R. v. W.D.D., 2013 BCPC 440

Citation: R. v. W.D.D. 2013 BCPC 440 Date: 20131018 File No: 18319-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. W.D.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MR. JUSTICE R. BAIRD YOUTH MATTER RESTRICTION ON ACCESS s. 118 & s. 110 YCJA RESTRICTION ON ACCESS s. 490.012 CCC Counsel for the Crown: W. Stephen, Q.C., C. Godlewska Counsel for the Accused: D. Turko Place of Hearing: Surrey , B.C. Dates of Hearing: July 16,17,18,24, September 18 and 19, 2013 Date of Judgment: October 18, 2013 [ 1 ] The accused, W.D.D., has pleaded guilty to the second degree murder of L.S. on September 25th, 2010. At that time the

accused was fewer than six days from his 18th birthday; he turned 18 on [omitted for publication]. He was arrested on February 20th, 2011 and he has been detained in custody at the Burnaby Youth Detention Centre ever since. Today is the date set aside for his sentencing. [ 2 ] There are two main issues before me. First, I have to decide whether the accused should be sentenced as a "young person" pursuant to the Youth Criminal Justice Act , which I will refer to hereafter as the " YCJA " or "the Act ", or as an adult under the Criminal Code of Canada .

If he is sentenced as a young person, the accused's sentence will be determined under s. 42(2)(q)(ii) of the YCJA which sets the maximum sentence for second degree murder at seven years, normally comprised of four years in custody with the remaining period served under supervision in the community. If he is sentenced as an adult, s. 745.1 (

c) of the Criminal Code mandates a life sentence of imprisonment without parole eligibility for seven years. [ 3 ] In resolving this question I have been referred to and have considered closely a number of reports compiled about W.D.D. These were: 1. A pre-sentence report written by Angela Beljanski; 2. A forensic psycho-social assessment by Debbie Day, psychiatric social worker; 3. A psychological report by Dr. Mark Bodnarchuk and Dr. Andre Steiger; 4. A psychiatric report by Dr. Paul Janke; 5. A psychiatric report by Dr. Kulwant Riar; 6. A psychological report by Dr.

Robert Ley. [ 4 ] In addition to these reports I have had the benefit of sworn testimony from Drs. Janke, Riar and Ley; the latter two expert witnesses were retained and instructed by counsel for W.D.D. [ 5 ] The second issue to be decided is the question of placement under s. 76 of the YCJA . This is a separate issue, of course, but counsel urged me to consider it within the same hearing. The question here is whether the accused should serve his sentence, whether as a youth or an adult, in a provincial correctional centre, a federal penitentiary, or a mixture of the two.

On this issue I had the benefit of an adult sentencing placement report by Denise Townsend and testimonial evidence from Harry Draaisma of B.C. Provincial Corrections, Karen Sloat of the Correctional Service of Canada, and John Flett of Long-Term Inmates Now in the Community, or LINC. YOUTH OR ADULT SENTENCE General Principles [ 6 ] I am now going to address the question of youth or adult sentence. First of all, general principles. Before the accused entered his guilty plea, the Crown served him with notice under s. 64 of the YCJA of their intention to apply for an adult sentence.

Because the accused opposes the application, s. 71 of the Act required that I hold this hearing during which, in accordance with s. 71 of the Act , I have heard from both parties extensively.

I have taken into solemn account the victim impact information read into the record from L.S.’s family and loved ones; I have considered the statements of the offender's parents; support letters from his family and friends; and an articulate and apparently sincere apology directly from the offender himself. [ 7 ] The purpose of this hearing is to determine the substantive issues set out in s. 72 of the Act which, at the time the present proceedings were commenced, read as follows: 72 (1): In making its decision on an application heard in accordance with s. 71, the Youth Justice Court shall consider the seriousness and the circumstances of the offence, and the age, maturity, character, background and previous record of the young person, and any other factors that the court considers relevant and (

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3 (1)(b)(ii) and s. 38, would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed, and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3 (1)(b)(ii) and s. 38, would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. [ 8 ]

Section 72 of the Act has since been re-enacted in quite different language by means of legislation that came into force in March 2012. The transitional provisions of the legislation make it clear that as the present proceedings were commenced prior to March 2012, I should apply the predecessor section. [ 9 ] The central question under s. 72 is whether or not a youth sentence would "have sufficient length to hold the young person accountable for his actions". The principle of accountability is central to this inquiry, and indeed, to sentencing generally under the Act .

I am mandated under s. 72, as I have said, to consider ss. (3)(1)(b)(ii) and s. 38 of the YCJA . Those sections also address the question of accountability and they read as follows: 3

(1) The following principles apply in this Act: (

b) The criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize the following:

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. Section 38 (1) reads: The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 10 ] In addition to this legislative guidance, I have studied the cases cited to me by counsel that explain and interpret the meaning of the term "accountability" in s. 72 of the Act , from which I have distilled the following principles: • Accountability is achieved in two ways: through the imposition of meaningful consequences for the offender and through sanctions that promote his or her rehabilitation and reintegration into society. • The term "meaningful consequences" is the youth equivalent of the adult sentencing principle of retribution, namely, an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. • The need to consider the normative character of the offender's conduct necessarily requires the court to consider societal values.

In other words, the answer to the question “accountable to whom?” includes the members of the community in which the offender committed his crime. • That being said, this is an offender-centred process in which the principles of specific and general deterrence have no place. • Assessing the maturity and sophistication of a young person is a case-specific and contextual exercise, every young person is different. • As a general matter, however, and all things being equal, the principle of diminished responsibility declines in force the closer an offender approaches the cut-off age of 18 years. • The Crown bears the onus of proof on this application.

The onus is neither proof beyond a reasonable doubt, nor proof on a balance of probabilities; rather, the standard is one of satisfaction after a careful consideration by the court of all the relevant factors. • Thus, if the Crown satisfies me that a youth sentence would not be sufficient to hold the accused accountable, I must impose an adult sentence.

If the Crown fails to discharge this onus, I must impose a youth sentence. • The Crown must prove beyond a reasonable doubt any underlying aggravating factors relied upon for the court's ultimate determination. • The consequences for the accused of an adult sentence are extremely serious and I must order such a sentence only if it is necessary to fulfil the objectives of the Act. • If the accused is sentenced as a young person, while s. 38(3)(

d) of the Act requires me to take into account the time the accused has served in pre-disposition custody, I am not obliged to deduct such time from the maximum sentence under s. 42(2)(q)(ii). As such, I may sentence the accused to serve seven years in addition to the time that he has already spent in custody. • If sentenced as an adult, the time the accused has spent in custody to this point, and it is approximately two years and eight months, ought to be deducted from his period of parole ineligibility.

DEFENCE POSITION [ 11 ] I have said already that the maximum youth sentence for second degree murder is seven years. This is normally comprised of four years in custody and three years under conditional supervision in the community. I say "normally", because s. 104 of the Act allows for an extension of the custodial portion of the sentence on application of the Provincial Director. The custodial extension may not exceed the remainder of the youth sentence.

Such an application may be made for reasons that include evidence in the young person of a pattern of persistent violent behaviour. [ 12 ] The accused's principal position on this hearing was this: If I were to impose the maximum youth sentence and give him no credit for the approximately two years and eight months that he has already spent in custody, and especially if, towards the end of his sentence, the Provincial Director were to make a successful application under s. 104 of the Act to have the custodial portion of his sentence extended, this would amount, effectively, to nearly a ten year jail sentence. [ 13 ] A sentence of such duration, it was submitted, would be of sufficient length to hold the accused accountable for his crime in the sense of that word intended by s. 72 of the Act .

