2011 QCCA 715, 2011 QCCA 715

LSPJA — 1113 2011 QCCA 715 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-08-000357-105 (525-03-044478-097) DATE: APRIL 11, 2011 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A. X APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] THE COURT ; - On the appeal from a sentence imposed on the appellant on September 22, 2010, by the Court of Quebec, Youth Division, District of Montreal (The Honourable Judge Daniel Lavery), to serve 160 days of open custody and 80 days of community supervision, followed by six months’ probation; [ 2 ] For the reasons of Gagnon J.A., with which Morissette and Giroux JJ.A. agree; [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] RESCINDS the sentence imposed on the appellant and ORDERS him to serve the following youth sentence: - committal to custody for six months as of the date hereof, the application of which is deferred; - declares that the committal to custody shall be subject to the mandatory conditions set out in section 105(2) YCJA ; - further orders the appellant to comply with the following conditions during the custodial period: ● The obligation to keep the peace and be of good behaviour; ● The obligation to appear in Youth Court when required to do so by the court; ● The obligation to inform the youth worker of any change in address; ● The obligation to report to the youth worker in charge of the case whenever required to do so; ● The obligation to inform his parents of his whereabouts at all times; ● The obligation to respect a curfew of 10:00 pm to 7:00 am with the exception of organized sporting activities; ● The obligation to attend school, unless for medical reasons with a report from a doctor, respect the school rules, and do the schoolwork to the satisfaction of school authorities, or to find and maintain employment; ● The prohibition to have in his possession alcohol, drugs, or narcotics and to abstain from consumption of alcohol, drugs or narcotics except with a medical prescription; ● The obligation to attend a victim sensitization group at a time and place designated by the youth worker, and respect the rules as established by the group leaders; ● The obligation to attend the Anger Replacement Training group at a time and place designated by the youth worker, and respect the

rules as established by the group leaders; ● The prohibition to have in his possession any gang paraphernalia or wear clothing that is associated with gangs; ● The prohibition to have in his possession a weapon, an imitation weapon, or any object that could be used as a weapon with the exception for ( sic ) hunting with his father; ● Not to be within 50 meters of [...], Town A; ● The prohibition to have any contact directly or indirectly with P. K., D.

W.; anyone known to be a member of a street gang, or anyone he knows to have a criminal record. - declares that the appellant shall be subject to supervised probation for a period of six months under the same conditions as specified hereinabove, excluding, however, the condition regarding curfew; - during the period of supervised probation, the appellant shall perform 60 hours of community service and repay the sum of $70.00 to the victim. [ 6 ] DECLARES that the appellant’s motion for leave to file new evidence before the Court is moot. YVES-MARIE MORISSETTE, J.A. LORNE GIROUX, J.A. GUY GAGNON, J.A.

Mtres Lida Sara Nouraie and Nicholas St-Jacques DESROSIERS, JONCAS, MASSICOTTE For the appellant Mtre Marie-Claude Bourassa CRIMINAL AND PENAL PROSECUTING ATTORNEY For the respondent Date of hearing: March 18, 2011 REASONS OF GAGNON J.A. [ 7 ] The appellant, a youth per the Youth Criminal Justice Act [1] ( YCJA ), pleaded guilty before a judge of the Court of Quebec to charges of aggravated assault (268 Cr. C. ) and possession of a weapon for a purpose dangerous to the public peace (88(2)(

a) Cr. C. ). The trial judge refused to follow the recommendation in the pre-sentence report to defer committal to custody for a period of six months with probation for the same period. He instead sentenced him to serve a youth sentence of 160 days of open custody followed by a period of 80 days to be served under community supervision. To this sentence he added six months of supervised probation. [ 8 ] The appellant obtained leave from a judge of our Court to appeal the sentence and, on that occasion, was released from custody under the same conditions to which he was subject in first instance.

Background [ 9 ] In the night of May 23 to 24, 2009, the youth, then 15 years old, went with his friends to the home of one of them. Freestyle rap battles took place during the evening. One of the participants took offence at what the victim said during one battle. According to the participant, the victim insulted members of his neighbourhood. [2] There was an altercation between the two belligerents. Showing his machete and pellet gun, the appellant calmed tensions between the adversaries, but only temporarily. Hostilities broke out again outside the house.

