R v Scheerschmidt, 2016 ABQB 35

Court of Queen ’ s Bench of Alberta Citation: R v Scheerschmidt, 2016 ABQB 35 Date: 20160122 Docket: 120552294Q1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - Travis Scheerschmidt Accused _______________________________________________________ Reason for Judgment of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] On May 12, 2012 Travis Scheerschmidt, then 17, killed Diane McClements at a group home in Camrose, Alberta.

After pleading guilty to second degree murder, the Crown applied to have Scheerschmidt sentenced not as a young person but as an adult. For reasons which follow the Crown’s application is allowed.

Background The Circumstances of the Offence [ 2 ] The events of May 12, 2012 are set out in an Agreed Statement of Facts. These facts include that McClements died as a result of multiple sharp injuries, six stab wounds in total. The injuries included a wound to the victim’s throat cut right through to the bone. She sustained substantial head and neck injuries including fractures of the nose and upper jaw. [ 3 ] Physical evidence at the scene depicted a physical struggle. Blood was spattered onto walls. It pooled around the victim’s head. A large, blood-stained butcher knife was found in a nearby kitchen sink.

A second, smaller, paring knife was found lying on the floor of the suite. It was also blood-strained, its blade bent at a 90-degree angle. [ 4 ] Soon after the killing, Scheerschmidt confessed to a number of witnesses. He confessed that he had killed McClements, then stole her vehicle, eventually ditching it at a nearby park. He told another witness there was blood all over his jacket from a nosebleed. He used a washing machine to wash the blood from his clothing. [ 5 ] He confessed to another that he slit his victim’s throat, so deeply that he almost cut her head off.

He said he broke the paring knife in the assault. He said he then used the butcher knife. [ 6 ] He discussed with a witness what offences he could be charged with, the difference between murder and manslaughter, and how to minimize the amount of time he would have to serve. [ 7 ] He told another witness that he was in trouble, that he had stabbed his victim with a paring knife but broke it on her cheekbone. He then choked his victim, and as she lay on the ground, he stomped on her face and cut her throat. [ 8 ] He told yet another witness that he had been having a bad day.

He said he had been in a closet with his victim when he left to get a paring knife to attack her. [ 9 ] Scheerschmidt’s bloodied boots and other clothing were located in a dumpster two days after his arrest, on May 13, 2012. [ 10 ] In the course of an Intensive Rehabilitative Custody and Supervision (IRCS) Assessment, Scheerschmidt further described in great detail, at pp. 43-47, the events of May 12, 2012. The Circumstances of the Offender [ 11 ] At the time of the offence Scheerschmidt was 17 years, 6 months and 13 days old. He is now 22.

He has been in custody since his arrest on May 13, 2012. [ 12 ] His trial was originally scheduled to proceed in mid-January, 2014. The trial was adjourned to early September, 2014. [ 13 ] Scheerschmidt pleaded guilty to second degree murder on September 2, 2014. The within application was delayed until late 2015 for the preparation of the IRCS report and a Pre-Sentence Report. [ 14 ] Scheerschmidt’s circumstances are before the Court by way of two primary sources: first, the IRCS assessment of Dr.

Vinesh Gupta dated January 4, 2015; second, a Youth Presentence Report (PSR) of Richard Fehr dated September 23, 2015. Attached to the Fehr report was a copy of Dr. Gupta’s report. Also attached was an earlier presentence report of July 4, 2011; and a s. 34 Youth Criminal Justice Act SC 2002, c 1, s 110(2) ( YCJA) report of July 1, 2011. Except to the extent that the 2011 reports are referred to by Dr. Gupta and by Mr. Fehr, any facts or opinions expressed in them will not be considered in this decision. Dr. Gupta’s Evidence/IRCS Report [ 15 ] Dr.

Gupta was the only witness called to give evidence in the Crown’s application to have Scheerschmidt sentenced as an adult. No rebuttal expert was called. No expert rebuttal evidence was otherwise before the court, for the offender. [ 16 ] Dr. Gupta was before the Court without objection as an expert qualified to give opinion evidence in child psychiatry and adolescent forensic psychiatry. His evidence, taken together with his written report, is summarized below. [ 17 ] Dr. Gupta saw and interviewed Scheerschmidt on at least eight occasions during a six-week period prior to his January 4, 2015 report.