According to Drs. Riar and Ley, the accused has already seen the error of his ways, he has matured in custody, he has put aside the disordered and chaotic thinking that led him to commit murder, and he has expressed appropriate remorse for his crime and empathy for his victim and her family.

They suggested that his risk to re-offend is already substantially reduced, such that the accused can successfully be rehabilitated and prepared for safe reintegration into our community within the compass of a youth sentence. [ 14 ] Furthermore, it was submitted that a youth sentence would constitute adequate retribution for this crime, especially for a person as young as W.D.D. who was arrested at the age of 18 and who would be 28 at the expiry of a full youth sentence with no reductions for pre-disposition custody.

He will have served, in other words, a sentence amounting to over one-third of his entire life to that point. A

sentence of almost ten years, defence counsel submitted, would constitute an objective, reasoned and measured punishment that would fulfil the objectives of the Act . [ 15 ] The defence also argued that supervision in the community will be possible after a youth sentence on invocation of the court's protective supervisory powers enabled by s. 810.2 of the Criminal Code . I am going to deal with that issue right now. I reject this argument.

The question before me is whether a youth sentence would be of sufficient length, not whether there may be recourse to other protective measures or remedies in the event that it is not. CROWN POSITION [ 16 ] If, on the other hand, the accused is sentenced as an adult, the penalty for second degree murder under s. 745.1(

c) of the Canadian Criminal Code, which deals with sentences where the accused was between the ages of 16 and 18 years at the time of the commission of the offence, is life imprisonment without eligibility for parole for seven years.

W.D.D. will be under supervision either in custody or on parole for the rest of his life. [ 17 ] The Crown takes the position that this is the only sentence that would hold the accused meaningfully accountable for his offending behaviour, which involved the brutal, sexually-motivated murder of an innocent 15-year-old girl. [ 18 ] In the first place, argues Crown counsel, a youth sentence would be nowhere near long enough to afford a reasonable guarantee that the accused will be successfully rehabilitated and safely reintegrated into a peaceful and law-abiding community. [ 19 ] Crown counsel have encouraged me to accept the opinions and recommendation of Drs.

Steiger, Bodnarchuk and Janke who collectively and emphatically agree that the accused remains an unreconstructed and untreated deviant sexual murderer. They say that his explanation of his own arousal patterns and motivations is insincere, unbelievable and calculated to obfuscate rather than enlighten. He is a high risk to re-offend precisely because they have no idea what motivated him to plan a violent rape and to commit murder, or what treatment or therapy he might need to combat his deviant urges in the future. His progress will be slow. It will take years and years.

He probably needs to be supervised for life. [ 20 ] Neither, says the Crown, would a youth sentence constitute a meaningful consequence in the sense of an objective, reasoned and measured punishment for a crime of this magnitude. The accused alone is responsible for the cruel death of his defenceless victim. He planned and attempted to rape her. He tracked her down mercilessly when she screamed and fled. He bludgeoned her repeatedly with a metal pipe until the screaming stopped. The violence was intentional and extreme.

It terminated a young life, devastated the deceased's family and friends, and shocked the community in which it was committed. A sentence of only seven years in length, the Crown submits, would constitute insufficient retribution for this. [ 21 ] I turn now to the factors that s. 72 of the Act , as it used to be, require me to consider on this application, namely the seriousness and circumstances of the offence; the age, maturity, character, background and previous record of the young person; and any other factors that the court considers relevant. A.

The Seriousness and Circumstances of the Offence [ 22 ] The seriousness of this accused's criminal wrongdoing cannot be overstated. Second degree murder, it goes quite without saying, is a most grave and reprehensible offence. There is a range of seriousness within this category of offence at which I would rate the present case at the upper end. There was a significant degree of planning and deliberation.

Even if I accept that the accused left his home on September the 25th of 2010 without the intention to kill someone, it is clear beyond peradventure that he was resolved to commit rape and prepared to use a significant degree of violence to facilitate that intention, or if unsuccessful, to ensure that his victim would be incapable of bearing witness against him. [ 23 ] The facts of this case have been agreed to by counsel, and that agreement has been filed as an exhibit on this proceeding.

I do not intend to read from the document, preferring to summarize the matter on the basis of my own appreciation of all the evidence that I have heard and considered.

This includes the testimony taken on a preliminary inquiry that was conducted before me, and the accused's narrative of his own conduct and motivations contained in the various background and expert reports to which I have already referred. [ 24 ] I would make the following findings of fact: [ 25 ] The offence took place at [omitted for publication] Park in [omitted for publication], British Columbia on September 25th, 2010, at approximately 1:30 p.m.

The weather was sunny and warm. [Omitted for publication] Park consists of playing fields, and to the west, a densely wooded area through which there were, at the time, walking trails and paths. I gather one of the many consequences of the accused's crime is that the area has now been clear-cut for public safety reasons. [ 26 ] At approximately 1:15 p.m. a number of L.S.'s friends were in the woods of [omitted for publication] Park in an off-path area where they were planning to smoke marihuana. One of the friends contacted L.S. by text message and invited her to join them.

L.S. set off from her house to join her friends, entering the wooded area of [omitted for publication] Park at its northern extremity before proceeding southbound to where her friends had told her they might be found. [ 27 ] Unbeknownst to all concerned, of course, the accused was also hiding in the wooded area of [omitted for publication] Park. The home in which he lived with his parents was located nearby. He had left his house sometime earlier on his bicycle with the intention of raping a woman, any woman, in the park.

He had no particular victim in mind; he planned to rape the first woman to come along. [ 28 ] Before departing his house the accused had created a ligature consisting of a number of zap straps with which he planned to choke his victim into unconsciousness to facilitate his rape. He put the zap straps into a knapsack along with a length of heavy metal pipe with which he proposed to subdue his victim if she screamed, resisted or fled.

[ 29 ] The accused proceeded to [omitted for publication] Park and concealed himself in the underbrush with his bicycle. A number of female persons passed by the accused's hiding place, but these persons were walking in groups. The first person to come along by herself was poor young L.S. As she approached the accused's location he called out to her. He told her that the chain had come off his bicycle and he was having difficulty getting it back on. He asked for her assistance which she agreed to give. The two of them went to the accused's bicycle.

L.S. assisted the accused in fixing his chain which, of course, he had taken off himself. [ 30 ] Once this was done, the accused laid hands on L.S. He attempted to get the halo of zap straps around her head. She screamed and ran. The accused pursued her on foot, brandishing the metal pipe which he had taken from the backpack in preparation for the assault. As it happened, L.S. was now running in the direction of the place where her friends were waiting for her. Her friends heard her scream and they set off to help.

Before they could reach her, however, the accused had bludgeoned her repeatedly on the crown of her head with the metal pipe. By the time her friends located L.S., the accused had turned tail and fled. [ 31 ] The accused returned to where he had left his bicycle. He quickly realized that in his excitement and haste he had left the metal pipe on the ground near to where his victim lay prone and bleeding. He also realized that he had lost his hat. He had the presence of mind to decide that it was vital for him to retrieve these items as otherwise the police would find them. He would be caught.

He therefore went back down the path. [ 32 ] As he approached the place where L.S. lay mortally injured, one of her group of friends, who were now arrayed around her in panic, recognized the accused as someone with whom his older brother had played ice hockey. This person asked W.D.D. to summon help. The accused feigned his agreement to do this, and suggested they should spread out and look for the culprit. All he did, however, was collect his hat and the pipe and ride his bicycle home. Once there he vomited, probably a reaction to the intense stressfulness of the situation he had created.

