R. v. T.W., 2017 ONCJ 374

CITATION: R. v. T.W. , 2017 ONCJ 374 DATE: May 16, 2017 Information No.16-Y100 ONTARIO COURT OF JUSTICE YOUTH JUSTICE COURT IN THE MATTER OF the Youth Criminal Justice Act S.C. 2002, c.1 HER MAJESTY THE QUEEN v. T.W. REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on May 16, 2017, at ORANGEVILLE, Ontario PROTECTED FROM PUBLICATION BY SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT

APPEARANCES : L. Marcon Counsel for the Crown S. Pemberton Counsel for T.W. ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Reasons for Sentence ...starting at page one Transcript Ordered: May 16, 2017 Transcript Completed: June 1, 2017 Ordering Party Notified: June 2, 2017 TUESDAY, MAY 16, 2017 REASONS FOR SENTENCE

PUGSLEY J. (Orally): I would like to start by thanking both lawyers for their sensitive and informed submissions. I would like to thank both families for helping me understand your loss and how to try and craft a proper sentence in this tragic situation. T.W. was born on […], 2002. He recently turned 15 years of age. On July 14 th , 2016 the defendant was released by an officer in Peel on charges involving vehicle theft allegations. One term of that release was that he not occupy the driver’s seat of any motor vehicle.

On July 26 th , 2016 in the early morning hours the defendant drove north on Highway 10 in Caledon at extreme speed. He lost control of the vehicle and it crashed. It was not an accident. We know what accidents are. Accidents are when you lose control on an icy road and you go into the ditch. This was not an accident. This was a crash. The vehicle was demolished. The defendant’s 12 year-old passenger, A.B., was killed. The van had been stolen. On the way to Orangeville the defendant stole gas from a gas station. The defendant was 14 years of age at that time and was the driver.

He was essentially uninjured in the crash. A witness who saw the crash take place estimated that the speed of the defendant’s vehicle when it passed him was about 130 kilometres per hour in an 80 kilometre per hour zone. Data seized from the vehicle placed its speed at 148 to 150 kilometres per hour. There were no defects in the van. The crash and A.B.’s death were caused solely by the criminal negligence of the defendant. Mr. W. was arrested at the hospital. He has been in custody since the crash. From that time to today totals 295 days.

The defendant has entered pleas of guilt to three charges: Criminal negligence causing death, possession of stolen property and breach of undertaking to a police officer. A pre-sentence report was prepared and filed. A Youth Criminal Justice Act

section 34 assessment was also prepared and filed. Many, many heart felt victim impact statements were filed and read at the start of the sentencing hearing here. Each speaks to the court about the character and high potential represented by A.B. - potential that will now never be realized due to the actions of this defendant. The Crown submits that a period of custody and supervision totaling 18 months less time already served fits the facts of this case, the fact that the defendant has pled guilty and the facts set out in the pre-sentence report, and the assessment.

The Crown submits that the time the defendant has already served in custody up until today should be credited to him on a one-to-one basis. As many of you may know, adults are entitled by law to credit at one and one-and-a-half days.

The defendant submits that the time that the defendant has already spent while awaiting sentencing is sufficient to serve the multiple purposes set out by law and legal precedent when a young person is sentenced. Time already served plus a long period of probation was submitted. The defendant notes that while some cases credit the time a young person serves before being sentenced on a one-to-one basis, others routinely use a one-to-one-and-a-half basis. Counsel both agree that a driving prohibition is appropriate, although they disagree on the length of that prohibition.

Both parties recognize that whatever the sentence today, Mr. W. will soon be released from custody. My job today is to frame how that will occur and when. Both the pre-sentence report and the assessment speak to a young person with a troubled past. His family was fractured from a very young age. He was not consistently supervised at home and although he has no youth court record, he has a lengthy history of police contacts from as early as age 10. By the summer of 2014 his family had reached out to the Children’s Aid Society for help by way of a temporary care agreement.

A lack of consistency at home led to that agreement being in place only sporadically with Mr. W. moving to and from foster care, group homes, his family home, and without any apparent long term stability. The defendant came and went from time to time, apparently as he pleased from all of those placements with little apparent consequence to him. Last year the defendant became a ward of the Peel Children’s Aid Society. His latest status review has just taken place. Although consistently voicing support for her son, the defendant’s mother has been unable to manage his behaviour in the past.

There seems to be little hope that this will change immediately. The authors of the pre-sentence report and the assessment both note that the defendant has an outwardly engaging presentation, but also, particularly in the assessment, that there are deep-seeded educational and emotional deficits. One thing does shine out, however. Since he was detained on these charges Mr. W. has thrived on the very structured atmosphere at the Roy McMurtry Youth Centre. As his lawyer, Ms Pemberton, noted, he has consistently moved up the Centre’s criteria for earned privileges and has assumed, in some ways, a leadership role.

