Court File and Parties

COURT FILE NO.: YC-21-50000001-0000 DATE: 20231129 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – O.S.

Counsel: L. Matthews, A. Pashuk, S. Leece, and C. Igwe, for the Crown M. Mattis and M. MacGregor, for O.S.

Before: S.A.Q. AKHTAR J.

Factual Background and Overview

Introduction

[1] O.S. pleaded guilty to one count of first-degree murder and one count of attempted murder. At the time of the offence, he was subject to the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA). The Crown submits that O.S. should be sentenced as an adult. The defence submits that a youth sentence is appropriate.

[2] These are my reasons for sentence.

Background Facts

[3] On 24 February 2020, O.S. went to the Crown Spa massage parlour on Dufferin Street in Toronto. He was carrying a 17-inch sword concealed under a long dark coat. He was also wearing dark glasses and a dark hat. When O.S. entered the reception area, he encountered a female employee, Ashley Azarga, who was working behind the front desk. She welcomed him as a customer. Without warning, O.S. drew his sword and stabbed her in the neck. After she had fallen to the ground, he repeatedly slashed away at her pausing momentarily before he continued his onslaught. She sustained 42 stab wounds and died from her injuries at the scene. The entire attack was captured on a security video installed in the reception area.

[4] A second female employee, J.C., rushed into the reception area after hearing sounds of the attack. O.S. chased J.C. He stabbed her in the chest telling her he was going to kill her whilst calling her a “stupid whore” and “a fucking bitch”. However, J.C. managed to gain control of the sword and stabbed O.S. in the back. She then fled the scene.

[5] When the police arrived, they observed that O.S.’s sword, lying beside him, was inscribed with the words “THOT SLAYER”. They also found a plastic bag in O.S.’s coat pocket containing his driving licence, a knife sharpening stone, and a handwritten note containing the words “Long Live the Incel Rebellion”.

[6] O.S. allegedly told attending paramedics that he came to kill everyone in the building and said, “I’m happy I got one”.

[7] A warrant was obtained to search O.S.’s home. Police seized his computer and found search fragments of terms including “crown spa”, “incel”, “incel rebellion”, “incel escort”, “incel insurgent”, “incels.co”, and “Toronto attack: What is the ‘Incel’ movement? – YouTube”.

[8] The police also obtained the laptop’s related online Steam gaming account profile, which stated: “Proud Incel. Truth Preacher. Jihadi and currently on FBI watchlist. Seeker of Martyrdom. Hates feminists/atheists/Satanists and all kinds of other degenerates. Death to the (((Synagogue of Satan *))) who truly rules this world”. The Steam profile depicted a name which translated into the English phrase “the killer”.

[9] The laptop contained images of Alek Minassian and Elliot Rodger, two individuals who had killed multiple victims and subscribed to involuntary celibate ideology. Those individuals claimed that their misogynistic views had been the prime motivation for their acts of murder and violence.

[10] On 19 September 2022, O.S. pleaded guilty to one count of first-degree murder and one count of attempted murder. He was 17 years of age at the time of the allegations and therefore subject to the sentencing provisions of the YCJA. In a decision released on 12 July 2023, O.S.’s action was held to constitute terrorism within the definition of the Criminal Code: R. v. O.S., 2023 ONSC 4142.

The Legal Principles

The Maximum Sentence for First-Degree Murder

[11] Section 42 of the YCJA sets out a range of youth sentences. Included is the maximum sentence for first degree murder. The provision reads as follows:

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:

(q) order the young person to serve a sentence not to exceed

(i) in the case of first degree murder, ten years comprised of

(A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and

(B) a placement under conditional supervision to be served in the community in accordance with section 105, and

[12] Under s. 42(2)(o), the maximum youth sentence for attempted murder is a three-year custody and supervision order.

[13] On the other hand, if O.S. is sentenced as an adult, he would receive a life sentence. Section 745.1(b) of the Criminal Code would then restrict his ability to apply for parole until he has served 10 years of his sentence because he was under the age of eighteen when he committed the offence.

