) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 798

CITATION : R. v. C.E., 2013 ONSC 798 COURT FILE NO.: 1525/10 DATE: 20130321 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – C.E. Defendant ) ) ) ) ) ) ) ) Diane Foster, for the Crown John Norris and David Stoesser, for the Defendant ) ) ) HEARD: December 20 and 21, 2012 and February 6 and 7, 2013 DESOTTI, J. [ 1 ] This is a Crown application to have the convicted murder of Velma Thomson, a C. E., tried as an adult pursuant to s. 71 of the Youth Criminal Justice Act. A. The Facts [ 2 ] C.E., a young person, was found guilty of first degree murder and aggravated sexual assault.

At the time of the murder, probably on or about October12th, 1983, with the deceased’s body found on October 14 th , 1983, the accused, C. E. was 15 years of age, born on […], 1967. [ 3 ] The deceased, Velma Thomson, was found on a linoleum floor in her former hair dressing salon that was attached but adjacent to her residence.

Her lower extremities were nude and she had been stabbed through her left lower back with an injury to her aorta and heart and her jugular vein was cut. [ 4 ] There appeared to be white dried exudate on her pubic hairs and this sexual assault evidence was sent to the Centre of Forensic Science.

In addition, and most significantly, a thumb print was found beside her body and was described by the Identification Officer as if this print was made from a position where the individual had been over top of the body and was resting his thumb on the linoleum floor. [ 5 ] This fingerprint initially was the only tangible evidence that linked the perpetrator to the crime.

The Identification Officer carried this fingerprint with him throughout the many years since this murder with the hope that a ‘hit’ would materialize linking the print with a perpetrator. [ 6 ] Finally, after talking to an individual at a fingerprinting convention about this significant find, the officer forwarded this print to this individual who confirmed that he had found a match. Sometime in the C. E.’s past, while at college, he had been charged and

convicted of a minor criminal offence of damage to a motor vehicle and was fingerprinted. This conviction on May 13th, 1989, that resulted in the accused then receiving an absolute discharge, occasioned this confirmed fingerprint match. [ 7 ] The accused was then placed under surveillance and certain samples were obtained surreptitiously from the garbage of the accused and compared to samples already present at C.F.S. Initially, the accused was excluded from some of the comparative samples present at C.F.S. Nevertheless, when a Ms.

Sloan compared other samples at the Centre, and in particular pubic hairs with exudate present and semen on one of the victim’s slippers, the result was that the accused could not be excluded. This sampling indicated that there was a 1 in 1.5 quadrillion chance of someone other than the accused sharing this DNA profile. [ 8 ] The evidence of the accused was that he lived proximate to the deceased and knew the victim through his grandparents.

He had assisted the victim with certain chores such as shovelling snow. [ 9 ] The evidence of the formal or informal contact with the victim was very limited and other evidence indicated that the victim was quite timid and fearful of individuals that she did not know. She had also suffered a stroke. Furthermore, she had been receiving disturbing phone calls of a sexual nature and one in particular from someone she described as sounding like a young person. [ 10 ] A few days before her death, C. E. indicated that he remembered walking by Velma Thomson’s residence after coming home from school during lunch. C.

E. indicated that the deceased had asked him (in some fashion, verbally or in some other means) to assist her by moving a box inside her house. He stated that with respect to this box that he “just went in and set it down. She just wanted it physically off the step and inside the house”. [ 11 ] In cross-examination he stated: A. I walked in, took a couple of steps in, set it down. Q. And that’s all you did, took a couple steps in? A. Yes. [ 12 ] The convicted C. E. does not know how his ‘right thumb fingerprint’ may have got onto the linoleum floor.

He surmises, because he did not commit the murder, that perhaps he walked many more than two steps into the area, which coincidentally was the precise location where the body of the deceased was found and where thus he must have placed the cardboard box. [ 13 ] There was no explanation how a thumb print could have been placed on the linoleum floor on the assumption that this was the location where the cardboard box was laid on the floor. Also, the police were never informed that he had been in the victim’s home proximate to the death of the victim. B.

Analysis [ 14 ] There has been before me a most comprehensive psychiatric report pursuant to s. 34 of the Youth Criminal Justice Act and a very detailed pre-sentence report. The victim impact statements have been filed and are most revealing and poignant. [ 15 ] I have reviewed carefully the criteria under s. 72 (1) of the Act and in particular the circumstances of the offence, the age, maturity, character, background, and previous record of the accused and other factors that I must consider in this unusual case.

Finally, under s. 72 (1) (b), I have to consider whether a youth sentence would have sufficient length of time to hold the young person accountable for his or her offending behaviour. [ 16 ] In addition, I have carefully reviewed s. 3 (1) (b) (ii) and s. 38 of the Y.C.J.A. that delineate the purpose and principle of the Act. I should emphasize that I have not unduly focused on any particular principle found in s. 38 and the various subsections but I have attempted to make this determination by carefully considering all of their particular application.

[ 17 ] I am enclosing the aforementioned sections for easier reference prior to their amendments as follows: 3.

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

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of the aboriginal young persons and of young persons with special requirements; and

(

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the young criminal justice system. (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encourage to support them in addressing their offending behaviour.

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). s. 38.

(1) 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-time protection of the public.

(2) A youth justice court that imposes a young sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

(3) In determining a young sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. s. 72.

(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and 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

section 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 young 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

section 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.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.

(3) In making its decision, the youth justice court shall consider a pre-sentence report.

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

(5) For the purposes of an appeal in accordance with

section 37, an order under subsection (1) is part of the sentence. [ 18 ] Both defence and Crown counsel have made reference to the new amendments to the Y. C. J. A. I agree with the Crown that s. 195 of the new Act seems to suggest that since the accused was already charged with an offence and the process was underway that the new amendments do not apply. More significantly, the onus that is on the Crown to rebut the presumption of diminished moral blameworthiness as reflected in the Supreme Court of Canada decision in R. v. D.

B. is still applicable. [ 19 ] In coming to my decision, I reviewed carefully all of the cases contained in the Book of Authorities filed by the Crown and defence to assist me in my deliberations. I have précised the facts and circumstances of some of these decisions as a means to direct and guide me in my ultimate conclusion. In addition, I have reviewed and précised some decisions under the predecessor to the Y.C.J.A., the J.D.A. , to compare and contrast those decisions as well. There are some clear overarching principles but no factual similarity to the unusual facts of this case.

[ 20 ] I should also indicate at the outset that the issue before me is not one that is to be decided beyond a reasonable doubt or on a balance of probabilities but as stated by Justice McLachlin in R. v. M. (SH) : The question rather is whether one is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court. [ 21 ] I make four further important and significant observations in my analysis.