He had not seen Scheerschmidt since late October, 2014. [ 18 ] Dr. Gupta found that Scheerschmidt had a long history, starting as early as the age of five, of significant behavioural difficulties. These were characterized by aggression, defiance to authority figures, having a sense of grandiosity, in due course being attracted toward the occult. He found that Scheerschmidt began to use alcohol around the ages of 12-13. [ 19 ] His family relationships continued to be difficult. He engaged with anti-social peers, and in anti-social behaviour.

He had difficulties with school including suspensions/expulsion. [ 20 ] He presented to Mental Health Services with reported psychotic symptoms including hallucinations. No mental health professionals have ever confirmed however that Scheerschmidt was in fact experiencing such symptoms. Indeed, Scheerschmidt suggested after the May 12, 2012 murder that his actions were the result of hearing voices telling him to kill people. The IRCS report concluded however that no evidence corroborated Scheerschmidt’s reports of experiencing psychotic symptoms at the time of the

offence. The report concluded these indications by Scheerschmidt were attempts on his part to avoid responsibility for the murder. [ 21 ] Mental health professionals have diagnosed Scheerschmidt with opposition defiant disorder, conduct disorder with lack of empathy. Dr. Gupta found that around 2011 professionals started talking about psychopathic traits. It was noted that Scheerschmidt had no remorse, no empathy. Serious concerns were expressed with regard to a tendency towards violence and fantasies towards violence and aggression and using it to manipulate people around him. In Dr.

Gupta’s opinion, this was Scheerschmidt’s general behavioral pattern leading up to the events of May 12, 2012. [ 22 ] As a result of his IRCS assessment, Dr. Gupta reached the opinion that Scheerschmidt has antisocial personality disorder. He scored a “very high” 37 out of 40 on a psychopathy checklist. [ 23 ] Dr. Gupta testified that according to an IRCS team psychologist, people who score in such a range are likely to be egocentric, callous, and cold-blooded. They are likely to be predatory – meaning that they tend to wait for opportunities to take steps. They tend to be irresponsible, dominant and deceptive.

They tend to be manipulative, lack empathy, have no guilt or genuine remorse for socially deviant or criminal acts. They tend to be capable of using intimidation and violence to obtain their needs and wants. [ 24 ] The IRCS

summary of all of the personality tests administered resulted in a finding that Scheerschmidt “has all, or almost all, of the anti-social traits of the prototypical psychopath”. [ 25 ] This finding, the IRCS report concluded, was consistent with previous psychological and psychiatric assessments. [ 26 ] These then were the test-based findings and inferences before the court, not contradicted by any other evidence. [ 27 ] Dr.

Gupta also wrote in his report, and testified before the court, that Scheerschmidt actually manifested many of these psychopathic traits in the years leading up to and including the events of May 12, 2012. These are set out in some detail, for example at pp. 5-29 and pp. 43-50 of the IRCS report. [ 28 ] Details are provided, often from Scheerschmidt himself, of troubling relationships with his mother, his brothers, teachers, fellow schoolmates. While full school records were not available, it was determined that Scheerschmidt faced multiple detentions as early as third grade, turning to suspensions by grade five.

Scheerschmidt told of a fight in grade seven in which he sent a student to hospital for two weeks. Scheerschmidt was expelled from school in the eighth grade. He attended schools thereafter sporadically, often by outreach. He was registered at an outreach school around the time of the events of May, 2012. [ 29 ] Around the age of 12 or 13 Scheerschmidt admitted to killing two family cats. He killed them in what can only be called a gruesome manner.

IRCS assessors described that he “…talk[ed] about the killing of two cats with some pride as to how he killed them with his bare hands.” He talked about a history for setting fires; when he was 16, he admitting to lighting fire to a bible in front of his grandfather because he was angry that his grandfather was “preaching” to him. [ 30 ] Dr. Gupta undertook a risk assessment based on the

Schedule for Assessment of Violence Risk in Youth (SAVRY). In Dr. Gupta’s opinion, based on the SAVRY assessment Scheerschmidt presented as someone who is a high risk of general re-offending in the “short term”. Dr. Gupta testified that the risk included: …both violent and non-violent re-offending. And there were concerns around his significant alcohol abuse, non-compliance with treatment and interventions, social isolation, unusual interests and beliefs. Essentially [the SAVRY] was summarizing that [Scheerschmidt] has failed to comply with societal norms and expectations in the past.

