R. v. D.G.J., 1991 ABCA 15

In the Court of Appeal of Alberta Citation: R. v. D.G.J., 1991 ABCA 15 Date: 19910109 Docket: 11803 Registry: Calgary Between: Her Majesty the Queen Respondent (Respondent) - and - D. (G. J.) Young Person/Appellant (Appellant) The Court: The Honourable Mr. Justice Harradence The Honourable Mr. Justice Kerans The Honourable Madam Justice Hetherington Reasons for Judgment of The Honourable Mr. Justice Kerans Concurred in by The Honourable Mr. Justice Harradence And Concurred in by The Honourable Madam Justice Hetherington APPEAL FROM THE JUDGMENT OF THE HONOURABLE MR.

JUSTICE ROWBOTHAM OF THE COURT OF QUEEN'S BENCH, DATED THE 4TH DAY OF APRIL, 1990 ON APPEAL FROM HER HONOUR JUDGE COOK-STANHOPE, OF THE PROVINCIAL COURT OF ALBERTA COUNSEL: (Ms.) E. Hughes, for the Respondent W. Herman, for the Young Person/Appellant REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE KERANS [ 1 ] This is an appeal by the accused from an Order transferring the charge against him to adult court. [ 2 ] The charge is aggravated sexual assault. The sad facts briefly are that, on March 26, 1989, he, then aged 17, and his victim, aged 14, attended a drinking party at his family home near C[…].

Many others were there and they all were drunk, including his mother. Indeed, the victim drank so much that she died that night of acute alcohol poisoning. [ 3 ] At one point, the accused and the victim had sexual congress by consent. During this event he bit and slapped the victim. She remained in bed after this event. A short time later, he returned to suggest more sex but she, now evidently ill, refused.

The offender, who weighed about 200 pounds, responded to this rejection with a severe and gratuitous beating that created bruises, dislodged teeth, and caused her internal injuries, particularly in the genital area. [ 4 ] The accused appellant had a previous record in Youth Court, including one offence of robbery with violence, although it appears that his co-accused in that affair actually did the beating. For the past three years, he had taken room and board at

Drumheller while attending a vocational program emphasizing building construction. He was not doing well in his studies, and was described as lazy and unmotivated. His own assessment of his efforts and expectations was unrealistic. He is almost illiterate. Despite his youth, he had a long record of alcohol abuse. There was some suggestion that he may have a personality disorder with psychopathic tendencies. But the learned Youth Court judge found that he "behaved generally in an age-appropriate manner". [ 5 ] The Crown application for transfer to adult court was heard in Youth Court on August 10, 1989.

The accused was then 18. Evidence was led for two days. The matter was continued on September 28, 1989, when the learned Youth Court judge gave careful and lengthy Reasons in support of her decision for a transfer order. On October 6, the accused applied for review in Queen's Bench. The review was heard, and the order confirmed, in Queen's Bench on April 5, 1990. The accused then appealed to this Court, and the Appeal Book was filed on September 6, 1990. I mention all this because the delay seems great. Indeed, the entire process seems out of proportion to the issue.

The accused is now 19 and has yet to go to trial on the charge. Meanwhile, he has been on bail, and is reported to have done well in an alcohol treatment program. The irony of all this will soon become evident. [ 6 ] The learned Youth Court judge assessed in turn each of the six factors made relevant by s. 16(2) of the Young Offenders Act , which provides: In considering an application under subsection 1, in respect of a young person, a youth court shall take into account (

a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (

b) the age, maturity, character and background of the young person and any record or

summary of previous findings of delinquency under the Juvenile Delinquents Act ,

Chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act of Parliament or any regulation made thereunder; (

c) the adequacy of this Act and the adequacy of the Criminal Code or other Act of Parliament that would apply in respect of the young person if an order were made under subsection (1), to meet the circumstances of the case; (

d) the availability of treatment or correctional resources; (

e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (

f) any other factors that the Court considers relevant. [ 7 ] As to the first and third, she judged that the gratuitous and serious violence was a major aggravating factor that might, for an adult, lead to a sentence of five to seven years. See R. v. Sandercock 1985 ABCA 218 (CanLII) , 40 A.L.R. (2d) 265. As a result, she classified the offence as serious and concluded that the maximum sentence of three years permitted to young offenders would be inadequate.

