Her Majesty the Queen ) Debbie Buors ) for the Crown ) v. ), 2017 MBPC 20

CITATION: 2017 MBPC 20 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Debbie Buors ) for the Crown ) and ) ) ) Justin Hudson ) Amanda Sansregret ) and Katherine Dowle ) for the Accused ) ) ) Reasons for Decision delivered: ) May 1, 2017 KILLEEN P.J. Introduction [ 1 ] Mr. Hudson has entered guilty pleas to two charges of aggravated sexual assault, the second event having happened within hours of the first on November 8, 2014. The Crown has filed a casebook and victim impact statements and submits that a term of incarceration for life is appropriate in this case. Mr.

Hudson had a presentence report prepared and submitted an assessment prepared by Dr. Ellerby, a well known psychologist experienced in forensic reports. Counsel on behalf of Mr. Hudson submits that a term of incarceration in the range of seven years is appropriate for each of these offences. With totality, the defence submission is that 12 years

is the appropriate sentence. Both counsel acknowledge that some ancillary orders are required based on the nature of the offences. [ 2 ] A local television station had indicated that it would bring an application to televise these proceedings. Court time was allocated to allow that application to be made, but it did not proceed. [ 3 ] In this judgment, the names of the victims have been changed to protect their identity, consistent with an order preventing the publication of information that could identify them.

Section 718 of the Criminal Code [ 4 ] The starting point for any sentencing decision is

section 718 of the Criminal Code , which reads, in part: (sections not relevant to this proceeding have been omitted.) The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,... (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,... shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 5 ] Different cases call for different weight to be placed upon the factors which must be considered. Sometimes, the balance requires that considerable weight is given to some factors, while others, although important, cannot be given the same emphasis. Ultimately, the sentence must be appropriate in law. The Gravity of the Assaults [ 6 ] The starting point for any sentence is

section 718.1 which requires that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The facts of the case were set out in an agreed statement of facts, some of which must be repeated. In the agreed statement of facts the Accused was referred to by name. The names of the victims and the co-accused have been removed from this recitation. [ 7 ] Friday, November 7, 2014, was the 17th birthday of the co-accused in this matter, a cousin of the Accused. The co-accused was dropped off at Mr. Hudson's house on Sherbrook Street. Mr.

Hudson and the co-accused went out, leaving Hudson's house around 7:00 p.m. Their plan at that time was to go out and break into cars and steal from these cars. When they left, they had a backpack

containing tools for the planned car break-ins. [ 8 ] Mr. Hudson advises that he had consumed approximately five to six beers prior to going out that evening. He also later drank some of the Rock Star alcohol that he had taken from the first victim. [ 9 ] On November 7, 2014, the first victim was a 16 year old child. She finished school and went home to have supper with her family. She messaged some friends and made plans to see them, meeting them for drinks in the courtyard.

At some point after that, they became separated. [ 10 ] The first victim met up with Hudson and the co-accused and they were seen walking down Donald Street by a witness. There was also video surveillance in the area of Assiniboine Avenue around 12:30 a.m. which captures the first victim with the co-accused and Mr. Hudson. The three of them ended up under the Midtown Bridge, also known as the Donald Street Bridge. Mr. Hudson has since stated that their initial plan was to rob the first victim and they lured her to a path under the Midtown Bridge with this plan in mind. Mr.

Hudson states that before they got the first victim to the river path they had planned to sexually assault her. [ 11 ] Once directly under the bridge on the walking path, which was a dark and secluded area at this time of night, she was attacked by both Hudson and the co-accused. The two Accused began to punch her in the face. She tried to fight back but was taken to the ground and stomped on in the upper body and head area.

She tried to protect herself and fought back and she did so until she was knocked out by both of the Accused. [ 12 ] Once she was unconscious, her pants and panties were removed so the two Accused could force vaginal intercourse upon her while she was lying prone on her back on the ground. The two Accused took turns sexually assaulting her in this manner. [ 13 ] At some point, she awoke and she was immediately physically attacked with a punch to the face which knocked her out again. [ 14 ] Her socks were found near this location. They were turned inside out when found.

When police reversed her socks, mud and dirt were located on the bottom of the socks, which is an indication that at some point after her shoes were removed from her feet she was standing in her stocking feet. Police located an imprint of a foot wearing a sock near the river's edge. The two Accused robbed the first victim of her white runners and her outside jacket, the black North Face jacket she was wearing by removing them from her body.

They also took her iPod and a Rock Star drink. [ 15 ] At some point after Hudson and the co-accused sexually assaulted the first victim and robbed her of her clothing and possessions, she made it into the frigid river and the Accused left. The outside temperature recorded on this date varied between minus 4 to minus 11 with the wind chill.

She travelled approximately 100 meters in the frigid river where she was able to exit the river and make her way up the embankment. [ 16 ] Hudson and the co-accused found her again at some point after she exited the river and they began to assault her again by hitting her on the head with a hammer that the Accused had in their backpack. She was left on the river walk path where she was not found until just before 7:00 a.m. by a passerby.