And he presents as an intelligent young man who appears to take pride in his ability to manipulate others and considered himself superior in his ability to commit crimes. [ 31 ] Dr. Gupta acknowledged two shortcomings in his assessment: first, that certain documentation from Child and Family Services was not produced, despite repeated requests; and second, that Scheerschmidt’s mother had difficulty providing the assessment team with information. [ 32 ] Regarding the Child and Family Services records, however, Dr. Gupta testified that records were available from Mental Health Services.

He found those records significant enough to support the impressions reached in the assessment. If anything, Dr. Gupta testified, additionally records from Child and Family Services would potentially have disclosed “more concerning information rather than telling us that [Scheerschmidt’s] risk is lower than what it is. His risk probably would have been higher than what we have indicated it to be.” [ 33 ] Some of Dr. Gupta’s opinion evidence was challenged on cross-examination by Scheerschmidt’s counsel. [ 34 ] For example, Dr.

Gupta acknowledged that personality traits in a young offender are not entrenched in the same way as they may be for an adult. He agreed that in assessing risk emphasis must be placed on historical and on dynamic factors, including environmental factors, so that the question of risk with respect to a young offender has to be viewed within the context of the evolving nature of the young offender over time. [ 35 ] Dr. Gupta agreed for example that a “reconciled and positive relationship” with a mother figure would be a factor that should be considered in the reduction of risk.

On the other hand, no concrete evidence of any such reconciled and positive relationship was put to Dr. Gupta, or to the Court. Indeed, as noted Dr. Gupta had difficulty obtaining information from Scheerschmidt’s mother in relation to the assessment; the IRCS report also notes the mother “presented as a poor historian”.

What’s more, elsewhere in the IRCS report Scheerschmidt was noted to have talked about relationships where he is in control of his partner and uses them for his benefit: “He has talked about his mother in a similar manner where he has in the past stated that he tolerates her as long as he wants something from her but not otherwise.” [ 36 ] Dr. Gupta agreed that while in custody since May, 2012 Scheerschmidt had been cooperative and had fully participated in

programming and assessments. He agreed that Scheerschmidt provided information about the murder that did not make him look positive. On the other hand, Dr. Gupta testified in cross-examination that his team formed the impression that in telling them about the murder and events leading up to it, Scheerschmidt: “…was trying to prove that he was mentally unwell and that is why he [committed the murder], and he was trying to prove that he’s open and willing to engage in the process. It was not because he wanted – he was not expressing remorse or empathy.

So we did not necessarily see [his apparent cooperation of giving significant details about the murder] in a positive manner.” [ 37 ] Dr. Gupta acknowledged that while in custody since May, 2012 Scheerschmidt had been described as a “model inmate”. He associated this however largely with Scheerschmidt’s “highly supervised and structured environment”. In his opinion such an environment – “long-term supervision and structure” – would be required to manage Scheerschmidt’s risk appropriately.

He did not agree with the suggestion, put to him during cross-examination, that Scheerschmidt’s “model inmate” status predicted less risk outside of a highly structured and highly supervised environment. [ 38 ] Nor did Dr. Gupta agree that an environment that included treatment would necessarily reduce risk. He acknowledged that Scheerschmidt apparently engaged in treatment programs while in custody.

He testified however that Scheerschmidt had a poor record of responding positively to community-based treatment or therapy, in the sense that such interventions had failed to change his manipulative, threatening behaviors, did not affect his ability to sympathize, or to express genuine remorse for his actions. [ 39 ] In cross examination, Dr. Gupta agreed with a psychologist’s assessment that Scheerschmidt was “quite immature emotionally” for his age. (Elsewhere in his evidence Dr. Gupta described Scheerschmidt as “slightly immature”.) [ 40 ] However, Dr.

