Her Majesty The Queen v. Melvin Skeete DECISION ON SENTENCE JUDGE: The Honourable Anne S. Derrick, 2013 NSPC 3

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Cite as: R. v. Skeete, 2013 NSPC 3 Date: January 14, 2013 Docket: 2257974 Registry: Sydney BETWEEN: Her Majesty The Queen v. Melvin Skeete DECISION ON SENTENCE JUDGE: The Honourable Anne S.

Derrick HEARD: November 26, 27, 28, December 10, 11 and 12, 2012 DECISION: January 14, 2013 CHARGES: section 235(1) of the Criminal Code COUNSEL: Daniel MacRury, Q.C. and Stephen Drake, for the Crown Darlene MacRury, for Melvin Skeete By the Court: Introduction [ 1 ] On August 31, 2012 I convicted Melvin Skeete, Jr., of the second degree murder on December 3, 2010 of his girlfriend, Brittany Green. Melvin was 16 when he murdered Brittany who was 17. The searing tragedy of Brittany’s brutal death can never be really understood.

While the evidence at trial offered some insights into what caused Melvin to erupt into a blinding rage and repeatedly stab Brittany, there is much about this murder that lies deeply buried in Melvin’s history, personality, and choices. Even Melvin does not have an explanation: he told Deborah Jellicoe, a clinical psychologist working at the IWK, “…the girl I loved is dead and I don’t even really know how it happened.” [ 2 ] The tragedy of Brittany’s death is not forgotten in these proceedings. In a moment I will speak about the shattering effect of her murder on those who loved her.

All I can do is acknowledge that pain. I cannot lessen it; I cannot offer any comfort. And I cannot provide any clear answers to the question of why Melvin tipped into a homicidal rage. I have a single function now. It is to determine the appropriate sentence to impose. Documentary and Witness Evidence at Sentencing [ 3 ] I have been provided with a significant amount of material that details Melvin’s life and his contacts with professionals and social service agencies. This documentary evidence includes: a pre-sentence report dated June 28, 2007; a psychological assessment ordered pursuant to

section 34 of the Youth Criminal Justice Act ( YCJA ) and dated September 11, 2007; a pre-sentence report dated December 5, 2007; a pre-sentence report dated December 8, 2009; Melvin’s youth court record; and a description of the offences comprising that record. These documents are all contained in Exhibit 3, a bound volume tendered at this sentencing. Also in Exhibit 3 are more recent materials, including the reports of the forensic psychiatrists who testified at trial – the September 21, 2011 report of Dr. Syed Akhtar, and the January 26, 2012 report of Dr. Stephen Hucker; and a recent Progress Report prepared by the Nova Scotia Youth Facility at Waterville (“Waterville”). A

section 34 psychological assessment dated November 6, 2012 prepared by IWK staff - Rozanna Wyatt, a clinical social worker, and Debra Jellicoe, a clinical psychologist, and a psychiatric assessment dated November 18, 2012 prepared by Dr. Aileen Brunet and Dr. Cristina Aydin, were filed as Exhibits 1 and 2, respectively. A pre-sentence report dated November 21, 2012 was also provided to me. I will be referring to these reports extensively in these reasons. [ 4 ] I also heard evidence from five witnesses called by the Crown, one Defence witness, and Melvin Skeete himself. The Crown

witnesses were: Rozanna Wyatt, Debra Jellicoe, and Dr. Aileen Brunet, whose reports I just mentioned, Susan Dunn, Manager atSpringhill Penitentiary of Assessment and Intervention, and Michael Sampson, the Superintendent at Waterville. Melvin’s grandmother,Mabel Matheson, testified as a Defence witness, as did Melvin. [5] Ms. Jellicoe and Dr. Brunet were qualified as experts. Ms. Jellicoe was qualified as a psychologist able to give opinion evidence onrisk assessments and the measure of psychopathology and personality functioning and treatment for youth and adults. Dr.

Brunet wasqualified as a forensic psychiatrist able to give opinion evidence in forensic psychiatry including diagnosis of psychiatric conditions anddisorders. The Victim Impact Statements [6] These reasons focus heavily on Melvin Skeete, as they should. Sentencing is “an inherently individualized process.” (R. v. M.(C.A.), (SCC), [1996] S.C.J. No. 28, paragraph 92) It is also a process that considers the victims of the crime, and theaffected community.

I will now recall some excerpts from the victim impact statements read to me on November 28. [7] Victim impact statements were read by or on behalf of Brittany’s best friend, her three aunts, and her grandmother. I cannot dojustice to the raw pain that was expressed by their eloquent, heart-broken words but I can let their voices speak again. [8] Tiffany Steele was Brittany’s best friend since Grade 5.

She described Brittany as “an outgoing girl that only wanted the best foreveryone.” She “could tell Brittany anything, I thought she would always be here beside me when I needed someone.” Brittany was “aloving, caring, and GOOD person…” who “always had my back…” Ms. Steele says that “looking back now” she doesn’t know what shewould have done without Brittany.

She went into “complete shock” when Brittany was murdered and said in her statement that, “WhenBrittany died, part of me died with her.” She finished her victim impact statement with these words: “Although she is now gone, I’llalways love Brittany, she will always hold a place in my heart and I will never forget her.” [9] Jennifer Sinclair was Brittany’s paternal aunt.

She described Brittany’s birth as “one of the best days of my life.” She talked abouthow good Brittany was with her children, “always showering them with hugs and kisses.” Sleepless and crying, she is haunted byBrittany’s murder, and spoke about being left “with only memories and heartache.” Ms. Sinclair recalled Brittany’s “beautiful soul,beautiful smile…” She wishes she could see Brittany one more time to tell her how much she loves her. [10] Lacey Sinclair was also a paternal aunt. She described the terrible loss she feels, and the “extreme” sadness she experiences as aconsequence of Brittany’s murder.

Brittany’s death has exacerbated Ms. Sinclair’s pre-existing anxiety and affected her performance atwork. She loved Brittany and had been hoping to spend more time with her. Her grief is compounded by the realization that she will nownever be able to do so. [11] Marie Yipp was Brittany’s maternal aunt. She spoke of her overwhelming sadness at the loss of her “beautiful” niece. She waspresent at Brittany’s birth, “the first person Brittany saw.” Ms. Yipp described her feelings: “I loved her then, and I love her now.” Onlynow Ms.

Yipp says, she is “in agony” and suffers insomnia and anguished dreams of Brittany’s murder. She feels “dead inside” and isunable to connect with her friends or be around other people. [12] Brittany’s murder has also had a profound impact on Ms. Yipp’s ability to maintain her commitment to women who are victims ofdomestic violence. Her words describe this rupture in her life: Most of my life, I spent helping other people and worked to support, and to educate victims of family violence…I spent many hours atthe Sydney women’s centre, helping victims of domestic violent crimes.

I felt I was able to empower women and families, and was a trueadvocate for women…As a result of Brittany’s murder, I feel I can’t help anyone anymore…I feel like all my beliefs are shattered,because I could not even help my niece, Brittany, and all the advocating was just a waste of time. [13] Theresa Brewster was Brittany’s grandmother. She primarily raised Brittany who was living with her when she was murdered.Brittany’s murder brought her “whole world…crashing down” and left her “broken.” Ms. Brewster is tormented by her knowledge of thebrutality of Brittany’s death.

She has insomnia now and experiences flashbacks and nightmares. She mourns “the loss of so many hopes,dreams, and expectations…” She remembers Brittany’s “infectious laugh”, her “passion for life and her huge heart.” Ms. Brewster saysshe will “never be whole again.” She is no longer the happy person she was, and is weighed down by “immense weariness…pain,despair, anxiety and disillusion…” as she tries to understand “what is incomprehensible.” [14] There is nothing I can add to what Ms. Brewster, Ms. Yipp, Jennifer and Lacey Sinclair, and Ms. Steele have said about Brittany’sdeath and its terrible effect on them.

