This isconsistent with Kent's opinion that it took him about three minutes to strangle Tashina to death.He was of the opinion that the child, whom Tashina was carrying, was 15.5 weeks old. DNAanalysis confirmed that Kent was the father.


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Tashina fell down the stairwell. She came up the stairs. She was angry. They went outside.She was yelling obscenities at him. They were moving towards his car. He was going to takeher home. Kent was 6'2" and 215 pounds. He was playing lacrosse regularly. He was wellconditioned. Tashina was 5'5" and 140 pounds. She was almost 4 months pregnant. She saidthat she would tell Shannon that he threw her down the stairs. She struck him in the face severaltimes. She knocked his glasses off. He remembered letting go of her neck. She was on theground. She did not have a pulse. He pulled the body into the barn. He put a sleeping bag overit. He went to his cousin's house where he spent the night. He played video games at hiscousin's house. He came back the next day. He put the body in the sleeping bag. He took it intoa wooded area about 170 metres behind the house where he buried it. He testified that "1 nevermeant for any of this to happen".

[8] At the request of Kent, made through Mr. Shier and with the agreement of Mr. Kindon, I


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[13] The Crown filed 52 victim impact stateinents. These were from family friends) leaders ofnative organizations, family members and people close to Tashina. They all spoke to the greatloss that they feel personally and the community feels from the death of Tashina and of the babywhom she was carrying. They also spoke of the enormous anger which they feel at Kent forhaving taken Tashina and Tucker from them.

[14] .Powerful statements were presented by Denise, Madison and Norm General C'Norma"),Tashina's grandmother. They spoke of their intense grief at the loss of Tashina. Norma alsospoke eloquently of her anger at Kent for what he has done, Denise said the following:

... When Tash was gone I looked everyday, called her friends, relatives from thestates, people she babysat for regularly, her friends from school, girls she playedsports with, whoever I could think of. I looked on my days off, after work,whenever i could, wondering and hoping that she was ok and the baby was ok.Sitting up waiting for her to get home to heal' her put the key in the door to openit. When I would come into our place I would look for her shoes and look up to


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Everything was horrific for me, I couldn't comfort anyone, I was enthralled withgrief, pain, confusion. I lost my precious granddaughter Tashy and my first greatgrandchild.

Madison said the following:There were times when me and my sister would have fun together like playlacrosse with me bout now that she is gone I have nobody to play with. "., shetook care of me like I was her own baby, now that she is gone I have to take careof myself. ". The hardest part of this is when I'm playing sports I think about herevery time I play and before the game I ask her if she can help us with the game.I'd have to say I would of like to hold my little nephew and teach him how to playlacrosse.

[15] As Justice Fuerst said in Morrissey referred to below:

20 ...The impact of her murder on those she has left behind, particularlyher parents and Sister, is immeasurable. Indeed, it is impossible to trulycomprehend, for those who have not experienced such a loss.There is nothing that the court can do to bring Tashina back. No sentence thatI could impose on Kent Hill could be proportionate to the grief and suffering


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that for Madison the loss is forever, whereas for Joni Lynn she can still communicate with herbrother and one day he may return.

RELEVANT SENTENCING PRINCIPLES

[17] The following provisions of the Criminal Code are relevant:

718. The fundamental purpose of sentencing is to contribute, along with crimeprevention initiatives, to respect for the law and the maintenance of a just,peaceful and safe society by lmposingjust sanctions that have one or more ofthe following objectives:

(a) to denounce unlawful conduct;(b) to deter the offender and other persons from committing offences;(c) to separate offenders from society, where necessary;(d) to assist in rehabilitating offenders;(e) to provide reparations for harm done to victims or to the community; and(f) to promote a sense of responsibility in offenders, and acknowledgment ofthe harm done to victims and to the community. .

718.l .:A sentence must be proportionate to the gravity oftheoffence and the


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AGGRAVATING, MITIGATING AND OTHER FACTORS

[18] Aggravating Factors:

1. Tashina was 15 1 1 2 weeks pregnant when she was murdered by Kent onJanuary 22,2008. Kent terminated the life not only of Tashina but also of thechild whom she was carrying. An ultra sound test determined that the childwas a boy. Tashina had already decided to name him Tucker.

2. Kent was much bigger and stronger than Tashina. He was 6'21\ 215 poundsand a well conditioned athlete. Tashina was 515", 140 pounds and pregnant.