Gupta did not agree that Scheerschmidt’s fascination with the occult and vampirism was “quite shallow and facile” and thus a measure of his immaturity – as suggested by counsel in cross-examination. Rather, Dr. Gupta noted that Scheerschmidt’s beliefs in the occult were of long-standing, held since the age of 7-8, and appeared to be still “quite deeply entrenched” at the time of the IRCS assessment. Scheerschmidt’s beliefs included not only the use of ‘fake fangs’ but a belief in vampires and zombies, biting other people, and sharing and have sexual relationships with females having similar interests. [ 41 ] Dr.

Gupta’s testimony on this point is supported by the IRCS report, which notes: “[Scheerschmidt] states that he practices the culture of vampirism, though he is not a vampire.

This involves blood ingestion, blood play, and forming bonds to attract, manipulate, and control people – particularly girls he is interested in. [Scheerschmidt] states that he enjoyed the feeling people fearing him because of his appearance when made up in his vampire paraphernalia, which includes all black clothing, occult jewelry, and fake fangs.” [ 42 ] Elsewhere in the IRCS report it is noted that Scheerschmidt engaged in such activity as growing out his fingernails, which he then filed into claws. He professed to knowing so much about vampires that he could write a “PhD level paper” on them.

The IRCS assessor wrote: “[Scheerschmidt’s] belief system, though self-taught and somewhat bizarre in our mainstream Canadian culture, cannot be attributed to a delusional or hallucinatory disorder or psychosis. He has a fascination for, and has immersed himself in the occult cultural stream from a very early age. He consciously settled on what he terms the sub-culture of Vampirism. He believes that he is superior to others and the blood bond appeals to him as a vehicle to gain control of others, particularly women.

The level of risk associated with [Scheerschmidt] acting out in an aggressive manner on his belief system should be further evaluated. He endorsed statements that indicate he is unable/unwilling to control his anger. He may physically or verbally attack others when he is angry.” [ 43 ] Scheerschmidt also reported to an IRCS assessor that he continues to be interested in vampires and that he plays video games and watches movies with vampire themes and tries to find new avenues around it.

The assessors commented that he appeared to become animated when talking about vampirism. “I am not going to drop it”, he said. [ 44 ] Yet elsewhere in the IRCS report it is noted that while Scheerschmidt still likes and has interest in vampires, he has abandoned the practice of occult rituals, “as he became a Christian” and “accepted Jesus into his life” soon after the murder. [ 45 ] In this regard, he told an IRCS assessor that he had been at home with his mother after the murder. Police had not yet become involved. As stated in the IRCS report: He was waiting for his mother to fall asleep so he could leave.

He stated that he had everything there he needed to leave. He had clothing, a disguise and transportation. But then he prayed and accepted Jesus into his life. He stated he had one single tear but never felt sad and never felt anything.

He then went to sleep and when he woke up police were at the Mother’s house. [ 46 ] In his own words, Scheerschmidt told IRCS assessors that “I don’t want to spend a long, long time in jail, but, I want to make sure I will be safe in society before I am released.” He explained his comment, saying that he feels he is not ready to be back in society because there have been “so many changes in technology and in subcultures”. [ 47 ] In response to further inquiries in cross-examination around Scheerschmidt’s maturity, Dr.

Gupta agreed with the suggestion that Scheerschmidt’s distraction to video games was not a particularly mature anger management technique. But he added that more generally Scheerschmidt’s problems with anger were not indicative necessarily of immaturity or youthfulness, as many adults too had unresolved problems with anger. [ 48 ] Likewise, Dr. Gupta did not agree that Scheerschmidt’s lack of expressed remorse for his actions in May, 2012 was indicative of his status as an emotionally immature person. Nor did Dr. Gupta find that Scheerschmidt’s lack of remorse was isolated to the events of May, 2012.

They were instead, in his opinion, of long-standing. [ 49 ] Dr. Gupta agreed there was some evidence that Scheerschmidt was attempting to come to terms with the May, 2012 events, as

set out, for example, at pp. 46-47 of the IRCS report. In Dr. Gupta’s view however these were attempts to come to terms more on a cognitive level. They did not necessary point to coming to terms genuinely on an emotional level of remorse. As stated in the IRCS report: Though he verbally expressed remorse for his actions [he] did not appear to have any emotional accompaniment to his expressed remorse or empathy. He described his actions in great detail as though he was describing a story. [ 50 ] Turning finally in cross examination to the SAVRY risk assessment, Dr.