The Intensive Rehabilitation Custody and Supervision Order

[14] A youth sentence permits the imposition of an Intensive Rehabilitation Custody and Supervision (IRCS) order in cases where the offence is a serious violent offence: YCJA, ss.42(2)(r) and 42(7). That term is defined in s. 2 of the YCJA to include first degree murder. An IRCS order provides recommendations of a treatment and reintegration plan. This plan would not only assist the young person with rehabilitation but also support their future prospects upon return to society.

[15] Pursuant to s. 42(7) of the YCJA, four conditions must be met before an IRCS order may be imposed:

42(7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph (2)(r) in respect of a young person only if

(a) either

(i) the young person has been found guilty of a serious violent offence, or

(ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence;

(b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance;

(c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence; and

(d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation in the program is appropriate.

Personal Circumstances, Victim Impact Statements, and Reports (S. 34 and IRCS)

O.S.’s Personal Circumstances

[16] These offences occurred when O.S. was 17 years old. He is now 21 years of age.

[17] O.S.’s parents were both immigrants to Canada. His mother arrived from Mexico in 1990 and his father from Turkey in 1993. He was their only child, although both later remarried and had other children. O.S. lived with his mother and his stepsister after his parents divorced. When he turned 17, he moved in with his father.

[18] O.S.’s educational career came to a halt after he stopped attending high school at the end of his first week. According to the pre-sentence report, O.S. started to become antisocial and remained in his bedroom for most of the day occupied with using his computer and playing video games. His mother took him to a hospital to have him assessed for mental health concerns. Medical officials discussed the possibility of O.S. suffering from an anxiety disorder and prescribing drug treatments such as antidepressants. O.S., however, rejected this course of action and refused to take any medication. He continued his isolation and stayed at his home until he moved in with his father.

[19] On the employment front, it appears that O.S. only had one job. He assisted his father, who was a painter, once a week over the course of two months.

[20] O.S. told the author of the pre-sentence report that he had friends in elementary school and high school. However, these friendships subsided once he stopped attending school. Instead, his friends became those whom he met online. Most of these friends were people he became acquainted with through multiplayer video games and online websites.

[21] After his arrest for these offences, O.S. was placed at the William E. Hay Centre in Ottawa. He enrolled at the Saint Nicholas Adult High School where he has amassed a number of high school credits.

[22] During his tenure in custody, O.S. has been resident in four different youth facilities. This is because O.S. requested transfers based on his perceived safety concerns and being bullied by other inmates. His detention records also show that there were a number of Serious Occurrence Incident Behavioural Reports which included details of self-harm, suicidal ideation, threats to harm others, threats of harm towards himself, and possession of contraband. He was placed on suicide watch whilst being transferred to a new facility because he divulged thoughts of self-harm and suicide to staff.

[23] Nonetheless, his overall engagement with staff, peers, and education and programming have improved since being placed at the William E. Hay Centre.

Victim Impact Statements

[24] The Crown filed a series of victim impact statements from Ms. Azarga’s friends and family as well as a statement from J.C.

[25] Ms. Azarga’s youngest sister, a student, expressed the pain she experienced when being contacted about Ms. Azarga’s death and the fact that she had left behind an 8-year-old daughter. Her older sister also spoke of her estrangement from Ms. Azarga due to a disagreement and her anguish that the two would never have the opportunity to reconcile and mend their relationship. One of Ms. Azarga’s best friends, K.D., told the Court that she now suffers from post-traumatic stress disorder, depression, and anxiety. She added that everyday life has become a struggle because of the events in question.

[26] In an emotional statement read out in person to the Court, J.C. stated that she was not a victim, but a survivor. She imparted a message that society needs kindness and compassion. She concluded her statement by saying that the day did not break her but confirmed her faith that a high power oversaw life and that every day was one in which we should appreciate who we are and what we have.

The Section 34 Report

[27] A s. 34 report was ordered in this case. This provision of the YCJA permits a sentencing judge to order that a young person be assessed for medical and psychological concerns. The purpose of the report is to assist in determining whether O.S. should be sentenced as a young person or adult, and what, if any, conditions should be attached to his sentence.

