Court of Appeal for Ontario
Date: September 5, 2017 Docket: C58726
Judges: Weiler, Feldman and Huscroft JJ.A.
Between
Her Majesty the Queen Respondent
and
Christopher Ellacott Appellant
Counsel
Erin Dann, for the appellant
Gavin MacDonald, for the respondent
Heard
April 26, 2017
On Appeal From
The sentence imposed on March 21, 2013 by Justice John A. Desotti of the Superior Court of Justice, with reasons reported at 2013 ONSC 798.
Decision
Huscroft J.A.:
Overview
[1] The appellant, Christopher Ellacott, committed a gruesome crime. He sexually assaulted and murdered Velma Thomson, a 70-year-old woman. He was 15 years old at the time.
[2] The victim was small and frail: she weighed approximately 100 pounds and had suffered a stroke. The appellant was a neighbour, and would occasionally help her with chores around her house. She was found in her home, partly nude and lying in a pool of blood. She had defensive wounds and had been stabbed in the heart several times. Her jugular vein was cut. The evidence suggested that she had been raped and sodomised.
[3] The appellant committed the crime in 1983 and avoided detection for almost three decades. A thumbprint left at the crime scene was eventually linked to the appellant; he was placed under surveillance and samples of his DNA were obtained surreptitiously. The samples matched the DNA in the exudate on the victim's pubic hairs and semen found on one of her slippers. The appellant was charged with the crime.
[4] By the time he was convicted of first degree murder in 2012, the appellant was a middle-aged man. He had lived an apparently ordinary life: he had a job, two children, and had not been convicted of any further crimes.
[5] The Crown brought an application to have the appellant sentenced as an adult rather than as a youthful offender. The sentencing judge concluded that the appellant should be sentenced as an adult and sentenced him to a mandatory term of life imprisonment with a seven-year parole ineligibility period and lifetime supervision.
[6] The appellant appeals sentence only, having abandoned his conviction appeal. He submits that the sentencing judge erred in sentencing him as an adult rather than as a youthful offender. Specifically, he submits that the sentencing judge erred in:
failing to consider whether the presumption of diminished moral blameworthiness had been rebutted;
using the appellant's testimony and denial of guilt as aggravating factors; and
failing to properly weigh the principles of rehabilitation and integration into society.
[7] At stake in this appeal is the difference between the life sentence the appellant received as an adult and the sentence he would receive if he were sentenced as a youthful offender. The appellant would receive a minimum of seven years' imprisonment if sentenced as an adult, as opposed to a maximum of six years if sentenced as a youthful offender. In addition, an adult sentence comes with a lifetime supervision order, while a youth sentence limits the supervisory period to four years: see Criminal Code, s. 745.1(a); Youth Criminal Justice Act ("YCJA"), s. 42(2)(q).
[8] In my view, the appellant was properly sentenced as an adult. Although the sentencing judge erred in using the appellant's testimony and denial of guilt as aggravating factors, the error is of no consequence and the sentence is nonetheless fit. The enormity of the appellant's crime renders a youth sentence manifestly inadequate to hold the appellant accountable.
[9] I would dismiss the appeal for the reasons that follow.
The Law
(1) The Youth Criminal Justice Act
[10] The legislation governing the sentencing of youthful offenders has changed considerably since the appellant committed the offences in 1983. It is not contested that the appellant was entitled to the benefit of a lesser sentence under the legislation in force at the time of sentencing.
[11] The governing provision is s. 72(1) of the YCJA, which provides as follows:
72 (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that
(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
[12] Amendments to the YCJA came into force prior to the appellant's sentencing, but the parties agreed that these amendments simply codified the principles set out by the Supreme Court in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, and that the sentencing judge applied these principles.
[13] D.B. makes clear that the burden is on the Crown to rebut the presumption of diminished moral blameworthiness to which the young person is constitutionally entitled, and to establish that a youth sentence would not be of sufficient length to hold the young person accountable.
(2) The Standard of Review
[14] The starting point in this appeal is that the sentencing judge's decision is entitled to significant deference. In a series of cases, the Supreme Court has emphasized that sentencing judges are to be given a "wide latitude" in crafting the appropriate sentence. This court is entitled to interfere with a sentence only if the judge made an error of law or an error in principle that had an impact on the sentence, or if the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 11, 44. An error of principle includes a failure to consider a relevant factor as well as the erroneous consideration of an aggravating or mitigating factor: R. v. Grant, 2016 ONCA 639, 351 O.A.C. 345, at para. 162.