Gupta agreed that in the year between his October, 2014 assessment and the within hearing, there was some evidence of positive trends: for example, that Scheerschmidt had demonstrated a strong commitment while in custody to finishing school; again that he was characterized as a “model inmate”; that he had engaged in certain treatment. Dr.

Gupta agreed that these were important factors to be considered, but insisted that they could be viewed only in the context of Scheerschmidt’s then structured, supervised environment. [ 51 ] He disagreed that these factors provided much comfort that Scheerschmidt would respond positively to treatment in the future: … my understanding is he has not engaged in any treatment from the point of view of his behavioral difficulties. So he has engaged in treatment for substance abuse, yes, that reduces the risk; he has engaged in schooling, that reduces the risk.

As far as I’m aware, I do not believe he has engaged in any treatment or therapy to address his previous behaviors, to address his index offence, to address his aggressive behaviors in the past, his lack of remorse or empathy, and those are the important factors that need to be addressed. [ 52 ] And in the conclusion to the IRCS report he stated: [Scheerschmidt] is a young man who has expressed little remorse or guilt for his actions. He has had a long period of time to reflect on his actions and the impact of his actions on his victims.

Despite that [Scheerschmidt] has not exhibited any ability to experience empathy or remorse. If anything it was in evidence that [Scheerschmidt] attempted to minimize his actions and attribute his actions at the time of the offence to psychotic symptoms. There has been no evidence to suggest that [Scheerschmidt] was experiencing psychotic symptoms at the time of the offence. [ 53 ] In the end, Dr. Gupta stated there was no way to have a particular sense how short or long it be that Scheerschmidt needed to be a highly structured and highly supervised environment, other than to say it would be a matter of years.

Other evidence [ 54 ] The Pre-Sentence Report (PSR) of October 1, 2015 before the court on this application is based on four interviews with Scheerschmidt in August and September, 2015. Some of the themes apparent in the earlier IRCS are repeated: for example, that Scheerschmidt attempted to rationalize his behavior leading to the May 12, 2012 murder; that he had been experiencing hallucinations; that he had changed since his time in custody. [ 55 ] Like the IRCS report, the PSR notes Scheerschmidt’s history leading up to the May 12, 2012 murder for anti-social behaviors, drug abuse and vampirism.

The PSR notes Scheerschmidt’s “dismal” school history. It notes Scheerschmidt’s apparent lack of regret, sorrow or remorse when he describes his history for violence. It notes that rather: “Of concern [is how Scheerschmidt] describes details of his violence, callously/without stating any regret, sorrow or remorse.

He presented his stories of violence in a nonchalant manner; it was like he was proud of how violent he has been”. [ 56 ] The PSR author interviewed Scheerschmidt’s mother, and found that like the IRCS report, the mother was “a difficult person to interview” leaving the impression on the PSR author that she may have been trying to withhold information. Nevertheless, it was noted that the mother saw Scheerschmidt as having changed while in custody. She described him as “more caring and compassionate”.

She noted that he had a “passion” for his new interest in Christianity. [ 57 ] The PSR comments that Scheerschmidt “has been slow to engage fully in the rehabilitative programming offered at [the Edmonton Young Offenders Centre]”. That said, it notes that Scheerschmidt did start full time studies through the Kennedale School Program. Yet after more than three years in custody he had yet to gain quite enough credits to obtain a grade 12 diploma. [ 58 ] He attended Chapel and became involved with a number of Christian volunteers/mentors.

He completed the “Courage to Change” program and attended Narcotics Anonymous programming. He completed an Anger Management Program, and had been incident-free since September 20, 2013 (before which however two physical altercations were noted). [ 59 ] Scheerschmidt, not aboriginal, nevertheless attended a native program Sweat Lodge Ceremony and participated in Aboriginal crafts to create a dream catcher.

Some concern was expressed by the program coordinator, however, around Scheerschmidt’s participation in these activities, including for example, that he compared aboriginal culture to “witchcraft”. [ 60 ] The PSR comments further with regard to Scheerschmidt’s professed attachment to Christianity since the May 12, 2012 murder. The PSR’s author is careful to express “no opinion on whether his current beliefs are genuine or are self-serving for the benefit of the Court”.