He had a shower, washed his clothes, and wiped off the pipe. After that he played video games, a pursuit which I gather occupied all of his spare hours when not working or at school. [ 33 ] I pause here to emphasize that the accused and L.S. were total strangers. They had never met. L.S. struggled for her life until 4:02 a.m. the following day when she succumbed to her injuries and departed this life. [ 34 ] Dr. David Charlesworth performed the autopsy on L.S.'s body at the [omitted for publication] Hospital on September 28th, 2010.

He found that she had died as a result of massive brain injury caused by multiple blunt force traumas to her head. He concluded that L.S. had suffered between three and five blows to her head with an object rounded in shape, consistent with the length of metal pipe used by the accused to strike her. In his opinion, the force used in delivering these blows was considerable as her skull was fractured. [ 35 ] Two days after this brutal murder, the accused attended a family birthday party. He later described this party to Drs. Bodnarchuk and Steiger as "fun" and "awesome".

A week after the murder the accused went on a holiday to Mexico to visit his uncle. This holiday had been discussed for some time but it was only after the murder that the accused decided to go. The accused, I find, had determined to leave the jurisdiction and make himself scarce. [ 36 ] The offender explained, once again to Drs. Steiger and Bodnarchuk, that this sojourn in Mexico was great fun, full of entertaining activities of which nightclubbing appears to have been a favourite. He also went on a fishing trip with his uncle and wore the same clothes that he had been wearing when he murdered L.S.

He had the presence of mind to intentionally stain these items of clothing with fish blood so as to give him a reasonable pretext for discarding the garments in the garbage, which he duly did. After this Mexican holiday, the accused returned to [omitted for publication] where, to all objective, outward appearances, he simply carried on with his life as if nothing had happened. [ 37 ] Meanwhile, of course, the police had investigated the scene. They had found the ligature or halo of zap straps. During their preliminary investigations they learned that the accused had been on scene at the relevant time.

The accused was interviewed by the [omitted for publication] Police on separate occasions, both before and after his trip to Mexico. These interviews contained inconsistencies that led the [omitted for publication] Police to consider the accused a suspect. [ 38 ] Eventually, the accused was made the target of an undercover operation that consisted of a series of make-believe scenarios with a common theme. The accused was contacted as a consumer of video games and invited to participate in the affairs of a fictional gaming company.

As part of this ruse, the accused spent a lot of time and forged strong bonds of trust with undercover police officers who, to make a long story short, ultimately manoeuvred the accused into confessing his crime and performing a re-enactment of it. [ 39 ] The specific details of the undercover operation, while interesting, do not need to be set out in great detail. Of importance, to my mind, is the fact that during this operation, commenced less than three months after the accused had brutally and ruthlessly murdered a fellow human being, the accused seemed to have put the entire matter behind him.

His relationship with the undercover police officers was perfectly normal in every respect; they noted no signs that he was anxious or upset about anything. He participated with alacrity in all of the various scenarios put to him as part of the undercover operation.

These included participation in a mock focus group, putting together a proposal for the development of a fictitious video game, snowboarding, gaming, dining in restaurants, and socializing. [ 40 ] At the culmination of the undercover operation, the RCMP officers dealing with the accused made it known to him that he was the main suspect in the L.S. murder.

It was only then that the accused dropped his placid demeanour and exhibited fear and concern, but he was mostly afraid for himself and his concern was limited to soliciting advice from the undercover operator, whom he thought he could trust, about avoiding detection and punishment. [ 41 ] In

summary, the seriousness of this ruinously violent offence was extreme, and the circumstances surrounding it, including the planning and preparation beforehand and the apparent indifference and callous disregard of the offender following it, are aggravating features that, as I have said, place it in the upper end of the range of gravity for the offence of second degree murder. B. Age and Maturity [ 42 ] As previously stated, W.D.D. was only days from his 18th birthday when he committed this offence. He murdered L.S. on a Saturday afternoon. If he had done so the following Thursday, no hearing of this sort would have been required. A sentence of life

imprisonment would have followed automatically. He was on the very threshold of adulthood. [ 43 ] In his physical person, I find that the accused was somewhat immature at the time of the offence. He was smaller and slighter than many of his peers. He had not yet developed facial hair. The totality of the evidence satisfies me, however, that he was of average or above-average intelligence at the time. He was a reasonably good student. He had a particular passion for woodworking and greatly admired his woodworking teacher at his secondary school.

He had an age-appropriate plan to attend Kwantlen College in the spring of 2011 to pursue post-secondary training in this subject. He had formed the nascent ambition to become a woodworking teacher himself. [ 44 ] While his circle of friends was small, I find that the accused was neither isolated nor reclusive.

He had a history of participation in wholesome sporting and outdoor activities, although these had been eclipsed by his obsessive video gaming during his last couple of years in high school. [ 45 ] The accused had a creditable history of assisting his father in the operation of his [omitted for publication] business. He was a good and diligent worker.

He knew his father's business was in trouble, and in a mature and responsible fashion he worked long hours without pay to help turn things around. [ 46 ] In a letter of recommendation written only ten days before W.D.D. committed the murder of L.S., the head of the [omitted for publication] Department at his high school wrote a letter of recommendation for him. He wrote, in part, the following: I have known W. for about five years as a student at this secondary school. During this time, W. has demonstrated his ability to initiate work to a high degree of proficiency.

He is a worker, a Leader, one who can be trusted, and above all, enthusiastic. It is his inherent drive and mature attitude that set him apart from other young men his age. (Emphasis added) [ 47 ] W.D.D. was, as I have said, at the very outer extremity of the age continuum covered by the YCJA , only days short of the arbitrary line on the other side of which there is no automatic recourse to the principle of diminished responsibility or culpability.

He was intelligent, adequately socialized, and in most aspects of his life he exhibited a level of maturity which I consider, if anything, to be slightly more advanced than many persons his age. [ 48 ] In my respectful view, the accused exhibited the level of maturity appropriate to persons on the verge of adulthood. While he was obviously young and inexperienced in important ways, especially sexually, and although he continued to be dependent on his parents, I consider that in general terms of maturity he was an average almost-18-year-old male. C.

Character and Background: [ 49 ] One of the many profoundly disturbing and inexplicable aspects of this case is the ordinariness of the accused's background. This impression comes mostly from the pre-sentence report and the forensic psycho-social report, but all the assessments filed are more or less identical when it comes to describing the accused's social, educational and family history. [ 50 ] It is clear from the reports that the accused comes from a close and loving family. There is not a shred of evidence to suggest that he was ever abused or emotionally mistreated.

He appears to have had a normal childhood during which he neither observed nor was subjected to any violence. There was nothing about him at all that could possibly have indicated to anyone that he was capable of violence of the magnitude perpetrated against L.S. He has no criminal record. [ 51 ] On the other hand, in the several months before the murder, W.D.D. attacked three other women in a sexual way. He told the police and all of his assessors – that is, the various specialists who created reports for this hearing – about these previous incidents.

They occurred on April14th, June 7th and July 18th of 2010, all within a local nature area known as [omitted for publication]. [ 52 ] The first incident occurred when the accused was out running. He drew up behind a female jogger, grabbed her, and ran away. In the second incident he set upon a female jogger and attempted to pull her pants down. This female screamed and the accused ran away. In the third incident, the accused approached a woman from behind and struck her on the head with a piece of wood, such that she fell to the ground.

The accused's intention was to render her senseless by the blow to the head and to sexually assault her by fondling her breasts and bottom. The victim screamed, got to her feet, and escaped. [ 53 ] The accused acknowledged in different assessment interviews to having masturbated in the immediate aftermath of at least one or possibly two of these previous incidents. He has consistently stated that he never intended to hurt anyone; he merely wanted to "know what women felt like". [ 54 ] The accused's family was under financial stress in the period prior to the murder.