3. Although initially impulsive, Kent's strangulation of Tashina was a deliberate


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lied to his recently former girlfriend) Marcie) on March 20th, 2008 inthe e-mail that he sent to her about his knowledge of Tashina's death;

- between April 8th and 12th, wrote a letter to Tashina's mother inTashina's name in which he portrayed Tashina as being alive.

5. Lied to the police on March 20th and April 7th by telling them that he knewnothing about Tashina's disappearance.

6. Breached the trust that Tashina had placed in him by going to his house alone.7. Kent confessed to the police that his motive in killing Tashina was that she

said that she planned to tell everyone that he was the father of the child whomshe was carrying.


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6. 10 members of the jury recommended that there be no increase in the minimumstatutory period of parole of 10 years and two made no recommendation.

[20] Other Factors:

1. Kent stated both in his statement to Detective Bickerton and in his evidencethat he regretted that any of this had ever happened. It seems to me that this isquite different from an expression of remorse for what he has done. It is myview that he does not yet appreciate the enormous suffering which hisintentional act of causing the death of Tashina has caused.

2. Kent made statements to the police of sexual acting out behaviour on the partof Tashina. I do not accept this. I will expand upon it presently. He wasfollowing up on a statement by the police that Tashina was not a very nice


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Pagerl S

3. Kent Hill's reputation, which he killed Kashina to protect, is a concept that Iwill develop later. That reputation was built largely on his prowess as alacrosse player. The adulation which society extends to sports stars is based ona belief that a person with superior athletic ability is necessarily, a superiorperson. In my view this is a misconception. Kent Hill must acceptresponsibility for what he has done. However the misconception that he has aspecial place because he has superior athletic ability is not his fault.

Circumstances Surrounding the Commission of the Offence

Relationship between Kent Hill and Tashina General

[21] There is evidence that Kent Hill had a deeper relationship with Tashina than what he


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Character of Tashina General[22] The picture that emerges from the evidence and the victim impact statements aboutTashina is of a warm and sensitive person who was well-liked by her friends. She purchased acandy bar for her brother Madison and a Valentine's card for her mother on the evening ofJanuary 21, 2008. She was well-liked by her friends, Hayli Sault with whom she worked andChloe Dennis, whose fiancee was Tashina's cousin. She learned sign language so that she couldcommunicate with the deaf. I could not improve on the words of Denise, who in her victimimpact statement, described her daughter as follows;

Tashina was a happy, free spirited, always smiling and was so good with kids, shewould have been such a good mommy to her son, Tucker.

[23] Tashina confided in Hayli Sault, Chloe Dennis and Norma Porter that she was pregnantwith Kent's child and that Kent did not want anything to do with the child. Kent told Detective


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B) The types of sentencing procedures and sanctions which may beappropriate in the circumstances for the offender because of his or herparticular aboriginal heritage or connection:

69 In this case, of course, we are dealing with factors that must be consideredby a judge sentencing an aboriginal offender. While background and systemicfactors will also be of importance for a judge in sentencing a non-aboriginaloffender, the judge who is called upon to sentence an aboriginal offender mustgive attention to the unique background and systemic factors which may haveplayed a part in bringing the particular offender before the courts. In cases wheresuch factors have played a significant role, it is incumbent upon the sentencingjudge to consider these factors in evaluating whether imprisonment would actuallyserve to deter, or to denounce crime in a sense that would be meaningful to thecommunity of which the offender is a member. In many instances, morerestorative sentencing principles will gain primary relevance precisely because theprevention of crime as well as individual and social healing cannot occur throughother means.

78 In describing the effect ofs. 718.2(e) in this way, we do not mean to suggestthat, as a general practice, aboriginal offenders must always be sentenced in amanner which gives greatest weight to the principles of restorative justice, andless weight to goals such as deterrence, denunciation, and separation. Itisunreasonable to assume that aboriginal peoples themselves do not believe in theimportance of these latter goals, and even if they do not, that such goals must not


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through generations. Jon Hill, Kent's father was an alcoholic when he married Shelley. He wasphysically abusive to her and to Kent when he was a child. This may well be traced to theeffects of the residential schools. However, I agree with the submission of Mr. Kindon that Kentovercame these experiences as a child. Certainly, an abusive childhood is not restricted to thepeople of the First Nations. In my view "the Gladue principles" are not a significantconsideration in determining parole ineligibility in this case

Case Law

[27] In R. v. Shropshire, [1995] S.C.J. No. 52 the accused shot a man to death for unexplainedreasons in a drug transaction. He was convicted of second-degree murder. He had a criminal.record consisting of two counts of robbery as a youth and impaired driving and two narcoticsoffences as an adult. The trial judge imposed a period of parole ineligibility of 12 years. The