Further, interviews with the chaplin and other volunteers suggested that Scheerschmidt had attended chapel and had become more social, helping others. One individual with lengthy experience with Scheerschmidt commented that “his faith is real” and that Scheerschmidt had changed. This individual was nonetheless suspect of Scheerschmidt’s motives. According to the PSR author, this individual “was of the opinion that everyone needs to ‘proceed with caution that [Scheerschmidt] does not pull one over on everyone’”. Victim Impact Statements

[61] Seven victim impact statements were before the court, and have been taken into consideration. The Provincial Director’s position [62] In a letter of January 5, 2015, and on the strength of Dr. Gupta’s report, the Acting Executive Director, Young OffenderBranch, of Alberta Justice and Solicitor General, confirmed the Provincial Director’s position that pursuant to s. 42(7) of the YCJAScheerschmidt’s involvement in the IRCS program was not appropriate. Analysis [63] The law is settled with regard to an application to sentence a young person as an adult.

Given the offence date of May 12,2012 the YCJA provisions pre-dating amendments which came into force on October 23, 2012, are applicable: R. v. C.M., 2015 ABQB143 at para 4. [64] It is the Crown’s burden to show that Scheerschmidt, as a young person when he killed Diane McClements, should besentenced as an adult. The Crown’s onus is not a heavy one; it need only satisfy the court, nothing more: R. v. Estacio, 2010 ABCA 69;474 AR 360; R. v. O(A), 2007 ONCA 144, (2007) 218 CCC (3d) 409. As summarized in Estacio, at para 9: Section 72(1)(

a) and (

b) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) requires the sentencing judge to assess whether heor she “is of the opinion” that a youth sentence would be of sufficient length to hold a young person accountable for his or her offence.That decision must take into account the seriousness and circumstances of the offence, the age, maturity, background and previousrecord of the young person, and any other factors that the court considers relevant, as well as the purpose and principles sentencing setout in ss.3(1)(b)(ii) and 38 of the YCJA. [65] Deterrence and denunciation are not relevant considerations: R. v. O(A). [66] The court in O(

A) commented further on the question of accountability, at paras 45-47: 45 …the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation and reintegration.One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration. Parliament has used thedifferent terms and is presumed to have intended different meanings... 46 In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by LamerC.J.C. in R. v.

M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.) at paras. 80 and 81: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothingmore.

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blame-worthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law... 47 In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributivesentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender's conduct"...

We see no other rational way for measuringaccountability. The s. 72(1)(

b) factors i. the seriousness and circumstances of the offence [67] This factor weighs clearly in favour of an adult sentence, having regard for the guilty plea to second degree murder, andevidence set out above regarding its circumstances. I agree entirely with the Crown’s written submissions at para 61 and need not repeatthem verbatim here. ii. the age, maturity, character, background and prior record of the young person [68] At the time of the May 12, 2012 offence Scheerschmidt was just less than six months from reaching the age of majority. Heis now 22 years old.

Whatever sentence is imposed will be served in an adult correctional facility. [69] There was some equivocation in the evidence regarding Scheerschmidt’s maturity, at least at the time of the offence. Forexample Dr. Gupta agreed with a psychologist’s assessment that Scheerschmidt was “quite immature emotionally” for his age. Elsewherein his evidence Dr. Gupta described Scheerschmidt as only “slightly immature”.

[ 70 ] These generalities aside, on the evidence I find no lack of maturity on Scheerschmidt’s part that weighs against an adult sentence. [ 71 ] I agree with Dr. Gupta for example that Scheerschmidt’s attachment to vampirism and the occult is not particularly shallow and facile and thus is little or no measure of his immaturity. [ 72 ] I do not conclude, based on what it before me, that Scheerschmidt’s use of videogames to distract himself from anger is unequivocally a sign of his immaturity. [ 73 ] On the other hand, there is evidence of Scheerschmidt’s maturity in the case before me.

For example, that prior to this offence he had, albeit marginally, managed to abide by community supervision, including community service hours; that post-offence, he tried to clean up the scene and clean and/or dispose of bloodied clothing; he used the deceased vehicle to escape the scene; to some he confessed, yet to others he lied about his crime, or discussed possible ways of avoiding full criminal responsibility. [ 74 ] This inclination to avoid full criminal responsibility was evident as well in Scheerschmidt’s reports, during the IRCS process, that leading up to the subject offence he was hearing voices telling him to kill people.