Firstly, all of the courts make it clear that the imposition of an adult sentence can have severe consequences on a youth and thus as stated by the Ontario Court of Appeal at paragraph 38 in R. v. A. O . : It is important that a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfill the objectives of the YCJA. [ 22 ] Secondly, that the accused party, C. E. is not a youth but an adult and has led an uneventful and normal life until his arrest twenty-five years after the brutal murder.

Obviously, any subsequent psychiatric report completed 29 years after the murder in attempting to classify whether an accused is or is not at a high risk to reoffend has the benefit of hindsight. [ 23 ] This does not mean that such a report may not highlight any obvious deviant behaviour or psychological abnormalities. However, given that the accused has not been found guilty of any other criminal offence, predicting the future beyond, October 14 th , 1983, does not have the same potential of uncertainty as may be exist in other psychological assessments.

In effect, the principles of rehabilitation and reintegration into society are not germane to this determination. [ 24 ] Thirdly, any sentence must reflect accountability as the purpose that the youth court judge must consider when deciding on the applicability of the imposition of an adult sentence. To hold a young person accountable in the sense of being meaningful, any determination of this application must reflect, as it does with adults, a retributive sentence. [ 25 ] In distinguishing retribution from denunciation, the Supreme Court of Canada in R. v. C. A.

M. stated at paragraph 81 the following explanation: Retribution requires that a judicial sentence properly reflects the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct.

In short, a sentence with a denunciation element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [ 26 ] In this sense, as reflected in the Supreme Court of Canada decision in R. P. (B.W.) , general deterrence and denunciation are not sentencing objectives under the YCJA.

Furthermore, accountability has three component parts; the intentional risk- taking of the offender, the consequential harm caused, and normative character of the offender’s conduct. [ 27 ] Fourthly, although the YCJA is offender-centric, as indicated by Justice Nordheimer in R. v.

J.S.R ., he concluded at paragraph 72 and 73 of his reasons, as do I, that “the interests of the young persons who commit serious violent offences must be balanced against the societal interests in ensuring that young persons who commit serious violent offences are subject to meaningful penalties that will help protect the safety of the community at large”. [ 28 ] He concluded that the

preamble of the YCJA refers to a youth criminal justice system that commands respect and thus if “the public at large do not view sentences imposed as being meaningful from their respective, then the system will not command the respect that it must have”. [ 29 ] Nevertheless, both Justice Nordheimer and I do not mean to indicate that this suggestion invokes any consideration of denunciation but only an appropriate degree of “accountability and responsibility from all of our citizens, even our youngest

citizens.” Moreover, in Regina v. B.W.P.; Attorney General of Ontario et al., Interveners B.V.N. The Queen; Attorney General of Ontario et al., Interveners , Justice Charron, of the Supreme Court of Canada indicated at paragraph 38 as follows: The detection, arrest, conviction and consequence to the young person may well have a deterrent effect on others inclined to commit crime. It also does not mean that the court must ignore the impact that the crime may have had on the community, as was suggested in argument.

A consideration of all relevant factors about the offence and the offender forms part of the sentencing process. [ 30 ] The following chart highlights the significant factors and considerations that were reflected in the various cases. I have undertaken this exercise mostly to confirm that the historical nature of this murder coupled with a twenty-five year gap in time before the perpetuator was apprehended, place this case in a factual scenario that do not seem to be reflected in any of the decisions that I have reviewed. 1. R. v. D.B. In R. v. D.

B ., the Supreme Court of Canada in a 5-4 result determined that the onus was not on the accused young person to establish that he should not be sentenced as an adult but the onus was on the Crown to establish that an adult sentence be imposed. However, all nine judges ultimately agreed with the trial judge’s sentence of three years available through a youth sentence rather than an adult sentence when they considered all of the aggravating and mitigating circumstances of the case.

On the facts, this accused had previous convictions of possession of stolen property and robbery both involving threats and intimidation. At the time that he knocked the victim to the ground and then assaulted him resulting in the death of the individual, he was bound by two separate probation orders. He also had a history of mental health and behavioural problems in school. Nevertheless, he expressed remorse for the offence and had taken some positive steps during the pre-trial detention.

The predisposition recommendation was that he remain in a therapeutic milieu and kept in a juvenile justice correctional system rather than exposing him to hardened criminals. The trial judge, after the accused plead guilty to manslaughter, ordered that he be sentenced to a three year period of incarceration but through the intensive rehabilitation programme available through a youth sentence and not as an adult.

Although the focus of the Crown appeal was on sentence, the Court of Appeal of Ontario affirmed the sentence of the trial judge and then found that the reverse onus provision of the Young Criminal Justice Act to be unconstitutional. The Supreme Court of Canada agreed with both this determination and the penalty imposed by the trial judge. 2. R. v. J.M. In R. v. J. M ., Blacklock J. of the Ontario Court of Justice, had before him a fourteen year old youth, who had strangled with a belt, another fourteen year old youth.

There was both planning and deliberation in the murder and the accused feigned friendship to create the circumstances that led to the murder. The accused had no previous criminal record but had ADHD, Oppositional Defiant Disorder, Separation Anxiety, and a phobia related to darkness. The accused has showed no sense of remorse and was diagnosed by a psychiatrist as a high risk to commit future violence. The accused, who plead guilty to first degree murder, was sentenced as an adult with an ineligibility of parole for seven years.

3. R. v C.K. Duncan J. of the Ontario Court of Justice in R. v. C. K. sentenced two accused youths who had killed their alcoholic mother to a youth sentence, after a finding of guilt to first degree murder. The two youths drugged their mother then drowned her in a bathtub. They were said to be of superior intelligence in school by their former guidance counsellor and neither had a criminal record. They were both considered to be low to a low moderate risk to reoffend by a psychiatrist and were remorseful.

The accused were sentenced each to six years in custody followed by four years of supervision without any credit for pre-trial custody. 4. R. v. A.O. The Ontario Court of Appeal in R. v. A. O. , determined that two youths who had committed numerous armed robberies could or should be sentenced as adults but one of the youths would serve his sentence in a youth facility while a second young offender should serve his sentence in a penitentiary. The robberies were violent and well-planned with the accused camouflaged with balaclavas, hoods and gloves and armed with either a knife or imitation firearm.

Permanent knife injuries were administered to some of the clerks who also sustained financial losses. Both accused had significant criminal records and were on probation at the time of these offences. The two psychiatrist reports reflected different perspectives with respect to the two accused. With respect to A. O . , he was said to be intelligent and he completed his high school degree while in custody and had plans to attend university and start his own business. He was said to be a leader but other aspects of the report indicated that A.

