R v Tilley, 2013 ABQB 734

Court of Queen ’ s Bench of Alberta Citation: R v Tilley, 2013 ABQB 734 Date: 20131212 Docket: 120119169Q2 Registry: Ft. McMurray Between: Her Majesty the Queen Crown - and - Rayden Dawson Tilley, a Young Person Accused Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 111(1) . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person.

NOTE: This judgment is intended to comply with the restrictions so that it may be published. _ ________________________________________ ______________ Oral Reasons for Judgment of the Honourable Mr. Justice A.W. Germain ______________________________________________________ I. Introduction

[ 1 ] On November 26, 2011 Ms. D.G. was murdered and her five year old son badly injured during an unlawful entry of her home. Dawson Tilley acknowledges he is responsible for this misconduct. He was 16 years of age when he killed Ms. D.G. [ 2 ] Mr. Tilley pled guilty to second degree murder for the death of Ms. D.G., and also assault of her young son. This judgment relates to whether his sentence should be served as an adult or whether he can be sufficiently punished within the confines of a sentence under the Youth Criminal Justice Act , SC 2002, c 1 [the “ YCJA ”]. II.

The Sentencing Framework for Second Degree Murder [ 3 ] Parliament has left little discretion with judges when imposing a sentence for second degree murder. Criminal Code , RSC 1985, c C-46, s. 235(1) prescribes a sentence of life imprisonment if either: 1. the killer is an adult at the time of the offense, or 2. the Crown makes a successful application that a young person be sentenced as an adult. [ 4 ] Where the sentence on a young person is imposed under the adult regime, the sentencing justice is given no discretion in the setting of the period of time during which the offender cannot apply for parole.

This parole ineligibility period is seven years, if the offender was 16 or 17 (as was Mr. Tilley) at the date of the offence: Criminal Code , RSC 1985, s 745.1(c). Qualifying to apply for parole does not guarantee that parole will be granted.

That is a matter exclusively within the jurisdiction of the Parole Board of Canada. [ 5 ] If the judge is sentencing as a youth for second degree murder under the Youth Criminal Justice Act the total sentence is prescribed in YCJA, s 42(2)(q): a mandatory non-discretionary sentence of seven years with: up to four of those years be served in continuous custody, and the remainder of that seven year sentence is a placement under conditional supervision in the community. [ 6 ] Subsection 42(2)(

r) also allows a sentencing judge to make an intensive rehabilitation custody and supervision order in respect of the young person that would focus on treatment for mental illness and other factors, thus enhancing the likelihood and guarantee of rehabilitation. For second degree murder that rehabilitation order can be up to three years in duration. [ 7 ] Between the date of this offense and the sentencing hearing today the Federal government passed legislation changing the youth sentencing regime, based on directions from the Supreme Court of Canada in a court case.

My sentencing, however, is based on the legislation as it existed on the date of the offense, as I am obliged by law to do so. [ 8 ] The Crown may apply under Youth Criminal Justice Act , s 71 that a young person who has pled guilty or have been found guilty of serious crime such as second degree murder be sentenced as an adult. If so, then a hearing is conducted to determine whether it is appropriate that the youth be sentenced as a young person or as an adult.

At that hearing the Crown has the burden of proving that an adult sentence is appropriate: Youth Criminal Justice Act , s 72(2). [ 9 ] The level of proof is neither proof beyond a reasonable doubt, nor a balance of probabilities. Rather, the court considers first the sentencing principles in sections 3(1) (b)(ii) and 38 of the Youth Criminal Justice Act , plus properly assesses and balances the factors set out in section 72(1) . The legislation speaks of the court being “of the opinion”. That does not equate to either the civil or criminal standard which go to proving past facts.