After reviewing the personal history of the accused, she said, "All in all, there is nothing about the age, maturity or background of the young person which would weigh for or against transfer". (A.B.325) She then reviewed the treatment and correctional resources available. This last was a critical factor in her mind for transfer. [ 8 ] She heard evidence in this respect from a person from the Alberta young offender facilities and a person from the Penitentiary Service. It appears that the youth custody facilities in the Calgary area focus upon younger offenders who have committed less serious offences.

Almost no 19 or 20-year-olds can be found in them. (A.B.335) The major remedial program is formal, grade- school, education. There is no trade training. The average stay is between four and five months. (A.B.333) The witness from the youth facilities, as summarized by the learned Youth Court judge: … expressed concern in general terms with meeting the needs of older residents who had received a lengthy period of custody, since the Centre's focus is on the younger individual.

The only way he could see of addressing the needs of such an individual would be to wait until he was far enough along in his disposition to merit community releases of some kind. Such a release would also have to address institutional behaviour and the severity of the offence behaviour. The other general concern was simply that of housing the older offender with those much younger. Mr. Reddon observed that often the older inmate encounters difficulties, quote, "putting up" with behaviours of younger inmates within the facility.

Indeed, D. encountered this actual difficulty while he resided in the in-take unit following his arrest. (A.B.333) [ 9 ] She also was told of facilities available at the Bowden Penitentiary.

Persons of the present age and background of the accused are in ample evidence there, as are sexual offenders, and that institution offers programs tailored to their perceived needs. [ 10 ] The learned Youth Court judge concluded that the interests of both the public and the offender would be best served by a term of imprisonment at Bowden rather than in a young offender facility in Alberta. [ 11 ] As has been now confirmed by the Supreme Court of Canada, it is the duty of the appeal court in these cases to make an independent evaluation on the basis of the facts found by the Youth Court judge, and not merely to review the decision of the Youth Court judge for error.

See R. v. M. (S.H.) (1989) 1989 CanLII 31 (SCC) , 6 W.W.R. 385 (S.C.C.). [ 12 ] I do not challenge much of what was said by the learned Youth Court judge. It will be simpler to say where I do not agree. [ 13 ] First, it is important to make the point that this accused has yet to be convicted of anything. We have heard only one side of the story. I note that, in the M. case just cited, this Court was told that the accused had been charged with first degree murder. But when the two accused finally appeared in adult court the Crown accepted a guilty plea to nans laughter.

Nevertheless, the learned Youth Court judge assumed, as I suppose one must for the purposes of this assessment, that the accused will be convicted. In any event, this accused does not ask to be transferred in order to be tried by a jury.

[ 14 ] I do not agree that this accused necessarily would receive, if convicted in adult court, a sentence substantially in excess of the starting-point in Sandercock . The guidelines of this Court for the disposition of adult sexual offenders certainly require consideration of an increased sentence for aggravating factors like those present here. But they also require consideration the other way for mitigating factors, such as the youth and social background of the accused. [ 15 ] In my view, the possible disparity in sentence in this case would not be so great as to warrant transfer.

It does not meet the purpose of the Young Offenders Act to say that every offender who might receive a sentence of more than three years in adult court should be transferred. The question, rather, is whether the maximum sentence possible in Youth Court, which of course is secure custody for three years, clearly would not be adequate in the circumstances of the case. In ray view, that maximum is not inadequate in this case. [ 16 ] But the possible sentence length was not the critical factor for the learned Youth Court judge.

Her problem was that, if this accused were condemned to serve a long sentence at Alberta youth facilities, he would be, to put it bluntly, a square peg in a round hole. This is in part because he has long since lost any hope or chance for formal education, and in part because he is a sexual offender. But mostly it is because he is older. [ 17 ] I do not disagree with this assessment.

I disagree about what consequences should flow from it. [ 18 ] Her resigned acceptance of what was fore-ordained by the way youth facilities are organized, if left undisturbed, will effectively repeal the Young Offenders Act for young offenders who do not fit the profile described by the witness from the Alberta facility. Her conclusion will apply not just to this accused but to all accused near adult age who face long sentences.