O. had potentially a high risk to reoffend and had entrenched antisocial attitudes, lack of remorse, and was manipulative and devious such that this accused required significant treatment. With respect to J. M., he was seriously involved in drugs, was violent, even committing an assault on another youth while in custody, had an antisocial lifestyle, struggled academically, and was an above average risk to reoffend. 5. R. v. McKenzie In R. v. McKenzie , the accused, seventeen years of age at the time, had accosted an individual on a bus seeking his Ipod.

When the individual declined to give him his Ipod, the accused stabbed and killed the victim. The accused had no criminal record, raised by a single parent of modest means and was subject during his upbringing to corporal punishment. The accused had ADHD, had difficulty in communicating, and had behavioural problems. Nevertheless, he was an outstanding athlete and had an exemplary part-time employment history and the psychiatric report concluded that the accused posed a low to moderate risk of future violent conduct.

The judge was not convinced that a youth sentence that comprised of six years in custody and four years of supervision was sufficient to address the offender’s accountability “ for a finding of guilty to first degree murder .” Instead he sentenced the accused to life imprisonment with no chance of parole for 10 years. He did credit the accused’s pre-trial custody of 2 and ½ years and thus the accused would serve 7 and ½ years in custody. The ban on the publication of his name was also lifted.

6. R. v. J.S.R. The decision of R. v. J.S.R . by Justice Nordheimer was appealed to the Ontario Court of Appeal and the appeal of the adult sentence was dismissed. The accused was involved in a gun fight that resulted in the death of a young girl and the wounding of five other individuals. He was convicted of second degree murder, two counts of aggravated assault, and five counts related to the use of a firearm. He was on probation at the time of the offence that prohibited him from attending in the downtown area, and prohibited him from possessing any weapon.

Had he been sentenced as a young offender, he would have to serve four years in custody and two years with respect to the aggravated assault convictions. The gun offences would mandate only a sixteen month sentence. If any credit was given for the three years in pre-trial custody, the accused would only have to spend a further eight months in custody. He had anger management issues and a serious previous record which included a number of assaults including two assaults on a peace officer.

He had problems at school with a spotty educational record, he was diagnosed with ADHD, and had a history of abusing drugs and alcohol. The psychological report indicated that J.S.R. was at a high risk of reoffending. In the result, he concluded that an adult sentence of life imprisonment was necessary. The accused was sentenced to seven years without parole but given credit for his three years in custody, He was given concurrent sentences on the two aggravated assault charges and time served on the firearm charges. 7. R. v. Logan The decision of R. v.

Logan of the Ontario Court of Appeal affirmed an adult sentence of life imprisonment with parole ineligibility of seven years with the first two years served in a youth facility. The accused had bludgeoned a senior citizen with an axe and was found guilty of second degree murder. There was an appropriate reflection on all the positives and negatives in the background of the accused to make the determination by the trial judge. 8. R. v Todorovic Justice Nordheimer in R. v.

Todorovic found that the accused had orchestrated the death of a fourteen year old girl by counselling and compelling her boyfriend to stab her to death and was convicted of first degree murder. She showed no remorse, had a stable home life, she had no criminal record, and no disciplinary issues at home or at school. The conduct was considered serious, the pre-sentence report was positive, the psychological assessment indicated there was little remorse shown for the death of the young person but more of the accused’s sense of personal victimization.

The conclusion of all of the assessments was that the young person with treatment and appropriate rehabilitation, would not pose a risk to the community excepting those that may be part of her intimate relationships. In the final analysis this character flaw mandated an adult sentence with life imprisonment and an ineligibility of parole of seven years. The judge determined at paragraph 75 that such “supervision was entirely consistent with the overarching sentencing goal of protecting the public from violent criminal conduct”.

9. R. v. Bagshaw Again in R. v. Bagshaw , Justice Nordheimer had before him for sentencing the young person who was the boyfriend of Ms. Todorovic who committed the stabbing of Stefanie Rengel and plead guilty to first degree murder. The offence was considered serious and a reflected the horrific nature of the circumstances of the stabbing, the pre-sentence report was generally positive, and the psychiatric reports indicated that the accused had ADHD, was not particularly successful at school, and that the accused had a modest risk of re-offending.

The accused had no previous criminal record but the any mitigating factors were subsumed by the determination that long term supervision of the accused was required and only life imprisonment through an adult sentence would guarantee the accountability mandated by the YCJA. This decision was appealed to the Ontario Court of Appeal and the appeal was dismissed by way of an appeal endorsement. 10. R. v. I.C. Justice Clarke, in R. v. I. C ., determined that an adult sentence would be imposed on a sixteen year old convicted of first degree murder.

He had stabbed the victim a number of times as a result of the belief that he had “snitched” on him with respect to an earlier robbery. There was a degree of planning and deliberation thus the murder was considered serious and the circumstances of the offence was to effect revenge for a perceived wrong and to convey a message to the community that anyone who runs afoul of the Bloodz would be placing themselves in some jeopardy. The accused had a significant record and was said to be a leader and used intimidation, coercion and violence to obtain his objectives.

In addition, he had an anti-social personality disorder and had a high risk of further violent behaviour. The accused was sentenced to life imprisonment with no chance of parole for ten years. 11. R. v. J.B. Once again, Justice Nordheimer in R. v. J.B. sentenced a young offender as an adult as a result of convictions for an attempt of murder and manslaughter. In this case, the central question was whether or not a youth sentence would be of sufficient length to hold J. B. accountable for his offending behaviour. The accused had a criminal record and was on probation at the time.

He indicated that he was carrying the gun as protection given that the location of the party was in an area that he considered dangerous even though he was under terms of bail that mandated that he not be in possession of any weapons. The pre-sentence report was positive and a psychological report put the accused at the low end to reoffend with the accused exhibiting remorse for his actions.

The court determined that in these circumstances the mandated penalty under the YCJA would not achieve the necessary degree of retribution for the conduct involved and would not represent an objective, reasoned and measured determination of an appropriate penalty. The accused was sentenced to six years in jail for the attempted murder conviction and four years on the manslaughter charge. The accused was afforded a 1.5 credit for his pre-trial custody.

In total this credit that was applied to both charges meant that the accused was sentenced to imprisonment for 2 and ½ years on the attempted murder and six months on the manslaughter conviction with this conviction to be served concurrently to the other charge.