Discussion
(1) Did the Sentencing Judge Fail to Consider Whether the Presumption of Diminished Moral Blameworthiness Had Been Rebutted?
[15] In order to succeed on its application to have the appellant sentenced as an adult, the Crown had to satisfy a two-prong test: it had to establish not only that the presumption of diminished moral blameworthiness had been rebutted, but also that a youth sentence would not be sufficient to hold the appellant accountable for his behaviour. The Supreme Court explained the onus on the Crown in D.B. at paras. 93-94:
This does not make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection.
Promoting the protection of the public is equally well served by putting this onus on the Crown, where it belongs. The Crown may still persuade a youth court judge that an adult sentence or the lifting of a publication ban is warranted where a serious crime has been committed. And young persons will continue to be accountable in accordance with their personal circumstances and the seriousness of the offence. But the burden of demonstrating that more serious consequences are warranted will be, as it properly is for adults, on the Crown.
[16] The appellant submits that the sentencing judge failed to consider whether the presumption of diminished moral blameworthiness was rebutted, and instead "jumped directly to the question of whether a youth sentence would adequately reflect the need for accountability".
[17] I would reject this submission.
[18] Sentencing judges are required to consider the seriousness and circumstances of the offence; the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background, and previous record of the young person; and any other factors the court considers relevant. These criteria are relevant to both prongs of the test. As this court explained in R. v. W.(M.), 2017 ONCA 22, 134 O.R. (3d) 1 at para. 106, many of the factors governing the presumption and the considerations for whether a youth sentence would be sufficient to hold the young person accountable overlap. Nevertheless, the court stated that the preferred approach is for the two prongs of the test to be analyzed separately, lest a factor relevant to only one of the prongs be relied upon to support a finding in relation to the other. This court further clarified that the presumption is not rebutted simply by the seriousness of an offence. But the seriousness of an offence, along with the circumstances of an offender, is a relevant consideration in considering whether the presumption has been rebutted. The level of moral judgment or sophistication demonstrated in the planning and implementation of the offence are also relevant considerations, along with the young person's role in carrying out the offence: W.(M.) at para. 112.
[19] The sentencing judge considered all of these factors. He recognized the onus on the Crown to rebut the presumption of diminished moral blameworthiness. He stated so clearly in para. 18 of his decision. However, because the sentencing judge's decision pre-dated W.(M.), he was not required to analyze the two prongs of the test separately and did not do so. Although the sentencing judge did not state specifically that the presumption had been rebutted, it is implicit on reading his reasons as a whole that he concluded that the presumption was rebutted.
[20] The circumstances of this case were more than sufficient to rebut the presumption of diminished moral blameworthiness. Nothing in the evidence suggests a heightened vulnerability, immaturity, or reduced capacity for moral judgment – the considerations that give rise to the presumption, as the Supreme Court explained in D.B. (para. 41). The appellant's conduct was no mere mistake or lapse in judgment. He committed an act of extreme violence against an elderly, vulnerable neighbour who until then had no known reason to fear him. His purposeful actions were undertaken by him alone. The high degree of moral blameworthiness attaching to these actions is self-evident.
[21] I conclude that the sentencing judge did not fail to consider whether the presumption of diminished moral blameworthiness was rebutted.
(2) Did the Sentencing Judge Err in Using the Appellant's Testimony and Denial of Guilt as Aggravating Factors?
[22] It is well established that a plea of guilty counts as a mitigating factor on sentencing, but neither a decision to plead not guilty nor the manner in which an accused person presents his or her defence is to be treated as an aggravating factor: see R v. Kozy (1990), 58 C.C.C. (3d) 500 (Ont. C.A.) at 506, and R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 at para. 16. As the court explained in Kozy at 506, "any perceived impingement upon the manner in which a defence is to be conducted, such as a fear that a particular tactic might induce a heavier penalty, would impair the right to full answer and defence".