Before leaving the vicinity of the attack, the co-accused switched his shoes with the stolen shoes from the first victim. [ 17 ] A couple of hours later, Hudson and the co-accused encountered the second victim, a 20 year old woman, in the area of 380 Sherbrook Street at approximately 2:30 a.m. She was on her way home to her brother's place. She ran into Hudson and the co-accused on Portage Avenue and started walking with them. They walked from Portage Avenue to the back lane of Sherbrook Street behind the Sherbrook Pool. At some point, she realized that Hudson had fallen behind her and the co-accused.

She then looked back when she was struck to the face by a bat wielded by Hudson. She started bleeding inside her mouth. Hudson then hit her on the back of the head, causing a large gash that began bleeding immediately. Immediately upon being struck by the bat, the co-accused set upon her and began going through her purse. They were demanding drugs, money and her phone. They robbed her of her iPhone and her iPod. [ 18 ] Hudson then ordered her to take off her clothes. She began removing her black jacket when the co-accused grabbed it and ripped it off her.

She then removed her Roots hoodie, her bra and undershirt, jeans and panties. They forced her to an area where she was ordered to lay down on a platform in the back lane and Hudson got on top of her and forced vaginal intercourse on her. Hudson put a hand on her neck and began to choke her. When she began to have trouble breathing, he stopped. Mr. Hudson says he has no memory of choking her but it is also possible that the co-accused did that. [ 19 ] Hudson then rolled over and instructed the second victim to get on top of him. While she was on top of Hudson, he forced vaginal intercourse on her.

He bit and sucked on her breasts. While Hudson was forcing vaginal intercourse, the co-accused tried to anally penetrate her from behind but was unsuccessful. The co-accused sexually assaulted her while Hudson forcibly had intercourse with her. The co-accused then forced her to put his penis in her mouth at the same time Hudson was forcing vaginal intercourse on her. Hudson ejaculated. The co-accused indicated he was not finished and had her stand up and ordered her to sit on a railing in the back lane. The co-accused then grabbed her legs and forced vaginal intercourse on her.

She had to balance on the rail by holding on with both hands. He ejaculated. [ 20 ] During the entire time that the second victim was being sexually assaulted by both Accused, she had blood pouring from her face, the inside of her mouth and from the head wound to the back of her head. Mr. Hudson does not deny that she may have been bleeding but he was not aware of this fact at the time. [ 21 ] Police examining the scene found a fair bit of blood at various scenes where she was assaulted. She was now bleeding from her knees when she was told, “I like this one.

Let's keep her for a while.” Again, the Accused has no memory of anyone saying this. He has indicated that it is possible that the co-accused said it. [ 22 ] To protect herself from being attacked further, the second victim said she would do what they wanted if they asked and that they did not have to hit her. They let her put on her pants and sweater. Hudson and the co-accused made her go along with them towards Hudson's house on Sherbrook Street. On the way to the house, they stopped and entered an abandoned car behind an unknown house in

the back lane of Sherbrook Street. Hudson directed her to the back seat where he got on top of her for a time. After a short while, they exited the car and continued to Hudson's house. The second victim was still bleeding. They arrived at a house on Sherbrook Street belonging to a relative of Hudson. This house had a front porch. On the porch, Hudson forced her to play with his penis and he inserted a finger into her vagina. [ 23 ] The co-accused wanted to take the second victim into the house but Hudson said no. The co-accused went into the house.

He returned to the porch and told Hudson that Uncle Fred was home. Hudson, the co-accused and the second victim began walking down the same back lane towards Ellice Avenue when they encountered another couple, a man and a woman. The woman was yelling. Hudson and the co-accused yelled at the man to leave her alone. The co-accused then grabbed the bat, ran off and a few minutes later came back laughing and saying, “I fucking broke the bat, yo.” He said he broke it on the man.

Hudson and the co-accused then told the second victim she could go and they returned her iPod but kept her iPhone. [ 24 ] It was at this point she told them if she ever saw them again she owed them a shot for what they did to her face. She was told by Hudson that this was not the first time they did this, while gesturing to the bat. [ 25 ] Mr. Hudson indicates he has no memory of making this comment and it was possible that the co-accused said it, although the victim was clear that it was the bigger man, that is, Hudson. The Impact on the Victims [ 26 ] The gravity of the offences is impossible to overstate.

Each victim was brutally sexually assaulted by two offenders and struck with a weapon causing serious trauma. The first victim was a 16 year old child. After the assault, she was left partially naked in sub- freezing temperatures, at the Assiniboine River. After she had struggled some distance to try to escape, she was again attacked. She was struck with a hammer and left at the water. She was close to death when finally found hours later by a passerby. She suffered cardiac arrest after being found and it is likely that had a few more minutes passed before being located it would have led to her death.

In addition to the sexual assault, she was robbed of some items. [ 27 ] It is difficult to understand what could have been in the minds of the offenders as they left her. There must have been some understanding of how close she was to death. The two offenders took her shoes and cellular phone and wandered off, apparently unconcerned about even trying to avoid detection for what they had done. [ 28 ] When she was first taken to hospital, she was naked from the waist down and cold to the touch.

There was a laceration to her left temporal region, swelling to her left eye, cheek and slight swelling to her left eye was noted. She had multiple abrasions to her legs. Her temperature was 27 degrees, or 10 degrees below normal. Her core temperature was even lower, at 25 or 26 degrees. She went into cardiac arrest shortly after arrival at hospital. [ 29 ] She had extensive swelling to her neck, likely from being choked, with lung problems likely due to aspiration. She remained in hospital for days as staff dealt with problems arising from the hypothermia.