Assessing whether a sentence can properly reflect the test set out in section 72(1) is, by its nature, a speculative attempt to predict the future. [ 10 ] The Ontario Court of Appeal in R v AO , 2007 ONCA 144 at para 38 , 84 OR (3d) 561, pointed out that the gravity of the situation must never be overlooked: ... it is important that a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfil the objectives of the YCJA . [Emphasis added.] See also YCJA , s 38(2)(e). [ 11 ] Our courts have referred to this burden on the Crown as a “persuasive” one: R v CHC , 2009 ABQB 125 at para 4 , 465 AR 240; R v Bird; R v SRB , 2008 ABQB 327 at para 9 , 435 AR 313, R v DDT , 2009 ABQB 362 at para 15 , 467 AR 341, affirmed 2010 ABCA 365 , 493 AR 167, leave denied [2011] SCCA No 50. [ 12 ] In this case, the Crown has made an application to have Mr.

Tilley sentenced as if he was an adult. This application is often made when a young person is guilty of such a serious offence.

Section 62 of the Youth Criminal Justice Act indicated that an adult sentence shall be imposed on a young person who is found guilty of a presumptive offense (such as second-degree murder) if the justice hearing the case determines that such an order is appropriate based on the test set out in the Youth Criminal Justice Act . However, this presumption was struck out by the Supreme Court of Canada as unconstitutional in R v DB , 2008 SCC 25 , [2008] 2 SCR 3, and

section 62 was subsequently repealed by Parliament in 2012. Thus Mr. Tilley does not have to overcome this burden. [ 13 ] YCJA , s 72(1) sets the test for whether a judge will order a youth or adult sentence. This provision was amended in Oct. 22, 2012 by the Safe Streets and Communities Act , SC 2012, c

Section 195 of that act is a transitional provision that indicates any young person who committed an offence upon which proceedings were commenced prior to Oct. 22, 2012 is instead to be sentenced under the

pre-amendment version of s 72(1). [ 14 ] The pre-amendment provision indicates that an adult sentence should be ordered where a youth sentence would not have sufficient length to hold the young person accountable for his or her offending behaviour, taking into account: 1. the seriousness and circumstances of the offense; 2. the age, maturity, character background and previous record of the young person; 3. any other factors that the court considers relevant, and 4. the YCJA s 3(1)(b)(ii) and s 38 purpose and principles. [ 15 ] That is the test from the legislation that I am duty-bound to apply today. [ 16 ] The second count of aggravated assault is also a very serious matter, both in its facts and in law, but is eclipsed by the homicide so a separate analysis for that charge would add nothing to the (above) discussion.

III. The Position of the Parties [ 17 ] It is the Crown’s position that the Offender must be sentenced as an adult given the circumstances of the crime, the circumstances of the offender, and taking into account the interests of the community both to rehabilitate this youth offender but protect the public from further harm. [ 18 ] The young person argues that a sentence under the Youth Criminal Justice Act provides sufficient opportunity to appropriately punish the Offender and fairly deal with his rehabilitation.

Learned Defense counsel takes the position that as this young person was not an adult at the time of the offense, nor particularly close to adult hood, he should continue to be treated as a young offender for the purpose of sentencing. [ 19 ] Counsel also points out that Mr. Tilley has already served close to two years imprisonment and argues if he receives the maximum second-degree murder sentence of seven years (four in custody and three in the community) on top of the time he has already served, there is also a good chance of better rehabilitation.

A sentence reduction for pre-trial custody is not mandatory in a youth offence setting: R v DDT . [ 20 ] As important, learned defence counsel points out that there has been behavioral improvement while in custody which should promise optimism for rehabilitation. [ 21 ] Both legal counsel have filed an extensive array of youth sentencing cases (including one of my own cases) which reflect on the appropriate judicial analysis during hearings of this type. I have reviewed all of those. While they repeat certain legal principles each of them are highly fact specific. IV.

Sentence Materials and Reports [ 22 ] I have had the benefit of a thoroughly prepared youth presentence report prepared by probation officer Susanna Cruz. While Ms. Cruz does not make any recommendation her presentence report is thorough, competent, and fairly balanced. She surveyed the Offender’s father, RCMP officers who were engaged in the investigation, members of the victim’s family, and school staff and counselors who were involved with Mr. Tilley since his arrest in 2011. [ 23 ] I have also reviewed three forensic reports prepared by Dr. Gupta, Dr. Nesca, and Dr. Rai. These have been marked as exhibits.