[23] The appellant submits that the sentencing judge used his disbelief of the appellant's testimony at trial as an aggravating factor on sentencing, holding that a lifetime supervision order was necessary to protect the public because he considered the appellant's explanation for his thumbprint to be a contrived attempt to avoid guilt.
[24] The Crown responds that the sentencing judge properly considered that the appellant's attitude toward the offence and lack of remorse validly informed the sentence imposed, demonstrating that he had not accepted responsibility for his actions (as in R. v. J.F., 2011 ONCA 220, 105 O.R. (3d) 161, at paras. 85-86) and that he had a cavalier attitude toward his crime and its consequences (as in R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 68).
[25] I accept that an accused's attitude towards his or her crime and its consequences may be an aggravating factor that is properly considered in fashioning an appropriate sentence. In addition to the cases cited by the Crown, see R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.) at 205 (accused's attitude toward the crime may be relevant if it demonstrates a substantial likelihood of future dangerousness). That said, the exercise of the right to make full answer and defence cannot be used as an aggravating circumstance in sentencing as the sentencing judge did here.
[26] Although the sentencing judge properly recognized at para. 49 of his reasons that "[r]emorse can be considered as a mitigating factor but not an aggravating one", in my view his deprecation of the appellant's defence crossed the line.
[27] The appellant testified in his own defence and provided a possible explanation for the presence of his thumbprint at the crime scene. He testified that on a day just prior to the victim's murder, he helped her carry a cardboard box into her home. He said simply that the DNA found at the scene was not his.
[28] The sentencing judge emphasized that there was a 1 in 15 quadrillion chance that the DNA found in the semen and exudate at the murder scene did not belong to the appellant, and described the appellant's explanation for his thumbprint as a "lame and cobbled contrivance": paras. 52, 58. He described the appellant's claim to have told his father the story an attempt to "corroborate a purely fictional event"; "nonsense"; and a "purposeful attempt at deception", and stated:
[I]n 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.
…[N]ot only is the accused, C.E. aware that he is the perpetuator but …he will do and say anything to avoid the conclusion that he committed this atrocious and violent act.
The attempt by the accused, C.E. by contrivance and concoction to weave his way around the significant, meaningful, and scientific, direct and circumstantial evidence of his guilt is another factor that persuades me that only a life time monitor of the accused affords society a measure of assurance that this conduct will never be repeated.
Reasons for sentence at paras. 65-68, 72, 85.
[29] These remarks suggest that the sentencing judge was affronted by the nature of the appellant's defence, given the strength of the case against him.
[30] The case against the appellant was indeed overwhelming, but that did not disentitle the appellant to exercise his right to make full answer and defence. He was entitled to deny that he committed the offence and to defend himself as he considered appropriate. As this court said in Kozy at 506, there should be "no perceived impingement upon the manner of presenting the defence. This is so whether it be counsel's viciousness in attacking a complainant or lies told by the accused."
[31] The distinction between the legitimate and illegitimate uses of an accused's attitude toward the offence and lack of remorse can be a fine one. However, in the circumstances of this case, I conclude that the sentencing judge erred in principle by treating the appellant's testimony and denial of guilt as aggravating factors.
(3) Did the Sentencing Judge Fail to Properly Weigh the Principles of Rehabilitation and Integration into Society?
[32] The appellant argues that the sentencing judge erred in concluding that the principles of rehabilitation and integration into society were not relevant considerations because of the passage of time and the fact that the appellant had not reoffended. These considerations were relevant and should have weighed in the appellant's favour. Rehabilitation of the appellant was unnecessary because the evidence demonstrated that he was wholly integrated into society, and "the ultimate objective of holding the offender to account has already been meant [sic]".
[33] I would reject this submission.
[34] As this court held in R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561 at paras. 42-49, the key consideration in deciding whether to sentence a young person as an adult is accountability:
The combined effect of ss. 72, 3 and 38 [of the YCJA] is to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society.
See also W.(M.) at para. 100, and R. v. K.O-M., 2017 ONCA 106 at para. 30.
[35] Accountability is the equivalent of the adult sentencing principle of retribution: R. v. M.(C.A.), [1996] 1 S.C.R. 500 at paras. 80-81. As this court in O.(A.) explained at paras. 46-47, citing M.(C.A.):
[F]or a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does the retributive sentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct" (underlining omitted). We see no other rational way for measuring accountability.