They had performed surgical and other procedures to warm her and to allow treatment of the cardiac arrest. She had a crush injury to a finger with later surgery to repair a nail bed. Later, further surgery was required to deal with one of the surgical wounds. [ 30 ] To assess the gravity of the offences, reference should also be made to the victim impact reports. The first victim wrote: When I arrived at hospital, doctors did not think I would live. My mother and father sat at my bedside beside my broken body. The emotional pain inflicted on my family cannot be overstated. They were devastated.

When I regained consciousness, my entire body was screaming with pain. More pain than I have ever known or thought possible. It was you that did that to me, through your wilful actions and decisions. I had surgery and my head was stapled closed. I have spent a lot of time in hospitals since you attacked me, repairing injuries to my body. I have scars on most of my limbs, everyday reminders of that night. It’s hard for me to find the words to explain the impact that the assault has had on my life. I feel sad. Angry. Confused. It’s more than those words can possibly convey.

The pain is a heavy weight for me to carry. [ 31 ] The second victim was walking down the street when confronted by the Accused and the co-accused. She was sexually assaulted by both and then twice moved to a different location for a continuation of the brutality. She was struck with a baseball bat. She suffered a large hematoma to the right occipital region. She had a small laceration to her chin. She had other injuries including lacerations and tenderness. Fortunately, her injuries were not so severe that she was near death. When the Accused and co-accused ended the assault, she was released.

Again, it does not appear to have entered the minds of the assailants that it was possible that she would contact police and that the police would try to discover their identity. [ 32 ] The second victim wrote of the changes in her life following the trauma of the assault. She has become anxious about leaving her house. She is wary and uncomfortable about being in large groups. She is nervous around strangers. [ 33 ] She wrote: Everyday activities become a challenge.

I could feel fine one minute and then the next thing I know I get scared, then I get angry with myself for getting scared and it impacts the rest of my day. What is worse is knowing that I can’t control these feelings and become overwhelmed quickly. [ 34 ] She went on to describe the physical impact and the perhaps permanent problem with nerve damage to her bottom lip. Her smile has changed as a result.

The Degree of Responsibility of the Accused [ 35 ] The determination of the degree of responsibility of the Accused is more complicated. As a first step, the Accused is responsible for what occurred to both victims in that he either did the act or willingly allowed the co-accused to do it. Both are parties to the brutality of the other. His attempts to downplay his own involvement are at odds with the facts which the second complainant can remember, or with physical evidence and are notably inconsistent with the relationship that existed with the co-accused, who is his younger cousin.

The agreed statement of facts has areas where he says he does not remember or did not do some act. In some areas, the second complainant remembers him as the one doing the act. I do not find the denials of much significance. Even if he did not do the particular thing described, he was present when it was done by the co-accused.

With the length of the two attacks and the continuing nature of the brutality, it would be impossible to conclude that any act was outside the scope of what was intentionally done by both attackers. [ 36 ] But it is not the actions of the Accused which complicate the issue, but rather the limitations of the Accused. They are profound. In some respects, the Accused is a natural product of his circumstances. The Background of the Accused [ 37 ] He was born on September 27, 1994 and was 20 years of age when this occurred. He has several siblings or half siblings.

At the age of 3 days, he was taken to live with his maternal aunt. His mother was incapable of raising him and his father has never been a part of his life. His aunt had a son who was 10 years of age. The Accused was raised with the assumption that his aunt was his mother and his cousin was his brother. For the first 8 years of his life, they moved frequently. As a child, he never thought about the relocations. Later, his aunt indicated that the moves were to avoid his mother who was threatening to take back her child. According to the aunt, his mother suffered from alcohol and drug abuse.

That information is well corroborated by Child and Family Services’ information on the family before the birth of the Accused. The mother was reported to have a pattern of substance abuse, abusive relationships, poor coping abilities and poor parenting skills. She refused to accept resources offered to her. [ 38 ] Eventually, somewhere between the ages of five and eight, the Accused began to have contact with his mother and siblings. That led to him living in her home, an experience which he found confusing. Not surprisingly, he felt “disappointed, angry, sad, scared and homesick”.

He appears to have been bullied by an older brother and treated differently from his siblings. At his mother’s home, he was exposed to violence, alcohol and drug use. The circumstances surrounding where he lived, when he lived there and why he lived there are murky. His aunt’s position is that she provided his mother with money, in part because his mother threatened to report her to Child and Family Services if she did not. His aunt acknowledges struggling with alcohol abuse at the time. [ 39 ] Eventually, in 2006, his poor attendance at school caused Child and Family Services to become involved.

Suggestions were made to improve his attendance at school. He was living back and forth between his mother’s home and his aunt’s home. Allegations were made that at least one of them was heavily addicted to cocaine and involved in prostitution to support the habit. The instability in his arrangements occasionally resulted in police intervention. On one occasion in 2006 he was taken by police after reports that both his mother and aunt were drinking and that he had been assaulted by an older brother.

He was taken into the care of Child and Family Services. [ 40 ] He was placed in a shelter at a hotel for four months. His aunt had no contact with him, saying that she was hurt by the apprehension but also struggling with alcohol abuse. [ 41 ] While at the hotel, he was angry, lonely and suffered from a number of problems including night terrors, bedwetting, aggressive/threatening behaviour, poor coping abilities and suicidal ideation. After the time at the hotel, he was in eight foster homes in less than six months. He was eventually placed in a group home.