He is engaging the services offered there. He is in a secure facility and because of that cannot absence himself from his residence at will the way he could in other settings. It would be accurate to state that Mr. W. has never succeeded, to date, as well as he has succeeded at Roy McMurtry. The reasons for this are more clear in the assessment. While he is outwardly confident and outgoing the defendant has deep internal conflicts and dependencies that could easily surface when his structured setting is disengaged.

He is assessed as being at a higher risk of re-offending and in particular with regard to the thrill he finds in taking motor vehicles, and the risk to himself and others that is only too apparent on these facts. A highly structured environment will benefit the defendant and ultimately the public, as will a period of continued supervision. As part of that continued supervision I am going to ask the defendant to come back and see me partway through his probation to let me know how he is doing and to see whether that order should be changed or fine-tuned.

Both counsel correctly set out the sentencing principles engaged by this case. The Youth Criminal Justice Act starts with a premise, broadly paraphrased, that when young people commit criminal offences the sentencing court needs to recognize that young people often do not have the same maturity and foresight as an adult.

The Youth Criminal Justice Act is an attempt to balance holding young persons accountable to themselves, to society at large and to the interests of their victims with recognition that young persons are, by their nature, capable of effective rehabilitation and reintegration to become good citizens in society. Both counsel acknowledge that, by its nature, the crimes that the defendant will be sentenced on today are so serious that the most serious tool in the court’s sentencing arsenal is available: Custody in a secure setting.

The route to this available sentence leads through the lesser available sentencing options. Here the defendant’s actions in the face of his then-recent apprehension for similar, if less deadly criminal behaviour strikes the community at its very roots. He has taken a young lady’s life as it was only starting and has left her family, and friends, and our community at large bereft, and reeling.

For the reasons pointed out by the Crown in submission here the door to secure custody is not only open, but is, in my view, required to denounce and deter the defendant, as I am allowed to consider now, and others in the community, but also to keep the defendant on the correct route he has already started towards rehabilitation.

Driving is not merely the pressing of an accelerator pedal and the steering of a motor vehicle. It is not a video game. It takes years of gradual education and experience to make a safe driver, none of which the defendant could possibly have had at age 14. As he himself noted, he received a thrill or a high from the act of stealing and driving motor vehicles. This time his thrill killed his friend and took her away from her family, and her friends. When the defendant did this he was under an order not to sit in the driver’s seat of any motor vehicle. This meant nothing to him.

As in the past, the defendant has a habit of doing and going what and where he wants. Clearly nothing short of a custody and supervision order fits these facts and this offender to hold him responsible for what he has done. In this regard, as I have already noted, the defendant has never been as successful in achieving goals and learning maturity, and responsibility for others as when he has been in custody at Roy McMurtry. In my view that achievement will be enhanced by a further period of custody.

There will be a fixed end date known to everybody, including the people that are going to try and rehabilitate him before his release. That release will be engaged with supervision and counselling, and treatment for a time. If the defendant continues his progress then the supervision, counselling and treatment can be modified. The resources are there for the defendant to take advantage of, but there is only one person in this courtroom who can make sure that those resources lead to success and that person, in the end, is the defendant himself.

If he is able to continue the good progress he has made in custody after his release it will be to the benefit of him and to our community as a whole. As part of my sentence, paragraph 38(3)(

d) of the Youth Criminal Justice Act requires that I consider the time that the defendant has already spent in custody. In January of this year the Ontario Court of Appeal released a decision on point, R. v. M.W., [2017] ONCA 22 . The court emphasized that paragraph 38(3)(

d) requires that I consider the time the defendant has already served, that there is no rule that requires either one to one or one to one-and-a-half, or even no credit at all for pre-trial custody. In this case the reason for me deciding to credit the defendant on a one-to-one basis is because he has not only received treatment and rehabilitative engagement while awaiting sentencing, but indeed, as indicated, has done very well at Roy McMurtry. The adult basis for a one-to-one-and-a-half credit is just not present here in any way. I agree with the Crown that the sentencing principles set out in

section 38 of the Youth Criminal Justice Act can, on these facts and with this defendant lead only to a period of custody and supervision. The defendant was drifting into his young life without direction or indeed any rudder to steer by. His acts, even at age 14, were clearly acts he could have and should have recognized, and foreseen for their deadly result, and yet he gave in to the thrill that he sought and now A.B. is gone. His acts were foreseeable, avoidable and ultimately deadly. He took a life and no reparation can ever be made to our community for that act.

