



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ellacott, 2017 ONCA 681

DATE: 20170905

DOCKET: C58726

Weiler, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Ellacott

Appellant

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.

Huscroft J.A.:

OVERVIEW

[1]

The appellant, Christopher Ellacott,
[1]
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 victims 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
[2]
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:

1.     failing
    to consider whether the presumption of diminished moral blameworthiness had
    been rebutted;

2.     using
    the appellants testimony and denial of guilt as aggravating factors; and

3.     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 appellants testimony and denial of
    guilt as aggravating factors, the error is of no consequence and the sentence
    is nonetheless fit. The enormity of the appellants 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 appellants
    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 judges 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 persons 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 judges 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, i
t 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 appellants 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 appellants 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 appellants 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 appellants explanation for his thumbprint to be a contrived
    attempt to avoid guilt.

[24]

The Crown responds that the sentencing judge properly considered that
    the appellants 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 accuseds 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 (accuseds
    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 appellants 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 victims 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 appellants explanation for his
    thumbprint as a lame and cobbled contrivance: paras. 52, 58. He described the
    appellants 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 appellants 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 counsels viciousness in attacking a complainant or
    lies told by the accused.

[31]


The distinction between the legitimate and illegitimate uses of
    an accuseds 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 appellants 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 appellants 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 appellants 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 persons 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 appellants 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 appellants 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 appellants
    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 judges 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 (CanLII).

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
    judges 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 judges 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 appellants 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 appellants 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 appellants testimony and denial of guilt, it was incidental to his
    reasoning, which emphasized the seriousness and circumstances of the
    appellants crime. This is evident from his description of the appellants
    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:

SEP /5 2017                           Grant Huscroft
    J.A.

KMW                                       I agree K.M.
    Weiler J.A.

I agree
    K. Feldman J.A.





[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.