His problems with anger management and depression continued. He was first arrested at 13 due to an incident with support staff. He was referred to a therapist for assistance with anger management and problem solving strategies. The therapist continued to work with the Accused for about 4 years, dealing with anxiety, anger management, self image enhancement and family of origin issues. By 2011, the Accused appeared to be regressing. [ 42 ] Twice at the group home he was involved in significant events which were caused by others. He assisted a staff member who was being choked by another resident.

He helped to cut down a resident who was attempting to hang himself. [ 43 ] He continued to have some limited contact with his family. That included his one meeting with his biological father, who neglected him during the visit. The Accused has described feeling upset about the lack of any relationship with his father. [ 44 ] By June 2011, preparation was commenced for his transition to living independently. A psychological assessment noted that the primary root of his anger appeared to be his family. He continued using threats of violence, aggression or destruction of property when agitated.

His full scale IQ was determined to be 81, too high to allow him to qualify for Community Living with Disabilities Program. Despite the IQ, several areas in the Individual Living subscale had very low scores, causing the opinion that he would “experience extreme difficulties managing most responsibilities” by himself. The group home staff also felt he was not prepared to live on his own. He was noted to have a high risk for depression and increasing substance abuse.

There was also concern about how his anger would be perceived if he ran into a situation which upset him. [ 45 ] He was transitioned from the group home into an apartment and independent living on February 1, 2012. He was twice evicted due to loud parties or fights. His ongoing involvement with group home staff became less frequent, courteous and cooperative. He failed to participate in therapy or pro-social activities. Substance abuse was an issue. [ 46 ] After the second eviction, he moved to Thompson, Manitoba to live with his mother. She demanded his social assistance cheque, which he refused to give her.

He decided to move back to Winnipeg but appears to have been beaten and robbed of his bus ticket, likely at the direction of his mother. She was arrested for the theft of the ticket. [ 47 ] Back in Winnipeg, the Accused lived with an uncle who drank a lot. They shared an eight day drinking binge together. Later, when his mother had moved back to Winnipeg, he moved in with her. According to his aunt, the Accused was sent out at night by his

mother to make money for her, presumably by stealing from cars. It is acknowledged that on the night of the attacks, he and a cousin had gone out with tools to break in to cars. The money was used to fuel his mother’s alcohol and drug habits. The information from the aunt was corroborated by the Accused who described waking up to find that his mother had sold his belongings overnight, including his computer and bicycle.

He told Probation Services that his anger towards his mother built as he lived with her. [ 48 ] There had also been reports that the Accused had been sexually assaulted by older relatives as a child. He confirmed only that he had been abused sexually by an uncle when he was six years of age. He felt he was “good at shutting that (the memories) off”. [ 49 ] There are also reports of bullying or abusive treatment from other students as a younger child. These appear to be denied by the Accused, but included his aunt describing finding him crying because other students had called him a fat dirty Indian.

His reluctance to go to school is easy to understand if that type of treatment was what he had to face. [ 50 ] The education history and work history were both somewhat limited. Absences from school had been a significant problem and his short lived employment ended when he stopped going to work. Workers at the group home had described him as having a great work ethic. That did not continue into his independent adult life.

He stopped going to one job and never showed up for another. [ 51 ] The Accused has a criminal record, although it is not what might have been expected from one capable of such extra ordinary violence. As a youth, he was found guilty of two charges of assault, a charge of assault with a weapon, a charge of uttering threats and a charge of mischief. He was placed on probation. A few months later, he was again found guilty of uttering a threat and mischief, again receiving probation. [ 52 ] The history indicates many events of trouble in group homes or other settings.

He has been described as acting in a violent or threatening manner. Given the relatively short record, it may be that most of these events did not result in a report to police, let alone a conviction. Whether that is because they did not rise to the level of criminality, or because the staff did not wish to involve the police, is not clear. I am required to consider his record as a factor in assessing the requirements of

section 718 . The other events appear consistent with several descriptions of the Accused found in the presentence report or the psychological report and I consider them as confirmation of those findings. The Psychological Report and Risk Assessment [ 53 ] A lengthy report and psychological risk assessment was prepared by Lawrence Ellerby, Ph.D., C. Psych, a Registered Psychologist. Dr. Ellerby is a well known and highly respected psychologist, often producing risk assessments in difficult cases.

His report is lengthy and thorough and is based upon a comprehensive review of testing, background material, the agreed statement of facts and interviews with the Accused. It presents a complicated picture of a young man raised in difficult circumstances and facing some significant challenges. The picture is not pretty or reassuring. It is an important part of understanding why these brutal acts occurred and what type of incarceration and treatment are required to prevent anything like this happening again. [ 54 ] Dr.

Ellerby reviewed all available material, including records from Child and Family Services, the Manitoba Adolescent Treatment Centre, Macdonald Youth Services and a number of other sources. The material was compared with test results and interviews which helped assess the validity of information provided. [ 55 ] In some areas, the Accused exaggerated success, while in other areas he minimized problems in his upbringing, trauma or other difficulties. The report provides accurate information and explains to a large extent why the Accused is unreliable in some aspects of his history.