They know, and I acknowledge, that they will carry their excruciating pain and loss for the rest oftheir lives. Crown Application for an Adult Sentence [15] The Crown has applied under sections 71 and 72 of the YCJA for an adult sentence for Melvin which, under the provisions ofsection 235 of the Criminal Code is a sentence of life imprisonment. [16]

Section 745.1(

c) of the Criminal Code provides that a person sentenced to life imprisonment for second degree murder who was 16at the time of the offence will be ineligible for parole for 7 years. The 7 year period of parole ineligibility starts to run from the date ofarrest, in Melvin’s case, December 3, 2010. (section 746 Criminal Code; R. v. Toor, 2005 BCCA 333 , [2005] B.C.J. No. 1382(C.A.), paragraph 13) The Defence Position on Sentence [17] The Defence submits that Melvin should receive a youth sentence for second degree murder pursuant to section 42(2)(q)(ii) of theYCJA.

Subject to the remand credit issues, which I will discuss later, this would mean a sentence, going forward from now - the date ofcommittal - of four years in custody and three years under conditional supervision to be served in the community.

Onus [18] The onus of satisfying me that an adult sentence should be imposed on Melvin lies with the Crown. Despite “a broad consensusreflecting society’s values and interests” (R. v. D.B., 2008 SCC 25 , [2008] S.C.J.

No. 25, paragraph 68) the presumption ofdiminished moral culpability in young persons can be rebutted if “the seriousness of the offence and the circumstances of the offenderjustify it notwithstanding his or her age.” (D.B., paragraph 77) The Supreme Court of Canada in D.B. explained how placing the onus onthe Crown does not make a young person less accountable for serious offences: …it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person.

It means thatbefore a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moralculpability has been rebutted and that the young person is no longer entitled to its protection. (D.B., paragraph 93, emphasis in theoriginal) [19] The Crown’s onus does not involve satisfying the sentencing judge on the conventional standards of balance of probabilities orproof beyond a reasonable doubt. It is not “a very heavy onus.” It is an onus that is requires the judge to engage in “evaluative” decision-making.

I must “weigh and balance the enumerated factors” in section 72(1) of the YCJA and then decide whether a youth sentence is“sufficiently long” to hold Melvin accountable for Brittany’s murder. I must be mindful of “the very serious consequences of an adultsentence” for Melvin so that I only order an adult sentence “when necessary to fulfill the objectives of the YCJA.” (R. v. A.O., 2007ONCA 144 , [2007] O.J.

No. 800 (C.A.), paragraphs 38 and 34) [20] The process of determining any sentence, whether it is for a young person or an adult, is characterized by common principles.Sentencing has been explicitly recognized as a "profoundly subjective process." (R. v. Shropshire, (SCC), [1995] 4S.C.R. 227, paragraph 46) Determining "a just and appropriate sentence is a delicate art" which requires the careful balancing of "thesocietal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence…” (R. v. M. (C.A.), (SCC), [1996] S.C.J.

No. 28, paragraph 91) An appropriate sentence cannot be determined in isolation. Regard mustbe had to all the circumstances of the offence and the offender. (R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, paragraph44) [21] However, these principles have no traction where the sentence to be imposed is a mandatory minimum set by Parliament.

So, whilethe evaluative process for determining the adequacy of a youth sentence in this case requires careful weighing and balancing, if I amsatisfied that only an adult sentence will hold Melvin to account, I am required to impose a life sentence, the mandatory minimum adultsentence for murder. There is no other option. [22] Although there is an interplay of YCJA and Criminal Code sentencing principles when an adult sentence is being imposed on ayoung person - see R. v. Smith, [2010] N.S.J.

No. 461, paragraphs 117 – 126 for a discussion of this issue – this occurs only where thesentence being determined does not involve a mandatory minimum. There is no exercise of judicial discretion where the adult sentencefor murder is imposed on a young person: the mandatory minimum punishment of life imprisonment has been fixed by Parliament.

The Youth Criminal Justice Act – Sentencing for Murder [23] Under section 72(1) of the YCJA, I am required to evaluate and weigh the following factors in considering whether an adultsentence should be imposed on Melvin: the seriousness and circumstances of the offence, Melvin’s age, maturity, character, backgroundand previous record, and any other factors I deem to be relevant. The YCJA goes on to set out the options:

a) If [I am] of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 [of the YCJA] would have sufficient length to hold [Melvin] accountable for his offending behaviour, [I] shall orderthat…a youth sentence must be imposed; and

b) If [I am] of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 [of the YCJA] would not be of sufficient length to hold [Melvin] accountable for his offending behaviour, [I] shallorder that an adult sentence be imposed. [24] The Declaration of Principle under the YCJA is where subparagraph 3(1)(b)(ii) is found.

It requires the emphasis of “fair andproportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.” Section38 contains the purpose and sentencing principles of the YCJA, and indicates that: The purpose of sentencing…is to hold a young person accountable for an offence through the imposition of just sanctions that havemeaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, therebycontributing to the long-term protection of the public. [25] The relevant sentencing principles referenced in

section 38 of the YCJA include: parity – that a young person’s sentence must besimilar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similarcircumstances; proportionality – that the sentence must be proportionate to the seriousness of the offence and the degree of responsibilityof the young person for that offence; and, subject to the proportionality principle, that the sentence be the least restrictive sentence that iscapable of achieving the overall purpose of sentencing; that it be the one most likely to rehabilitate the young person and reintegrate himor her into society; and that it promote a sense of responsibility in the young person, and an acknowledgement of the harm done tovictims and the community. (sections 38(b);(c);(e)(i)(ii)(iii),YCJA) [26] The critical factor in sentencing a young person is accountability.

I will now discuss what that means. Accountability [27] Accountability is the fundamental principle embedded in sections 72, 3 and 38 of the YCJA. In the words of the Ontario Court ofAppeal in A.O., accountability “drives the entire YCJA sentencing regime.” (A.O., paragraph 59) It is the objective that must be

foregrounded in determining whether to impose an adult sentence on a young person. [28] The YCJA brought a shift in emphasis in the sentencing of young persons. Rehabilitation, the core sentencing principle under thepredecessor legislation, the Young Offenders Act, R.S.C. 1985, c. Y-1 (YOA), has been replaced by accountability. A “significantlydifferent approach” in sentencing of young persons has been mandated by the YCJA. (R. v. Lights, [2007] O.J.

No. 1516 (O.C.J.),paragraph 42) It is a sentencing regime designed by Parliament to …promote the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitatingand reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctionsrelated to the harm done. (R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 , [2006] S.C.J.

No. 27, paragraph 4) [29] Rehabilitation, although regarded as significant, is now recognized as only one of the “important factors that are integral to theaccountability inquiry mandated by ss. 72(1)(

b) and 38(1) of the YCJA.” (A.O., paragraph 57) [30] The principle of accountability has been extensively considered in A.O., a decision relied on by the Nova Scotia Court of Appeal inR. v. Smith, 2009 NSCA 8 , [2009] N.S.J. No. 30, paragraph 28. [31] In A.O. the Ontario Court of Appeal held that: …Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or herrehabilitation and reintegration into society.

The purpose of accountability in this context would seem to exclude accountability tosociety in any larger sense or any notion of deterrence. (A.O., paragraph 42) [32] Deterrence and denunciation are not factors in the determination of Melvin’s sentence. It would be improper for me to decide thata youth sentence would fail to hold Melvin accountable because it would fall short of achieving the adult sentencing objectives ofdenunciation and deterrence. (R. v. J.S.R., (ON SC), [2009] O.J.

No. 1662 (S.C.J.), paragraph 40, referring to R. v.A.O., paragraph 48) [33] Identifying what does not play a role in determining Melvin’s sentence is not the challenge. The challenge lies in the application ofthe provisions of the YCJA. Nordheimer, J. recognized this in J.S.R. where he said the following: 41 …I do not find that the provisions of

section 38, perhaps because of their generality, are of particular assistance in trying to discernwhat offending behaviour is properly accounted for by a youth sentence and what offending behaviour requires the imposition of an adultsentence.

This is particularly so, I would add, when one is dealing with the most serious of criminal offences, namely, murder…it is clearthat the seriousness of the offence is not, by itself, sufficient to invoke an adult sentence…Parliament has clearly said that there are casesof murder where the prescribed youth sentence will be sufficient to hold the young person accountable without the need for recourse tothe adult sentencing regime.

The difficult question, and one that is not answered by the legislation, is which cases of murder properly fallunder the youth sentencing regime and which require an adult sentence. [34] That being said, the answer cannot be supplied by legislation.