The conflict degenerated into a fight involving all the participants, including the appellant. [ 10 ] During the fight, the victim sustained several injuries: - 1 laceration on the left cheek (1 cm); - 2 lacerations on the right side of the abdomen; - 1 laceration on the right side of the groin; - 2 lacerations in the back (+- 1 cm and +- 2 cm);

- slight perforation of the liver; - infiltration of 1 litre of blood in the lungs; - maintaining in an artificial coma for some hours. [3] [ 11 ] Arrested on June 4, 2009, the appellant appeared in court for the following offences: 1. On or about May 24, 2009 in Town A, district of Montréal, in committing an assault with a weapon on D.W., did wound him or endanger his life, committing thereby the indictable offence provided by

section 268 of the Criminal Code . 2. On or about May 24, 2009 in Town A, did carry or possess a weapon for a purpose dangerous to the public peace, committing thereby the indictable offence provided by section 88 (2) (

a) of the Criminal Code . [ 12 ] His application for release was dismissed and it was not until June 25, 2009, after appealing from this decision before the Superior Court, that he was released on certain conditions. [4] The evidence shows that since then the appellant has scrupulously met his undertakings. [ 13 ] The appellant acknowledges that he punched the victim during the brawl, but denies using a weapon. There is in fact no evidence in the record to suggest that he considered the possibility of a knife being used by one of the belligerents. He agreed to plead guilty to the offence provided in

section 268 Cr.C . because of his involvement in the criminal activity that caused the victim’s injuries, even though they were caused by another participant. The Crown in fact removed from the first charge against the appellant the mention that the aggravated assault involved the use of a weapon.

In addition, it appears that the attorney general has not requested that the offence to which the youth pleaded guilty be considered a serious violent offence ( sections 2(1) and 42(9) YCJA ) and the court did not decide that it was. [ 14 ] The trial judge basically accepted two factors to decide the sentence to impose on the appellant. He acknowledged that the appellant’s behaviour had improved since his release, but in the same breath he criticized him for minimizing the seriousness of his actions.

The basic reasons supporting the sentence can be found in these few lines: [ translation] In the present case, if the various criteria are applied, I must arrive at the Crown’s sentence which, in my opinion, is completely appropriate in the circumstances, despite and taking into account the time you have already spent and also taking into account the fact that since your release, you have complied with the various conditions. Issues in appeal [ 15 ] First, the appellant stated his opinion that the trial judge was biased or appeared to be biased against him.

He then argues that the sentence was patently unreasonable because it was implicitly based on the principle of deterrence, contrary to the YCJA . At the same time, the judge failed to personalize the sanction because he did not sufficiently take into consideration the appellant’s situation. He also criticizes the judge for not considering all the principles applicable when sentencing a young person. Thus, he considers that the judge set aside the findings in the pre-sentence report for no reason, just as he neglected to properly consider the important contribution made to the young person by his family’s support.

In addition, his ability to unfailingly respect all the conditions of release to which he was subject until the time of sentencing should have been taken into account as further evidence of his rehabilitation. [5] [ 16 ] The appeal raises the following questions: 1. Was the judge biased? 2. Does the sentence imposed respect the sentencing principles under the YCJA ? 3. If not, what is the appropriate sentence? ANALYSIS 1.

Was the sentencing judge biased? [ 17 ] Although the judge played an active role in some exchanges with the witnesses during the sentencing hearing and more specifically during the testimony of social worker Anne Quesnel. It is also true that some of the judge’s remarks at the hearing showed a conflict in values between his generation and that of the youth, which may lead to confusion.

However, if we apply ourselves to analyzing the issue thoroughly and realistically, from the perspective of a reasonable and right-minded person, who is not overly pernickety and who is aware of the values of independence and justice that motivate judges in carrying out their duties, [6] I do not consider it possible to conclude, as the appellant proposes, that the trial judge was biased or appeared to be biased toward him. This ground is without merit. 2. Does the sentence imposed respect the sentencing principles under the YCJA ?