12. R. v. Skeete The case of R. v. Skeete was a decision of Justice A. S. Derrick of the Provincial Court of Nova Scotia wherein he found the accused guilty of second degree murder. The accused had a lengthy youth criminal record starting when he was 12 years of age together with numerous probation breaches. The female victim was viciously stabbed in a jealous rage over 104 times while both were in an intoxicated state. The accused had ADHD and was suggested to have “many features of Oppositional Defiant Disorder” and used drugs and alcohol on a regular basis.

The psychological profile indicated that the accused was at a moderate to high risk of violent re-offending. There were both positive and negative factors in the assessment reports. Nevertheless, Judge Derrick imposed an adult sentence in the circumstances although he differed from Justice Nordheimer’s position that he must deduct time served in pre-sentence custody. His position was that he only had to consider this as a factor when determining a sentencing position. 13. R. v. Williams The Alberta Court of Appeal in R. V.

Williams considered a disposition by the trial court of an adult sentence wherein the accused was convicted of first degree murder. A thirteen year old girl was lured to a golf course where she was sexually assaulted and then murdered. The accused exhibited characteristics of a psychopath as he was both narcissistic, sexually preoccupied, impulsive and aggressive and was virtually unmanageable since early childhood. Most significantly previous interventions and attempts at rehabilitation did not meet with success and the prognosis was grim. The Appellate Court affirmed the adult sentence.

14. R. v. Lights The decision of Justice Trotter of the Ontario Court of Justice in R. v. Lights , which was affirmed by the Ontario Court of Appeal, concerned a 17 year old young offender who engaged in a home invasion wherein a victim was beaten with a baseball bat and wounded with a shot gun blast. He was unable to see who shot him but upon the exercise of a search warrant a shot gun was found in the residence of the accused. While the accused was involved in this offence, some 48 hours earlier he had been placed on a recognizance that put him under house arrest.

In addition, he was already under a probation order that prohibited his possession of guns. The victim barely survived the attack and had a bullet fragment still lodged in his person that causes him ongoing pain and severe scarring from armpit to armpit and from neck to crotch. Just two days after this incident, the accused was part of a gang that attacked two other individuals. They robbed them, assaulted them, pointed the same sawed off shot gun used in the previous offence at them, and one member of this gang, sexually assaulted one of the victims.

Again, the Crown could not prove the extent of the involvement of the accused but the accused did plead guilty to robbery while using a firearm, breach of his recognizance and other gun related offences. The victims sustained bruising, loss of currency and jewellery in excess of $100,000.00. The accused had a dysfunctional home life, moving out of his home and into the care of the CAS at the age of 14 years. He had a significant youth criminal record with narcotic, robberies and weapons offences, and breaches of both recognizances and probation.

He suffered from ADHD, was an active gang member, of average intelligence, and was developing towards an Antisocial Personality Disorder. One early risk assessment indicated that the chance of re-offending was high and a later assessment fixed the risk at very high. In addition, while in custody, there were numerous incidents requiring authorities to administer disciplinary actions. The accused was sentenced as an adult for a period of eight years in jail but given credit on a 1.5 to 1 ratio for the sixteen months in pre-sentence custody or a credit for 24 months.

15. R. v. R.L. In R. v. R.L. , Justice B. G. Morgan, of the Saskatchewan Provincial Court, sentenced a 16 year old young person to a youth sentence of two years for the offence of wounding and a further year consecutive to this sentence for the offence of using violence to impede a justice system. This latter year would be a year of supervision in the community. There were other concurrent sentences. Under the Criminal Code , a minimum mandatory sentence for an adult would have been four years and the Crown was seeking a sentence as an adult of eight years.

The accused at the time of the offence that is January 16 th , 2006 was sixteen years of age but was arrested five years later in March of 2011. He was sentenced in February of 2012 but was not given credit for the 11 months of pre-sentence custody. The victim, an R.C.M.P. Officer, suffered serious complications to his arm subsequent to this wounding that would affect him the rest of his life and which would cause a number of operations and would impact negatively on his career advancement.

The accused had a chaotic upbringing with his mother but he had a good relationship with his father when he moved in with him at the age of seven. His risk to re-offend was low to moderate. His conduct this evening was impulsive and reflected the emotional immaturity of a 16 year old. Furthermore, he had no criminal record at the time of the shooting and when arrested through a sting operation, he readily admitted his guilt and expressed significant remorse. 16. R. v. P.(B.W.) and R. v N. (B.V.) In R. v. P. (B.W.) and R. v. N. (B.

V.). , appeals from the Manitoba and British Columbia Court of Appeals to the Supreme Court of Canada, where the primary issue was whether deterrence was a factor in youth sentences under the Y.C.J.A, the courts concluded that it was not a consideration. N., who was 15 years of age at the time, had plead guilty to manslaughter when during a fight in a pool hall the accused struck the victim two or three times in the head with a pool ball inside a sock.

The accused had a minor youth record was assessed by a psychologist as being at a medium risk to reoffend for assault offences but overall at a low risk to reoffend. He never denied responsibility, expressed remorse for his offence and a total penalty of 15 months of custody and supervision was imposed, with only one day of this 15 months to be served in custody. The accused N., who was 16 years of age at the time, was found guilty of assault causing bodily harm.

He had a minor youth record and a most unfortunate background as his placement with his father terminated as a result of his father’s incarceration for murder. This unfortunate turn of events left him as a ward of the state. The accused was sentenced to 9 months of custody followed by a 15 month intensive support and supervision order. 17. R. v. T.B. In Regina v. T. B. , the Ontario Court of Appeal held that the accused T.

B., who was 15 years of age at the time of the offences of robbery, trafficking in cocaine and three other minor offences, could only be sentenced under section 42 (15) of the Y.C.J.A. to a maximum period of 36 months.

Therefore, since the accused had already spent 6 months in pre-sentence custody, and since s. 38 included pre-sentence custody as a sentencing consideration, the maximum sentence allowed was 30 months. ( There is of course a body of cases that consider pre-sentence custody as merely one factor to take into account in determining the length of any sentence and thus a credit is not necessarily mandated by s. 38. In this regard, see the subsequent Court of Appeal decision in R. v. W. (D.) )

18. R. v. W.(D.) In R. v. W. (D.) , Justice Glass of the Superior Court sentenced a 17 year old young person to an adult sentence of life imprisonment for second degree murder. He was thus held ineligible for parole for a period of seven years. The rationale for this adult sentence was that if he was given credit for his 2 and ½ years in pre-sentence custody and given that a four year custodial sentence was the maximum sentence allowed under the Y.C.J.A., the trial judge believed that the remaining 18 month sentence would be insufficient to satisfy the court of the rehabilitation of the accused.