Finally I have reviewed the three reports of the youth remand facilities where Mr. Tilley was detained between December 2011 and November 2013. V. Legal Analysis A. Youth vs. Adult Sentencing is a Multifactoral Analysis [ 24 ] A judge sentencing a youth offender guilty of murder has two choices: to either sentence as an adult or as a young person. In reality, the choice is rarely clear-cut, never simple, and rarely free from controversy.

This is a consequence of the competing interests of the public and the offender, and the special objectives that Parliament has indicated guide how the criminal justice system handles youth offenders. [ 25 ] Over the years legislation relating to young offenders has increased the penalties for young offenders doing serious crime, but has always recognized that the court should have broad and special discretion to direct that the youth served his sentence as a young offender, notwithstanding the seriousness of the crime.

The Supreme Court of Canada has stressed the Youth Criminal Justice Act operates in a special context in cases such as R v DB and R v SAC , 2008 SCC 47 , [2008] 2 SCR 675. [ 26 ] Many cases from the Supreme Court of Canada, the appeal courts across Canada, the trial courts across Canada, and even a historic case of my own have reviewed the relevant sections of the legislation in the context of creating a just fit and proper sentence. In the case of a young person who has committed a serious crime the point of departure is the issue of whether that youth offender should

sentenced as an adult or as a young person. [ 27 ] The cornerstone rule when sentencing of an offender in Canada, whether as a youth or as an adult, is that the sentence must be individually tailored to the offender: R v Proulx , 2000 SCC 5 at para 82 , [2000] 1 SCR 61. A consequence of that fact is that often sentencing cases are difficult to reconcile. [ 28 ] All of the circumstances of the crime, the offender, the reports of the experts, must be considered, when dealing with the question of whether the sentence should be a sentence under the Youth Criminal Justice Act or as an adult offender.

It is the Crown who has made the application, and who must carry the burden of proof. As I have identified (above), this is a “persuasive” burden. However, any aggravating fact going to that decision must be proven beyond a reasonable doubt. [ 29 ] While there are no absolute rules, a careful analysis of the cases does reveal some commonly relevant factors: 1. The character of the offence, where factors such as unnecessary violence, humiliation or degradation of the victim, weapons, and the number of violent incidents may favour an adult sentence (reviewed at R v DDT , para 112). 2.

A youth who is more mature, such as being close to the age of adult responsibility, or who lives an adult lifestyle, will be more likely to be sentenced under an adult criminal regime (reviewed at R v DDT , para 115). 3. Where a group of young persons or a combination of young persons and adults commit a serious crime the younger followers are more likely to be sentenced as young persons, especially those with no record (reviewed at R v DDT , at paras 113-114). An example of this factor is R v DDT , my own decision sentencing a younger girl guilty of second-degree murder.

In that case a 15-year-old girl with no record who was the youngest of a group of youths and who participated only in a collateral way to a killing was sentenced to the maximum youth sentence. 4. The prospects for rehabilitation and reintegration; this factor is usually supported by expert mental health assessments which evaluate whether rehabilitation in a youth sentence regime is likely to be effective, and if not it is less likely that the individual will be sentenced as a young person (reviewed in R v DDT , paras 127-128). 5.

Whether the youth offender has accepted or denied their role and blameworthiness for their misconduct (reviewed in R v DDT , paras 129-130). 6. The post-offence but pre-sentencing conduct of the youth offender (reviewed in R v DDT , paras 131-132). [ 30 ] These are only some of the potentially relevant considerations to determine whether a YCJA sentence is sufficient to ensure a youth offender can be held accountable for their misconduct and has a meaningful and realistic possibility of rehabilitation and reintegration. B. Mr.

Tilley as an Offender [ 31 ] The expert reports, agreed statement of facts, and other resources provide me with a background on Mr. Tilley. It is a troubling one. [ 32 ] Mr. Tilley was born November 2, 1995. He killed Ms. D.G. and seriously injured her son on November 26, 2011, early into his 16 th year. Today, as he faces sentencing, he is 18 years of age and an adult. 1. Criminal Conduct [ 33 ] Prior to the killing of Ms. D.G., Mr. Tilley had clearly developed some type of negative lifestyle change and appeared to be involved in escalating criminal activity and antisocial behavior. In the days between Ms.