[36] Rehabilitation and reintegration are important considerations in the accountability inquiry, but, contrary to the appellant's suggestion, they are not determinative of that inquiry: O.(A.) at para. 57.
[37] To be sure, the circumstances of this case are unusual. In the usual circumstances, a young person's sentence would be determined while he or she was still a young person, or was relatively close in age to a young person. The appellant managed to avoid detection for almost three decades. He now presents as a man well established in the community, and argues that an adult sentence is not required either to rehabilitate him or to protect the public from future offending.
[38] But the appellant's submission overlooks the overarching purpose of the law, which is to achieve accountability. The sentencing judge considered all of the relevant factors. Although he considered that neither rehabilitation nor risk was a live issue, and that this weighed in favour of a youth sentence, this was subject to the caveat that the appellant's motive for committing the crime was not understood. The sentencing judge did not err in concluding that a proportionate sentence in this case emphasized accountability rather than rehabilitation and reintegration.
(4) The Effect of the Error in Principle
[39] The sentencing judge erred in principle in using the appellant's testimony and denial of guilt as aggravating factors. What follows from this?
[40] The Supreme Court addressed this question in Lacasse at paras. 43-44, per Wagner J:
I agree that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate. However, in my opinion, every such error will not necessarily justify appellate intervention regardless of its impact on the trial judge's reasoning. If the rule were that strict, its application could undermine the discretion conferred on sentencing judges. It is therefore necessary to avoid a situation in which [translation] "the term 'error in principle' is trivialized": R. v. Lévesque-Chaput, 2010 QCCA 640, at para. 31.
In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence.
[41] In other words, an error in the reasoning process – an error in principle, failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor – does not justify intervention on appeal per se. The error must have had an impact on the sentence imposed. If it did not, the ability to intervene on appeal depends on a demonstration that a sentence is, in any event, demonstrably unfit.
[42] In assessing whether a sentence is demonstrably unfit, an appellate court may not intervene simply because it would have weighed the relevant factors differently: Lacasse at paras. 49, 52.
[43] Finally, it is important to emphasize that sentencing is a discretionary decision and deference to the sentencing judge's decision remains the order of the day. Demonstrable unfitness is a very high threshold that must be met before an appellate court may intervene. The focus must be on the fundamental principle of proportionality: Lacasse at paras. 52-53.
[44] Applying these principles, in my view there is no basis for this court to intervene.
[45] Although he erred in considering the appellant's testimony and denial of guilt as aggravating factors, in the context of his decision as a whole, the error had no impact. The sentencing judge considered all of the relevant factors. He properly recognized that the offence of murder was not by itself sufficient to mandate an adult sentence. At para. 85 of his reasons, he described the vicious nature of the appellant's attack on his helpless victim and stated: "This purposeful and savage attack that is so intensely shocking to society then and now mandates an adult sentence." Although he went on to refer to the appellant's testimony and denial of guilt, it was incidental to his reasoning, which emphasized the seriousness and circumstances of the appellant's crime. This is evident from his description of the appellant's testimony as simply "another factor" persuading him that an adult sentence was warranted.
[46] In any event, I am not persuaded that an adult sentence is demonstrably unfit.
[47] The appellant committed a gruesome crime at the age of 15. He sexually assaulted and murdered his elderly, vulnerable neighbour. He went on as though nothing had happened, avoiding justice for nearly 30 years. There is no explanation for his crime; no sense of what motivated him to have committed so heinous an act.
[48] In all of these circumstances, the sentence cannot be said to constitute an unreasonable departure from the principle of proportionality. In my view the sentence imposed is a proportionate sentence that achieves accountability for the serious crime the appellant committed.
Conclusion
[49] I would dismiss the appeal.
Released
September 5, 2017
Grant Huscroft J.A.
K.M. Weiler J.A. (I agree)
K. Feldman J.A. (I agree)
Footnotes
[1] These proceedings were originally subject to a publication ban under s. 110 of the Youth Criminal Justice Act. The ban was lifted upon the imposition of an adult sentence pursuant to s. 110(2)(a) of the Act: see reasons for sentence at para. 91.
[2] The appellant was also convicted of aggravated sexual assault, but that charge was stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.