[28] The assessment was conducted from November 2022 to December 2022. The s. 34 report was provided to this Court on 31 March 2023. The authors of the report made clear that O.S. responded to all of the interview questions, had no difficulty in understanding those questions, and had no difficulty expressing himself in his answers.

[29] The report concluded that O.S. was deemed to be at the “moderate” risk level for re-offending within the next 12 months.

[30] It also identified O.S. as someone who suffers from autism spectrum disorder (ASD). This was reflected in his inability to maintain social relationships, his fixation on "odd interest, and topics”, rigidity in thinking, and difficulty engaging in general conversation. It should be noted, however, that the report concluded that O.S. was situated on the high functioning end of the autism spectrum. The authors of the report found that the “rigid and categorical thinking typical of ASD, makes [O.S.] vulnerable to extremist ideology and rhetoric”.

[31] The report also indicated that during the psychological testing, O.S. “endorsed some antisocial values during psychological testing, there was evident hostility, and sudden anger about being treated unfairly in custody as ‘I only did one thing’, and there was some manipulative behaviour noted”.

[32] The report balances the risks and benefits of imposing an adult sentence against a youth sentence. On the one hand, the report acknowledges the fact that sentencing a young person as an adult would send a clear message to both the offender and society that the offence is serious, and that justice has been served. The report pointed out that if the adult sentence acted as a reminder to citizens of the offence, this might help change the young offender’s trajectory into a “prosocial path". This would not only be in the young person’s best interest, but also in society’s best interest.

[33] On the flip side, an adult sentence might not accomplish this goal. It may drive the young person into a more negative and unproductive lifestyle leading to greater difficulties in securing employment once released into the community. Being unemployed would increase their risk of re-offending. Moreover, the fact that a young offender had been placed into an adult institution would increase their chances of associating with older, experienced adult criminals.

[34] If O.S. was sentenced as a young person, he would have access to intensive and individualised mental health services.

[35] The report also indicates that O.S. was vulnerable to extremist ideology and rhetoric. The authors took the view that he was capable of using ideology to justify violent behaviours. The authors felt that O.S.’s autism and depression, “rendered him more vulnerable to being lured into the extremist ideology and nihilistic thinking of the incel community”. They concluded that O.S. was susceptible to radicalisation, although they indicated that he appeared to have shifted positions from some of his beliefs including the incel ideology. However, O.S. continued to hold conspiracy theories such as the need to expose a grand deception on the world and the operation who controls it.

[36] Even though O.S. took responsibility for the offence, he also told the authors of the report that he had been "brainwashed" by the incel community and demonstrated "little insight into his role in obsessively seeking out this material for months". He further lacked insight into the need for precautions and restrictions to be placed around him as a consequence of the serious and violent offences he committed. The authors of the report wrote that O.S. "was quite angry and resistant about these, which suggest that he may not fully appreciate the seriousness of his actions".

The Intensive Rehabilitative Custody and Supervision Suitability Assessment Report

[37] The total length of the IRCS order for first-degree murder cannot exceed ten years from the date of committal, with the custodial portion being served continuously and not exceeding six years from the date of committal: YCJA, s. 42(2)(r)(ii)(A).

[38] The IRCS order borrowed heavily from the s. 34 report as a basis for its recommendations. It concluded that the treatment plan would ideally be delivered in consecutive stages during his sentence. Depending on his progress, certain conditions such as treatment programming, residence placement, curfew, and non-association conditions would assist O.S. on his return to the community at large.

[39] During the conditional supervision portion of the custodial order, O.S. would continue to access all technical interventions directed by probation. The report recognised that O.S. had expressed remorse regarding his criminal behaviour and its impact on the victims. It also concluded that he had considerable insight into the factors that led to the attacks and appeared to appreciate the consequence of his actions. Finally, the report stated that O.S. had expressed a desire to improve his relationship with his family members, become involved in treatment, and achieve his goals. The final conclusion was that O.S. was an eligible and suitable candidate for an IRCS order and was amenable to participate in the re-integration program.

Should O.S. Be Sentenced as an Adult or Young Person?