His father's business was failing and the family home had to be sold. At the time of the murder, the family were living in rented accommodation. [ 55 ] While W.D.D. encountered occasional verbal bullying and teasing in high school, he was never physically threatened or assaulted. I do not get the impression that he suffered anything more than the usual knocks and insults of growing up. He did not particularly like high school, but things improved as he went along to the point where he had a reasonably happy final year. He described grade 12 as his favourite year of high school.

The accused was accepted into the General Studies Program at Kwantlen University College and was scheduled to begin his studies in May 2011. [ 56 ] The accused indicated to all of his assessors that he felt awkward speaking to girls and was frustrated by his lack of sexual experience, but this is a common enough feature in the emotional lives of persons his age and it in no way explains his deviant criminal behaviour. The accused has no history of alcohol abuse and has never experimented with drugs. He has enjoyed good physical health and never suffered any major illness. He has, as I said, no criminal history.

He has expressed remorse for his crime. He has been a model prisoner while in the Youth Detention Centre awaiting this sentencing.

[ 57 ] The forensic psycho-social assessment history is comprised in large part of a repetition of the information set out in the pre- sentence report. However, there is some discussion of the accused's demeanour between the commission of the offence and the date of his arrest. Debby Day, psychiatric social worker, set out the following: Between the offence and W's arrest, W's father advises W. was quieter than usual and appeared very sad and was somewhat edgy. W. continued working daily with his father during the day, ate meals with his family, and then went for a bike ride before using his Xbox and computer.

W's father heard his son cry on a few occasions, but he states W. kept his emotions to himself. W. later told his father he wanted to talk about the incident, that is the murder, but he was confused, embarrassed, and he didn't know how to broach the subject. W's father indicated W. was always a child who didn't want to bother the family with his problems.

W. reported to police that he quit cross-country and triathlon training because he was afraid to leave the house in fear for his life. [ 58 ] About this I would merely observe that although, after the murder, the accused's father claims to have observed the accused as somewhat withdrawn and depressed, it is clear that his condition was not so remarkable that much was done about it. I was told that at some stage the accused took pills to help him sleep, but I have concluded that the observations I have just referred to are retrospective and not particularly persuasive.

The accused, as I have said, appears to me to have been remarkably unaffected by the knowledge or recollection of the appalling act of violent murder that he had recently committed. [ 59 ] I now turn to the various psychological and psychiatric reports, which elaborate on the material canvassed above as well as addressing the accused's potential for re-offending or responding to treatment. Drs. Bodnarchuk and Steiger: [ 60 ] The psychology report of Drs.

Bodnarchuk and Steiger contains what I consider to be the following main points: During the interview the offender was calm and composed, he was polite and cooperative.

It was noted, however, that he gave evasive answers and did not spontaneously elaborate upon a range of issues, including questions regarding aspects of his offences and his pattern of sexual arousal, sexual behaviour and sexual fantasies. [ 61 ] The offender’s narrative of having been bullied at school was vague, he said little about any actual incidents, and did not suggest that any teasing or bullying that he had suffered was terrorizing or related to any threats or physical harm.

When describing the supposed bullying the offender did not display any distress or anger. [ 62 ] The offender acknowledged that leading up to his crime he was "into crazy stuff, bondage and rape videos". Drs. Bodnarchuk and Steiger noted that the accused appeared reticent to share information about his sexual appetites and proclivities, and they were unable to come to any clear understanding about his sexual interests. They discussed with the accused the three incidents in [omitted for publication] that preceded L.S.'s murder. These attacks, they said, were clearly sexually motivated, as was the attack on L.S.

The offender explained that what he had done was "insane", but he thought that by attacking his victims sexually he would become more comfortable around girls and "would be able to have sex properly". [ 63 ] When Drs. Steiger and Bodnarchuk challenged W.D.D. on this alleged belief and suggested that it did not make any sense that a murder could be motivated by an interest in losing one's virginity, the accused became nervous, they said, mildly agitated, and appeared to be upset because the evaluators did not believe him.

He seemed to think that his risk to re-offend could be minimized if he "talked to people", "didn't do stupid things", and "had proper sex". [ 64 ] The report concluded that the accused's intellectual abilities ranged from average to superior. He appeared to be genuinely upset and angry at not being able to establish an intimate sexual relationship with a female but this did not, in their view, constitute an explanation of how this motivated him to commit three sexual assaults on different days in [omitted for publication], followed by the attempted rape and murder of L.S.

The evaluators noted that the accused offered little clarification in this regard. [ 65 ] They also noted that the accused shared only superficial aspects of his sexual development. They were unable to say what, precisely, he found sexually exciting about the offences he committed. They noted, in particular, that the accused realized his actions were wrong but he was nevertheless motivated to engage in further and increasingly violent, sexually deviant assaults. [ 66 ] Drs. Steiger and Bodnarchuk questioned the accused's truthfulness and candour regarding his motivations for committing the offence.

They noted as well that the accused demonstrated only superficial acceptance of responsibility for the murder of L.S. They considered that they did not have enough information to make a specific diagnosis of what might be wrong with the accused. The absence of a firm appreciation of the accused's sexual disorder made it difficult to recommend potential treatment interventions. They concluded that the accused will require intensive and long-term group treatment, and that such long-term treatment and services are only available in the adult Correctional system. [ 67 ] Drs.

Steiger and Bodnarchuk concluded, in part, that "It is important to comment that this offence was sexually motivated, and the accused's sex drive will be present for the majority of his life." Especially if the accused continued to be evasive and "non- disclosive" about his motivations, this presents a "significant and perhaps insurmountable barrier to possible effective treatment or management; as a result, a very long period of supervision is necessary." Dr. Janke: [ 68 ] W.D.D. was examined by the court-appointed psychiatrist, Dr. Paul Janke.

He interviewed W.D.D. on multiple occasions at the Youth Detention Centre for a total of approximately four hours. He recorded much of the same background information as set out in the opinions of others. [ 69 ] W.D.D. told Dr. Janke that in the time leading up to the murder he was turned on by pornographic images of bondage, domination and sadism, but said that this was "fucked up". He told Dr. Janke that he had masturbated after only one of the [omitted for publication] attacks, the second of the three. By the time of the third assault, he told Dr.

Janke that he was experiencing "frustration that his approach had not worked". He developed the idea that if he "knocked out" his victim he would be able to "feel her ass". The third

[omitted for publication] assault, of course, was the attack in which the accused struck his victim over the head with a piece of wood. [ 70 ] With respect to the murder of L.S., W.D.D. reported to Dr. Janke as follows: On the day of the murder he impulsively decided that he was going to carry out an assault on a woman. He states that he grabbed a towel. When asked what for, he stated it was to put under the victim. He stated that he grabbed the zap ties to render the victim unconscious so that they (sic) would not recall.

He states that he picked up a metal bar in order to have it, if necessary, to subdue the victim, and then he put these into a backpack. [ 71 ] Dr. Janke reported that he confronted the accused quite forcefully about his supposed belief that having sex with an unconscious woman would overcome his shyness and allow him to be more comfortable with members of the opposite sex. He also challenged him about his belief that a woman who had been rendered unconscious would have no memory of having been assaulted by him.

In response to this comment, W.D.D. acknowledged that his thinking had been "fucked up", and that he no longer held such beliefs. [ 72 ] About the murder itself, Dr. Janke recorded the following explanation from the accused: W.D.D. states that he delivered a one-handed blow overhead to the victim. She continued to scream and was running. He states he ran after her and the second blow knocked her to the ground. She was still screaming, and he states that he hit her one more time and at that point she stopped screaming. W.D.D. states that he threw the pipe into the bushes and began to leave the scene.