. British Columbia Court of Appeal reduced the period of parole ineligibility to the minimum of


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second degree murder, there will be a broad range of seriousness reflectingvarying degrees of moral culpability. As a result, the period of paroleIneligibility for second degree murder will run anywhere between a minimumof 10 years and a maximum of 25, the latter being equal to that prescribedfor first degree murder ..The mere fact that the median period gravitatestowards the 10-year minimum does not, ipso facto, mean that any otherperiod of time is "unusual".31 If the objective of s. 744 is to give the trial judge an element ofdiscretion In sentencing to reflect the fact that within second degree murderthere is both a range of seriousness and varying degrees of moral culpability,then It is incorrect to start from the proposition that the sentence must be thestatutory minimum unless there are unusual circumstances. As discussedsupra, a preferable approach would be to view the 10-year period as aminimum contingent on what the "judge deems fit in the circumstances", thecontent of this "fitness" being informed by the criteria listed in s. 744. As heldin other Canadian jurisdictions, the power to extend the period of paroleineligibility need not be sparingly used.

[28] In R. v. McKnight iV , a husband murdered his wife of 20 years by stabbing her to death intheir bedroom. He suffered from depression. He was a medical doctor. She was a universityprofessor. They had no children. The jury rejected a defence of not criminally responsible byreason of mental disorder. The accused was charged with first-degree murder. There were


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motorist on the side of the road, not far from where she and her husband had lived, three daysafter he killed her, He pleaded not guilty. The trial1asted 56 days. The Crown introduced anenormous amount of circumstantial evidence, He did not testify, The Court of Appeal, in thejudgment of Justice Moldaver, upheld his conviction and the period of parole ineligibility fixedby the trial judge at 14 years. Justice Moldaver stated the following:

131 The appellant's attempt to cover-up his crime and his persistentefforts to create suspicion that someone else had committed it weredespicable and cowardly, This conduct amounted to a serious aggravatingfeature and, in and of itself, warranted a significant increase in the period ofparole ineligibility. Combining that with the domestic nature of the crime andthe brutality associated with It, Icannot say that the trial judge erred inimposing the sentence he did.

[30] In R. v. Wristen Vf, the accused was convicted of second-degree murder of his wife, Shedisappeared. Her body was never found, The accused was convicted on the basis ofcircumstantial evidence, The Court of Appeal, in the judgment of Justices Laskin and


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accused had caused telephone calls to be made to her family offering hints of where her bodycould be found. The trial judge held that the principle in McKnight, that the period of paroleineligibility for a murder of an unarmed wife or girlfriend should be between 12 and 15 years didnot apply because the victim was not a wife. She imposed a period of parole ineligibility of 10years. The Court of Appeal, in the judgment of Justice Weiler, disagreed. She held following:

19 The trial judge erred in minimizing the aggravating features onsentence. It therefore falls to us to impose an appropriate period of paroleineligibility. The appellant has no criminal record; was employed; and theInformation from the institution Is that he is a model inmate. He is mature,not given to substance abuse and does not have a mental disorder. Takinginto account all of the aggravating and mitigating features, in our opinion theappropriate period of parole Ineligibility Is 12 years. Accordingly, we wouldgrant leave to the Crown to appeal the period of parole ineligibility, allow theappeal and increase the period of parole ineligibility to 12 years.

[32] In R. V . Atwal viii, the accused was convicted of the second-degree murder of his 17 yearold daughter by stabbing her multiple times. The motive was that his daughter had violated theprinciples of the SHillfaith by leaving home and living with her boyfriend. The jury declined to


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family support tluoughout. The jury recommended that there be no increase of paroleineligibility beyond 10 years. Justice Doherty (as he then was), who was the trial judge, declinedto increase parole eligibility beyond 10 years. He stated the following:

7 ... 1regard this as a crime of passion, a vicious but sudden and totallyunpremeditated act. Itwas a product of the unique circumstances in which Mr.Miller found himself on the morning of May 2nd. This one act of extreme violencestands in complete contrast with Mr. Miller's lifestyle and his prior conduct towardsMissHoward. '" Iconsider Mr. Miller's age and his background, He Isa youngman with no record and has led a normal and productive life apart from this.