[ 18 ] By enacting the YCJA , Parliament wanted to make committal to custody, a measure used perhaps too often in the past, a sanction of last resort.

That is why the law obliges the court first to examine the possibility of a less stringent measure that would make it possible to impose a just sanction, one that is appropriate to the offender’s situation, and thus promotes his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public ( section 38(1) YCJA ). [ 19 ] This objective is premised on the legal principle that a young person benefits from a presumption of diminished moral culpability compared to that of an adult. [7] This principle is animated by the recognition of the fact that young persons are probably more vulnerable than adults because of their lack of life experience [8] and also because their age affects their moral judgment. [9] Furthermore, in

section 3 ( b )(ii), the YCJA states as a declaration of principle that the accountability of young persons must be consistent with their greater dependency and reduced level of maturity. [ 20 ] It is because case law and doctrine recognize that the principle of diminished moral culpability arising from the inherent characteristics relating to the development of a young person form part of the legal theories underlying the application of the YCJA that emphasis must be placed on rehabilitation and reintegration into society rather than on punishment. [10] [ 21 ] Since there is no paramount consideration in youth sentencing, courts are required by law to consider all the principles that apply to the situation of young persons in order to ensure an appropriate balance between the protection of the public and the best interest of the youth. [11] However, it should be remembered that denunciation and deterrence are not included in the sentencing principles set out in section 38(2) of the YCJA . [12] [ 22 ] The YCJA has moreover established what many consider to be a veritable youth sentencing code.

The court’s failure to rigorously apply what it prescribes may, depending on the circumstances, constitute a reviewable error leading to appellate intervention. [ 23 ] In this particular case, the sentence was delivered from the bench immediately after counsel had finished their submissions. The judgment, which is most succinct, states that the appellant had improved since his release thanks to his involvement with football, which is good for him. He nonetheless allegedly minimized the significance of his actions.

That is why the judge adopted the prosecution's suggestion and imposed, without further explanation, a youth sentence ordering him to serve 160 days in open custody, followed by a period of 80 days with community supervision. [ 24 ] With all due respect for the trial judge, I am of the opinion that he failed to take into account factors that the law required him to consider. [ 25 ] First and foremost, I consider that the judge did not allow the appellant to benefit from the presumption of diminished moral culpability by attributing excessive weight to his lack of empathy for the victim.

This factor, in the case of a young person, must be qualified for the reasons made explicit by authors: In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts .

Youths who are apprehended and asked why they committed a crime most frequently respond: “I don't know.” Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. [13] [Emphasis added.] [ 26 ] Moreover, the court intends to impose a youth sentence that includes a custodial portion. Under section 39(9) of the YCJA , the judge is required to explain why a non-custodial sentence for young persons is inadequate to achieve the purpose set out in the Act.

The reasons for the decision in the present case do not clearly show the actual bases for the judge's decision and do not adequately explain why all other applicable measures were dismissed. [14] [ 27 ] It is important for the young person and the members of his family, who were actively involved in the judicial process that led to the sentencing, to be confident of the correctness of the analytical process followed by the judge before reaching his conclusion.

That is why under section 38(2) ( d ), the courts must examine all available sanctions other than custody before deciding on this measure and also provide an explanation to the parties. The decision does not show that the judge did this. [ 28 ] It is true that in this case the only alternative the court had was a committal to custody.

The obligation to impose the least restrictive sentence possible nevertheless required the judge to base his decision on the reasons which led him to dismiss the appellant's suggestion, which was itself supported by the findings of the pre-sentence report, which proposed a deferred custody order: Given the serious nature of the charges and the above, it is recommended that X receive a 6 month deferred custody followed by 6 months probation with follow-up. [15] [ 29 ] The judge's silence regarding the appropriateness of issuing a deferred order and his failure to consider mitigating factors, which had nevertheless been retained by the social worker, Anne Quesnel, and the assistant to the provincial director, Cathy Di Stefano, in their recommendations, are determinative errors in the present case. [ 30 ] The issue of temporary detention also deserved more formal explanations on the part of the trial judge.