I am satisfied on the evidence that investigators were unable to corroborate Scheerschmidt’s reports of experiencing psychotic symptoms at the time of the offence. I agree with the IRCS report conclusion that these indications by Scheerschmidt were attempts on his part to avoid responsibility for the murder. [ 75 ] I do not accept Scheerschmidt’s professed rejection of vampirism and the occult as genuine, given the contradiction in his own evidence before me on these points.

Nor unfortunately on the evidence do I accept as genuine his embrace of Christianity – particularly as it came on the very night of the offence. [ 76 ] These aspects of the evidence are just some examples of a record which speaks volumes about Scheerschmidt’s manipulative and deceptive nature, and a record that speaks against any finding that Scheerschmidt was a particularly immature individual either at the time of the offence, or at sentencing. [ 77 ] As to his character, and related to this his personality, I accept Dr.

Gupta’s opinion that as stated in the IRCS report, Scheerschmidt “has all, or almost all, of the anti-social traits of the prototypical psychopath”. These traits include, as noted in the evidence, his manipulative and deceptive nature. They include as well what I find on the evidence is his lack of genuine remorse or empathy. [ 78 ] I do not ignore that Scheerschmidt’s guilty plea alone is some evidence of remorse.

But it came relatively late in the process, and in the face of what is acknowledged to be a strong Crown case. [ 79 ] Scheerschmidt also expressed an apology to his victim’s family during the October 1-2, 2015 hearing. I cannot ignore however the ample evidence before me questioning Scheerschmidt’s sincerity, and his willingness, if not ability, to express remorse.

To borrow a phrase [1] , it’s as though he knows the words, but not the music, of empathy. [ 80 ] I do not ignore the evidence before me of Scheerschmidt’s chaotic background, his difficult and troubled upbringing at home and at school, a long history of alcohol and/or drug abuse starting from age 12, and the like. I have considered the evidence of the loss of his father with whom he was close, and the evidence, such as it is, of Scheerschmidt’s apparently recently improved relationship with his mother, after a long and intense period of animosity.

However, an appreciation of these personal and family circumstances, on all the evidence, does not weigh against the imposition of an adult sentence. [ 81 ] I have considered the evidence before me of Scheerschmidt’s prior record. While a relevant part of his history for anti-social behaviour, I find that the prior record adds little further when weighing this s. 72(1)(

b) factor. [ 82 ] I acknowledge that in the course of the IRCS assessment Scheerschmidt expressed that he ‘wants to change, wants to change everything’. He has thus expressed a willingness to rehabilitate, by for example quitting drugs, having addictions counselling and anger management. As noted earlier, he has expressed that he “want[s] to make sure I will be safe in society before I am released”. [ 83 ] Finally, I accept that Scheerschmidt has largely governed himself as a “model inmate” since his arrest for the May 12, 2012 offence. I accept as did Dr.

Gupta that while in custody there have been some positive trend lines, that Scheerschmidt has acted in ways that reduce the risks otherwise indicated in the SAVRY, and on the whole of the evidence. [ 84 ] On Dr. Gupta’s unrebutted evidence however I find that Scheerschmidt’s changed behavior is largely a function of his highly supervised and structured environment since May, 2012. On the evidence, I share Dr. Gupta’s concern that outside of such an environment there is insufficient reason to accept that such rehabilitative ‘modelling’ will continue. [ 85 ] In argument Scheerschmidt’s counsel Mr.