Upon appeal, the Ontario Court of Appeal determined that a maximum youth sentence (four years in custody) would be a more appropriate sentence and did not credit the accused with any pre-sentence custody. Again, they determined that the pre-sentence time that the accused had spent in custody must be taken into account in determining whether a an adult or youth sentence would be appropriate but that the trial judge was not required to deduct this time spent in pre-sentence custody . 19. R. v. T. (D.D.) In Regina v.

T. (D.D.) , the Alberta Court of Appeal held that a youth sentence for a 16 year old young person found guilty of second degree murder and a party to the offence of aggravated sexual assault was sufficient to satisfy the purpose of the Y.C.J.A. and the degree of moral blameworthiness. In coming to this conclusion, the Appellate Court agreed with the trial judge that a maximum youth sentence without any credit for the 4 years in pre-sentence custody would better serve this accused rather than a life sentence.

In coming to this determination, the court held that with this extended youth sentence the accused would have a more realistic possibility for her successful rehabilitation and reintegration into the community (4 years in custody and 3 years of court ordered supervision). [ 31 ] There are obviously many more decisions that reflect various crimes committed by young people with an equal array of sentences. Nevertheless, the aforementioned decisions do reflect the appropriate considerations of a sentencing judge in determining a proper sentence. [ 32 ] In this case, the accused C.

E. was also convicted of aggravated sexual assault. This conviction is sought to be stayed under the principles as stated in the decision of R. v. Kienapple .

The evidence would indicate that the accused was engaged in an aggravated sexual assault of the seventy year old disabled victim when he murdered her with a knife. [ 33 ] There is no evidence precisely when she was murdered, but inferentially, her position on the linoleum floor in a pool of blood, nude and with her pants torn, her brassiere ripped and her sweater pulled over her head would seem to indicate that this murder was committed at the same time as the sexual assault. [ 34 ] Both the defence and Crown counsel have provided me with a number of decisions on this issue.

Defence counsel outlined their position in a brief written argument while the Crown counsel has provided me with a factum. [ 35 ] In my view, the decision in R. v. Prince is determinative of this issue. While I can appreciate the suggested alternative position of the Crown in advocating for a conditional stay as opposed to a stay, I have concluded that a stay of the aggravated sexual assault is a more appropriate disposition. [ 36 Obviously, there will be no concurrent sentence in light of my conclusion that the constructive first degree murder conviction occurred as a result of this aggravated sexual assault.

The aggravated sexual assault is, as stated, stayed.

[ 37 ] In reviewing the many decisions that concluded that an adult sentence was appropriate, I wish now to distinguish those cases that dealt with first degree murder only. Numerous cases concluded that an adult sentence was mandated for various other offences including second degree murder and violent robberies but only the decision in R. v. C. K. affirmed a youth sentence for the crime of first degree murder. [ 38 ] The facts of that case have already been highlighted. Both accused young women, fifteen and sixteen at the time of the murder, were exceptional candidates for a youth sentence.

Their alcoholic mother had led these young women into a degrading and hopelessly intractable life style and then introduced, into this devastating mix, a new partner who was abusive. [ 39 ] These young women felt remorse for their crime; had a low risk to re-offend; and were assessed as model prisoners with excellent rehabilitative prospects.

I conclude that the facts of this case were significantly unique and the accountability factors such as the intentional risk-taking of the offender, the consequential harm caused, and the normative character of the offender’s conduct were all properly taken into account in concluding that a youth sentence would reflect all of the principles found in the Y.C.J.A. [ 40 ] Turning now to the unusual circumstances found on the facts in this case, I conclude that the accused, C.

E. is at a low risk to re- offend and that any rehabilitative measures or programmes that may be mandated in any youth sentence for first degree murder really do not reflect the present personal circumstances of the accused.

In particular, the age of the accused, his employment, marriage and fatherhood, and the reality that there have been no subsequent criminal offences during the interval between the time of the murder and his arrest would negate the necessity of any rehabilitative measure. [ 41 ] On the other hand, the gruesome nature of the first degree murder conviction occasioned by a most violent aggravated sexual assault on this helpless seventy year old woman makes it doubtful that a youth sentence would hold this accused accountable for his conduct and that a youth sentence would be long enough to reflect this accountability.

This is the dichotomy and conflict present in this case. [ 42 ] However, before I consider whether a youth or adult sentence is mandated, I wish to travel back in time and engage in an exercise of ‘what if’. If C. E. had been arrested back in October of 1983, he would have been subject to the Juvenile Delinquents Act.

Section 9 of this Act indicated that a judge of that court could order that a child be proceeded with by way of an indictment in the ordinary courts. This process would not be followed unless the court was “of the opinion that the good of the child and the interest of the community demand it”. [ 43 ] Undoubtedly, in these horrific circumstances, the Crown would have pursued an application to a Provincial Court judge under the J. D. A.

An appeal of that determination was to a Superior Court judge and then onto the Court of Appeal. [ 44 ] While this unusual analysis and approach is not determinative of the issue before me as we are clearly under the Y.C.J.A. , nevertheless, a brief review of the principles present from the case law is of some interest even if only to have some sense of history leading to the new and guiding principles under the Y.C.J.A. [ 45 ] I have highlighted and reviewed in some depth only six decisions. I have also made reference to the decisions of R. v. Chamberlain of the Ontario Court of Appeal.

The cases I will refer to are L.W.B. , D.W.C. , R. v. Mero , R. v. R. W. , R. v. Haig and R. v Clements .

1. L.W.B. In L.W.B. , judge Genest of the Provincial Court concluded that the Crown application under

section 9 of the Act with respect to the two youth that were before him and charged with first degree murder must satisfy both requirements of

section 9 before a young offender would be ordered to be tried in ordinary court. In addition, the court held that the ‘good of the child’ meant in reference to the decision of Chief Justice Gale in R. v. Haig , that a court should take a long- range view of the problem and that a further attribute of this criterion was that the child should receive rehabilitative treatment, which would include supervision, training, and treatment. With reference to the second component of the test, that is that the interest of the community demand it, the court referred to the following criterion found in the decisions of R. v.

Haig and R. v. Chamberlain , that society be adequately protected from persons that may have committed violent offences. The court concluded by considering the following factors:

a) The age of the child;

b) The character of the child;

c) The record of academic performance;

d) His/her amenability to, and his/her capacity for, rehabilitation;

e) His/her psychological condition;

f) Any previous infractions of the law;

g) The facilities available for treatment of the child;

h) The adequacy of these facilities in regard to needs of the child in question;

i) The type of the alleged offence;

j) The particular facts and circumstances surrounding the commission of the offence;

k) The public reaction to the incident; and

l) The adequacy of possible dispositions with respect to maintaining control over the child in the interest of protecting society. The concluded that both accused, based on a high risk of re-offending psychological diagnosis, that both youth be tried in the ordinary courts. The decision of MacPherson J., in D. W. C. , affirmed a decision of the juvenile court that the accused young person would be tried in ordinary court for first degree murder.