This notwithstanding that the Act is to apply to 17-year-olds as well as 14-year-olds, to those who commit serious crimes as well as those who commit less serious crimes, and those who are atypical offenders as well as those who are typical offenders. [ 19 ] I cannot accept that. I do accept that one idea justifying the Act is that serving prisoners should not mix with those much older or much younger. It is not appropriate for older young offenders to mix with younger young offenders.

But, by the same token, older young offenders should not mix with older adult criminals, particularly the kind found in penitentiaries. I accept that there are programs available at Bowden that might help the accused, assuming that he would succeed in getting to Bowden; but even at Bowden he will encounter many mature offenders who would offer him bad example. Who will win the heart and mind of a young offender in a penitentiary setting: those who are operating the rehabilitative program, or the inmates committed to a life of crime?

The evidence in this case does not offer an answer. [ 20 ] The circumstances spelled out by the witnesses legitimize a question by the courts why no facilities for older young offenders exist in Alberta.

I will not infer that the Lieutenant-Governor-in-Council has failed in exercise of her powers under s. 24.1(1) of the Act to create adequate facilities or that the Provincial Director, in exercise of the powers and duties given and imposed on that office under s. 24.2(1) of the Act has failed to locate an appropriate facility. [ 21 ] I am therefore driven to the conclusion that the policy of Alberta must be, in a case where an older young offender faces a long term of custody but should not go to a penitentiary, that the young person be disposed of pursuant to s. 24.5 of the Act.

S.24.5(1) provides: Where a young person is committed to custody under paragraph 20(1)(k), the youth court may, on application of the provincial director made at any time after the young person attains the age of eighteen years, after affording the young person an opportunity to be heard, authorize the provincial director to direct that the young person serve his disposition or the remaining portion thereof in a provincial correctional facility for adults, if the court considers it to be in the best interests of the young person or in the public interest, but in that event, the provision of this Act shall continue to apply in respect of that person. [ 22 ] This accused, if he remains before Youth Court, is exposed to the risk of a committal to secure custody under Paragraph 20(1)(k).

He is of course already over 18. Therefore, the Provincial Director can apply to have him transferred to serve his sentence in a provincial adult facility. For the very reasons that the learned Youth Court judge gives for a transfer order, a Youth Court judge is likely to make such an order. [ 23 ] The learned Youth Court judge expressed scepticism about the possibility that an application of this sort would be made by the Provincial Director. She says that she is aware of only one such application having been made.

But, if the Youth Court judges make transfer orders in cases such as this, the Provincial Director does not, of course, have to face that issue. The paucity of cases might be explained by the action of the Youth Court rather than the inaction of the Provincial Director. [ 24 ] In my view, a policy of transfer of older long-serving young offenders to provincial adult facilities is not unreasonable. Offenders in such a facility are not exposed to the pernicious influences that might come their way in a penitentiary setting.

Indeed, many of the inmates in such facilities are of an age and circumstance similar to this offender. A policy that treats provincial adult facilities as a suitable alternative to a separate facility for young offenders who are or soon will be adults makes sense.

In any event, the desirability of that alternative is, to me, so obvious in a case such as this that we should not foreclose that possibility by affirming this transfer order. [ 25 ] In argument before us, some hesitation was expressed whether a sentence of more than two years imposed upon a young offender could, on the application of s. 24.5 of the Young Offenders Act be served in an adult facility. I see no reason against this. S. 24.5 clearly authorizes a transfer order in all cases under Paragraph 20(1)(k), which explicitly includes a sentence of more than two years.

This must be considered as a modification of s.731(1)(

c) C.C.C., which provides that all sentences in excess of two years must be served in a penitentiary. I appreciate that fiscal arrangements might flow as a result. That is a matter for negotiation between Canada and Alberta, and not a reason for us to fail to give effect to the Young Offenders Act. [ 26 ] Accordingly, I would allow the appeal and vacate the transfer order. DATED at CALGARY, Alberta this 9th day of January, A.D. 1991