Guiding principles can do no more than structure the broaddiscretion accorded judges to determine the appropriate sentence. [35] Returning to the principle of accountability as used in the YCJA, the consensus is that accountability is to be regarded as havingequivalency to “the adult sentencing principle of retribution” discussed by the Supreme Court of Canada in M.(C.A.): Retribution in a criminal context…represents an objective, reasoned and measured determination of an appropriate punishment whichproperly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender’s conduct.

Furthermore, unlike vengeance, retribution incorporates aprinciple of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. (M.(C.A.), paragraph80; emphasis in the original) [36] Proportionality is a central feature of a retributive sentence: the sentence must “properly reflect the moral blameworthiness of thatparticular offender.” This harkens back to the individualized nature of sentencing. [37] The Ontario Court of Appeal in A.O. noted with approval the comments in R. v. Ferriman, [2006] O.J.

No. 3950 (S.C.J.), whichreflected the need for two objectives to be achieved if a sentence is to hold a young person accountable: It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it must also be long enough to providereasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society…(Ferriman, paragraph38) [38] Where the Crown establishes to the sentencing judge’s satisfaction that a youth sentence will not be long enough to achieve thesegoals, then an adult sentence must be imposed. (Ferriman, paragraph 38) [39] The 2009 Smith decision of the Nova Scotia Court of Appeal (R. v.

Garmen Smith, 2009 NSCA 8 , [2009] N.S.J. No. 30)references Ferriman with approval. (Smith, paragraph 39) The Court also relied on the Ontario Court of Justice decision in R. v. M.D.,2008 ONCJ 310 , [2008] O.J. No. 2658 which had discussed the Supreme Court of Canada’s decision in D.B.

D.B. found youngpersons to be entitled to a presumption of diminished moral blameworthiness that reflects, as a consequence of their age, their heightenedvulnerability, immaturity, and reduced capacity for moral judgment. (D.B, paragraph 41) As I observed earlier in these reasons, thatpresumption of diminished moral culpability can be rebutted, where the seriousness of the offence and the circumstances of the offenderjustify it and accountability requires that an adult sentence be imposed. [40] The question I am working through is whether a youth sentence of four more years of custody followed by three years undersupervision in the community is a sentence of sufficient length to reflect the seriousness of the offence and Melvin’s role in it, and that

will provide reasonable assurances of Melvin’s rehabilitation to the point where he can be safely reintegrated into society. To evaluate this, I must now return to the requirements of section 72(1) of the YCJA and assess: the seriousness and circumstances of the offence, Melvin’s age, maturity, character, background and previous record, and any other factors I consider to be relevant. Circumstances of the Offence [ 41 ] The circumstances of Melvin’s offence are horrific. Brittany was stabbed 104 times. Two knives were left protruding from her left side. The handle had broken off one.

At least one other large knife was used to stab her and was found discarded in the kitchen sink. Eleven wounds penetrated to her back. Many of her internal organs were perforated. Her head and face also showed evidence of blunt force trauma that split the skin and fractured her right orbital bone and her nose. Two of her front teeth had been knocked out with their roots intact. She would have rapidly bled to death. [ 42 ] In convicting Melvin I found the murder to have occurred in the following circumstances: 170 At supper-time on December 3, 2010, M.S. was disinhibited by drugs and alcohol.

Touched off by a perceived wrong, he undertook a ferocious assault that was fueled by jealousy and incandescent anger. Although intoxicated, he was able to focus on what would have been a demanding task. He had to get down on the floor, kneeling next to B.G.'s prone body to stab her multiple times with multiple knives. Her blood pooled on her left side and the right knee of M.S.'s jeans soaked it up. Using his right hand he got two of the knives stuck in the left side of her body. He either already had at hand or went to retrieve additional knives.

The only reasonable inference to be drawn from all the evidence is that when M.S. stabbed B.G. he intended to kill her. He inflicted 104 sharp force injuries to achieve that objective. He was goal oriented. The goal was to kill. No other inference can be drawn from the devastating wounds to B.G.'s body and the blood spatter they produced. This was force intended to annihilate. ( R. v. M.S., [2012 N.S.J. No. 464 ) [ 43 ] This murder was aggravated by the fact that Melvin’s victim was his highly vulnerable 17 year old girlfriend. She was intoxicated by alcohol and drugs.

As there is no evidence that Melvin removed any of her clothes, it appears that she was attacked while dressed only in a pair of pajama shorts.

She was a victim of lethal domestic violence, killed because her boyfriend “believed she had not maintained an exclusive relationship with him. [Melvin] stabbed her in retaliation for her perceived unfaithfulness.” ( Trial decision, paragraph 159 ) This is not speculation: Melvin told Donna MacDonald that he “had to” kill Brittany because she had “cheated” on him, making similar accusations about Brittany to his grandfather. ( Trial Decision, paragraph 158 ) [ 44 ] Although unprecedented in its violence, Brittany’s murder was perpetrated by Melvin under a familiar set of circumstances for his offending.

He was intoxicated, notwithstanding release and probationary conditions that included a strict drugs and alcohol abstinence clause. Melvin Skeete’s Background and Prior Record [ 45 ] Melvin was born on May 26, 1994, making him sixteen and a half years old when he murdered Brittany. He had been getting into conflict with the law since early 2007 when he was 12 so his background and criminal record are inextricably linked.

His sentences and various release orders all focused on recurrent themes: alcohol and drug abuse, negative peer associations, anger, and anti-social behaviours. [ 46 ] Melvin’s mother was 17 when he was born. His biological father was in his 20’s. He never assumed any role in Melvin’s life. [ 47 ] Cape Breton District Health Authority records show a November 2000 referral of Melvin at the age of 6 to mental health services. He was apparently fascinated by fire and talked about burning down someone’s house and using violence.

Fire setting, petty thefts and cruelty to pets was also noted. [ 48 ] When Melvin was approximately 6, his mother moved to Ontario to work. Melvin remained behind for 7 months in the care of a step-grandmother while he finished his school year. He then joined his mother in Ontario although they returned to Nova Scotia about 3 months later. [ 49 ] Melvin’s mother, Shannon Gillis, has described Melvin as active and fearless, a child who did not like to be told he could not do something. She noted that Melvin did not have temper tantrums except when he was told ‘no’. Ms.

Gillis used physical force on occasion as discipline. She has reported that when Melvin was disobedient, she would “crack” him, hitting him on the hand or buttocks. [ 50 ] Melvin’s household came to include a stepfather, James Gillis, and his two children. It appears that Melvin did not develop a close bond with either step-sibling. [ 51 ] Although I am unclear about the precise chronology, according to the November 6, 2012

section 34 psychological assessment, after the initial referral in 2000, Melvin was followed by Cape Breton mental health services for two years. He was prescribed medication for ADHD. He was psychiatrically reassessed in 2002 when it was suggested that he had “many features of an Oppositional Defiant Disorder.” [ 52 ] By the time Melvin was about eleven and a half, he was associating with a different peer group and being deceptive about it. Ms. Gillis says Melvin started to steal money and cigarettes from her purse.

By the age of 12, he was often “angry and had an attitude.” There were incidents of Melvin smashing and throwing things. Sometimes there would be a trigger for his behaviour; sometimes not. Ms. Gillis and Melvin had verbal arguments that would escalate into physical fighting. On one occasion Ms. Gillis gave Melvin, who was 12, a black eye and, according to her, one of them “went over the stairs.” [ 53 ] Melvin’s maternal grandmother, Ms. Matheson, testified about noticing a change in Melvin when he reached the age of 12.

She had enjoyed a close relationship with her grandson previously but then he stopped coming to see her as often and was quieter, no longer the child who liked to laugh a lot.

[ 54 ] In June 2006 Melvin, aged 12, was again referred to mental health services as a result of his mother’s concerns about his peer group, involvement in illegal activities, and potential risk for substance abuse. He was psychiatrically assessed as having symptoms of Conduct Disorder and met the criteria for “cannabis abuse” and “nicotine abuse.” He had “significant symptoms” of Oppositional Defiant Disorder.

It was recommended that he continue to meet with his individual therapist, and an addictions counselor, and that he continue to take his prescribed ADHD medication. [ 55 ] Melvin’s involvement with Addiction Services had begun with a referral in August 2006. He had some consistent contact with Diane MacDonald from December 2006 to June 2007. Ms. MacDonald advised the

section 34 assessors that Melvin’s difficulty was not attendance at counseling sessions but with abstaining from or reducing the amount of illicit substances he used. [ 56 ] Melvin acknowledged in his interview for the November 6

section 34 psychological assessment that he began his alcohol and marijuana use at the age of 12. By 14 or 15 he was smoking marijuana “pretty much every day.” His alcohol use had increased by this time and was “really bad.” He used a wide variety of illicit street and prescription drugs. He began to use Rivotril, his pill of choice, when he was 12. Rivotril is what he took on the afternoon of December 3, 2010, mere hours before he murdered Brittany. [ 57 ] Melvin was first charged for an offence committed on February 14, 2007. It was a mischief charge.