The Test

[40] Whether O.S. is sentenced as a young person or an adult is governed by s. 72(1) of the YCJA. The provision reads 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.

[41] Section 72(2) of the YCJA places the onus of satisfying these matters on the Crown. There is no specified threshold required to meet the burden. In other words, the Crown is not required to prove that the s. 72(1) criteria have been met beyond a reasonable doubt or on a balance of probabilities: R. v. O.(A.), 2007 ONCA 144, 84 O.R. (3d) 561, at paras. 32 and 33. Rather, the section requires the sentencing judge “to weigh and balance the enumerated factors and then to decide whether a youth sentence is sufficiently long to hold a young person accountable for his or her offending behaviour”: at para. 34.

[42] The two prongs of the test are not a combined analysis. The Court of Appeal for Ontario has warned against merging the two inquiries. Rather, they must be considered separately “to avoid the risk that a factor that is only relevant to one of the inquiries could result in a finding in relation to the other”: R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1, at paras. 105 – 108. However, the Court emphasised that similar factors must be applied to each prong to determine whether the Crown has sufficiently rebutted the presumption and established whether a youth sentence would hold the offender properly accountable: at paras. 93 – 95 and 105.

[43] In M.W., the Court outlined three factors:

(a) the seriousness of the offence;

(b) the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background and previous record of the young person; and

(c) any other factors the Court considers relevant: see also R. v. Joseph, 2020 ONCA 73, 60 C.R. (7th) 322, at para. 98.

Section 72(1)(a) of the YCJA: Has the Crown Rebutted the Presumption?

[44] At para. 98, the Court in M.W. set out the test for the Crown’s rebuttal of the presumption in the following way:

In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her.

[45] In dealing with this question, I note that O.S. was just six months shy of his 18th birthday. He was close to the legal age of adulthood in the criminal justice system when the offences were committed. At 16 years old, he started his own YouTube channel called Truth Preacher 777, a conspiracy-style channel which sought to identify celebrities as Satanic followers.

[46] There is no doubting the seriousness of the offences. The manner in which O.S. carried out his attack reflects the choices he made – choices that included identifying the victims in the belief that they were sex trade workers and committing the most brutal of attacks on Ms. Azarga. It cannot be forgotten that he inflicted 42 stab wounds on her body and continued to slash away at her even after she had collapsed and lay defenceless. He further attacked J.C. yelling, “die, die you stupid whore, die”, causing serious injury to her hands, arm, and leg.

[47] As already described, I found O.S.’s actions to be the result of terrorism. By pleading guilty to first-degree murder, O.S. has accepted that his actions were planned and deliberate. His actions were not the product of days or even weeks of planning and deliberation before the event, but months. O.S. had been burying himself in online research studying the incel ideology and drawing inspiration from it. His statements to the police and in the s. 34 report show how meticulously thought through and considered his actions were. His reasoning when blaming the incel ideology shows how deeply he had researched, understood, and accepted it. He could even articulate the basis for incel hatred of women in great detail.

[48] O.S. was also able to concoct a plan that was two-fold in its impact: it resulted in Ms. Azarga’s death while simultaneously intimidating society generally and women in particular. He had researched the location of the spa as the focal point of his attack. He obtained the sword used to kill Ms. Azarga months before the incident. He inscribed it with the words “THOT SLAYER”, THOT being an acronym for the phrase “That Hoe Over There”. This conduct was intended to instil fear amongst the public when found. It was the result of a considered and contemplative approach as to how he would kill his victims. It speaks volumes to his level of maturity and sophistication.

[49] Further, when O.S. went to the Crown Spa, he chose a specific outfit of dark glasses, a dark hat, and a long dark coat. This too was part of the image he sought to forge with a view to showcasing the ideology behind his actions. He carried a note placed inside a Ziploc bag with his driver’s licence and a sharpening rock. The note read, “Long Live the Incel Rebellion”. He intended that note be found and told the police that his plan “to kill prostitutes” was formulated to show the world that “people like us exist”. When the paramedics arrived, he told them, “I’m glad I got one”. When police searched his computer, they found that his Steam profile contained a name that translates to “killer” in English. His statements to the police revealed his wish to die and create a form of martyrdom in the name of incels.