He then realized that there would be fingerprints on the pipe and he went back to retrieve it. He changed his outer clothing, and at that point he realized he no longer had his hat on. When initially interviewed he stated that he had left his hat behind "unfortunately". He corrected himself quite quickly and said simply that he left it behind and returned to retrieve it. It was in this setting that he came upon the victim who was being attended by her friends. He states that she was crawling along the ground.

He stated that he told people that he thought he heard something and suggested that he would run one way and another person should run another way. W.D.D. told Dr. Janke that he had attempted to persuade a friend of his to lie about his whereabouts at the time of the murder, and said that he had kept quiet about the incident afterwards because "loose lips sink ships". [ 73 ] Under the heading "Summary and Conclusions" Dr. Janke noted that at the time of the murder, W.D.D. had engaged in a pattern where he stalked and assaulted women whom he found attractive.

These assaults were all quite clearly sexually motivated and manifested an escalating cycle of violence resulting ultimately in the murder of L.S. [ 74 ] About the accused's expressed motivations for his actions on September the 25th, 2010, Dr. Janke wrote: The accused has presented a theory to us and has adamantly stood by it throughout the assessment process. He has stated that he had the belief that individuals who are knocked unconscious would have no memory of what happened to them. He claims to have based this on what he had seen displayed in various programs that he had watched, and general knowledge.

The materials available to us indicated that W.D.D. had acknowledged doing some research with respect to rendering individuals unconscious and this was the basis for him having the loop of zap ties. He has indicated that his plan was to use that to render the victim unconscious so that he could engage in sexual activity with the victim. [ 75 ] W.D.D. also expressed the belief that if he had sex with an unconscious woman, this would relieve him of his anxiety around sexual relationships, and he subsequently would be able to have intimate relationships with females.

He was adamant that this was a sincere belief of his at the time. During evaluation he described this as "fucked-up thinking" of which he has since disabused himself. [ 76 ] Dr. Janke concluded that W.D.D. had clearly engaged in deviant sexual behaviour, and had acknowledged deviant sexual arousal in the past. He was not in the least persuaded by the accused's expressed explanation for his conduct leading up to the murder, which he considered to be an attempt to downplay or conceal, rather than to reveal or explain, his true motivations. Dr.

Janke concluded that W.D.D.'s behaviour was more consistent with a person aroused to aggressive and coercive sexuality. He wrote: The intensity of his assault on the victim, L.S., suggests that causing significant harm to the victim was not an impediment to W.D.D. attempting to meet his needs, and raises a suggestion that causing severe physical harm is in fact part of his arousal pattern, but this cannot be determined at this time.

It is my opinion that W.D.D.'s treatment needs can only be met within the programming that is available in the adult system, and then only in highly specialized units dealing with individuals whose sexual offending behaviour has resulted in the death of the victims. It is further my opinion that W.D.D.'s need for supervision extends well beyond that which would be made available through a youth sentence. It is my opinion that he will require supervision, if not retention, in a highly structured, controlled, contained setting for the foreseeable future.

This is simply not available to him through the youth system. [ 77 ] In his testimonial evidence, Dr. Janke emphasized the strong deviancy of the accused's sexual proclivities and appetites which had overcome his sense of shame and self-revulsion about the wrongfulness of his attacks in [omitted for publication]. The accused knew what he was doing was wrong, but he persisted in an escalating course of sexual violence. This led Dr. Janke to what I consider to be the common-sense conclusion that the accused is incapable, when it comes to it, of controlling his violent and deviant sexual impulses. [ 78 ] Dr.

Janke expressed the opinion, with which I respectfully agree, that where murder has resulted from the failure of an offender's sexual impulse control, the offender should be under supervision for as long as possible. He testified that an escalating pattern of arousal to coercive sexuality will possibly require permanent supervision and treatment.

He also observed that as the accused remains as sexually inexperienced today as he was on the day of the murder, and he has taken no treatment in the interval, there was nothing to suggest that he might not again be prone to extreme acts of violence in order to satisfy his still frustrated sexual desires. [ 79 ] Dr. Janke testified that he was not in a position to make suggestions about how the accused might be treated or supervised because in his view the accused had not fully disclosed his arousal patterns or his true motivations for killing the victim or attacking the three women at [omitted for publication].

He testified that for all of these reasons, the accused is a dangerous person and a high risk to re-offend.

Dr. Riar: [ 80 ] Defence counsel retained the services of Dr. Kulwant Riar to render a psychiatric opinion for the purpose of determining whether the accused suffers from any behavioural or psychiatric symptoms or disorders in general. Dr. Riar interviewed the accused on three occasions in February, March and May of 2012 for a cumulative total of approximately 7.5 hours. He received much of the same information as other reporters about W.D.D.'s background. [ 81 ] Dr. Riar emphasized that in the immediate run-up to the murder, the accused was, generally speaking, a happy person.

He asked W.D.D. about his psycho-sexual development. The accused reported that he had never been sexually maltreated by anybody and had not been exposed to any sexual behaviour or activities. He had never seen or heard anybody having sex. He acknowledged watching pornographic material on the internet, mostly of heterosexual couples having consensual sex. He also had some interest in watching bondage.

He denied becoming aroused by aggressive or sadomasochistic material, but said that sometimes while watching pornographic material he had masturbated to scenes of fake rape. [ 82 ] A day or so prior to the incident in question, W.D.D. claimed that he had thought about rape during masturbation. The accused reported that his "grabbing girls", referring to the [omitted for publication] incidents, was just to relieve sexual tension. He said that by doing this, the accused thought he would become more comfortable with females and he would be able to talk to them more easily.

He was trying by this means to "break his fear of girls". He knew that what he was doing was not right and that he might be scaring his female victims. The accused told Dr. Riar that the [omitted for publication] attacks were unplanned and spontaneous, but the attack that resulted in the murder of L.S. was planned and deliberate. [ 83 ] The accused disclosed to Dr. Riar that after the first two attacks in [omitted for publication] he masturbated thinking about the incidents. He said he did not masturbate after the third attack.

In any event, he said that grabbing these anonymous female persons did not do anything to arouse him. He did not think about the consequences of these attacks, but he knew that what he was doing was wrong. [ 84 ] With respect to his supposed belief that a woman would be rendered an amnesiac by administering a blow to the head: He mentioned that he has seen on TV that when people get knocked out they have amnesia afterwards and they don't remember what happened.

He could not give me any example of movies, but stated that it happens all the time in the movies where people are hit on their head with a hand or something else and get knocked out and then have a lapse of memory. He did not even think that hitting with the pipe will hurt her (the victim, that is) as he was focused on knocking her out. [ 85 ] Dr. Riar went on to report that W.D.D. expressed the belief that this "all happened due to the fact that he could not have a girlfriend". His frustration was increasing every day. His intention was to "knock her out and have sex with her".

He reported that he had no intention to kill the victim and was surprised when she died. "He did not think he hit her that hard as he was just trying to knock her out." [ 86 ] Dr. Riar described W.D.D. as cooperative, polite and accessible. He did not display any glibness, superficial charm or grandiosity during the interview. Dr. Riar detected genuine remorse from W.D.D. and said that he was able to show empathy for the victim and her family. Dr.

Riar summed up: W.D.D. had a poor image of himself because of all the years of bullying and picking on by others, but by Grade 11 and 12 he had regained his self-confidence and was able to make friends and socialize with them. W.D.D. remained very shy and had feelings of inadequacy while talking to girls to pursue a relationship. W.D.D. had pent-up feelings of having a sexual relationship with girls, and because of that he committed some extreme acts, believing that by doing so he will be comfortable in talking to girls.

