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Defence Submissions in the matter of R. v. Russell Williams

(2010-10-21)

Thank you, Your Honour.

Your Honour, the defence is well aware that on the two first-degree murder charges the mandatory life sentences are to be imposed this morning.

 [...]

Introduction 

Your Honour, as defence counsel for Mr. Williams, we acknowledge that the Crown’s presentation of the evidence against him, with its graphic descriptions, disturbing photographs and chilling narratives of his sinister crimes, has left a deep and indelible mark on everyone associated with this case. The defence is further faced with the reality that in light of Mr. William’s pleas of guilty there is, in essence, nothing that can be said to change the legal outcome/consequences. 

The defence is, therefore, confronted with a legal paradox – we are at a sentencing hearing, and yet, we are faced with the fact that there is no submission that can be made to alter the maximum sentence that our client will soon receive. 

But that does not necessarily end it. It does not, because the societal goals of sentencing are meant to transcend the imposition of statutorily mandated, minimum sentences (even when that sentence is life imprisonment). While the retribution and punishment of two concurrent life sentences will be foremost in the minds of many, the reality is that Mr. Williams pleas may serve to provide some measure of reparation (in the context of criminal justice) for the harm done to his victims and to the communities in which he committed his crimes.

 In the context of criminal proceedings, it is not the role of the defence to specifically address the victim impact resulting from our client’s crimes, but, we wish to acknowledge their suffering, and also, to publicly declare that we empathize with what the victims have had to endure. Their pain is incalculable and beyond our comprehension.

The significance to be attached to the pleas

Mr. William’s pleas, in and of themselves, demonstrate a public acknowledgement of the harm he has caused and of the salutary effect that may flow from his pleas of guilty. When gauging the significance to be assigned to his pleas, it is important to consider that we live in a society where, despite whatever crime one might be charged with, and regardless of how overwhelming the evidence is purported to be, an accused has the constitutionally enshrined right to declare, “I am not guilty” and proceed to trial. When this happens, an accused person is presumed innocent in the eyes of the law until the Crown proves (beyond a reasonable doubt) each and every essential element of every charge.

It should be acknowledged that the act of pleading guilty to even a single count of first degree murder in Canada is a rarity. Mr. Williams’ exceedingly uncommon pleas to first degree murder are further accentuated by the fact that he, through his instructions to counsel, has expedited his case through this Court with unprecedented speed and efficiency in a legal system that can, by necessity, generate significant delays that often exacerbate the emotional suffering of those affected by the case. In doing so, he has lessened the turmoil that is generated when facts as damaging as those we have heard are required to be proven beyond a reasonable doubt during a lengthy trial, as opposed to this case where they have placed before the Court in an agreed statement of fact.

We must also consider that a case of this magnitude and potential complexity, notwithstanding the purported strength of the evidence, if challenged in Court, could take several years to reach its ultimate conclusion.

The significance to be attributed to the extent of his cooperation

Once confronted with the evidence, and the investigatory process that was rapidly unfolding, Mr. Williams struggled – but ultimately, he decided to confess.  Once that decision was made, he thereafter demonstrated an unusual and unwavering level of cooperation with the police over many days.

His confession was extremely detailed and led to the recovery of virtually all of the electronic and much of the physical evidence that has been placed before the court during the preceding three days.

As a result of his interviews with police, the authorities were able to lay 82 counts of break and enter relating to 48 victims. However, it is important to note that only 17 of the 48 homeowners had reported to the police that their homes had been broken into. 

The Belleville and the Ottawa police services thoroughly investigated the 17 homes that were the subjects of the break and enter offences and until he confessed, they were unable to identify a suspect.

It is important to note that subsequent to his February 7th confession Mr. Williams consented to further police interviews on February 11, 16, 17, and March 4, 5 and 11. These subsequent interviews occurred after he had the opportunity to receive legal advice relating to whether he was required to cooperate. As we know, an accused in our country is not required to assist the police in the furtherance of the case against them.

Between paragraphs 295 to 320 in the ASF, there is a detailed enumeration of the extent of his complete cooperation with the police concerning these crimes.

In addition to this cooperation with the police, on February 9, 2009, he asked the military chaplain, who was visiting him to inform the police that further audio and visual evidence could be found in his Tweed home.

His confession was detailed and comprehensive. Although Sgt. Smyth initially doubted that he had confessed fully, given the age at which he started to commit these offences (as set out in para 315), an extensive police investigation, to date, has not resulted in any evidence relating to other offences being committed (as confirmed in para 360).