[50] He has no addiction issues and was not under the influence of any substances when he committed these offences.

[51] These actions reveal a high level of sophistication on O.S.’s part as well as an advanced and detailed thought process regarding the consequences of his actions.

[52] I have described, in some detail, O.S.’s personal circumstances including his upbringing as well as his educational and medical history. The evidence does show that O.S. is situated on the autism spectrum and suffers from anxiety and depressive conceptions. While these factors must be taken into account, I agree with the Crown that they are not determinative and should not overwhelm the analysis: R. v. Choi, 2018 BCCA 179, at para. 61.

[53] I find that the evidence supports a finding that O.S. demonstrated the level of maturity, moral sophistication, and capacity for independent judgment of an adult such that an adult sentence and adult principle should apply to him.

[54] Accordingly, I find that the Crown has met its burden of rebutting the presumption under s. 72(1)(a) of the YCJA.

Section 72(1)(b) of the YCJA: Would a Youth Sentence Hold O.S. Accountable?

[55] In M.W., the Court emphasised the sentencing goals of s. 38(1) of the YCJA which states:

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-term protection of the public.

[56] According to the Court, a balance must be struck between proportionality and rehabilitation and “consideration must be given to the sentence that has the greatest chance to rehabilitate the young person”: M.W., at para. 101. The Court also pointed out that s. 39(3) of the YCJA requires consideration of the offender’s attitude towards rehabilitation, their history with rehabilitative measures, and the availability of such programs.

[57] In R. v. Joseph, 2020 ONCA 73, at para. 105, the court held that whilst “rehabilitation is an important factor for consideration when sentencing a youth, there are other “important factors that are integral to the accountability inquiry mandated by ss. 72(1)(b) and 38(1) of the YCJA””.

[58] Other principles of sentencing are set out in s. 38(2) of the YCJA. More specifically, the provision reads as follows:

(2) A youth justice court that imposes a youth 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;

(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;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

[59] In M.W., the Court highlighted a central premise of the YCJA – that a young person’s lesser maturity should have an impact on the degree of their accountability for the criminal conduct in question: M.W., at para 104; 4; YCJA, s. 3(1)(b)(ii). The Court goes on to say that “this premise connects the Presumption’s focus on maturity with the determination of accountability”: at para. 104.

[60] I have already outlined the seriousness of the offences and the way in which they were committed. I repeat, for the benefit of the analysis under this prong, the observations made earlier that the offences were committed in furtherance of an ideology. The finding of terrorism means that the Crown has established beyond a reasonable doubt that O.S. had an ulterior intention, that is to strike fear and intimidation into the public psyche with a particular focus on women. The savagery with which the attacks took place led to a defenceless woman being repeatedly stabbed and slashed even when prone on the ground. That savagery, as well as the attack on J.C., was motivated by a virulent misogyny.

[61] Turning to rehabilitation, I note that in O.(A.), at para. 57, the Court remarked that rehabilitation was “one, but only one, of the important factors that are integral to the accountability inquiry mandated by ss.72(1)(b) and 38(1) of the YCJA”. The Court cited with approval the comments of McCombs J. in R. v. Ferriman, [2006] O.J. No. 3950 (Ont. S.C.), at para. 38, where he said an accountable sentence had two objectives:

It must be long enough to reflect the seriousness of the offence and the offender's role in it, and it also must be long enough to provide reasonable assurance of the offender's rehabilitation to the point where he can be safely reintegrated into society. If the Crown proves that a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed.

[62] When considering the principle of rehabilitation, there are some disturbing aspects of O.S.’s behaviour that must be considered. When being held in custody at the William Hay Youth Centre, O.S. isolated himself from mainstream programming and refused to take part in any programs despite being encouraged to do so. He eventually undertook a customised programme which placed minimal expectations on him.

