ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1525/10
DATE: 20130321

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 14th, 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 14th, 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.

[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.

[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 16th 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 16th 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 adult sentence. 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.

[86] In the result, I conclude that an adult sentence is appropriate and is the only sentence that properly reflects an appropriate measure of accountability for the circumstances of the offence, is reflective of the provisions of the Y.C.J.A., and the body of case law that 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 for any 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, for life.

[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 Information Registration 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 the accused, C. E., is hereby vacated pursuant to section 110 (2) (a) of the Act and the accused Christopher Ellacott may now be identified as the perpetuator of this crime.

“Justice J.A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Released: March 21, 2013

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

C.E.

REASONS FOR sentence

DESOTTI, J.

Released: March 21, 2013