In this case only custody and nothing less is appropriate to correct the defendant’s path here. I also agree with the Crown that given the defendant’s acceptance of responsibility and the effect of his somewhat erratic childhood, 18 months is the proper sentence here. From this I deduct 295 days being the time he has already served before today. 18 months is about 548 days, less 295 days leaves 253 days. The Act provides that a sentence of custody and supervision is to be served two-thirds in custody and one-third under supervision. Here then that sentence is as follows.

I am going to ask you to stand up please, now, Mr. W. 168 days in custody and 85 days under supervision. Pursuant to section 42(4) of the Act I am required to inform you that you are ordered to serve that time.

If you breach any of the conditions while you are under supervision in the community you may be brought back into custody and required to serve the rest of that second period in custody as well. You should also be aware that under other provisions of the Youth Criminal Justice Act the court could require you to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are charged or subject to another sentence. A copy of the defendant’s pre-sentence report and the

section 34 assessment shall be made available to the defendant’s supervisor to help him stay on the correct path during supervision. Copies will also be made for the probation officer. Following the completion of your period of custody and supervision you will be placed on probation for two years. The terms of that probation are as follows: You will keep the peace and be of good behaviour. Return to court as required. You will report to and be under the supervision of a probation officer as soon as you get released.

You will take such counselling, assessment and treatment as may be directed by your probation officer, and cooperate in information going back to the probation officer, so they know how you are doing with that counselling, assessment and treatment, including signing releases so they can talk directly to those service providers. You will come back before me to see how you are doing by way of a probation review on April 10 th , 2018 at 9:30 in this courtroom. You will not possess any weapons as defined by the Criminal Code . You will not be in the driver’s seat of any motor vehicle.

You will reside where directed by your probation officer and be amenable to the rules and discipline of that residence. And to help give back to the community that you have offended you will complete 100 hours of community service. Do you understand those terms? T.W.: Yes, sir. THE COURT: It is a serious matter to breach this court order. If you are found to have done so you can expect to go back to jail. Do you understand that warning? T.W.: Yes. THE COURT: If this order needs to be reviewed or changed you can bring the matter back before the court and ask me to consider changing the order.

You can do that through your supervisor or by coming to the court here and making a written request, or through Ms Pemberton, and I will decide if the order should be changed.

One of the unique aspects in a probation order for a young person is if you are doing really well and exceeding everyone’s expectations the probation order may be changed, even ended earlier than the two years. You will also, before being transported today, provide a sample of your DNA to the National DNA Data Bank. Because you are a young person that is subject to destruction if you do not get involved in any more trouble with the law. For two years you will not possess any firearm, ammunition or explosive device. I have considered the Crown position and that of your lawyer for a driving prohibition.

In my view the appropriate time is six years. That will take you to 21. If you have not learned maturity by then I would be very surprised, sir. Have I forgotten anything, counsel? MS MARCON: Just checking my notes. I don’t believe so. I think you’ve covered everything, Your Honour. THE COURT: Ms Pemberton? MS PEMBERTON: That’s correct, Your Honour, I think you have. THE COURT: The other charges? MS MARCON: If they could be marked withdrawn, please? THE COURT: The other charges are all withdrawn at the request of the Crown.

There will be some paperwork for you to sign downstairs before you leave the building today. This is on the most serious charge and concurrent on the other two counts. I would like to again thank everyone for your patience and your assistance in coming to this decision today. Ms Pemberton. MS PEMBERTON: Yes, Your Honour. With respect to the

section 34 report... THE COURT: Yes. MS PEMBERTON: ...my client is a ward of the Children’s Aid Society. If that... THE COURT: Yes. MS PEMBERTON: ...report can be released to his worker as well, please? THE COURT: Will it help them craft his future? MS PEMBERTON: Yes. THE COURT: All right. Any issue with that, Ms Marcon? MS MARCON: No, Your Honour. THE COURT: All right. The

section 34 report may be copied and provided to the worker at the Children’s Aid Society who has charge of Mr. W’s matter. MS PEMBERTON: Am I able to provide that to the worker, Your Honour? THE COURT: You can do that, but the original report and assessment need to be both handed back to the court after you have done that. Either that or my clerk can make the copy right now. MS PEMBERTON: I do have an extra copy. I.... THE COURT: All right. Well, then give the extra copy to the C.A.S., but...

MS PEMBERTON: Thank you. THE COURT: ...your copies have to be given back to the court. MS PEMBERTON: Okay. THE COURT: All right. They are subject to destruction. Anything else? MS MARCON: No, thank you, Your Honour. ...WHEREUPON THIS PROCEEDING WAS ADJOURNED. Certification FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. T.W. in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_101_20170516_091521_Y_3_PUGSLEB.dcr , which has been certified in Form 1.

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