I feel that all three incidents prior to the incident where he assaulted women were driven by his sex drive in a kind of disorganized fashion. The incident in question was for sure motivated by his desire to have sex, and he wanted to achieve it by raping the victim, by knocking her out, believing that she would not remember it afterward. W.D.D. made a plan and acted on it, and in the process, caused fatal injuries to the victim. At the time of the incident I do not believe that W.D.D. suffered any mental deficiency or disorder which could have rendered him incapable of appreciating the nature of his commission.

W.D.D. looks younger than his age. I believe that intellectually he has age-appropriate maturity but he is immature socially and emotionally which makes him vulnerable to be exploited and manipulated by other sophisticated individuals in a jail population. As far as his risk of future offending in a similar manner, this is significant. As mentioned earlier, his acting-out was mediated by a sexual desire, and if that is not treated or managed, he remains at risk of future acting-out.

I recommend that W.D.D. attend for treatment for this purpose, and then he should be followed in the community for four or five years so that he learns to keep himself safe from getting into other similar situations in his life. [ 87 ] In his courtroom testimony, Dr. Riar testified that the accused's escalating pattern of violence was alarming. The accused himself, he said, was incapable of explaining why his behaviour had gone "so far". Dr. Riar also allowed that it was very concerning that the accused had killed the victim in the midst of attempting to fulfil his sexual desires.

The violent impulsivity of his conduct was a major concern, he said. It was most alarming, he said, that the murder had been preceded by three sexually-motivated attacks showing a clear escalating pattern of violence with the last one in particular being a clear precursor to the murder itself. He also said that the accused's apparently calm, cool and deliberate conduct after the murder constituted a "red flag". [ 88 ] Dr. Riar was unable to recollect if he had challenged the accused respecting his expressed belief that he could "knock out" a woman without hurting her and merely bring on an episode of amnesia.

He testified, however, that in his view this belief was "bizarre" and "far-fetched" and that the accused ought to have known that hitting a woman with a length of heavy metal pipe would likely cause serious damage. [ 89 ] At no time did Dr. Riar give any explanation for his opinion that the accused would require nine to 12 months of treatment, followed by four to five years of counselling and supervision in the community. He candidly conceded in cross-examination that this

was a rough estimate and that it was possible that the accused would need to be supervised and monitored for his entire life. Although Dr. Riar was at pains on a number of occasions to emphasize that he was not asked to perform a risk assessment, he nevertheless offered the opinion that the accused is a moderate to high risk to re-offend sexually if he remains untreated. Dr. Ley: [ 90 ] W.D.D. was also interviewed by a psychologist retained by his counsel, and this was Dr. Robert Ley. Dr.

Ley rendered a report dated July 8th, 2013, and his opinion was encapsulated in the following passage: At the time of W’s offence, it is my view that he was extraordinarily frustrated by his anxieties and incompetence interacting with similarly-aged young women. He was mad at himself. He was unhappy and depressed. He was very doubtful that he would ever have a sufficient degree of social confidence and competence that he could successfully interact with a young woman such that she would find W. attractive and appealing, be willing to date him, and then become involved in a sexual relationship with W.

As a means of overcoming this profound problem, W. developed a bizarre but nonetheless fixed, compelling belief that his tensions with women would be relieved and that his confidence to interact with women would be significantly enhanced if he could have sexual activity with a woman (e.g.

"It would take the tension away.") Consequently, W. developed an idea that he could render a woman unconscious (but not kill her) and while the victim was comatose, W. could rape her with the resultant effect that forced, non-consensual sexual activity would alleviate W’s sexual tensions which he believed were interfering with his capacity to talk to women, but as well, that the singular act of engaging in sexual intercourse and of "feeling what a woman felt like" would serve to increase W’s confidence to a significant degree, such that he would be more comfortable and capable with approaching women.

However, a crucial aspect of W’s belief system and methodology for sexually assaulting a woman pertained to W’s belief that the act of causing a woman to become unconscious, whether by strangulation or a blow to the head, would engender an amnesia which would obliterate the victim's memory for the sexual assault that W. had perpetrated, but more generally, eliminate the victim's memory for W’s appearance and identity.

According to W., he developed this belief, despite its bizarreness, from viewing criminal incidents in popular television programs and movies whereby a character would be knocked out (but not die) but suffer a full-blown dense amnesia for the nature and perpetrators of the crime that the victim had experienced. An additional source of information fortifying W’s unusual belief and plan was the fact that he had experienced an amnesic episode when he was knocked out in a sporting accident, and as a result, W. had no recollection of the circumstances of this knock-out. [ 91 ] With respect to the metal pipe, Dr.

Ley expressed the opinion that the accused had not taken it to the scene with him for the purpose of harming the victim, but to subdue her and to administer a non-fatal blow that would have the effect merely of causing memory loss in the victim. Dr. Ley expressed the view that the severity of the accused's assault with the metal pipe was motivated by panic rather than a desire for sexual gratification. [ 92 ] Dr.

Ley was not persuaded that there was anything malevolent or nefarious in the accused's pornography-watching habits which, according to the accused, involved short interludes of consensual heterosexual images viewed between long periods of compulsive video gaming. Neither did Dr. Ley consider it unusual that the accused was reluctant to talk freely about his personal sexual arousal patterns and appetites. Most people, he said, feel similarly constrained when asked about such personal matters. [ 93 ] Dr.

Ley did not feel, on the basis of what the accused told him, that the accused committed the offence in question while experiencing deviant sexual arousal associated with bondage, domination or rape. In support of this conclusion he offered the curious observation that the accused had not taken any rope to the scene of the attack. I say "curious" because he left out of this aspect of his opinion the zap-strap ligature and the pipe, both of which items the accused plainly intended to use to bind or dominate his victim. [ 94 ] Dr.

Ley reported that it was most unlikely that the accused had set out to kill L.S., or that her death was part of his plan for sexual gratification. He merely believed that forced sexual contact with a female would render him competent with women generally, and he had a "grossly naive and uninformed belief that he could strangle or strike an intended woman victim until she was unconscious, but that the woman would survive the attack that rendered her comatose". [ 95 ] In Dr.

Ley's opinion, in the two-and-a-half years that he has been in custody the accused has realized that his motivations and beliefs that led to the murder of L.S. were wrong-headed and unrealistic. He said: W’s offence occurred almost two-and-a-half years ago, and I firmly believe that during his incarceration to date W. has changed in some significant and positive ways which serve to improve his prognosis and correspondingly improve the risk estimate that one confers upon one.

Currently, and over the course of W’s custodial period, he has matured physically, although in my opinion W. still appears much younger than his chronological age. However, he is bigger and stronger, he is more muscled, although his physique remains a lean, athletic one. His body image has significantly improved and become quite positive. He views himself as being more attractive, and he recognizes that his appearance can be appealing to young women. In general, W. has become more confident. His emotional expressiveness and interpersonal assertiveness have increased. He is more open, he speaks his mind.

In my opinion, if the foregoing constellation of psychological, emotional and interpersonal and physical features were present for W. in September 2010, it is most unlikely that he would have perpetrated his current offence which was triggered by W’s compulsion to execute a bizarre plan to change the trajectory of his sexual experience and heterosexual incompetence. [ 96 ] Dr.

Ley also testified that it was unfortunate that the accused had not been captured after one of the [omitted for publication] attacks, clearly suggesting that if this had happened there could have been a timely intervention, the accused could have been set straight about his bizarre belief system, and the offence would not have occurred. [ 97 ] Dr. Ley performed three different psychological tests on W.D.D. The first was the Psychopathy Checklist Revised Form which is called the PCLR. Through this he concluded, and there was no doubt about this at any time during this hearing, that the accused is not a psychopath.