D.G.’s death and Mr. Tilley’s arrest and apprehension, he also committed another break and enter, even while under surveillance by the police as a potential suspect in the killing of Ms. D.G. [ 34 ] While the dates of the previous offenses are not exactly known, Mr. Tilley’s criminal record indicates that his first youth court involvement occurred before May 17, 2011 in Fort McMurray and resulted in a plea to a mischief count ( Criminal Code , s 430(4)), for which he was given 30 hours of community service work.

The young person did not react well to the community supervision and was found in breach of that sentence. There was a second mischief charge resolved in the courts on July 5, 2011, which resulted in a conditional discharge. This order had conditions attached to it, including a requirement to not breach the peace. When Mr. Tilley killed Ms. D.G. he was under a court supervision order to act in a civilized way. Killing someone is as far away from acting in a civilized way, as it is possible to get. [ 35 ] It is chilling to note that 14 days after the killing of Ms. D.G. and while Mr.

Tilley had not yet been arrested by the police he broke into and entered dwelling house contrary to Criminal Code , s 348(1)(d)(i). That offense has already been addressed in the courts, and Mr. Tilley received a sentence of two years probation. Realistically, that sentence is academic because by that point he had been arrested for killing Ms. D.G. 2. Response to Supervision [ 36 ] In the pre-sentence report the probation officer reviewed Mr. Tilley’s record and concluded that he does not respond well to less structured sentences, such as conditional discharges or probation.

However, he is also uncooperative with a regime of strict and direct control imposed by authority figures. This discourages rather than encourages a sentence under the YCJA .

[ 37 ] Similarly, Mr. Tilley has been in custody since his arrest on these matters. This provides a window into his future interaction in an institutional setting. He has required isolation from other peers, and has been engaged in conflict. While his conduct in the various remand centers and Alberta Hospital has not been the worst the court has ever seen, it is also clear that Mr. Tilley has is not an exemplary prisoner. This post-offence conduct favours an adult sentence. 3. Family Context and Support [ 38 ] Mr.

Tilley is the product of a broken home in which there was drug and alcohol abuse and general poverty. His school records, in particular, indicate a probability that he was affected by that experience. [ 39 ] He lived with his mother after the family split up when he was about four years old, and his mother could not be contacted by probation services to participate in the presentence report. [ 40 ] Mr. Tilley’s father became his primary custodian in 2005, and they lived together in Fort McMurray until Mr. Tilley’s arrest. While it appears the father attempted to intervene to assist his son, Mr.

Tilley nevertheless was drinking and attended school less and less. [ 41 ] Mr. Tilley has reported to various persons an extensive history of alcohol and drug abuse, as well as criminal misconduct. [ 42 ] There are some youth offenders whose misconduct can be placed squarely at the feet of their circumstances. That favours a youth sentence to help the offender overcome their history and move on in a productive manner. Mr. Tilley is not an example of this category. He had advantages; he had disadvantages. I accept the pre-sentence report that Mr.

Tilley had an opportunity in his teenage years to build a life with an interested, supportive parent. Instead, he squandered that chance. 4. The Particulars of the Offense [ 43 ] Counsel have been able to reach agreement on an agreed statement of facts to describe Mr. Tilley’s misconduct. It is neither necessary nor productive for me to incorporate all of these into this judgment by specific discussion. However, I do wish to point out that this was a home invasion which led to a particularly gruesome killing of a defenseless woman while in her apartment.

The assault extended to the deceased’s even more defenseless infant, who was in her care at the time. The death was by multiple stab wounds. The forensic evidence makes clear that there was a certain amount of interaction that occurred between the Offender and his victim prior to her death. [ 44 ] Even more troubling is that the circumstances in which Ms. D.G. was found leads to the strong implication that her residence was invaded by Mr. Tilley entering through the balcony screens, and he may have intended to conduct a major sexual assault on defenseless victim.