Moreover, it should be noted that when the police were unable to locate Ms. Lloyd’s body, he actually physically led them to her.

He also interpreted for the investigators the computer coding system and complex folder storage system which the Crown has alluded to. These folders and drives contained the digital evidence to which reference has been made in many counts before the Court.

It is important to note that apart from minor contextual changes and correcting minor factual inaccuracies, Mr. Williams agreed to very early versions of the statement of fact that has been presented to this Court.

Our client asserted clearly, and early in the process, his stated intention to plead guilty to all of his crimes. This is acknowledged in the agreed statement of fact in para 314.

The background and personal circumstances of the accused

We are aware that there is scarcely anything that we could say about his past, his position, or his accomplishments that the Court is not aware of. Our client has been the topic of scores of media stories, opinions, and speculation. The juxtaposition of his revered and respected position of Colonel (and Base Commander), against his abhorrent and unthinkable actions, has served to raise the awareness of this case, and his life, to a level that has rarely been experienced in Canadian legal history.

In a typical sentencing hearing, where the nature or length of the punishment may be in issue, it would be incumbent on the defence to tell the Court all that could be said about the background of the offender. In the context of this case, and particularly in light of the extensive media coverage it has generated, one would be naive to think that there is much left to disclose about our clients past or personal circumstances at the time of the offences.

There are undoubtedly many questions about what factors motivated Mr. Williams to commit such heinous crimes. These questions include what triggered the escalation of his criminal conduct, and loss of control, and obsessive behaviour. The reality is that these questions and the presence, or absence, of answers will play no role in the determination of the sentence that he will receive. The exclusive determinative factors impacting on sentence are his acceptance of responsibility and his pleas of guilt.

Notwithstanding his unwavering intention to plead guilty, the professional obligation of defence counsel and the administration of justice required further steps to be taken to assure the court that we have carried out due diligence to determine: (1) that the standard of criminal responsibility was met in this case and (2) that Mr. Williams was able to properly instruct counsel, and, (3) that his decisions were predicated upon his being fully informed.

The salutary effect of the pleas

It is hoped, that perhaps in time, his pleas of guilty might be viewed as an act of atonement by those that he has scarred. He cannot stand before this Court and expect forgiveness. Indeed, from a fundamental and moral perspective, one could debate whether he is even entitled to ask for forgiveness. We can however hope that the act of his pleading guilty might in some way, at some time, aid in the healing process. That hope, however, will be tempered by the harsh and sad reality that it is unlikely that anyone affected will ever fully recover from his crimes.

The punishment and how it informs the pleas

As a man about to receive two concurrent life sentences, he has destroyed not only the lives of his victims and their loved ones, but he has also ruined his own life and has irreparably damaged the lives of those who were closest to him. I hasten to clarify that this discreet submission is not meant to raise sympathy for our client, but, his personal self-destruction ought not to be ignored. The calculus of a life sentence is emphatically simple; it means that he will be imprisoned for the rest of his life, and that he will only be eligible to apply for parole after serving 25 years. Mr. Williams pleaded guilty knowing that he will receive the most severe punishment that our criminal justice system can mete out.

We would also be remiss if we did not quell the media speculation that he, or we, as his counsel, made any attempt to secure special custodial or institutional consideration. This is simply not the case. 

Conclusion

One of hallmarks of our democracy is that we maintain our sense of dignity and our adherence to the rule of law even when punishing those convicted of committing the most horrifying crimes. We pride ourselves on doing so in a manner that commands respect for the administration of justice, and we try to ensure that our courts are open and transparent to the public and media. Such, we hope, was the case with this hearing.

Our common law, and the codification of the principles of sentencing, remind us that this day should not be viewed one-dimensionally through the lawyer’s prism. This day is not only about punishment and retribution. This day must also be viewed through the lens of the victim, focusing on loss, remembrance, sorrow, and emotional pain.

The dots on the exhibit maps merely illustrate the physical locations of the crimes. But the emotional impact of these offences has been seismic, starting with the immediate impact on the victims themselves, and thereafter reverberating outward to impact the families, the friends and the communities. It does not stop there - the impact continues to reverberate into the greater community and the Canadian Forces family. Indeed, these shockwaves have rocked the Canadian public at large, and have generated a sense of incredulity, anger, and an enormous sadness and sympathy for all of the victims and their loved ones. Russell Williams knows that he stands at the epicentre of these shockwaves, and now, as signalled by his pleas of guilt, he is prepared to take responsibility for the damage that he has caused. 


 



 

 
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