He also used an "instrument" called the SAVRY, which stands for Structured Assessment of Violence Risk in Youth. But this instrument is designed for use on adolescents between the ages of 12 and 18 and purports to measure the risk only of violent

offending generally, not the risk of sexual offending. Moreover, the accused was 20 years old when evaluated and he had no history of non-sexual violence. Dr. Ley thought, nevertheless, that it would be appropriate to use this instrument on W.D.D. for the reason that, in his view, W.D.D. was emotionally and intellectually immature, or more like an adolescent than the average 20-year-old. [ 98 ] Dr. Ley also tested the accused using the Sexual Violent Risk 20 instrument, called the SVR 20, which is a risk assessment instrument specific to sexual offenders.

Regarding his use of the SVR 20, he specified in his report that: Although some clinicians have concluded that W. is sexually deviant, and that he has paraphilia fixation or undue sexual arousal to sexual stimuli that features bondage and discipline, as well as violent rape, I believe that the evidence is lacking for such a firm conclusion. Consequently, I would consider the presence of the sexual deviation variable to be undetermined or equivocal. And here he meant for the purpose of a risk rating using the SVR 20. [ 99 ] In his courtroom testimony, however, Dr.

Ley contradicted himself on the issue of sexual deviation. He conceded, as I think he had to, that all of the accused's attacks on women, that is, the three [omitted for publication] attacks and the murder of L.S., constituted sexually-motivated violence establishing a clear pattern of sexual misconduct that was not only deviant, but deviant in a pronounced way. I conclude, therefore, that in his use of the SVR 20, Dr.

Ley entered a rating of this critical risk factor which was significantly understated and inaccurate. [ 100 ] As for the so-called static risk factors referred to in the SVR 20 indicating that the accused was a low risk to re-offend, such as his stable family background, and the absence of sexual abuse in his history, I would only observe that these factors were present before the [omitted for publication] attacks and the murder of L.S., and thus are clearly of negligible importance in predicting his future behaviour. Furthermore, Dr.

Ley conceded that the reliability of risk assessment instruments generally, and the SVR 20 in particular, depends entirely on the accuracy of the input information. Dr. Ley agreed in cross-examination that it is important to objectively evaluate the information obtained from the offender. [ 101 ] The manual for use of the SVR 20 specifies that sexual offenders have "a tendency towards minimization and denial of sexual misbehaviour" such that it would be unreasonable to base the risk assessment on the uncorroborated self-reports of the individual being evaluated. Dr.

Ley conceded that if W.D.D. had provided him with false or misleading information about his motivations and beliefs leading to the murder of L.S., he could not vouch for the reliability of the results obtained using the SVR 20, or, for that matter, the SAVRY. [ 102 ] Dr.

Ley also agreed, given the well-recognized inclination of sexual offenders to deny and minimize their motivations and conduct, that it would constitute a fundamental methodological error in performing a risk assessment to accept at face value an offender's accounting of his own actions, or his reckoning of the psychological factors underlying them. Other Relevant Factors [ 103 ]

Section 72 of the Act requires me to consider any other relevant factors that I consider important in rendering this young man accountable for his crime in the sense of that term intended by the Youth Criminal Justice Act .

Under this heading I would give special emphasis, without erroneously importing into this inquiry any notions of specific or general deterrence, to the devastation that the accused's actions have wreaked on the family and friends of L.S. [ 104 ] I would also emphasize the interests of society, and in particular, the peaceful and law-abiding community of [omitted for publication] in which this appalling crime took place. This offence has upset this community's sense of well-being and serenity.

The accused has doubtless struck enduring fear into the heart of every [omitted for publication] parent and probably of future parents, too. [ 105 ] While the principles of rehabilitation and restraint have greater sway in our system of youth criminal justice, the overriding goal of any criminal justice system is the protection of the public. This court would fail to protect the public if it countenanced the possibility that a sexual murderer might be released from jail without supervision where there has been no proper diagnosis of his problems and where no durable plan of treatment and supervision is possible.

Discussion [ 106 ] I turn now to my evaluation of this evidence. [ 107 ] With all due respect to Drs. Ley and Riar, I do not consider that I have been given any remotely plausible explanation for how the accused's anxieties and insecurities surrounding his sexual inexperience, which strike me as being no more significant than those experienced by the majority of his peers, could possibly have motivated the deviant and shocking violence perpetrated against L.S.

I do not accept at face value the accused's contention that he was motivated only by the belief, which the various clinicians who studied the matter called bizarre and far-fetched, but which Dr. Ley considered to be fixed and compelling, that his reticence with women could be relieved by attacking and raping a woman. [ 108 ] The far better and more rational view of this entire body of evidence is that the accused wanted to have sexual intercourse with a woman, that he was prepared to do so without her consent, and that he was ready to use a great deal of violence to effect this purpose.

I do not rule out the possibility that the accused's extreme aggression was itself sexually arousing to him, or that bondage, domination or violence may be part of the accused's arousal pattern. After all, the accused told Dr. Ley that he had been planning a rape for quite some time before the murder, and he had acted out in a profoundly sexually deviant way over the three previous incidents in the recent past. The [omitted for publication] incidents showed escalating violence brought on by the accused's mounting frustration that his sexual desires were not being satisfied.

It seems to me to be well within the realm of possibility that this graduated violence was part of the accused's pattern of arousal. [ 109 ] I reject as well the accused's expressed belief that he was only planning to knock out his victim with the pipe and thereby bring on an episode of amnesia. I repeat that I have found W.D.D. to be a sane, rational, mature and competent person mere days from his 18th

birthday. No one of the accused's age and maturity could possibly believe, with any sincerity, that repeatedly bludgeoning a person over the head with a length of heavy metal pipe would result in anything other than severe bodily injury or death. [ 110 ] W.D.D. told Dr. Riar that he did not intend to harm the victim and that he was surprised when she died; he meant merely “to knock her out”. Dr.

Riar described his appreciation of the accused's motivation throughout his report in this euphemistic language; that his plan was merely to “knock out” the victim and thereby bring on amnesia that would prevent her from remembering him. In my considered opinion this is patent nonsense and a clear attempt by the accused to minimize his responsibility for L.S.'s death. What the accused did, in fact, was administer a savage beating which staved in the poor girl's skull. It was plainly intended to cause death or grievous bodily harm, hence the guilty plea to second degree murder. In fairness to Dr.

Riar, he clarified this with his courtroom testimony, and said that the accused should have known that the force he employed would have catastrophic results. [ 111 ] Furthermore, I reject as wholly unfounded and dangerous speculation that the accused is already on the way to rehabilitation by dint merely of the passage of time and the natural maturation of his thought processes.

From the therapeutic or rehabilitative standpoint, nothing at all has happened in the two-and-a-half years that the accused has been in custody; he has simply been warehoused awaiting sentencing and has had no access to any programming or treatment. [ 112 ] The accused has claimed that he now realizes that his thinking surrounding the murder of L.S. was "fucked up", and he no longer believes that raping a woman might boost his sexual confidence. Not surprisingly, he has also disavowed the belief, always insincere in my view, that hitting someone over the head with a metal pipe would merely cause amnesia.

As far as insight into his offending is concerned, he confessed to Dr. Janke that he was now comfortable talking to girls and was unable to identify any problems with which he thought he needed help. According to Drs.

Bodnarchuk and Steiger, his plan to avoid re-offending included “being more outgoing”, “not buying an Xbox”, “hanging out with friends”, and “not taking life so seriously.” He also seemed to think that his risk to re-offend could be minimized if he “talked to people”, “didn’t do stupid things”, and “had proper sex.” [ 113 ] Comments such as these indicate to me that even now the accused does not appreciate the gravity of his conduct or have the remotest inkling of the long and difficult road of rehabilitation that lies ahead of him. These comments are entirely inconsistent, as well, with Dr.