Whether this sexual component was planned or opportunistic is less relevant than the simple fact Mr. Tilley was willing to invade a person’s home and then act in a manner consistent with a sexually assault upon its occupant. [ 45 ] The young infant, who was also injured at the time, appears to have witnessed at least some elements of his mother’s death. [ 46 ] A fair

summary of the agreed facts are that the deceased was living with her son when her killer broke into her apartment, brutalized her badly leading to her death, and also seriously injured a helpless five-year-old boy who was with her. The killing appears to be a senseless one and without any real practical motive. As Mr. Tilley exited he left behind an injured child, but took a computer. [ 47 ] I cannot be certain beyond a reasonable doubt whether Mr. Tilley had entered into Ms. D.G.’s property to engage in a property crime at the time or perhaps with the intent of finding criminal sexual gratification.

However, I am satisfied beyond a reasonable doubt by the condition of Ms. D.G.’s state of dress when the police found her that at some point Mr. Tilley did have a sexual objective, be it before, during, or after the assault. [ 48 ] In any event, to kill a defenseless woman while on a sole perpetrator crime, and also seriously injure her son is extremely egregious conduct. There is no explanation for the vicious and cruel additional injuries to the infant child who posed no risk, other than as a witness.

That too is the only conclusion I can draw from this offence scenario, and I come to that implicit result beyond a reasonable doubt. The fact that Mr. Tilley would attempt to silence a child witness by force is extremely troubling. [ 49 ] This was a malicious, cruel, cowardly, and senseless crime. A review of the crime, including the fact that it was perpetrated by a sole perpetrator, involved a violation of a personal residence, and then killing the mother of a child plus severely injuring the child militates against a sentence in the youth environment. Mr.

Tilley is unlikely to be held accountable for his misconduct by a youth sentence. 5. The Guilty Plea [ 50 ] While it is true that the Offender entered a plea of guilt, it was after initial denials and a preliminary inquiry, the evidence implicating Mr. Tilley to the crime is overwhelming. There was an extensive DNA trail linking Ms. D.G. and offender. There was extensive forensic evidence properly seized by the police at Mr. Tilley’s residence. Circumstances of the investigation quickly led the police to Mr.

Tilley and the evidence then simply piled on after that, to the point where continued denial of guilt would have been counterproductive. Had this matter proceeded to trial I conclude that the Crown would have readily proved some type of culpable homicide. 6. The Expert Reports [ 51 ] I find the pre-sentence report to be fair and balanced. However, its author holds out little hope of rehabilitation and expresses concern that this individual will respond well in a less structured youth sentence environment.

[ 52 ] The psychiatric medical reports focus generally on one subset of sentencing in a youth regime, and that is whether the intensive rehabilitation process provided for by YCJA , s 42(2)(r), which is focused on rehabilitating the offender, would provide society adequate downstream protection through a reasonable, although not guaranteed prospect of success. [ 53 ] I directed first one and then a second report to determine whether this young offender would benefit from an intense rehabilitation program under the supervision of Alberta Hospital and the youth remand facilities in this province.

The first report was negative, and described a pathology that bordered on psychopathic behavior. [ 54 ] Learned Defense counsel also retained a highly respected psychologist, Dr. Nesca, to evaluate Mr. Tilley. Dr. Nesca made certain adverse findings about Mr. Tilly (Nesca report, July 2, 2013 p 12, first full paragraph): To summarize, [Tilley] is an adolescent who committed acts of uncharacteristic violence within the context of polysubstance intoxication.

He has a history of significant misconduct; including defiance of authority, aggressiveness, and anger management problems. [Tilley] is also deceitful: He attempted to minimize past misbehavior with me and he exaggerated his history of antisocial activities during his hospital assessment. On a more positive note, he neither harbors the personality traits commonly associated with persistent criminality nor is he psychopathic. [ 55 ] Significantly, Dr. Nesca concluded that: ... there is no doubt in my mind that [Tilley] currently poses a high risk for both violent and non-violent offending.