To some extent, he was cautiously limiting things that would negatively impact on his sentencing. He also has a more generalized and long standing history of defensive and avoidant coping, a hallmark of trauma. [ 56 ] The Accused presents with a limited range of emotion and restricted emotions which arose from self-protective strategies as a need to contain and disconnect from emotions arising from maltreatment and instability as a child. It is clear that Dr.

Ellerby’s assessment is based upon all information and accurately describes the Accused, only relying on the Accused where the information is confirmed or otherwise credible. Prior to the psychological testing, it was known that the Accused had been involved in over 150 incidents of acting out behaviour in a controlled setting. His aggressive or destructive behaviour was well documented. It was also known that he had a couple of events of suicidal ideation and considerable resorting to alcohol or drug use to self-medicate.

He has a speech impediment, due to a cleft palate, but no other health concerns. [ 57 ] The psychological report covers several topics: the assessment process, clinical impressions, psychological testing, background information, anger-physical and sexual aggression, an estimation of risk, clinical formulation and his conclusion and recommendations. The following is a brief

summary of the lengthy report, with occasional quotations. [ 58 ] The Accused was tested for cognitive, personality, emotion and behavioural functioning. The intelligence testing showed a substantial discrepancy between verbal and non-verbal aptitude. He displays an unusual set of strengths and weaknesses. His verbal reasoning skills are at the extremely low range while his nonverbal skills are average. It would be likely that he would perform much better on tasks involving perceptual reasoning than he would on understanding or explaining concepts.

On a battery of tests to measure executive functioning, he showed significant impairment in abstract thought, problem solving and the capacity to inhibit impulses. On tests to allow the subject to use feedback to improve performance, he scored well below average, indicating difficulties in using verbal feedback to learn from his mistakes and change behaviour. [ 59 ] His ability to understand and convey abstract ideas was impaired more than his ability to understand more concrete ideas. This was expected given his verbal learning disabilities.

Overall, his combination of impression management and impairments appear to have presented challenges in understanding his behaviour. He presents as unsophisticated but may be even more delayed than his overall intellectual testing suggests. His limitations make it difficult to manage a number of psychological and emotional processes relating to past trauma, emotional regulation and behaviour management. He is further impaired by a limited capacity in some respects intellectually, psychological deficits related to coping impairments that appear to be a product of trauma and an antisocial orientation. Mr.

Hudson’s impairments in verbal performance and abstract thinking would likely have made it difficult for him to fully understand,

appreciate and manage distress in his own life. A combination of early unresolved trauma, learning defensive styles of coping at an early age and impairments in his ability to communicate, problem solve, manage emotions and a proneness to impulsivity has likely contributed to his history of aggression and may have made it difficult for him to understand triggers for his anger and where it comes from. Further, when experiencing difficult emotions (such as disappointment, hurt and rejection) it may be easier for Mr. Hudson to process and cope with these emotions by turning them into anger.

Anger as an emotion tends to be more concrete and more readily understood than the core emotions that contribute to the experience of anger. Anger may also be viewed as an empowering emotion versus a vulnerable emotion. There may also be a clearer understanding of how the experience of anger can be expressed (yelling, destroying property, assaulting others) and less clarity as to how to respond to more abstract emotions (e.g. abandoned, betrayed, hurt, sad, fear). The combination of trauma, defensive and avoidant coping and intellectual and cognitive impairments are key in understanding the context for Mr.

Hudson’s poor and destructive styles of coping, acting out and violence. Page 10. [ 60 ] The Accused was also tested to determine general mental health concerns and the reliability of his responses. The Personality Assessment Inventory was completed and raised the possibility of multiple diagnoses. His response profile indicates marked distress and severe impairment in psychological functioning. His combination of alcohol abuse, impulsivity and engagement in thrill seeking behaviour have likely led to severe impairments in his ability to function in a pro-social manner.

He engages in behaviours that are dangerous to him and to others. His personality is consistent with Antisocial Personality Disorder. His profile responses are characteristic of those who describe feelings of guilt, but are likely to feel little remorse that lasts. He may have a number of thought process issues, including confusion, distractibility and may experience his own thoughts as blocked, withdrawn or influenced by others. His set of symptoms may be connected with symptoms of past trauma.

He is impulsive, easily angered and has difficulty controlling the expression of his anger, which may be sudden and unexpected. He is at risk of aggressive behaviour which is exacerbated by impulsivity, reckless or thrill seeking behaviour, limited empathy and substance abuse. [ 61 ] The testing also demonstrated that the Accused may be aware of his problem areas, but resistant to the need to change. A variety of problems exist to make treatment more difficult. Dr. Ellerby notes: Mr.

Hudson’s response profile is also characteristic of individuals who may be too disorganized or feel too overwhelmed to participate in treatment and may react negatively to a treatment provider as a result of viewing them as an authority figure. This is not to suggest that he is untreatable or that treatment options should not be pursued, but to be clear the treatment process with Mr. Hudson will be challenging, will need to be long term and will need to be tailored to his many responsivity issues and be strategically employed to make appropriate care to support therapeutic engagement and process.