By the time he was sentenced for this offence in September 2007, Melvin had accumulated numerous additional charges. Over the next three years, Melvin’s record grew to 58 convictions that included breaches of probation, breaches of release conditions, assault, break and enter, threats, theft, and mischief. [ 58 ] Around the time of Melvin’s first criminal charges, his mother entered into a voluntary care agreement with the Department of Community Services and Melvin was placed in a group home, Comhla Cruinn. Ms. Gillis had sought help after Melvin pulled a knife on his stepsister.

While at Comhla Cruinn, Melvin also spent time in foster homes for respite purposes. His offending continued in these placements. His charges began to accumulate. [ 59 ] Melvin’s possession and use of knives were documented in the Cape Breton District Health Authority records. He was said to have stored the blades of many steak knives in his mattress, threatened another youth and his foster parents with a steak knife, and “stabbed” a sofa. [ 60 ] In June 2007, Melvin went to the Nova Scotia Youth Facility (Waterville) for the first time, on remand. He was just 13. [ 61 ] In the summer of 2007, a

section 34 psychological assessment was ordered. At Melvin’s first sentencing on September 20, 2007, the Youth Justice Court had the benefit of this assessment, prepared by the IWK, and a pre-sentence report dated June 28, 2007. [ 62 ] The pre-sentence report of June 28, 2007 identified Melvin’s substance abuse problems.

Melvin’s junior high school also identified very serious issues: Melvin was "totally out of everyone’s control, heavily involved in drugs, and in need of a professional rehabilitation program.” Melvin had been failing when he left school in November 2006, midway through his second Grade 7 term. [ 63 ] Barely 13 when the pre-sentence report was prepared, Melvin was not seen as a lost cause. His Student Support Worker described him as “a good kid who needs a lot of help.” The Comhla Cruinn workers viewed Melvin in the same light, describing him as “a good little guy” who was very troubled.

Indeed, one of the workers noted that it had been a long time since she had seen “such a troubled youth.” The Student Support Worker offered a comment: “I hope Melvin gets the help he deserves.” The Vice-Principal of the Melvin’s junior high saw Melvin as having the potential to succeed, if his drug and behavioural problems were successfully addressed. [ 64 ] Melvin was also described at this time – June 2007 – by the Adolescent Community Outreach Worker with Cape Breton Addiction Service as “high risk” and “extremely impulsive”.

She saw Melvin as someone who “did not comprehend his addiction problem.” Melvin did not deny his drug use. He was abusing prescription and non-prescription drugs and alcohol. He had attended a two-day adolescent drug abuse program, twice. Melvin had never agreed to a residential drug treatment program so intensive treatment for his drug use had not occurred. [ 65 ] The 2007 pre-sentence report also noted that arrangements had previously been made for a pre-consultation with a mental health professional, but the appointment never materialized, apparently due to conflicting appointments with Melvin and his family.

Melvin was viewed by the Social Worker with Family and Children Services as needing a highly structured environment with mental health and substance abuse counseling. [ 66 ] By September 2007, Melvin had been subject to various release orders, including an undertaking dated May 3, 2007, a Responsible Person Undertaking of May 29, 2007, and an Undertaking of August 16, 2007. All these orders prohibited Melvin from using alcohol and drugs.

He was also subject to a curfew. [ 67 ] Leading up to his September 2007 sentencing, Melvin was arrested for breaching conditions of his release and was again remanded to Waterville. [ 68 ] The 2007

section 34 psychological assessment diagnosed Melvin as having a Conduct Disorder (Adolescent Onset Type) and Polysubstance Abuse. In addition to the issues of Melvin’s drug and alcohol abuse, he was seen by his parents as potentially dangerous. Ms. Gillis told the assessor they had “safety plans in place at home and have locked up all knives.” [ 69 ] Melvin’s drug use had assumed a nightmarish quality: the 2007

section 34 assessment noted that he was found by Ms. Gillis in crack houses after being gone from home for two days and he would develop “excessive nosebleeds” likely from drug abuse. Melvin also overdosed on at least two occasions. He reported no memory of these incidents. [ 70 ] The 2007

section 34 assessment indicates that Melvin undertook a number of psychological tests, including the Million Adolescent Clinical Inventory (MACI) which produced a valid profile. The personality scales revealed “a moderate level of pathology with prevailing themes of self-centredness and power plays.” On the basis of the MACI results, Melvin was described as: “a risk-taker, exhibiting a rash willingness to court danger and [a] desire to appear fearless. He is likely inclined to brood and harbor grudges; he may

distort and magnify others’ comments or behavior, then act out in retaliation for perceived threats.” [ 71 ] Melvin was also described as a follower “who conforms to the behavior of his peer group and primarily relies on them for social approval and satisfaction of emotional needs.” It was determined that Melvin saw “the world in terms of power and control and will likely choose to conform to the group with the most perceived power.” He was assessed to be “a lonely and troubled young man who does not feel fully integrated into his family.” [ 72 ] Melvin was aware he had issues. Interviewed at Waterville for the 2007

section 34 assessment, he described his “three wishes”: “to get my ass out of here, get in a rehab program, and go to anger management.” He said everyone told him he had anger problems and he agreed with that. Sadly, he also reported that his mother “thinks I’m a nut case. I think so too.” As I have noted, he was 13. [ 73 ] The Structured Assessment of Violence Risk in Youth (SAVRY) test results measured Melvin as having a moderate to high risk of violent re-offending. The Youth Level of Service/Case Management Inventory (YLS/CMI) indicated a moderate to high risk of general re-offending.

The sources of greatest risk on both measures were identified as Melvin’s “extensive previous history, substance abuse, and his pro-criminal attitudes.” It was stated that “this may be an underestimate of [Melvin’s] actual risk.” The highest risk environment was assessed to be Melvin’s home due to the fact that his “known violent offences have occurred in the home against family members while Melvin was under the influence.” It is chilling now to see the constellation of these factors being pinpointed in 2007. [ 74 ] The 2007

section 34 assessment concluded by noting that Melvin may have experienced trauma in the form of a sense of abandonment when his mother went to Ontario. Placement in the group home earlier in the year was also thought to have possibly triggered new feelings of being abandoned. Melvin was assessed as being unable to manage his emotions and behaviour in the community. When using substances he was beyond the control of his parents. [ 75 ] Positives were noted. Melvin was described as “likeable and smart”, having a positive view of therapeutic interventions, and wanting to stop his drug use. [ 76 ] A number of recommendations were made in the 2007

section 34 assessment.

They included: that Melvin be treated in a secure residential drug rehabilitation facility such as Choices, ideally for “a significant length of time”; that, given “his likely abandonment issues”, he be offered a chance to live at home with intensive support and interventions, to be coordinated through the Department of Community Services; that Melvin engage in individual therapy to address his attachment needs and trust issues with parents and professionals; that his mother and stepfather receive help with parenting strategies to manage Melvin’s behaviour; that Melvin follow up with a child psychiatrist; and that Melvin and his family participate in family counseling to address the contribution that family dynamics play in Melvin’s problems.

Other supports for Melvin and his family were highlighted: opportunities for Melvin to strengthen his relationship with his mother; developing a more robust family support network; engaging Melvin in structured pro-social youth activities; and the continuation of the role of Melvin’s youth worker.

The assessment report advised that Melvin be considered for a secure alternate living arrangement such as the Adolescent Centre for Treatment (ACT) should the “intensive community based services…not provide the structure and support [he] needs to stay off drugs and out of trouble.” [ 77 ] Melvin’s September 20, 2007 sentencing resulted in him receiving 24 months of probation. His conditions included: a curfew; school attendance; assessment and counseling for substance abuse; a weapons prohibition; abstinence from alcohol or drugs; and non- association with anyone having a youth court or Criminal Code record. The

section 34 assessment with its wealth of information, testing results, and recommendations, was to be released to his probation officer. [ 78 ] Within days of Melvin’s sentencing he was in new trouble. He had breached conditions, stolen, and, brandishing a knife, repeatedly threatened to stab a taxi driver. He was sentenced on December 6, 2007 to a 315 day Custody and Supervision Order (CSO) plus two years’ probation.