Teskey raised questions around whether, on a “principled evidentiary standard”, the Crown had proven Scheerschmidt remained a risk to re-offend in more than the “short term”. [ 86 ] I readily adopt the principled standard urged upon the court by Mr. Teskey. So I must ask myself if there is sufficient, if any evidence on this point that satisfies me – that enables me to make an informed judgment, to borrow a phrase from O(

A) at para 34 – on the question of Scheerschmidt’s risk to re-offend, again, beyond the “short term”. [ 87 ] The phrase “short term” appears at page 53 of Dr. Gupta’s 57-page report, and prior to the report’s overall

Summary, which starts at page 54. The phrase “short term” is used as a

summary of the discussion of SAVRY “protective factors”. Read in context, at pp 53-54: According to the results of SAVRY, [Scheerschmidt] appears to have some protective factors. He presents as a young lad who has a high risk [emphasis in original] of general reoffending in the short term. There are a number of factors that increase this risk [emphasis added]: i.e., his significant drug and abuse, non-compliance with treatment/interventions and social isolation accompanied by some

unusual interests and beliefs. [Scheerschmidt] in the past has failed to comply with society norms and expectations and has engaged in significant drug abuse. He is an intelligent young man who appears to take pride in his ability to manipulate others and considers himself superior in his ability to commit crimes. [ 88 ] Dr. Gupta repeats his opinion of high risk in the “short term” more generally at page 56 of his report. [ 89 ] On the other hand Dr.

Gupta addresses the longer term when he states earlier, at page 56, that in his opinion Scheerschmidt “will require long term supervision and structure to ensure that his risk is managed appropriately”. [ 90 ] I acknowledge Dr. Gupta’s evidence on cross examination that it is impossible to answer the question of how long Scheerschmidt will remain a risk, that is to say, how long it will take to see him sufficiently rehabilitated so as to be free of custody or at least supervision.

Of course recognizing that the burden remains on the Crown, in my view it would be incorrect to conclude based on all of the evidence, that the Crown’s case for an adult sentence is fatally flawed. [ 91 ] As in R. v.

C.M. , at paras 70-71, the absence of expert evidence regarding long-term risk coming out of a SAVRY risk assessment, did not prevent the court from relying in other evidence before that court from which a long-term assessment of risk clearly emerged. [ 92 ] To conclude to this point, the evidence as a whole is more than sufficient to persuade me that the risk is and likely will continue to be mitigated not so much by behavioral changes internal to Scheerschmidt but rather external to him.

And that the risk of antisocial behavior outside of a highly structured environment remains high – the ‘model inmate’ and other evidence going to changes in the past three-plus years of Scheerschmidt’s behavior notwithstanding. [ 93 ] I agree with Mr. Teskey that I cannot rule out a youth sentence based on no “guarantee” that it will ensure Scheerschmidt’s rehabilitation and reintegration into society. It’s just that, to paraphrase Moreau J. in R. v.

C.M , at para 105, in my view Scheerschmidt’s ‘model inmate’ and other evidence of rehabilitation is by no means an adequate sample upon which to judge his future risk of reoffending, in all of the circumstances of this case. iii. any other factors that the court considers relevant. [ 94 ] I am not satisfied that any other factors, not otherwise considered under the first two heads of the s. 72(1) test, remain for consideration. Conclusion [ 95 ] The maximum YCJA sentence available for second degree murder is four years’ incarceration followed by three years’ probation.

Time already spent in custody does not necessarily count in the offender’s favour. For the purpose of these reasons I assume it would not. [ 96 ] For the reasons set out above, it is my opinion that on the evidence before me the s. 72(1) (

b) factors taken together weigh heavily in favour of the Crown’s application. I conclude that a maximum youth sentence, even without credit for time in custody, will not be of sufficient length to hold Scheerschmidt accountable for offence described in these reasons. Nor am I satisfied that a youth sentence will provide a reasonable assurance that Scheerschmidt be safe to return to society when his sentence is completed. [ 97 ] Scheerschmidt is accordingly sentenced to life imprisonment without eligibility for parole for seven years. Count #2 on the indictment, under s. 333.1 of the Criminal Code , is stayed.

Scheerschmidt will be bound by the following ancillary orders: he will provide a DNA sample pursuant to s. 487.04 of the Criminal Code ; he is subject to a firearms prohibition for life, pursuant to s. 109 of the Criminal Code ; all exhibits seized in the course of the police investigation into this case will be forfeited upon expiry of the applicable appeal period. Heard on the 1 st and 2 nd days of October, 2015. Dated at the City of Wetaskiwin, Alberta this 22 nd day of January, 2016. Peter Michalyshyn J.C.Q.B.A.

Appearances: Ryan Pollard Alberta Justice for the Crown Kent Teskey Pringle Chivers Sparks Teskey for the Accused