Part of the rationale for the trial in the ordinary court was that under the existing legislation since the young person had reached the age of 16 years he would be returned to his parents upon any conviction under the J.D.A. The court believed that this gap in the provincial legislation would not be in the best interest of the child as significant supervision was required.

Furthermore, the court considered the possible results that might occur if a conviction was entered for first degree murder or for manslaughter and determined that an ordinary court trial would better serve the ultimate sentence of the young person under this heading “the good of the child”.

2. D.W.C. 3. R. v. Mero In R. v. Mero , the Ontario Court of Appeal determined that the expression “demand “ as found in

section 9 of J.D.A. meant “to ask for peremptorily, imperiously or urgently” or as a noun defined it “as an urgent requirement”. On the facts before it, the accused had reached the age of 16 years and was convicted of a robbery but had a supported family and had a positive reference from the school that he was attending. The Appellate Court determined that pursuant to section 20 (3) of the Act, that a juvenile court could impose a lengthy probationary term that would mandate appropriate behaviour and provide this young person with appropriate supervision up to his 21 st year.

4. R. v. R.W. The decision of Justice Morrison of the Provincial Court with respect to the accused R. W. who was 15 at the time of the allegation of the offence of first degree murder and sixteen at the time of a determination as whether he would be processed in the ordinary way as an adult, was that only an adult sentence would satisfy the two prong test of the “good of the child” and “the interest of the community demand it”. The accused, R. W. was said to have killed a 17 year old youth with a 30/30 high powered rifle.

The victim was shot in the head and the body was then placed into a zippered sleeping bag and deposited at the side of a road. The motive for this murder was that the victim owed the accused, R. W., the sum of $90.00 from a drug purchase. The accused had a poor attendance record at school with numerous suspensions. When counselling was suggested by the school, R. W. refused to attend. He had a significant criminal record; he had a history of drugs and alcohol use and associated with a known gang in the area.

He showed no remorse for his crime and no psychological assessment was agreed to amongst counsel although there was psychological evidence provided of a general nature to the court. In the result, the court stated at paragraphs 92 and 93 as follows: The time, services available, the variety, frequency and seriousness of behaviour over a protracted period do not prompt on my

part confidence of a successful outcome should jurisdiction in the juvenile process be retained. The evidence solidly demonstrates otherwise and for R. W. there must be a trial in the adult court and if ordered, control, treatment and placement in an adult correctional facility. The evidence also confirms the existence of a serious threat to community values to the extent that the interest of the community requires further review and intervention beyond the limits of this court and in the adult court.

5. R. v. Haig In R. v. Haig, Justice of Appeal Gale indicated at page 305 the following: “It is difficult to conceive of anything more relevant or pertinent. Surely the type of offence as well as the particular facts and circumstances allegedly surrounding it are most important in reaching a decision as to whether the accused should be tried in adult Court or not.” Judge Morrison then went on and determined that the young person should be tried as an adult. Of some interest, however, in the Haig case, Justice Gale was dealing with a rape and robbery and also a co-accused who was an adult at the time.

Chief Justice of Appeal Gale did indicate at page 306 the following: “We are also mindful of the fact that a difference of only a few months resulted in Haig going free and Turner being sentenced to a total of 10 years in the penitentiary for the same offence.” Ironically, Mr. Turner appealed his sentence to the Court of Appeal and his actual sentence was reduced to 6 years and Mr. Haig appealed his transfer to adult court to the Supreme Court of Canada but the appeal was denied without reasons.

6. R. v. Clements The Ontario Court of Appeal in R. v. Clements granted special leave to the Crown to bring an application pursuant to

section 9 of the Act to proceed in adult court with respect to a Mr. Clements and a Mr. DeGrandpre. Both of these young people were 15 at the time that they allegedly, with a 16 year old adult, robbed and murdered an elderly 78 year old gentleman. At juvenile court and then at Superior Court, the Crown’s application was dismissed. Justice Trainor held that neither of the two youths were incorrigible and that based on the decision in R. v. Mero , the accused should be tried in a juvenile court.

In response, the Court of Appeal specifically indicated at paragraph 6 that whether an accused was or was not incorrigible was not “a prerequisite for a transfer to ordinary courts.” The Court of Appeal specifically agreed with the statement of Justice Cory in R. v.

Williams where he stated: “That the greater degree of premeditation, of violence and of insensitivity, the more important a factor the offence will become in reaching the ultimate decision as to where the trial should be heard.” The Court of Appeal went on to state at paragraph 7: “This does not mean, of course, that the commission of a serious offence such as murder necessarily requires a transfer to the ordinary courts, but it is a weighty factor.” In addition to the reality that a co-accused was an adult and would garner a different sentence if found guilty of the offence, the court also concluded that there should be one trial for all three individuals to avoid the possibility of disparate verdicts.

Finally, the Court of Appeal concluded at paragraph 12 as follows: “We think that the provincial judge should have particular regard to the premeditated, senseless and brutal nature of the crime ; to the need for a public trial with the substantial and procedural safeguards available in the ordinary courts; and to the limited nature of the dispositions available under

section 20 of the Juvenile Delinquents Act.” [ 46 ] As I indicated at the outset of this review of these decisions under the J.D.A., there would have been little doubt that a

section 9 application under the J.D.A. would have been forthcoming, particularly since the accused was six weeks away from his 16 th birthday and thereupon only a probationary period would have been permissible under the Act. The juvenile court had no jurisdiction to impose any sentence on a minor who had attained the age of 16 years. [ 47 ] Even a cursory review of the aforementioned decisions would make an adult sentence the only reasonable determination of any court hearing the Crown’s application. What would follow for C.

E. upon a conviction would be a mandated life imprison sentence with no chance of parole for 25 years. [ 48 ] Turning now back to Y.C.J.A., there are other matters I want to address before making a determination on the issue of the Crown’s application to have C. E. sentenced in an adult court. [ 49 ] Firstly, the accused has denied his guilt and has maintained that position throughout the trial and during the sentencing process. The issue of remorse or lack of remorse is not germane to my consideration of the transfer of the accused, C. E. to adult court.