Page 13. [ 62 ] An analysis also suggested that he experiences many symptoms consistent with a diagnosis of Post Traumatic Stress Disorder, consistent with the reports of him having undergone complex trauma exposure including early abuse and neglect and further victimization in adolescence. He likely has a substance abuse disorder. [ 63 ] Dr. Ellerby’s report includes a lengthy and thorough review of the background of the Accused, including the abuse, neglect, reported sexual abuse, substance abuse by family and abandonment by his father.

Remarkably, he appears to have limited or no insight into the issues and defended at least some of his care. [ 64 ] The report reviews his history of aggression and anger. The Accused recounted events of loss of his temper which resulted in yelling, threats, damaging objects and physical assaults on others. He recalled about four times when he had assaulted strangers. He would leave home with no intention of hurting anyone and then feel the anger build up to the point of attacking someone as a means to get the anger out.

He noted that in the past events, he had been alone, not attacked a female and not used a weapon. [ 65 ] Dr. Ellerby reviewed with the Accused what happened on the night of the assaults. The Accused and his younger cousin were at the home of the Accused and went out to break in to cars. It was for that purpose that they had taken the tools which were used later as the weapons. The plan was to get money for food. The meeting with the first victim took place after they had broken into about five cars. He said the first contact with that victim was when she asked them for a cigarette.

He claimed that as the attack started, his feelings of anger at his mother for past neglect or abuse were in his mind. His version of events as described to Dr. Ellerby was contradicted by the agreed statement of facts. He tried to diminish his involvement in the event which he claimed was instigated by his cousin. [ 66 ] The attack on the second victim occurred largely because she walked towards them. He claimed to have been feeling both anger and also guilt at what they had just done to the first victim. If so, it did not stop him from doing the same thing again. Dr. Ellerby notes: Mr.

Hudson’s limited self disclosure, claims of memory impairment, contradictions of his offences during the clinical interview and the significant inconsistencies between his account at the time of this assessment and his prior statements to the police and the information contained in the agreed statement of facts are all indicative of him being significantly invested in avoidance and impression management regarding the offences and not being reliable in relating the details of the offences.

Page 28. [ 67 ] The risk assessment finds the Accused to be in the high risk category for sexual recidivism, falling into a category which has been found to sexually re-offend at a rate of 21% over five years.

He falls into the very high risk to re-offend violently category, which has been shown to have a 51% rate of recidivism violently over five years and a 66% risk of non-violent recidivism. [ 68 ] Overall, the Accused is described as growing up in a chaotic and unpredictable environment characterized by abandonment, severe neglect, physical and emotional deprivation, careless and unconscionable role-modelling, emotional, verbal and a strong likelihood of physical and sexual abuse.

His “disrupted attachment and associated experiences and feelings of abandonment, neglect, abuse and exposure to unhealthy/dysfunctional female role models has contributed to a significant amount of anger, rage, resentment and hate directed towards females.” Page 30. [ 69 ] Violence has been a way for the Accused to relieve his anger and feel momentarily powerful in a world where he feels helpless. His limited verbal skills and executive function have caused him to develop a pattern of using anger and aggression to communicate where he is unable to do so verbally.

The targeting of strangers allowed relief in that the targets of his rage hold no meaning for him and have no emotions attached to them, unlike his family. Dr. Ellerby referred to the targeting of strangers as a likely result of him wishing for a relationship with family, despite the pain they have caused him.

[ 70 ] In assessing the responsibility of the Accused for the assaults, his background and deficits have to be considered. This young man has been abused by family, abandoned, sexually abused by a relative, surrounded by drug and alcohol abuse, victimized by his mother and taunted and picked on by those around him. He is limited intellectually and has difficulty with learning and reasoning. No one should ever have to endure the abuse and neglect which has been heaped upon the Accused. His personal circumstances are as tragic as could be. He is also a very dangerous man. Both the tragedy and the danger have to figure into the sentence. The Factors in

Section 718 Denunciation [ 71 ] The sentence must denounce his conduct. These offences are each punishable by a sentence which could include incarceration for life. Each of the offences call for a significant penalty to reflect society’s revulsion at the brutality inflicted on these victims. The sentence must be seen as a clear message. Deterrence [ 72 ] The sentence must deter the Accused and others from criminal acts. Deterring the Accused will be accomplished, if at all, only by a lengthy period of treatment in a penitentiary.

Whether he is deterred by incarceration, or by treatment, or simply by aging, the sentence must be of sufficient length to allow the message to get through to him. There are mercifully few people in our society capable of committing this type of crime. The sentence must also be a message to them. Separation from Society [ 73 ] An Accused must be separated from society when necessary. This case cries out for the Accused to be sentenced to a substantial term of incarceration to protect the public.

The brutality of not one but two events combined with the psychological assessment point to a substantial ongoing risk of danger. Controlling the danger by incarceration is necessary. In that regard, a term of incarceration for life would be justified based upon the risk of future harm. However, the sentencing process requires consideration of several factors and arriving at a balance between protection of the public and a proper analysis of the crime and the offender. Protection of the public is not limited to incarceration.

It requires consideration of the potential changes in an offender over time and with counselling and treatment. While the prospects for the Accused are not particularly positive, it is far from certain that he is incapable of ever being treated to the point of his risk to others being manageable. The sentence cannot simply point to the potential for future harm and on that basis alone determine that a life sentence is needed. [ 74 ] In R. v. Knoblauch , [2000] 2 S.C.R. 780 , 2000 SCC 58 , the Supreme Court looked at the interplay between the criminal justice and the mental health systems.