At this point, application of additional risk metrics would simply be redundant. [ 56 ] Despite this mixed

summary, Dr. Nesca concludes that Dr. Gupta was unreasonably pessimistic, and that Dr. Gupta’s conclusion was without a proper foundation when he concluded that Mr. Tilley could not be rehabilitated under an intense program of rehabilitation. The chief thrust of Dr. Nesca’s perspective was that Mr. Tilley had exaggerated his misconduct and negative characteristics in his interview with Dr. Gupta so as to impress. In short, Dr. Nesca urges the court not to base any decision on whether Mr. Tilley should be sentenced as an adult or as a young person on what was characterized as an unsupported conclusion of Dr.

Gupta. [ 57 ] This assumes, however, that Mr. Tilley did exaggerate his history of antisocial activities during his assessment by Dr. Gupta, rather than simply exaggerating and fantasizing about his self-importance as a petty criminal. It is arguable that the first report correctly captured this young person’s rehabilitation limitations. In that sense it may be that the self-reporting to Dr. Nesca was deceitful; a contrivance to see if Mr. Tilley could obtain a more favorable report. In other words the underlying thesis of Dr.

Nesca’s opinion is that Tilley was acting out during the first assessment and would play it straight with the second. No matter what, it is clear that Mr. Tilley was lying to one of these two experts. [ 58 ] Mr. Tilley is clearly mature enough and sophisticated enough to realize that Dr. Gupta’s report was not helpful to reach his desired result, to be treated as a young person in sentencing, and therefore it is expedient to criticize Dr. Gupta’s conclusions as being based on intentional false information. In any event, it is clear there is false information at play.

Any exaggeration alone may not detract much from the bottom line conclusion of Dr. Gupta, which was that this individual cannot be effectively rehabilitated in the time available for a youth sentence. [ 59 ] This brings me to the third report. The sentencing of young offenders in Canada for a serious crime is an important judicial function because an appropriate YCJA sentence for a youth offender can often focus on rehabilitation of the young offender in the youth criminal justice system, rather than thrust this potentially vulnerable individual into the adult criminal justice system.

Out of an abundance of caution I ordered a third assessment, in response to the penultimate conclusion of Dr. Nesca that Dr. Gupta’s analysis and conclusion may have been distorted by Mr. Tilley being intentional dishonest. This last report, dated December 2, 2013, was authored by Dr. Santoch Rai, a forensic psychiatrist at the Alberta Hospital. [ 60 ] The last report is the most pessimistic of all three. It provides more detail about the young person’s description of the crime. Alarming, that account continues to minimize the impact of the violence sustained by the victims. Mr.

Tilley tries to distract and dismiss conduct that suggests sexual gratification was an objective that emerged during the crime. The Rai report is unequivocal: an intense program of rehabilitation under the youth criminal justice system will not work because Mr. Tilley will not assist in the program. [ 61 ] Dr. Rai also gave viva voce evidence by CCTV in this case. His opinion was unshaken and he remains firmly of the professional view that an intensive period of rehabilitation is unlikely to be successful.

He observes that his key psychiatric diagnosis, supported by the reference criteria, is a diagnosis of Anti-Social Personality Disorder . This disorder is hard to treat, not amenable to treatment with medication, and requires intensive therapy and a willingness to correct criminal tendencies and leanings. It also requires potential career success in mainstream society by skill training and education. In addition, when this condition is exacerbated by substance abuse, treatment for abuse must also occur. Despite aggressive cross-examination by learned defence counsel, Dr.

Rai was not shaken on the opinion that an intense rehabilitative sentence under young offender legislation would not likely be effective, nor rehabilitative. [ 62 ] I must therefore conclude that the weight of all of the forensic medical information that I have received, including the report from Dr. Nesca, is that Mr. Tilley is a potentially dangerous man with little apparent interest in rehabilitation. The only difference between the three reports is that Dr. Nesca’s report is less pessimistic on the potential benefit of intensive rehabilitation and the possibility that that approach may meet with success.

