young offender

Ontario Court of Appeal Upholds Adult Sentence

Written on Behalf of Affleck & Barrison LLP

Ontario’s Court of Appeal has upheld an adult sentence against Christopher Ellacott who raped and murdered a senior citizen when he was 15 years old.

WHAT HAPPENED?

The crime was unsolved for almost three decades. The only evidence police had was a thumbprint found at the murder scene. A random test at a fingerprinting convention allowed police to link a thumbprint from the crime scene to Ellacott. Police then secretly obtained DNA samples from him, and testing confirmed the DNA matched semen found at the crime scene.

LIFE SENTENCE UPHELD

A jury in Sarnia, Ontario convicted Ellacott in April 2012. He was sentenced as an adult in March 2013. Ellacott was sentenced to life without parole eligibility for seven years and a lifetime supervision order.

Ellacott abandoned his conviction appeal, but appealed his sentence. Ellacott disputed the sentence by arguing that he should have been sentenced as a youth. A youth sentence would mean he would have received a maximum six years in jail and a four-year period of supervision.

The Appeal Court disallowed the argument that Ellacott had been less morally culpable because he had been only 15 years old when he killed his victim.

In upholding the original life sentence, the Court of Appeal found that the punishment given to Ellacott was reasonable and proportionate given the savage killing.

The Court said,

He committed an act of extreme violence against an elderly, vulnerable neighbour who until then had no known reason to fear him. … 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. 

IMPOSING ADULT SENTENCES ON YOUTHS 

Section 72(1) of the Youth Criminal Justice Act provides guidance to the Courts in imposing an adult sentence. It states:

72(1)  The youth justice court shall order that an adult sentence be imposed if it is satisfied that

  • the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
  • 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.

Thus, in order to have the accused sentenced as an adult, the Crown had the onus to satisfy a two prong test:

  • establish the presumption of diminished moral blameworthiness had been rebutted; and
  • establish that a youth sentence would not be sufficient to hold the accused accountable for his behaviour.

The Court of Appeal held that in the Ellacott case the sentencing judge considered all of the required factors, including:

  • the seriousness of the offence;
  • circumstances of the offender;
  • the level of moral judgment demonstrated in the planning and implementation of the offence; and,
  • the youth’s role in carrying out the offence.

The Court of Appeal concluded that the sentencing judge had not failed to consider whether the presumption of diminished moral blameworthiness was disproven.

The Court of Appeal ultimately found that even though the sentencing judge had mistakenly used Ellacott’s testimony and denial of guilt as aggravating factors, the error was found to be of no consequence.   Ellacott had been properly sentenced even though the Superior Court Justice had erred when he used Ellacott’s testimony and his denial of guilt as aggravating factors in his decision. “[T]he sentence imposed is a proportionate sentence that achieves accountability for the serious crime the appellant committed.”

If you have questions about young offenders, sentencing or your rights, contact the Oshawa criminal lawyers at Affleck & Barrison LLP. We represent young people in Oshawa and throughout the Durham Region who are facing charges. We offer a 24-hour phone service for your convenience.  Contact us online or at 905-404-1947.

Supreme Court of Canada Will Not Hear Appeal of Shafia Honour Killing Case

Written on Behalf of Affleck & Barrison LLP

The Supreme Court of Canada (SCC) recently denied Hamed Shafia’s leave to appeal. Shafia (along with his father and mother) was convicted of murdering his three sisters and his father’s first wife.

Shafia had asked the SCC to hear his appeal, arguing that new evidence that established that he had been a youth at the time of the murders should not have been dismissed by a lower court. The SCC denied Shafia’s request, but provided no reason for the denial.

First Degree Murder

In January 2012, Shafia and his parents were found guilty of four counts of first-degree murder and sentenced to life in prison. The bodies of Shafia’s three older sisters and his father’s first wife from what turned out to be a polygamous marriage were found at the bottom of a canal in Kingston, Ontario in 2009.

The convictions were the culmination of a trial that made headlines for months. After only 15 hours of deliberations, the jury accepted the prosecution’s theory that the sisters had been murdered in an honour killing because they had shamed their conservative Muslim family, and the first wife had been killed as she had not produced any children, and was therefore “no longer needed”.

The Court of Appeal

Shafia had previously appealed to the Ontario Court of Appeal, claiming that new evidence had surfaced that showed that he had been too young at the time of the murders to be tried as an adult, and should have been tried separately.

The Court of Appeal found no reason to permit the appeal to move forward on the basis of the new evidence, as the evidence was “not compelling”.

In the application for leave to appeal to the SCC, Shafia’s lawyers argued that the Court of Appeal had not correctly applied the well-known “Palmer test” for admitting fresh evidence. Under the test, fresh evidence can be accepted by an appeal court where is it in the “interests of justice to do so”, and where the evidence is relevant, credible, and could possible modify the outcome of a previous decision. The new evidence should have been accepted by the Ontario Court of Appeal because it raised the very real possibility that a young person had been tried and convicted by a court that had no jurisdiction as a result of his age.

The Significance of the Alleged Age Difference

Shafia’s claim is based on the argument that he was actually 17 years old when his family members were killed, and not 18 as originally thought. As such, he should have been protected by the Youth Criminal Justice Act (Act), which applies to children and “young persons” (i.e.- anyone under 18).

Under the Act, a young person convicted of first-degree murder cannot serve more than six years in prison. Where prosecutors convince a judge to sentence such as youth as an adult, their eligibility for parole begins after 10 years, rather than the 25 years that applies to adults.

If Shafia could successfully establish that he had actually been 17 at the time of the murders he would either have a shortened prison sentence, or would be eligible for parole in the next few years. However, his opportunity to do so has been denied by Canada’s highest court.

If you are a youth that has been charged with a crime, or are the parent of a young person that has been charged with a crime, or if believe you have a matter that belongs in the youth criminal justice system, the Oshawa criminal lawyers at Affleck & Barrison can help. Contact us online or at 905-404-1947 to schedule a free consultation with one of our Oshawa lawyers representing young offenders.