The probation order repeated earlier themes: Melvin was to abstain from all non-prescription drugs and alcohol, attend school, and participate in any programs that were put in place, including Choices. He was also to have no contact with anyone who had a youth or Criminal Code record. [ 79 ] At the December 6 sentencing, the Youth Justice Court had a report from Probation Services dated December 5, 2007 that included recommendations from a November 23, 2007 sentencing conference. At the time Melvin was on remand at Waterville.

He had been involved in anger management, behaviour modification, education (English and Math), as well as the Substance Abuse Program. It was noted that Melvin appeared to respond “very well” to one-on-one support. Other programs were going to be available – the Controlling Anger and Learning to Manage It (CALM) and a substance abuse/addiction treatment program. Both programs were scheduled to last 3 months, starting in January 2008. [ 80 ] The sentencing conference also reported on community support inquiries that had been made for Melvin.

It was noted that Diane MacDonald, Melvin’s previous addictions counselor, had been contacted. Probation Services had requested that Ms. MacDonald refer Melvin to the CHOICES program for addiction treatment. CHOICES advised that there would be no availability in the program until approximately February 2008. [ 81 ] Probation Services also referred Melvin to Child and Adolescent Services of the Cape Breton Regional Hospital and the Intensive Community Based Treatment Team (ICBTT).

The December 5 Probation Services report indicated that the ICBTT identified the willingness of Melvin and his parents to participate in the program as critical. It was estimated by the ICBTT program that space would be available for Melvin by February 2008. [ 82 ] The November 6, 2012

section 34 assessment indicates that an ICBTT recommendation was made by mental health services in April 2007. Apparently an assessment was completed to determine suitability for the program, however Melvin never participated and his parents only went to two of eight group parenting sessions offered. The lack of participation by Melvin and his parents resulted in the ICBTT program file being closed in June 2007. This seems to have been the point at which Melvin’s involvement with mental health services tapered off.

The December 5, 2007 pre-sentence report indicates that the ICBTT referral was being revived. [ 83 ] Contacted for the December 5, 2007 pre-sentence report, Ms. Gillis expressed concerns about Melvin returning home before he had received “significant treatment.” She said she found it “extremely difficult” to control Melvin’s behaviour when he was at home and

thought that if he returned home before treatment, he would “most likely” re-connect with peers who were a negative influence on him and return to abusing substances. [ 84 ] To reiterate, by the end of 2007, significant community resources had at least been identified for Melvin and the criminal justice/community services systems had a considerable amount of information about him. At thirteen and a half, he had a very serious drug and alcohol problem and untreated mental health and behavioural issues. He had been sentenced to a lengthy Custody and Supervision Order.

The CHOICES and the ICBTT programs were community based. Melvin’s sentence to Waterville made him unavailable for them. Other programs were offered at Waterville. [ 85 ] Melvin underwent his third sentencing on April 17, 2008. He had breached his CSO in late December 2007, committing an assault by punching another Waterville resident in the head for “running his mouth.” He received a 30 day CSO to run concurrently with the time he was serving. [ 86 ] In September and October 2008 Melvin was charged with breaches for failing to comply with sentence orders, mischief, and threatening to stab his mother.

He was released on a Responsible Person Undertaking with a curfew, drug and alcohol abstinence provisions, no association with anyone having a youth court or Criminal Code record, and no direct or indirect communication with his mother except with her express consent. [ 87 ] On November 19, 2008, Melvin was sentenced for the September and October charges to a 4 month Deferred Custody and Supervision Order (DCSO) to be followed by 12 months’ probation.

The DCSO reflected his ongoing issues by including conditions for: electronic monitoring, school attendance, a curfew, residence with his parents, abstention from alcohol and drugs, non-association with anyone with a youth court or Criminal Code record, and assessment and counseling as directed, including anger management, substance abuse and also, including CHOICES. The terms of the probation order were the same. [ 88 ] Melvin continued to get into trouble. He breached his DCSO twice – on December 2, 2008 and March 11, 2009. [ 89 ] On March 22, 2009, Melvin’s mother called in a curfew breach.

Melvin was located by police in an intoxicated state. He was released on a Promise to Appear on March 23 and returned home. The police had not yet left when Melvin, who was apparently still under the influence, took a swing at his stepfather and was taken back into custody. [ 90 ] On March 27, 2009, Melvin was released on a Responsible Person Undertaking to live with his grandfather under house arrest. Alcohol and drugs and criminally involved peers were a focus of his conditions. [ 91 ] Other releases occurred in September and October 2009 with similar conditions.

On September 3, 2009 Melvin was released on a Responsible Person Undertaking to live with his mother and stepfather under house arrest. An exception to the house arrest included attendance at the Sydney Boxing Club. By October 10, 2009, Melvin was in trouble again. On October 13, 2009 he was released to live with his grandmother, Ms. Matheson, on a Responsible Person Undertaking, subject to house arrest and the customary abstinence clauses. He was prohibited from having contact with his stepfather. [ 92 ] Ms. Matheson testified before me about Melvin coming to live with her.

She indicated that she knew Melvin was struggling with serious drug problems and associating with undesirable peers. She knew his friends and she did not like them: they were older teens and not appropriate influences on her 15 year old grandson. [ 93 ] Ms. Matheson had no trouble with Melvin when he stayed with her. She used to walk him to boxing and they enjoyed various outings and activities together. He was always polite and respectful toward her. Ms.

Matheson never saw him under the influence of any substances. [ 94 ] The October 2009 release related to a break and enter and theft committed by Melvin at a liquor store. The stolen liquor had a value of $775. Melvin was sentenced for the March curfew and assault incidents and the break and enter and related breaches on January 22, 2010. It was his fifth sentencing. He received a 6 month CSO and 15 months’ probation. The usual issues were targeted: substance abuse, negative peer associations, and anger. He returned to Waterville. [ 95 ] At the time of his January 2010 sentencing, Melvin was still out of school.

Returning him to school in the community had proven to be a challenge. Melvin carried a lot of baggage: his past behaviours at school, his drug use, negative peer associations, his grade level – Grade 6, and his age - 15. Melvin expressed an interest in getting his high school diploma and a welding trade, “if his dreams of becoming a boxer fall through.” [ 96 ] A pre-sentence report dated December 8, 2009 discussed Melvin’s involvement in the Sydney Boxing Club. He was boxing four times a week and according to the head coach, had not missed a day of training since he started. He was causing no issues at the Club.

He was working hard, and the coach described him as having come “a long way in a short period of time.” It was believed that he was no longer associating with some of the negative influences in his peer group. [ 97 ] This was a time when Melvin reports that he was abstaining from drugs and alcohol in order to box. In his evidence before me, Melvin admitted that he was still using drugs in the first 2 – 3 weeks of the boxing program but then stopped as he became more focused. [ 98 ] Melvin understood he had a problem with drugs and alcohol.

He told the author of the December 2009 pre-sentence report that he became violent when he was under the influence. But he had stopped going to counseling for substance abuse issues because he did not like the counselor who assumed his file from Diane MacDonald. He explained in his testimony that he did not feel comfortable talking to Ms. MacDonald’s replacement. In the December 2009 pre-sentence report Melvin indicated that he was not interested in this type of treatment.

He said it didn’t help and he didn’t need it “anymore.” He did indicate that he wanted to turn his life around, get off probation and stay out of trouble. [ 99 ] The December 2009 pre-sentence report flagged Melvin’s substance abuse as a factor that created instability in his life. When Melvin returned home intoxicated, there would be a confrontation and he would be removed. This would lead to alternate living

arrangements and diminished supervision with Melvin then getting into more trouble. [100] Unsurprisingly, the Cape Breton Regional Police, contacted for the December 2009 pre-sentence report, had nothing positive tosay about Melvin. The Youth Officer described Melvin as having “no respect for his family and no respect for anyone else.” [101] However, Melvin’s prospects in January 2010 were not hopeless.