However, based on a careful reading of these reports I do not have that same level of confidence. [ 63 ] An adult sentence is favoured when rehabilitation and reintegration is not plausible by a youth sentence, with or without the intensive rehabilitation option. I conclude that Mr. Tilley is not likely to meet that result in the sentencing regime offered by the YCJA . 7. Post-Offence Conduct

[ 64 ] Mr. Tilley has been an inmate in the youth criminal justice system now for nearly two years. He has an ample opportunity to express a willingness to respond appropriately in this social and institutional setting. He has not done so. This offender is a problematic and troubling inmate. [ 65 ] There has been disturbance and controversy concerning this young person’s time both at the Alberta Hospital during assessment and during his incarceration in the Edmonton and Calgary Youth Offenders Centres. There is a designation on his file that he not be supervised by lone females.

At least one attempt to integrate him into the general population has failed. He manifests danger to the supervisory staff, whose function is to concentrate on rehabilitation rather than criminal guardianship. These reports reflect that youth facilities may not be appropriate for this young person and that he poses a danger both to himself and to the youth facility employees. [ 66 ] There was a point when this young person was transferred to Calgary to be in a more supervised secure unit for violent offenders. Although Mr.

Tilley has achieved some significant course credits academically towards his GED, I conclude that none of the time he has spent under lock up has made any improvement to his outward personality, demeanor, anger management, or relationships to authority. In my view all of the information that I have reviewed indicates that he is as dangerous today as on his arrest, and as great a risk to re-offend as he was when he committed these horrific crimes. 8. Remorse and a Willingness to Change [ 67 ] Usually a guilty plea indicates that an offender has recognized they have done wrong, and should be punished.

As I mentioned above, in this case that link is secondary to simple self-interest. [ 68 ] The expert reports offer different views on Mr. Tilley’s current perspective on his misconduct. In particular, Dr. Nesca’s report indicates a highly emotional and negative perspective on the intrusion into Ms. D.G.’s residence and the subsequent offences. I conclude, beyond a reasonable doubt, that Mr.

Tilley’s reported explanation and conduct is self-serving, and that instead reports that he had distanced himself from and minimized his misconduct and its consequences are a more accurate characterization of this youth offender. That too favours an adult sentence. C. Conclusion [ 69 ] While one can never guarantee whether or not a program of intensive rehabilitation will work, my

interpretation and review of the facts in this case and the carefully prepared reports about this Offender gives me little comfort any youth sentence will probably meet the objectives of accountability, rehabilitation, and reintegration, with or without intensive rehabilitation, and even if the sentence were a full seven years from this point. [ 70 ] In

summary, we have a serious crime of second-degree murder with a sexual component and accompanied by gratuitous violence directed to a young infant, the son of the deceased. This was perpetrated by a young male who was large, physically fit, and very close to adult hood. [ 71 ] We have two years of experience to see how this person operates in the closed young offender system. The result has little positive to say about it. We have reports that advocate against an intensive rehabilitation youth sentence as contemplated in the legislation.

This youth offender is consistently identified as having a high risk of re-offence. [ 72 ] My obligation is to consider: 1. the seriousness and circumstances of the offense, which are at the grave end of the scale; 2. the age of the young person, which is close to adult hood; 3. his maturity, character, and background, none of which are promising; and 4. a record of criminal and antisocial conduct, which I think reflect a cauldron of serious issues, as diagnosed by Dr. Rai. From that I draw my opinion. VI.

Conclusion [ 73 ] I am not able to conclude that a maximum youth sentence, which is four years in close custody, followed by a period of three years in the community subject to a requirement for good behavior, would be of sufficient length to hold this young person accountable for his offending behavior and offer a realistic probability of rehabilitation and social reintegration. [ 74 ] To the contrary, I conclude specifically that a youth sentence imposed in accordance with the purpose and principles set out in the Youth Criminal Justice Act would not have sufficient length to hold the young person accountable for his offending behavior.

I therefore must order that an adult sentence be imposed. Heard on the 6 th day of December, 2013.

Dated at the City of Ft. McMurray, Alberta this 10 th day of December, 2013. A.W. Germain J.C.Q.B.A. Appearances: Stephen Hinkley for the Crown Graham Johnson for the young person