The majority decision, delivered by Justice Arbour included the following: 16 Before turning to an examination of the applicable law, I wish to stress two important aspects of this case. The first one is that it is beyond dispute that the appellant is potentially extremely dangerous. The second is that it is equally beyond dispute that the appropriate sentence for this appellant, in all of the circumstances, is a sentence of two years less a day, whether it is served in a penal institution or in a mental health hospital. These are critical facts to keep in mind.

There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done. At that stage, dangerousness is but one factor to be considered in the assessment of the appropriate sentence. Even extreme dangerousness cannot, in and of itself, justify imposing the maximum punishment in order to elevate the protection of society above all other considerations....

Para 16. [ 75 ] While it is clear that the Accused must be separated from society for a substantial period of time, the ultimate sentence must also include consideration of the other factors in

section 718 . The facts are such that protection of the public will factor heavily into the analysis. Rehabilitation [ 76 ] The background of the Accused is such that he can use assistance in every aspect of life. His education has been limited. His employment history is scant. His ability to function effectively has been limited by psychological and intellectual problems, but also by alcohol and substance abuse. He has been incarcerated since arrest, with little prospect for assistance until a full treatment program is available in the penitentiary. Even then, it may or may not be successful.

It is difficult with these facts to place great weight on rehabilitation. Reparation for Harm [ 77 ] The nature of the attacks makes reparation a factor to be given little weight. Nothing can be done to relieve the victims of the pain suffered. Promotion of Responsibility in Offenders [ 78 ] The Accused entered guilty pleas to the charges, sparing the victims from the pain of reliving the attacks under oath in the courtroom. A guilty plea is acknowledged as a factor which can be considered as indicating remorse.

The case against the Accused was likely strong because of the theft of easily identified items which were recovered, as well as the forensic evidence which must have been available. Whether the case was strong or not, the Accused should be given credit for the pleas. The Accused was given the right to speak at the conclusions of submissions and declined to do so. That is understandable, given the limitations referred to in the psychological assessment. The failure to apologize to the victims will attract no weight. Other Considerations in

Section 718 [ 79 ] The first victim was a child of 16 years which is an aggravating factor. It does not appear that she was targeted because of her

youth, but rather that she just happened to meet them. It is different from a predator who seeks out defenceless children as they are easytargets. Anyone would have been an easy target for two Accused, armed with a hammer or baseball bat. The attacks were brutal,regardless of the ages of the victims. [80] The impact on both victims was severe, as outlined earlier in the recitation of injuries or the victim impact statements.

It is acomment on their resilience and courage that both were able to provide statements and that the second victim was able to attend theproceedings. [81] Courts are also required to look at all available sanctions, other than imprisonment, that are reasonable in the circumstances,with particular attention to the circumstances of Aboriginal offenders. Obviously, a significant term of incarceration must be imposed, butthat does not mean that the circumstances of this young, Indigenous man do not require careful attention. In R. v. Gladue, [1999]1 S.C.R.688, , the Supreme Court analyzed the amendments to

section 718 of the Code and noted that courts must look at thedistinct background or systemic factors which have led to an over representation of Indigenous people in our jails. [82] This Accused did not grow up on a First Nation, but so many of his problems and limitations have to be considered in thecontext of growing up in a dislocated and chaotic environment. His aunt’s motivation in taking him as her own and concealing him fromhis mother was largely due to the mother’s addiction issues.

Even his aunt had addiction issues, although the reports of her parenting areinfinitely better than what his own mother later inflicted on him. Other relatives abused him. He does not appear to have ever had afamily member as a role model, or even as a stable support. It is not certain how many of his problems arose from systemic issues withhis parents or grandparents, but it is clear that he has never had any of the stability, care and love that should be given to any child. Thefactors in his background deserve considerable weight. In a lot of ways, he is the natural product of a lifetime of neglect and abuse.

Submissions of Counsel [83] Crown counsel filed a number of cases to support her position that a life sentence, or at least a sentence of substantial length,was required. Each case makes the point that they all have to be considered on their own particular facts. Some of the decisions deal withsingle events, but with added elements of cruelty. It is not particularly helpful to focus only on the brutality of a particular case and tocharacterize it as either worse than or not as bad as what happened here. Nonetheless, a review of some of the features present in caseswhere life was imposed was found in R. v.

Klair, (ON CA), [2004] O.J. 2320 (C.A.); .

While I do not suggest that there is a fixed or inflexible set of factors, cases of this kind that have been found to justify the imposition ofthe maximum sentence of life imprisonment (formerly the "stark horror" cases) have presented one or more of the following features: • cruelty, brutality, unusual violence; • terrorizing and torturing victim over a period of time; • intentional, prolonged, repeated violence against victim; • acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture; • intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason; • cruelty and callousness not frequently encountered; • deliberate infliction of brutal, disfiguring, life threatening injuries. [84] In R. v.

Cheddesingh, 2004 SCC 16, the Court looked at the need to address all relevant factors, instead of focussing too heavilyon phrases such as stark horror. The Court made clear that

section 718.1 is the fundamental principle to be applied. [85] The Crown submitted that a sentence of imprisonment for life was appropriate. The brutality of the events, the impact on eachvictim, the existence of a record, the age of one complainant and the callousness of leaving her to die, and the absence of any significantremorse were all cited as reasons why life was an appropriate sentence. However, much of the emphasis was on the psychological reportprepared by Dr. Ellerby and filed on behalf of the Accused.