The December 2009 pre-sentence report noted that he wascapable of doing well and complying with court-ordered conditions when he was drug and alcohol free, involved in constructiveactivities, and in a stable living arrangement. Substance abuse counseling and anger management were identified as worthwhile referrals. [102] The boxing program to which Melvin had responded so positively was interrupted by his return to Waterville in January 2010 onthe CSO. When he was released, it seems that Melvin drifted or fell back into old ways.

This is what his grandmother believes occurred:that he was doing well and then started hanging around with old friends and getting back into trouble. [103] Through the summer of 2010, Melvin continued to commit offences. In August he was sent back to Waterville on a 21 day CSO forfailing to comply with a sentence order and uttering threats to a police officer who arrested him when he was heavily intoxicated. He wasalso charged with assaulting a young woman while intoxicated, by pushing her to the ground and punching her in the head a number oftimes.

There is an indication in the materials before me that Melvin denies this assault occurred but in January 2012 he pleaded guilty toit. [104] On November 1, 2010, Melvin was charged with failures to comply, mischief, theft, and a break and enter, again involving a liquorstore.

He was released on November 9, 2010 on a Responsible Person Undertaking into the care of his grandfather, Melvin Skeete, Sr.The terms of the RPUT included house arrest with some exceptions, an absolute prohibition from possessing or consuming alcohol ordrugs, and a non-association provision in relation to anyone with a youth court or Criminal Code record. [105] Melvin was on these conditions when he murdered Brittany at his grandfather’s home on December 3, 2010. Ms. Mathesontestified that Melvin’s grandfather had not been a good influence on him.

As the trial evidence revealed, drugs and alcohol were readilyavailable and Melvin was not subject to any controls or supervision. [106] In her “Social Work Clinical Impressions” for the November 6, 2012

section 34 psychological assessment, Rozanna Wyatt notedhow Melvin’s problems overwhelmed the available options: …While services were sought out to try to manage Melvin’s behaviour and risk, once in conflict with the law, little success was achievedin improving Melvin’s poor emotional regulation, aggressive tendencies, and his engagement in anti-social activities… [107] Melvin’s troubled history contains a depressing snapshot from the week before Brittany’s dreadful murder, captured by theNovember 21, 2012 pre-sentence report.

It is depressing because it reveals a glimpse of an alternate narrative: …On November 26, 2010 [Melvin] reported [for his meeting at probation services] as directed, appeared sober and drug free.Discussions centred around his goals to get his life back on track, as he reported he was tired of his current lifestyle. [He] was givendirection to attend at the local YMCA to arrange an appointment at the Employment Centre to review his resume. He was also told tocontact the Cape Breton Business College regarding the Second Chance CEED (Employment) Program.

In addition, he had planned tovolunteer at a local African Canadian organization in an attempt of improving his resume. [He] also agreed to participate in a ResiliencyProject through Dalhousie University at the office of Correctional Services on December 8, 2010.

Further a referral to a local tutorialprogram was being considered, however, this would be addressed after the young person’s pending court date. [Melvin’s] next reportingappointment was scheduled for December 8, 2010 following his appearance in Youth Justice Court, however he was in custody byDecember 4, 2010. (November 21, 2012 pre-sentence report, page 7) [108] While I have been able to describe what was seen as necessary to address Melvin’s issues, the reasons why such a troubled childdid not get the intensive interventions he needed remain elusive.

Specific problems were identified early on but there was no realabatement in Melvin’s serious substance abuse and anti-social behaviours. It does appear that Melvin’s continued offending meant hewas recurrently in custody at Waterville which compromised the opportunities for community-based interventions. [109] There is also some question about what resources may have been available in Waterville when Melvin was sent there for his firstcustodial sentence on December 6, 2007. I happened to note in a Youth Justice Court sentencing decision provided by the Defence, R. v.C.S., 2008 NSPC 22 , [2008] N.S.J.

No. 218, that Judge Pamela Williams indicated on May 20, 2008 when rendering herreasons, that there was no full-time psychologist at that time at Waterville, nor had there been one for the past four years. (C.S.,paragraph 36) [110] As for when Melvin was in the community, Ms. Wyatt testified that Melvin’s mother and stepfather did not have the ability tomanage his risk. As the difficulties with Melvin escalated, his parents became “numb and then permissive.” The November 2012 pre-sentence report confirms the background information obtained by Ms. Wyatt and adds this

summary, obtained from Heather Campbell,who had supervised Melvin on probation: …family conflict appeared to be a central theme throughout the young person’s teen years…the young person’s ongoing criminalbehaviour, non-compliance with household rules and his ongoing drug and alcohol use often strained an already fragile family relation(sic) and noted he was often being asked to leave when his behaviours were out of control. The young person’s choice of peers was alsoa source of concern. His peer group often consisted of person’s well known to Correctional Services and police.

They were sometimesolder individuals and persons heavily involved with drugs. Age, Maturity, Character [111] Melvin is now 18 years and 7 months old. I previously noted that he was 16 and a half when he murdered Brittany. This is not acase where the young person being sentenced was, at the time of his offence, on the cusp of becoming an adult in the eyes of the criminallaw.

[ 112 ] The Crown has submitted that Melvin was not an immature 16 year old when he killed Brittany and refers to “a marked inclination toward escalating criminality” between the ages of 12 and 16. Melvin’s early to mid-adolescence was certainly characterized by a hardening pattern of seriously anti-social and dysfunctional choices by a “street-smart” young man, street-smart being Melvin’s description for himself. [ 113 ] According to his interview for the November 6

section 34 psychological assessment, Melvin views himself as “street smart” based on his ability to handle himself in an anti-social world, and plan and orchestrate crimes such as robberies and selling drugs. In the assessment he admitted to offences, including serious assaults, that were either never reported to police or never linked to him. This means there is more violence in Melvin’s history than his youth court record indicates. [ 114 ] By the age of 16, Melvin was not demonstrating the disciplined, thoughtful choices of a mature young person.

He knew he had serious problems but did not exercise sound judgment or considered reasoning in relation to them. He simply continued the patterns he had fallen into, which were characterized by anti-social and substance-abusing conduct.

It is consistent with the immaturity and short- sightedness that is so common amongst adolescents that Melvin did not make any serious efforts to connect with services in the community that could potentially have helped him. [ 115 ] Maturity is often understood as being achieved by a person “growing up.” In Melvin’s case he has been described as “growing up” in Waterville where he spent significant periods of time on remand or serving sentences through his early and mid-adolescence. He has been on remand there for the past two years since his arrest for Brittany’s murder.

As the Progress Report from Waterville indicates, Melvin has been maturing somewhat over these years on remand. [ 116 ] It is relevant to mention that the November 6

section 34 psychological assessment includes a measurement of Melvin’s levels of autonomy, decision-making capabilities, and “emotional attunement.” Melvin scored in the middle range indicating a “typical” level of autonomy compared to “a same-age delinquent normative group.” As a high-scorer on the Autonomy scale, Melvin falls within the cluster who “may view themselves as in control of their own lives, are conscious of their ability to take independent action, and exercise their abilities with confidence.” According to Ms.

Jellicoe’s testimony, the fact that these youth “tend to make their own decisions” does not mean they are making positive decisions. [ 117 ] Melvin’s score for Emotional Maturity falls in the low range. The November 6

section 34 psychological assessment described the features for youths in this cluster: Youth who score [in the low range] are not especially aware of their own emotions and are not particularly good at understanding others’ emotions. Further, they often have difficulty regulating their emotions. Such youth often do not have a good sense of what their personal values are and are morally immature. [ 118 ] Ms.

Jellicoe assessed Melvin as having “average levels of sophistication and maturity.” She noted that he has used his “street smarts, independence, and the ability to live an autonomous anti-social life” to “function and succeed within an anti-social world, not to propel himself in a positive manner.” She testified that in many areas, Melvin is not quite as mature as peers his age, those areas being emotional regulation and processing of emotions, and the quality of his decision-making. [ 119 ] Melvin’s ability to “live an autonomous anti-social life” which is evident from his history, does not lead me to view him as mature.

There are signs he is maturing. It is apparent that he still has considerable growing up to do. Knowing this does not make sentencing him any easier. [ 120 ] As for the issue of character, another of the factors section 72(1) mandates me to consider on an application for an adult sentence, there is not much to say other than Melvin’s history and prior record indicate him to be a person with a seriously flawed character. Its features are evident in my discussion about his background.