[34] In R. v. Jensen', the accused was convicted by a jury of second-degree murder of hisfemale drinking companion. by stabbing her to death. The jury rejected a defence ofdrunkenness. The accused was an aboriginal person. The trial judge increased the accused'sparole ineligibility to 12 years. The Court of Appeal rejected the accused's submission that thetrial judge had paid inadequate heed to the Gladue principles. The court stated the following:

28 We observe that neither Gladue, nor s. 718.2(e) of the Criminal Code,


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necessitated that the body be exhumed, subjected to a further autopsy and reburied. This broughtfurther anguish to the victim's family. The trial judge increased parole ineligibility to 14 years.The accused argued on appeal that the trial judge was influenced by the accused's lack ofremorse in increasing parole ineligibility. The Court of Appeal, in the judgment of Justice Blair,found that in the context of his entire reasons for sentenced he did not. The Court of Appealupheld the trial judge. Justice Blair had this to say about the relevance of lack of remorse by anaccused as a factor in imposing sentence:

Withdraw of Confession and Lack of Remorse113 The trial judge did focus to some extent on the appellant's withdrawalof both his admissions and his show of remorse. Generally, lack of remorsemay not be treated as an aggravating factor for purposes of sentencing. In R.v. Valentini (1998),43 O.R. (3d) 178 (C.A.), at para. 82, for example,Rosenberg J.A. said:

In my view, a court must be very careful in treating lack of remorse as anaggravating circumstance. A sincere expression of remorse can be animportant mitigating factor and can reduce the sentence that mightotherwise be imposed. Lack of remorse is not, ordinarily, an aggravatingcircumstance. It should only be considered aggravating in very unusual


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attempted to strangle her. He smothered the child. He was a disturbed person with a longhistory of substance abuse. He had a criminal' record for assault and carrying a concealedweapon. He was 23 years of age. Justice Lafrance-Cardinal imposed the mandatory lifesentence on the murder charge, increased parole ineligibility to 15 years and imposed aconcurrent sentence of 7 years on the attempted murder charge,

[37] In R. v. Morrissey, [2003] OJ.No. 1530, the accused shot his girlfriend while they werein his car. He then attempted to commit suicide by shooting himself in the head. He suffered adisabling brain injury. Justice Fuerst, in a trial before her without a jury, convicted him ofsecond degree murder. She fixed parole ineligibility at 11 years and recommended that theaccused be sent directly to the Health Care Centre at the Kingston Penitentiary.

[38] In R. v. Benham'", the accused strangled his wife in the home that they shared with their3 year old daughter. There were a number of aggravating factors of the offence. He did not try


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called the police at the scene. Character references were filed on his behalf. The Court ofAppeal reduced the period of parole ineligibility to 12 years.

Conclusion

[40] It is important to think clearly about what happened in this case. Kent had two girlfriends - a white girl for show and a native girl for sex. The white girl ended their relationshipbefore the murder of Tashina and terminated contact with Kent after she learned that he was thelast person to be seen with Tashina before' she disappeared. Kent killed Tashina because shethreatened to disclose their relationship and that she was pregnant with his child, He killed twopeople - Tashina and Tucker, her unborn child. Many people spoke about his good character. Iaccept their evidence that he had a reputation as a non violent person. I will not say that this wasa veneer. I accept that it is part of his character and personality. It could be argued, as it wasin


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sister, Denise's daughter and Norma's granddaughter. She was the mother of his child. He liedto the police, to Marcie and to Denise about his knowledge of Tashina's whereabouts. He triedto divert attention from himself by sending a forged letter to Denise in Tashina's name,pretending that she was still alive. These were cruel and cowardly acts. They were not actscommitted on impulse when a flood of anger suppressed his natural inhibitions. They were coldcalculated acts of evil. They were clumsy attempts to protect his reputation. They wereintensely selfish acts done without regard to the terrible suffering that they caused to others. Hehas caused enormous suffering to Madison, Denise, Norma, to Tashina's extended family, to hermany friends and to the entire native community and to his own family. He has no real remorse.He only wishes, in his words, that none of this ever happened. He has no real appreciation of theenormity of what he has done. In his statement at the end of the submissions on sentence he didsay "To all the families involved I am truly sorry". In the proceedings before me this is the firstglimmer of remorse that he has shown. In my view, the primary sentencing principle to be


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will be granted parole. This will depend on whether he meets the criteria set by the parole board.If he is released on parole it will be subject to conditions. He will be under the supervision ofparole officers. If he violates any of the conditions he will be in jeopardy of being reincarcerated.Life imprisonment for Kent Hill means life imprisonment even if he is released into thecommunity subject to conditions. Kent Hill will never again be a free man.

[42] He is also prohibited from possessing weapons for life. There will be a DNA order.

P.B. HAMBLY J.

Date: 28 July 2011

Ken to Wen Hill Transcript

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