[63] By the summer of 2021, O.S. began to participate more in the programming. However, the s. 34 report indicates that he did so for his own personal gain by getting access to an MP3 player or a video console if he showed improvement. By the same token, the report indicates that initially he did make progress. Later, however, his behaviour deteriorated. He was issued with consequences for failing to follow routines and adhere to program expectations. He also became more defiant and manipulative with the staff. He had to be placed on a “Special Program” for five days which did, in some ways, alter his attitude.

[64] In taking psychotherapy, O.S. was described as not engaging in conversation until a subject that he found interesting was raised such as the “flat earth” theory. According to the s. 34 report, O.S. continues to have suicidal thoughts.

[65] What causes greater concern is O.S.’s response to his conviction for first-degree murder and attempted murder. Although he now professes that “it’s wrong that anyone died that day”, rather than accept responsibility, he blames the incel culture and community for his situation claiming that he was “brainwashed” into committing the crimes. By taking this stance, he fails to acknowledge or take responsibility for the fact that it was he who conducted the research into the incel culture, accepted its hate and misogyny, and made the decision to carry out his murderous attack.

[66] The s. 34 report placed him at the “moderate risk” to re-offend range. The report added the following passage:

The rigid and categorical thinking typical of ASD makes O.S. vulnerable to extremist ideology and rhetoric. While his current beliefs do not contain calls to extreme, hateful or violent actions, he demonstrated with his actions during the offence that he is capable of using ideology to justify violent behaviours. O.S. is susceptible to suggestion and influence if they align with his worldview, as he appears to be quite poor at evaluating the quality of the information he consumes on the internet or the credibility of the sources. Thus, O.S. is vulnerable to radicalization. It is encouraging, however, that he demonstrated his ability to move away from at least some of his beliefs, such as the Incel ideology and the flat earth theory. This highlights the importance of O.S. participating in extensive psychotherapy that involves challenging and restructuring his way of thinking.

Recommendations from The IRCS Order

[67] I return to the IRCS order which relied very heavily on the s. 34 report and its conclusions with respect to O.S.’s mental state and challenges, as well as his placement of blame on the incel community without acknowledging his efforts in seeking out the material that he now impugns.

[68] A youth sentence could lead to the making of an IRCS order. The criteria for making such an order are set out in s. 42(7) of the YCJA and include that that the youth is suffering from a mental illness, psychological disorder or emotional disturbance.

[69] The IRCS order recommended an IRCS Treatment and Integration Plan to reduce the risk of recidivism. Neuropsychological and psycho-educational assessments were conducted to determine the type of specialised treatment that would assist in O.S.’s reintegration into society.

[70] Psychiatric treatment to treat O.S.’s mental health difficulties were recommended to manage his autism spectrum disorder, social anxiety disorder, and depression. The Centre for Addiction and Mental Health’s Neurodevelopment Services was also identified as a useful resource for treating O.S.’s mental health challenges and anger management issues.

[71] The IRCS recommended interventions through the use of an anti-criminal thinking programme provided by Yorktown Family Services for those offenders transitioning out of their custodial spell. There was also a suggestion that O.S. might benefit from psychotherapeutic services provided in the context of O.S.’s religious beliefs.

[72] In terms of long-term planning, the IRCS order focussed on educational and vocational training and a skills programme.

[73] The s. 34 report indicated that the amount of time O.S. would require to be rehabilitated would be determined by a series of factors. The report stated that O.S. would be expected to:

• participate and be well-engaged in counselling sessions;
• meet regularly with a psychiatrist for medication management and mental health monitoring;
• demonstrate a better understanding of the factors that led to the offence and how to prevent ideological extremism and violence from re-occurring;
• demonstrate better understanding and insight of the seriousness of his offence and accept the consequences for him and others;
• demonstrate effective management of mood and anxiety symptoms, as well as strategies to prevent relapse of a depressive episode and suicidal ideation;
• demonstrate more effective management of feelings of hostility;
• demonstrate an understanding of safe and responsible internet use;
• continue to demonstrate a generally prosocial orientation but also re-evaluate some of his current negative attitudes;
• participate in recreational programs offered while in detention; and
• pursue his educational/vocational goals.

[74] Section 42(7)(c) of the YCJA requires that in order for an IRCS order to be made, there must be “a plan of treatment and intensive supervision [that] has been developed for the young person, and there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence”.