Ley's rather surprising assertion that the accused is now aware of the magnitude of his criminal offending and that this awareness in itself will act as a deterrent to future violent criminality. [ 114 ] With respect, I conclude that Dr. Ley has committed the fundamental methodological error of accepting at face value what the accused has told him. His opinions make it clear that he took for granted that what the accused reported about his motivations, his triggers and beliefs was sincere and entirely true.

As I have already said, I do not accept that the accused's rendition of his thinking leading up to the crime tells the whole story; to the contrary, I find his expressed motivations for murdering L.S. to be incomplete, implausible, and unpersuasive. [ 115 ] This methodological error taints all of Dr. Ley's evidence. In my view, because of it, his use of the SAVRY and the SVR 20 was badly compromised and the test results are unreliable. I find, in any event, that Dr.

Ley's use of the SAVRY was inapt as it was designed for use on adolescents and the accused was an adult, and a reasonably mature adult, when he was tested. [ 116 ] I repeat, as well, that when it came to his use of the SVR 20, Dr. Ley did not attribute sufficient or any weight to the all- important sexual deviation variable, and I cannot rely on the reported results. It follows that I reject the evidence of Dr.

Ley as it pertains to the accused's risk of future violent sexual offending, and I have no confidence in his opinion that a youth sentence would be of sufficient length to render the accused accountable for his crime in the rehabilitative sense. [ 117 ] Again, with respect, Dr. Riar seems to have fallen into this same error of accepting everything the accused told him at face value or uncritically. I would also note the inconsistencies, which I consider to be irreconcilable, between the views expressed in his written report and his testimony on the witness stand.

The recommendation in his report was that the accused should receive nine to 12 months of treatment, followed by four to five years of counselling and supervision in the community "to keep himself safe from getting into other similar situations in life". Quite apart from the fact that he never even attempted to explain why he felt that such a short period of supervision would stand a chance at rehabilitating the accused, such a suggestion sits uneasily with his testimony at this hearing to the effect that: 1. He was alarmed by the accused's escalating pattern of violence; 2.

The accused's impulsivity was a major concern; 3. The defendant knew or ought to have known that his use of the pipe would cause catastrophic damage to the victim and not merely knock her out, as he had written in his report; 4. The accused's dispassionate and substantially unaffected demeanour in the aftermath of the offence was a major red flag; 5. His four to five-year estimate for the accused's rehabilitation was just a guess; and 6. It is entirely possible that for the protection of the public the accused may be required to be supervised for the rest of his life. It follows that I also reject Dr.

Riar's opinion given in his report, that a youth sentence would be of sufficient length to make the accused accountable for his crime. [ 118 ] I have a great deal more confidence in the opinions of the other clinicians who evaluated the accused for the purposes of this hearing. Their methods, in my view, were more rigorous, and their approach was more independent and impartial.

The collective view of those clinicians, with which I would respectfully agree, given my assessment of the totality of this evidence, is that the accused is an untreated, sexually-motivated murderer who so far has only partially described his motivations for the commission of his crime. He lacks insight into his offending and represents a high risk to re-offend. The process of rehabilitating the accused will take much more time than would be available in a youth sentence. In fact, the accused may well require incarceration or supervision for the rest of his

life, or at least that portion of his life during which his sexual appetites remain active.

Summary [ 119 ] Respecting the length of sentence required to make the accused accountable for his crime, I repeat that the offence at bar is as serious as it could be. The accused has committed murder.

He set out to rape a random female in a public place, and even if I accept, as I am obliged to, that he left his house on September the 25th, 2010 with no fixed intention to kill anyone, I am amply satisfied that he was prepared to commit extreme acts of violence to enable him to satisfy his sexually deviant impulses. [ 120 ] The circumstances surrounding the offence, the planning and deliberation that went into its commission, the calm and calculated manner in which the accused covered his tracks, and the ease with which the accused appears to have been able to put the whole matter behind him and proceed with his life as if nothing had happened, are all shocking and alarming.

It may be that the accused is now genuinely remorseful for the horrible crime that he has committed, but this remorse has been slow in coming. In my view, W.D.D. is a work in progress. He is at the very beginning of his long journey toward rehabilitation; he has barely begun. There remains much work for him to do. [ 121 ] I have already mentioned a number of times the obvious fact that the accused was mere days away from his 18th birthday when he committed this crime. I have found that in most important ways he was a mature and competent person.

It is clear that he is physically healthy and suffers from no mental disorder of any description. I would find that the principle of diminished responsibility has little applicability in this case. The accused has no criminal record, but he has established a clear pattern of escalating violence manifesting a pronounced form of sexual deviancy that he is clearly unable to control and for which there is no durable plan for management or control. The accused has thus far received no treatment and shows little insight into his problems.

The public has every right to the security of long-term protection from this offender and this can only be achieved, in my view, by a lengthy sentence followed by years of supervision and control. [ 122 ] In short, the Crown has satisfied me that a youth sentence would not be of sufficient length to make the accused accountable for his crime in the sense that his rehabilitation and safe reintegration into society may be accomplished through the imposition of such a sentence. The Crown has also satisfied me that a youth sentence would not be an adequate retributive punishment in this case.

Retribution in a criminal context, I repeat, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. [ 123 ] In this case, the moral culpability of the accused, who planned to commit rape and evinced the clear inclination to wreak unspeakable violence against his victim if she protested or fled, is desperately high. His intentional risk-taking was extreme.

The degree of violence that he employed was catastrophic. The harm that he caused to the victim, her family, her friends and the community is devastating and permanent. The extent of his departure from civilized standards of behaviour is pronounced and shocking. In my respectful view, a youth sentence would not constitute an appropriate punishment for a crime of this nature and magnitude, and the principle of accountability in this sense would not be served by the imposition of a youth sentence. [ 124 ] It follows that an adult sentence must be imposed.

PLACEMENT [ 125 ] I do not propose to review the evidence that I have heard on the issue of placement. I will content myself by saying that only the Correctional Service of Canada is equipped to accommodate and to deal with this offender.

Even if it were lawful for me to order that the accused should serve any portion of his adult sentence in a provincial jail, I would not do so for the simple reason that the Provincial Correctional Service is not equipped or able to deal with a life-sentence server and a sexual murderer. [ 126 ] I am satisfied that there is no suitable place in the Provincial Correctional System for W.D.D. who, as I have said, is a sexual murderer who will be serving a life sentence, and I say this either from the security or the programming point of view.

The Federal Correctional System, in my respectful view, is the only place for W.D.D. SENTENCE [ 127 ] W.D.D., the time has come to formally impose sentence. Stand up, sir. Is there anything you wish to say, W.D.D., before I impose the sentence that is required by the laws of Canada? [ 128 ] THE ACCUSED: I'm just so sorry for what I've done and all the pain I've caused everybody. [ 129 ] THE COURT: Thank you, W.D.D. [ 130 ] For the second degree murder of L.S. on the 25th of September of 2010, W.D.D., I hereby sentence you to life imprisonment. There will be no eligibility for parole for a period of seven years.

You are entitled to credit for the two years and eight months that you have spent in custody. You will serve your sentence in a federal penitentiary. [ 131 ] I am also making some ancillary orders.

You are hereby ordered to provide a sample of your DNA pursuant to s. 487.04 of the Criminal Code by the least intrusive means available, forthwith. [ 132 ] In accordance with s 490.012 of the Criminal Code , I hereby order you to comply with the provisions of the Sex Offender Information Registration Act , and that will all be explained to you by your lawyer. [ 133 ] I also make an order under s. 109 of the Criminal Code pro

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