Other Relevant Factors to be Considered in Assessing the Application for an Adult Sentence [ 121 ] In addition to the issues set out in section 72(1) of the YCJA , which I have been reviewing, there are other factors I consider to be relevant to determining the issue of whether the Crown has satisfied me that only an adult sentence is sufficient to hold Melvin to account for Brittany’s murder.

These factors, which I will now discuss, are: Melvin’s progress and conduct at Waterville during his remand; the issue of remorse; the most recent psychological and psychiatric assessments; what will constitute a youth sentence; and the features of an adult sentence. Melvin’s Behaviour and Progress in Waterville: The Progress Report from the Nova Scotia Youth Facility, the November 21, 2012 Pre- sentence Report, and Melvin’s Testimony [ 122 ] Melvin’s institutional conduct at Waterville has been mixed. Anger and substances continue to be an issue.

Positive changes are evident as well. [ 123 ] Melvin has been at Waterville on remand since December 7, 2010. From that date until April 26, 2011, due to the seriousness of his charges, he was housed in Unit 1B, the discipline/remand unit. [ 124 ] Within a week of his admission Melvin received a Level III (the highest discipline sanction) for lying to/misleading staff by attempting to get phone calls from people he was not permitted to have contact with due to his phone restrictions.

On January 26, 2011 he damaged a smoke detector in the phone room and received his second Level III sanction. [ 125 ] Since Melvin’s full-time transfer to Unit 2B on April 26, 2011, for the most part his behaviour has been positive. In the summer and fall of 2011 he was disciplined with Level II sanctions for detrimental behaviour, misleading staff, and having contraband – protein powder – in his cell. [ 126 ] Melvin’s most serious infractions have been for fighting. On July 25, 2011, Melvin received a Level III incident report for joining

with a cohort to fight with another youth. The next day, Melvin received a Level II sanction for threatening the same youth whom he says was “running his mouth”. [ 127 ] On January 16, 2012, another Level III sanction was imposed on Melvin when he struck a co-resident in circumstances where he felt he was being disrespected. He acknowledged on cross-examination that he reacted violently. He received another Level III incident report on April 11, 2012 for fighting. Again it was Melvin intervening to support a cohort in a fight with another youth.

This fight was broken up just as Melvin was about to “stomp” on the youth’s head. In the opinion of Paul Getson, Unit Supervisor: “…staff got there in the nick of time or [the youth] could have been dead or had serious head trauma.” [ 128 ] Melvin was asked about the fights at Waterville. He candidly acknowledged he reacted angrily to being disrespected and taunted. The fights led to Melvin being subject to a 23-hour lockdown. He lost privileges and was set back in his education. He didn’t really think it would happen again but it did. The third fight erupted when he felt provoked by another youth.

In Melvin’s words, “it just happened so fast.” He acknowledged that the anger-management program he has taken did not help him avoid violence on these occasions. [ 129 ] Melvin says he now tries to walk away from tense situations that signal trouble. He takes a time out and goes to his room. According to the November 6

section 34 psychological assessment, Melvin also uses “the gym, music, or school work to decompress after being emotionally aroused.” [ 130 ] In November 2012 pills were smuggled into Waterville. Although not involved in bringing the pills in, Melvin took some and became disruptive. He was again placed in the discipline unit.

Melvin admitted in cross-examination that this was the third occasion when he had done pills in Waterville although by November 2012 he had abstained from drugs for 10 months. [ 131 ] Melvin acknowledged that taking the pills in November was “a poor decision.” He was anxious and stressed out about his impending sentencing. He had managed in the previous 10 months to turn down offers of various kinds of drugs that made their way into the institution. Melvin says he is working on a relapse prevention plan with his addictions counselor, Wanda Schofield. Staying off drugs is important to him.

He testified: I don’t want to do drugs and alcohol. It has affected my life. I took someone’s life when I was under the influence and I don’t want it to happen again. [ 132 ] Melvin’s peer loyalties remain an issue, as evidenced by his decision to jump into fights being waged by other youth. He is described as associating at Waterville with youth who have a similar high status; “heavy hitters” is the term used by Mr. Getson in his interview with the assessors for the November 6

section 34 psychological assessment. Melvin’s elevated status at Waterville is due to his crime and the fact of being “a long time youth” at the facility. Waterville staff noted however that Melvin does not seem to “muscle other youth” but “wants to maintain the aura of being on top.” [ 133 ] Although obviously still struggling with anger, aggression, and drug dependency, Melvin has achieved some notable successes over the past two years. He has successfully completed the facility’s mandatory Substance Abuse Education program and CALM (Controlling Anger and Learning to Manage It) anger management program.

The Substance Abuse program consists of 18 one-hour sessions. Melvin is described as having a good understanding of the information provided through the program and plays a leadership role. The CALM program uses 24 three-hour sessions to teach participants how anger negatively affects their behaviour and help them learn ways to better manage it. He is described as “a mature participant, who was not disruptive…” Jim Nickerson, a program worker at Waterville, indicated to the assessors for the November 6

section 34 psychological assessment that Melvin’s success in the programming is because he has “done them a number of times.” [ 134 ] Melvin has also been working with his addictions counselor at Waterville on a bi-weekly basis over the past 6 months. Ms. Schofield described Melvin as “engaged” in the treatment and increasingly comfortable with her as they get to know each other. It is her opinion that Melvin “genuinely wants to quit.” She advised the assessors for the November 6

section 34 psychological assessment that she and Melvin have primarily been discussing the triggers that lead to his substance abusing and better ways for him to cope.

She described Melvin as “pleasant and quiet in treatment” and noted that he discusses goals for the future. [ 135 ] Jim Nickerson was also interviewed for the November 21 pre-sentence report and noted that Melvin is “adept” at learning the skills offered through the programming he has taken but expressed reservations about “how Melvin applies these skills in his daily life.” Melvin testified that contrary to this view, he has learned a lot of skills that help him with his anger issues. [ 136 ] Melvin has also been very involved with Waterville’s recreational program.

He has completed all 10 swimming levels and the Bronze Cross. He competed in the “Strong Man” event at Waterville and won. Working out makes him feel good about himself. He is described as providing leadership in organized group activities. The Facility Progress Report notes Melvin “has consistently been a positive participant in programs and in class and demonstrates himself as a positive role model for his peers.” Obviously, Melvin’s fights do not represent positive role-modeling. [ 137 ] Melvin’s greatest accomplishments have been achieved in the classroom.

He has been described by his unit supervisor as “the best academic student we’ve had.” Education is plainly very important to him. Starting out in January 2011 with an incomplete Grade 7, by the time of this sentencing hearing Melvin had 10 credits toward his high school diploma. His marks are consistently high.

He is motivated and working well with teacher support but also doing “a great deal of work independently.” The Facility Progress Report describes Melvin’s behaviour in the classroom as “polite, respectful, and committed.” [ 138 ] Melvin explained in his testimony that he has sought out extra tutoring help, specifically in Math, which he does during his free time. He uses quiet time to work in his room on courses and has aspirations to be a social worker, working with young offenders. His teacher at Waterville, Deborah Schofield, told the assessors for the November 6

section 34 psychological assessment that “with support and encouragement, Melvin appears to excel.” [ 139 ] Melvin has acknowledged that he needs to continue addressing anger and substance abuse issues. He has expressed his commitment to continuing with programming at Waterville. He states a willingness to work with IWK staff and complete any treatment

or programming asked of him. It is Ms. Jellicoe’s opinion that Melvin is sincere about this. [ 140 ] Melvin sees himself and his life differently now than he used to. Although the Crown submitted that Melvin’s evidence in this regard is nothing but manipulation, I did not get this impression. I observed that Melvin was not evasive when confronted with his history of criminal and anti-social behaviour. He took responsibility and has shown a commitment to positive change. I accept that Melvin is genuine about wanting to turn away from the past. So does Ms. Jellicoe.

This is how Melvin described his thinking now: I didn’t really care before…I want to amount to something in life…I don’t want to sit in jail for the rest of my life…I care what people think…My attitude has changed because I took somebody’s life…it had a big effect on me…I want to be successful in life. [ 141 ] Melvin gave the same indication of having a changed attitude when he was interviewed in October 2011 by Dr. Hucker: “Last time I didn’t really care, now I’m actually trying.” When Dr. Hucker asked him what had “turned him around”, Melvin said it was Brittany’s murder. [ 142 ] In the November 6

section 34 psychological assessment, Melvin was optimistic about the prospects for his successful rehabilitation. He stated his belief that “with the right help” he could be rehabilitated in the course of a youth sentence. He said he was “willing to do whatever is going to help me.” He was realistic, acknowledging that his rehabilitation will not be easy. The greatest challenge for him will be “changing my group of friends.” Remorse [ 143 ] Melvin testified that he feels remorse for Brittany’s murder.