[75] O.S. has rendered these recommendations and the IRCS plan moot. He has indicated that he does not wish to participate in the IRCS programmes as he is concerned for his safety. That concern arises because induction into the programme results in him being housed in a provincial institution rather than a federal one. He feels that the nature of these offences would make him a target for physical abuse whereas incarceration in a maximum-security institution would result in him being placed in his own cell. These comments accord with those made in the s. 34 report where he told examiners that he “needs to serve his sentence in a place that suits him and not somewhere people target him.” It is clear from these comments that O.S. fails to understand the need for rehabilitative measures as he remains fixated on thinking of himself rather than the critical societal reintegration required of him.

[76] Regardless of these wishes, O.S. continues to ask for a youth sentence of 10 years pursuant to s. 42(2)(q)(i) of the YCJA. As support for this position, he cites mitigating factors including an early plea and his expression of remorse for his action.

The Sentence

[77] I agree with the Crown that a youth sentence is insufficient to hold O.S. accountable for the commission of these offences.

[78] There is no dispute that this was an horrific crime motivated by an ideology that is both violent and misogynistic. O.S. committed the crimes after extensively researching the incel culture. I do not accept his deflected attempts at avoiding responsibility by claiming that he was “brainwashed” by that culture. He sought it out. He accepted it. He acted upon it.

[79] The murder of Ms. Azarga captured on video reflected the evils of that ideology. O.S. did not just murder Ms. Azarga. He butchered her, repeatedly flailing his murder weapon – a 17-inch sword – even as Ms. Azarga lay on the floor defenceless and dying. His sword penetrated the muscle of her face, collapsed her lungs, and severed arteries in both her arms. His attack on J.C. with the same weapon was accompanied by language denoting his hatred for women. He intended to carve out a niche of infamy with messages designed to make clear that his acts were in the name of the incel ideology. This was murder by an act of terrorism.

[80] I accept that there are mitigating features in this case that I have already described. These include his upbringing, sense of isolation, and mental health challenges. I also accept that he pleaded guilty to first-degree murder. However, by the same token, it is abundantly clear that the evidence against him was overwhelming.

[81] I am also concerned by the fact that if O.S. were to receive a youth sentence, he would be released from custody in 2029 at the age of 27 years old and free from any supervision or restrictions in 2033 when the sentence would expire. He would then be 31 years of age having rejected participation in any treatment and rehabilitative programs that would permit proper reintegration into society and protect the public: R. v. Todorovic, 2014 ONCA 153, 306 C.C.C. (3d) 171, at para. 42. This weighs significantly against the imposition of a youth sentence.

[82] The defence points out, in its very skilful submissions, that if an IRCS order was made O.S. would serve 10 years from the date that he is committed and therefore be subject to supervision for a further 10 year period on top of the custodial portion that he has already served. This interpretation was affirmed in W.M. However, I am not persuaded by this submission. As I have already stated, his rejection of participation of rehabilitative programs suggested by the IRCS would make this sentence meaningless. His lack of rehabilitative intent renders the need for a life sentence and the accompanying conditions of parole that much greater.

[83] Having found that the Crown has rebutted the presumption contained in s. 72(1)(a) of the YCJA and that a youth sentence would not hold O.S. accountable, it follows that I must find that an adult sentence should be imposed in respect of both offences.

[84] With respect to the first degree murder, the seriousness and nature of the offence requires a life sentence with the maximum parole ineligibility period of 10 years. O.S. is also sentenced to 3 years imprisonment on the offence of attempted murder which will run concurrently with the life sentence.

[85] I am required, pursuant to s. 76 of the YCJA, to determine where O.S. will serve his sentence. Both parties agree that his sentence should be served in a penitentiary. This has been explicitly requested by O.S. Accordingly, I order that the remaining custodial portion of the sentence be served in a penitentiary.

[86] I also order that O.S. provide a DNA sample and that he is prohibited from carrying any weapons for life pursuant to s. 109 of the Criminal Code.

S.A.Q. Akhtar J. Released: 29 November 2023