Remorse can be considered as a mitigating factor but not an aggravating one. [ 50 ] Nevertheless, although the evidence at the trial took over six weeks, the jury deliberated for a very small period of time, returning just after dinner on the first day with their verdict of guilty on both counts. I make that observation because when the trial began, painstaking efforts were taken by the Crown to identify all of the exhibits that were sent to the Centre for Forensic Science in Toronto (CFS).

Given this type of detailed coverage of those exhibits, I believed that one of the issues was whether there had been a cross-contamination of the samples so submitted. After the careful presentation by the Crown, no such argument was ever raised. [ 51 ] Further to this concern, was whether one very inadequate sample explained in great detail by the expert from CFS to be less than satisfactory due primarily to the volume or quantity of the sample, and that had excluded the accused, C. E., was an indicator that the

entire batch of samples were going to prove equally inadequate. To the contrary, the expert called by the Crown from CFS indicated in the clearest manner that this was unequivocally not the case. [ 52 ] After conducting the analysis of the exudate on the victim’s pubic hairs and the semen on the slipper the results became overwhelming significance when it was learned that the probability of a random individual carrying these same gene traits as the accused, C. E., as being 1 in 1.5 quadrillion .

This was an extremely important piece of scientific circumstantial evidence. [ 53 ] When we then add the thumbprint found beside the victim’s partially naked body and it is identified as the accused, C. E., and we have the circumstantial evidence of the found pubic hair, the Crown frankly had established the guilt of the accused beyond any reasonable doubt. [ 54 ] On the other hand, we have a denial by the accused, C. E., that he committed this offence.

He then provides an explanation of how his thumbprint may have reached the tile floor in the salon area of the victim’s residence proximate to the victim’s naked body. Forgetting for the moment the DNA evidence and the pubic hair, the accused indicated that one day in October just before the murder of Velma Thomson either on the Tuesday, Wednesday or Thursday, he decided to come home from high school to have lunch at his residence. [ 55 ] He indicated that he had a half an hour for lunch and that on this particular day he decided to walk home.

He also indicated that going home, even taking a short cut, would consume most of the time that the school set aside for a lunch break. [ 56 ] On this particular day, he did not observe Ms. Thomson outside but he indicated that in some manner she got his attention. She then asked C. E. to assist her in moving a “ratty” cardboard box that had “some substance to it” inside her house. The accused evidence was that he took only a few steps into the residence and then deposited the box. The accused is vague about where he deposited the box.

In cross-examination, the preponderance of the evidence he gave was not to the effect that he had entered the salon area of the residence. [ 57 ] Nevertheless, when pressed on that point of the location of where he deposited the box or how his right thumbprint could have been placed on the linoleum floor if he merely deposited the box he stated: Apparently I did touch the floor because there is a fingerprint there. [ 58 ] This evidence is of some interest to me on the question of sentencing and the application by the Crown to have C. E. sentenced as an adult.

Obviously, the jury rejected this explanation for the thumbprint. I, as well, would have quickly rejected this explanation as a lame and cobbled contrivance. [ 59 ] Ms. Velma Thomson was an elderly person who had a particular paranoia towards strangers attending at her residence.

She was a frightened woman and is described as someone who had numerous locks on her door and did not particularly appreciate even her close friends who might drop by without first phoning her to tell her that they would be visiting. [ 60 ] Thus, it came right out of left field that she would have called to a stranger to assist her with a box that was left on her doorway. Moreover, the fact that someone would have delivered a box to her doorway without first ascertaining if she would be present to receive same is another question that goes begging.

Who would deliver a box to this woman’s side door knowing that it would be too heavy for her to move? [ 61 ] Forgetting for the moment what this box might have contained, the fact that it had some significance, given that the accused indicated that the victim wanted it in her house, begs the question, why was it left in this location in the first place? [ 62 ] What is even more disconcerting is my query that I posed before counsel on the last day of this sentencing hearing. The accused, C. E., indicated that his father on the Saturday morning following the discovery of the murder told C.

E. about this horrific event that occurred in their community.

[ 63 ] The accused, C. E., then indicated that he had advised his father that he had attended at the victim’s residence mere days before her death and had carried a box into her residence. The accused, C. E., then indicated that his father said he would talk about this more at the coffee shop. This discussion never took place and at no other time did either the accused, C. E. or anyone in his family ever discuss this box or that the accused, C. E. had deposited this box into her residence perhaps on the same day of the murder of Ms. Velma Thomson. [ 64 ] My bench book reflected this incomprehensible absurdity.

I said short of the discovery of oil in Petrolia that this horrific murder would be the talk of the community. Inexplicably, this father and the accused, C. E., did not think that the unusual event of this frightened woman asking C. E. to move a cardboard box into her residence as a noteworthy event even though this strange request had come mere days or a day prior to the discovery of her murder. [ 65 ] Again, I conclude that this is pure fiction or some attempt by the accused to corroborate a purely fictional event by attempting to demonstrate that he told someone else about this strange occurrence .

Without putting too great an inference on this nonsense, I know of no father who had just heard that an elderly woman had been savagely murdered and then to find out inexplicably that his son had days before entered her residence with a box that would not have released a torrent of questions for this same son. [ 66 ] At the very least, even if this unusual occurrence stood the scrutiny of a father’s targeted questioning of his teenage son, in these circumstances reasonably one could have assumed that the police would have been informed of this occurrence as the cardboard box and the delivery of same may have had some bearing on the identity of the murderer. [ 67 ] Therefore, what do I conclude from this purposeful attempt at deception on the part of the accused?

Why create this story? The inference is equally obvious. Somehow, C. E. had to have some explanation for his thumbprint being left on the linoleum floor proximate to the deceased’s body. The cardboard box account, although decidedly a weak attempt at an explanation, was one means that could explain this print. [ 68 ] However, in concocting this fictional event to somehow cover off a virtual lock on the identity of the murderer, reveals something quite sinister about the accused, C. E. He is prepared to manufacture a lie in the hope that this deception might avoid a finding of guilt. [ 69 ] When Dr.

Ramshaw prepared her psychological assessment, she concluded that since the accused, C.E. planned an appeal and since he maintained his innocence, it was difficult to ascertain what led the accused to commit this horrific act. She reserved, in effect, her judgment on the accused until she could actually have this input from the accused. [ 70 ] She stated at page 29 of her report as follows: The index offence involved aggravated sexual assault and murder. It is not clear whether the homicide was a sexually motivated “lust murder” or whether it was a “rape killing” in the service of destroying evidence.

Sexual deviance including sadism, necrophilia, coercive preference, or rape in the service of anger, could not be ruled out in this offence. Mr. E.’s motivational dynamic for the offence, absent other sexual deviance or aggression, remains unclear . [ 71 ] At page 30, she states: Given Mr.