He was entitled to assess the relative importance of the pre-sentence custody served by the appellant, [16] but he had to offer reasons for his decision, which he did not do. [17] [ 31 ] A reasonable application of the criteria provided for in the YCJA in sentencing matters suggests that the courts consider incarceration only exceptionally. [18] Regardless of the measure adopted by a court, however, it seems desirable not to underestimate the importance of providing adequate reasons to allow the offender and all the parties involved in the sentencing process to clearly understand the [ translation] “whys and wherefores” of the decision. [19] Following this basic rule minimizes the frustration that could arise from a misunderstanding of the judicial system and promotes the offender's acceptance of the penalty imposed on him.

The appropriate sentence [ 32 ] I recognize that the evidence shows that at the time of the events, the appellant had certain attitude problems. It is also true that it is a highly reprehensible behaviour to go to the home of friends armed with a machete and a pellet gun. These are factors that must however be weighed in light of other aggravating and mitigating circumstances related to the young person's situation. [ 33 ] As reprehensible as the acts of the appellant may be, they are not yet the proximate cause of the injuries suffered by the victim.

The lack of empathy criticized by the judge was taken into account in the pre-sentence report. The evidence regarding the sentence shows that the young person has the solid support of his family. The young person does not have a criminal record and has demonstrated a great capacity for change while there is a low risk of re-offending. The appellant is furthermore subject to strict conditions of release with which he has complied since June 25, 2009. I am of the opinion that the mitigating factors weigh clearly in his favour.

I will repeat them: - the degree of participation by the accused; - he admitted the alleged acts; - this is a first offence; - there is low risk of re-offending; - he does not have an offender profile; - he has a good relationship with his parents; - he makes good use of his free time; - he has good marks and a good attitude at school; and - he has complied with all his release conditions. [ 34 ] In the present case, I do not see any principled reason for departing from the conclusions of the pre-sentence report, and I consider that the measures suggested therein constitute a severe but appropriate penalty in the circumstances of this case. [ 35 ] For all these reasons, I would allow the appeal, set aside the trial judgment, rescind the appellant's sentence and impose the following youth sentence: - committal to custody for six months as of the date hereof, the application of which is deferred; - declare that committal to custody shall be subject to the conditions to be included in the order set out in section 105(2) of the YCJA ; - further order that the appellant comply with the following conditions during the custodial period: ● The obligation to keep the peace and be of good behaviour; ● The obligation to appear in Youth Court when required to do so by the court; ● The obligation to inform the youth worker of any change in address; ● The obligation to report to the youth worker in charge of the case whenever required to do so; ● The obligation to inform his parents of his whereabouts at all times; ● The obligation to respect a curfew of 10:00 pm to 7:00 am with the exception of organized sporting activities; ● The obligation to attend school, unless for medical reasons with a report from a doctor, respect the school rules, and do the schoolwork to the satisfaction of school authorities, or to find and maintain employment; ● The prohibition to have in his possession alcohol, drugs, or narcotics and to abstain from consumption of alcohol, drugs or narcotics except with a medical prescription; ● The obligation to attend a victim sensitization group at a time and place designated by the youth worker, and respect the rules as established by the group leaders; ● The obligation to attend the Anger Replacement Training group at a time and place designated by the youth worker, and respect the rules as established by the group leaders; ● The prohibition to have in his possession any gang paraphernalia or wear clothing that is associated with gangs; ● The prohibition to have in his possession a weapon, an imitation weapon, or any object that could be used as a weapon with the exception for ( sic ) hunting with his father;

● Not to be within 50 meters of [...], Town A; ● The prohibition to have any contact directly or indirectly with P. K., D.

W.; anyone known to be a member of a street gang, or anyone he knows to have a criminal record. - declare that the appellant shall be subject to supervised probation for a period of six months under the same conditions as specified hereinabove, excluding however the condition regarding the curfew; - during the period of supervised probation, the appellant shall perform 60 hours of community service and repay the sum of $70.00 to the victim. [ 36 ] In view of the foregoing, the appellant's motion for leave to file new evidence before the Court becomes moot. GUY GAGNON, J.A.