Counsel reviewed the report at length and pointed out that there is asignificant potential that the issues described do not have easy solutions. The focus was on the need to separate the Accused from societyand, if there is no clear indication that treatment will be successful, keep him incarcerated. [86] The submission of counsel for the Accused pointed to the abuse and neglect he has suffered. It was also suggested that the rangeof sentence for each of the offences was about seven years. The cases filed on his behalf showed sentences of years, rather than life, evenin brutal cases.

While some of the factual situations described in those cases are also brutal, none capture the full dynamics of the presentcase. Decision [87] The suggested range proposed by counsel for the Accused, of about 12 years, does not meet several of the requirements ofsection 718. It does not sufficiently denounce the two attacks and does not fully meet the need for protection. [88] The Crown position of life imprisonment does not give serious consideration to factors such as the background of the Accusedand the reasons why he was capable of such brutal acts.

Counsel has referred to cases where a life term was imposed, even for a firstoffender. One feature missing from some of the cases is a psychological assessment, which limits the court in analyzing responsibility.For example, in R. v. Anderson, 2012 ONCA 373, the Accused was convicted of attempted murder, aggravated sexual assault and break,enter and commit an indictable offence. He refused to participate in a psychiatric assessment.

No inference could be drawn from thatrefusal, but the court was left with no explanation for behaviour that the Judge considered “so bizarre and shocking that I can infer fromthe circumstances of the offence itself that Mr. Anderson poses an ongoing danger to the public.” Page 25.

[ 89 ] While the present report is profoundly troubling, it does not leave an impression of a sexual predator, intent only on his own gratification. The facts of the case, brutal as they are, do not leave an impression that the Accused hunted the victims, tortured them, inflicted pain for purposes of gratification or otherwise engaged in conduct to derive sadistic pleasure. He was presented with an opportunity and brutalized each woman because he could not control his rage. [ 90 ] That rage has to be controlled.

The combination of factors noted lead to the conclusion that the Accused must be separated from society for a long time, to protect others and denounce his crimes. However, his background, his limitations, his history of being abused and neglected lead to a conclusion that his responsibility has not risen to the point where a life sentence is needed. That sentence would overemphasize the gravity of the offences, but underemphasize why he did what he did. I also look to his record. While related, it is not of such gravity that he has demonstrated that he is beyond control or treatment.

He is still young and a careful consideration of Dr. Ellerby’s report shows that treatment may be successful. A sentence of imprisonment for life would be likely to leave a limited young man without any hope of release and, consequently, no desire to participate in the abundant treatment options available to him. Dr. Ellerby’s report indicates that the realistic treatment options are available through the correctional system. The sentence which I am imposing will provide time for that.

If treatment does not work, it may well be that he remains incarcerated until warrant expiry, and could then be subject to a recognizance upon release. There is still a mechanism for protection, but he will have the possibility of rehabilitation and release at an age where he can still have some semblance of a more normal life. [ 91 ] The attack on the first victim is aggravated by her age, the callousness of leaving her partially naked and at or near the river in subzero temperatures, the blow with the hammer to prevent her escape, the impact upon her physically and mentally and the presence of the co-accused.

With his record, the appropriate sentence is 16 years. [ 92 ] The attack on the second victim is aggravated by the repeated assaults and requiring her to move from place to place. A co- accused was involved. She was injured, although not near death. She was allowed to leave. As with the first victim, the thought that she would contact the police does not seem to have entered his mind. This attack calls for a sentence of 11 years.

It would have to be consecutive to the first sentence. [ 93 ] I am required to consider the totality of the sentence imposed as the addition of appropriate sentences may turn into a total which is simply too high. In that regard, I would reduce each by one year, taking the total to 25 years. Lastly, I must take a last look at the sentence and here I place more emphasis on the background of the Accused. The horror of his upbringing in no way justifies anything that he did to these two innocent victims. But the forces that brought him here cannot be ignored. They are why a sentence of life cannot be justified.

With a last look, those circumstances should reduce each sentence by a further year, bringing the sentences to 14 years and 9 years consecutive for a total of 23 years. [ 94 ] The Accused has been in custody since November of 2014, or what I will round to 29 1/2 months. He is entitled to enhanced credit for a total of 44 months. When his time in custody is credited to the first offence, the sentence going forward on that is 10 years and 4 months with 9 years consecutive on the second matter for a total of 19 years and 4 months. [ 95 ] He is prohibited under

section 109 from ever possessing firearms, crossbows, prohibited weapons, restricted weapons, ammunition, prohibited ammunition, prohibited devices or explosive substances. [ 96 ] Each offence is a primary DNA offence. He is to provide such samples as are required. [ 97 ] He is bound by the provisions of the Sex Offender Information Registration Act for the rest of his life. [ 98 ] He is prohibited under

section 161 from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre. That prohibition is for his lifetime. [ 99 ] He is subject to the victim service surcharge of $200.00 on each offence. In light of the sentence, the surcharge is to be paid forthwith and in default he is to serve three days on each surcharge, concurrent with each other and this sentence. Costs are waived. “Original signed by:” _________________________ KILLEEN P.J.