Viewing the gruesome crime scene photographs of Brittany’s lifeless body shown to him by police investigators triggered his feelings of remorse once he realized what he had done. In the November 21, 2012 pre-sentence report, Melvin had this to say: …there isn’t a day goes by that I don’t think about what I have done. If I could go back in time this wouldn’t have happened. [ 144 ] Melvin made very similar statements when invited to speak at the end of his sentencing hearing. [ 145 ] In the November 6

section 34 psychological assessment, Melvin accepted full responsibility, saying: “can’t blame her. I was the one who did it…it shouldn’t have happened.” He described the murder as “a mistake…[the] biggest mistake.” He told Debra Jellicoe, the clinical psychologist, that he never thought himself capable of doing “something like that.” Ms. Jellicoe indicates that Melvin’s remorse “appears genuine…” She noted that he was distressed when discussing the murder. Drs. Brunet and Aydin also concluded that Melvin expressed significant and genuine remorse. The Psychiatric Opinions of Drs.

Akhtar and Hucker [ 146 ] I covered the evidence of Drs. Akhtar and Hucker in some detail in my trial decision - R. v. M.S., [2012]N.S.J. No. 464 . The relevant evidence for the purposes of this sentencing is referred to at paragraphs 161 and 162 of that decision. Dr. Hucker’s testing of Melvin using the Personality Assessment Inventory (PAI) suggested “an individual who is easily angered, has difficulty controlling the expression of his anger, and is perceived by others as having a hostile, angry temperament." ( Exhibit 131, page 12 ) Dr.

Hucker also assessed Melvin’s tendency to use physical force in expressing anger and aggression as high, his Verbal Aggression subscale produced a high-average score, and on the Anger subscale, measuring anger-related arousal and sense of control, Melvin was assessed as high. ( Exhibit 131, page 13 ) Dr. Hucker noted that Melvin is “…not intimidated by confrontation and will tend to display his anger readily when it’s experienced.” [ 147 ] Both Dr. Hucker and Dr. Akhtar diagnosed Melvin as having a Severe Conduct Disorder complicated by a serious substance abuse problem. Dr.

Akhtar noted in his evidence that substance abuse impairs judgment and control which worsens the anti-social behaviour and attitudes related to a Conduct Disorder. He observed that this was reflected in Melvin’s history. [ 148 ] Drs. Hucker and Akhtar viewed Melvin’s combination of problems as quite challenging to treat with any treatment process likely to be long and arduous. [ 149 ] The Treatment-Amenability Scale assessment, produced in the course of the November 6

section 34 psychological assessment, supports the opinions of Drs. Akhtar and Hucker. According to this assessment, Melvin’s psychopathology – a Severe Conduct Disorder – is difficult to treat. The November 6, 2012

Section 34 Psychological Assessment [ 150 ] The November 6

section 34 assessment found no indication that Melvin has any psychiatric disorders, basing this on psychological measures used and Melvin’s presentation during the assessment. Ms.

Jellicoe testified the psychological testing indicates a profile with features that include: being quickly provoked to revengeful anger, may use substance abuse as a means of coping, and may show little remorse and lie or run away to avoid problems. [ 151 ] Psychological testing (the Million Adolescent Clinical Inventory – MACI, and Minnesota Multiphasic Personality Inventory – Adolescent (MMPI-A)) indicate profiles that suggest Melvin often feels resentful and moody and has difficulty managing his emotions.

He “may often experience shallow thoughts and feelings…[and] has the tendency to overreact.” Notably: …Youth with similar profiles on the MACI may experience temper outbursts that can turn into sudden unanticipated rage. The data indicated that his outbursts may be traced back to early life experiences [and] that once triggered, overwhelm his coping strategies and result in impulsive, unpredictable, and aggressive emotions and behaviours… [ 152 ] Ms. Jellicoe testified that the MACI and the MMPI-A are both very accurate at assessing psychopathology and personality functioning in youth.

[ 153 ] Melvin was assessed using the Structured Assessment of Violence Risk in Youth (SAVRY). This measure serves “as a guide and does not enable the prediction of the probability that someone will re-offend.” Consequently, “clinical judgment is essential for determining risk level.” Further assessment is urged with results being deemed invalid after one year. [ 154 ] Under SAVRY Melvin was judged to fall within the high range for violent recidivism, if no efforts are made to manage his risk.

From most significant to least significant, the static factors of concern are: history of violence; history of non-violent offending; early initiation of violence; past supervision failures; poor school achievement; prior period of custody; and early caregiver disruption.

Dynamic factors that may be amenable to change over time if addressed through treatment or by altering Melvin’s environment are, in the social/contextual realm: peer delinquency – few positive friends; stress and poor coping; poor parental management and relationships with parents; few personal supports; and some degree of community disorganization.

The individual/clinical factors are: anti-social attitudes that condone crime and violence; anger management problems – physical aggression and poor frustration tolerance; substance abuse difficulties; risk taking/impulsivity; low empathy/remorse; little concern for others; some difficulties with restlessness and concentration; and occasional negative attitudes toward intervention/treatment. [ 155 ] The aforementioned areas are ones that need to be targeted for Melvin’s treatment.

The assessors were unable to identify any “protective” factors that mitigate risk, such as multiple sources of personal support and a strong connection to a pro-social person. The November 2012

section 34 assessment does call for the strengthening of Melvin’s pro-social attitudes and goals – his positive orientation toward his education and his desire to be successful in life. Ms. Jellicoe noted that education is a “positive” for building a pro-social life but in and of itself, it is not a good predictor of recidivism. [ 156 ] Melvin’s profile is a mixture of negative and positive factors. His early-onset conduct disorder suggests a poorer prognosis than youth who began acting out in adolescence.

He has a history of significant substance abuse, has been resistant to treatment, and has “never been able to demonstrate a period of behavioural stability” in the community. He has acknowledged it will be difficult for him to change his peer group. [ 157 ] It is Ms. Jellicoe’s opinion that Melvin has the capability to engage in treatment and work toward understanding his emotions and how he makes decisions, and develop the skills to function effectively.

What will be key she says, is whether Melvin “incorporates such skills into an anti-social framework or uses them to aid in his rehabilitation and risk management.” The MMPI-A and MACI results indicate that: Melvin is a poor candidate for traditional insight oriented therapy…Treatment approaches that may work best with Melvin include behavioural methods, cognitive behavioural therapy, and focusing on short-term goals. [ 158 ] Ms.

Jellicoe described a number of positive features that should contribute to Melvin’s rehabilitation: he accepts responsibility for most of his misconduct and criminal offences; he willingly discussed his crimes, risk factors, and the progression of his anti-social activities; he shows insight and acknowledges that he has serious issues with anger, substance abuse, and anti-social behaviour; he is willing to engage in therapy – “whatever would help me”; he is likeable with relatively strong interpersonal skills; and he is committed to his education. [ 159 ] Ms.

Jellicoe testified that it would take time to make a therapeutic breakthrough with Melvin. She calls the task ahead for Melvin in terms of managing his risk to be “quite daunting.” The “appropriate services” required to target his “criminogenic needs” are outlined in the recommendations at the end of the

section 34 assessment. According to Ms. Jellicoe, these services will have to be delivered in such a way that “maximizes [Melvin’s] responsivity.” The November 18, 2012 Psychiatric Assessment [ 160 ] A psychiatric assessment of Melvin was prepared by Dr. Aileen Brunet, the Clinical Director of the East Coast Forensic Hospital, and Dr. Cristina Aydin, a psychiatry resident. Numerous records were reviewed and Melvin was interviewed on October 23, 2012 at Waterville for 2.5 hours. The report notes that it is to be read in conjunction with the November 6

section 34 psychological assessment. Dr. Brunet testified that when she interviewed Melvin she had the benefit of this assessment. I will not repeat overlapping information about Melvin in the two assessments and will focus on the psychiatric aspect of the Brunet/Aydin assessment. [ 161 ] The psychiatric assessment found no evidence of, and Melvin denied, any clinically significant symptoms indica

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