E.’s understandable inability to discuss the material time in the context of appealing the convictions, I would recommend that he undergo further assessment upon completion of this process to determine, more accurately, his risk needs . [ 72 ] Turning now to the DNA evidence, his answer to this highly significant evidence is simply that “it’s not my semen” and to the pubic hair, “it’s a hair”. These responses together with the absurd explanation for his thumbprint lead me to conclude that not only is the accused, C.

E. aware that he is the perpetuator but that he will do and say anything to avoid the conclusion that he committed this atrocious and violent act. [ 73 ] Again, Dr. Ramshaw concluded that her assessment of the accused, C. E., at page 24, indicated that he had “considerable defensiveness in responding.” Moreover, that overall she concluded:

Although defensiveness on testing is not uncommon in forensic settings, the level of defensiveness seen does not allow us to rule out the possibility of clinical psychopathology or personality dysfunction based on the test results. [ 74 ] While the onus on the Crown is not to prove guilt to an absolute certainty, there is sureness in this conviction that is reflected in the hard and fast evidence without even the slightest pause for the explanation provided by the accused, C.

E., which, as stated, was summarily rejected by the jury as an inferred fabrication. [ 75 ] I have gone through this exercise because my choice between a youth sentence and an adult sentence, has to some limited extent, a similar result. Under a youth sentencing regime, the accused, C. E. would be sentenced to 6 years of secure custody followed by 4 years of supervision. If no credit was given for the time served in pre-sentence custody, the accused would serve that entire 6 years. [ 76 ] Conversely, sentencing C.

E. as an adult would impose a sentence of life imprisonment and a period of custody without parole of 5 to7 years. No one has seriously, argued that if I should decide that an adult sentence should be imposed that anything but the maximum of 7 years should be the parole eligibility period. However, in this scenario, the accused, C. E. would be credited with the approximate 1 year in pre-sentence custody and thus parole would occur more or less at the same time as a youth incarceration. [ 77 ] This is of some significant interest to defence counsel and the Crown because the real choice then is not the time that C.

E. spends in secure custody but whether it is four years of supervision or whether the accused, C. E. is under a lifetime supervision regime. [ 78 ] In looking at the first criterion, the seriousness and circumstances of the offence, the accused, C. E. violently sexually assaulted and then stabbed to death a frail and frightened seventy year old woman in her residence. Even defence counsel conceded that this was a horrific crime. [ 79 ] The first of these factors under

section 72 strongly suggests an adult sentence. [ 80 ] The second factor is the age, maturity, character, background and previous record of the young person. At the material time of the offence, the accused was 15 years of age some six weeks shy of his 16 th birthday. Presently, the accused is 45 years of age, with two daughters, a former marriage, employment up to the time of arrest, and no criminal record of any substance, although there are charges pending for child pornography. [ 81 ] The concept of rehabilitation is not a live issue nor is the risk factor of the accused, C.

E. to re-offend as reflected in Dr. Ramshaw’s risk assessment, subject to one caveat. The caveat is that both the psychiatrist and this court questions whether we truly understand the motive, the driving force that compelled the accused, C.E. to commit this terrifying crime. [ 82 ] On balance, I would consider this factor as favouring a youth sentence subject to the concern highlighted by the psychiatrist and the court. [ 83 ] The third factor is the catch-all phrase “any other factors that the court consider relevant”.

We know from the victim’s impact statements and from a number of witnesses called by the Crown to describe that attitude and life style of Velma Thomson that this appalling murder had a chilling effect on the small rural community of Petrolia.

One victim impact statement describes how at the death of both of his parents some twenty years later, that he found a bat hidden under the bed of his parents a vestige of the terror that gripped the elderly in that community that October day in 1983. [ 84 ] In this sense then, the acts underlying the offences and the offender’s role in those acts commands a sentence that reflects an appropriate degree of responsibility and accountability from all citizens even our youth.

Nevertheless, since the Y.C.J.A. does provide for penalties of murder, the offence of murder by itself is insufficient to mandate that a young person can only be held accountable in an adult court. [ 85 ] What differentiates this murder is the vicious aggravated sexual assault on this virtually helpless woman and the terror that it

must have invoked in her. This purposeful and savage attack that is so intensely shocking to society then and now mandates an adultsentence. The attempt by the accused, C.

E. by contrivance and concoction to weave his way around the significant, meaningful, andscientific, direct and circumstantial evidence of his guilt is another factor that persuades me that only a life time monitor of the accusedaffords society a measure of assurance that this conduct will never be repeated. [86] In the result, I conclude that an adult sentence is appropriate and is the only sentence that properly reflects an appropriatemeasure of accountability for the circumstances of the offence, is reflective of the provisions of the Y.C.J.A., and the body of case lawthat has been provided to me. [87] The accused is thus sentenced to life imprisonment with no chance of parole for seven years.

The accused will be credited forany time served in pre-sentence custody. The finding of guilt for the offence of aggravated sexual assault is stayed. [88] In addition, the accused, C.E., pursuant to

section 109 of the Criminal Code, is prohibited from the possession of any firearm,cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, forlife. [89] The accused shall also provide a DNA data bank sample. [90] The accused, pursuant to

section 490.011(1) of the Criminal Code, is placed on the S.O.I.R.A. (Sex Offender InformationRegistration Act) register for life. [91] Finally, the publication ban under section 110 (1) of the Y.C.J.A. banning the publication of any information identifying theaccused, C. E., is hereby vacated pursuant to section 110 (2) (

a) of the Act and the accused Christopher Ellacott may now be identifiedas the perpetuator of this crime. “Justice J.A. Desotti” The Honourable Mr. Justice J.A. Desotti Released: March 21, 2013 CASES CONSIDERED R. v. D.B. 2008 SCC 25 , [2008] 2 S.C.R. 3; R. v. J.M. [2004] O.J. No. 2796 (O.C.J.); R. v. C.K., 2006 ONCJ 283 ,[2006] O.J. No. 2982 (O.C.J.); R. v. A.O., 2007 ONCA 144 , [2007] O.J. No. 800 (Ont. C.A.); R. v. McKenzie, [2009] O.J.No. 1068 (S.C.J.); R. v. J.S.R. (ON SC), [2009] O.J. No. 1662 (S.C.J.); R. v. J.S.R., 2012 ONCA 568 ,[2012] O.J. No. 4063 (Ont.C.A.); R. v. Logan 2009 ONCA 402 , [2009] O.J.

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C.E., 2013 ONSC 798 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – C.E. REASONS FOR sentence DESOTTI, J. Released: March 21, 2013