Her Majesty the Queen - v. -, 2015 SKPC 147

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2015 SKPC 147 Date: October 19, 2015 Information: 33387056 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - T.D.M. Appearing: J. Knox For the Crown T.

Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act ( YCJA ) contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________

SENTENCING REASONS S.S. Anand , PCJ _____________________________________________________________________________ INTRODUCTION [ 1 ] The young person before the court, T.D.M., entered guilty pleas to one count of carrying a concealed device, specifically a sawed-off rifle, contrary to s.90 of the Criminal Code , and one count of possessing a prohibited firearm, together with readily accessible ammunition capable of being discharged in the firearm, contrary to s.95 of the Criminal Code (Information #33387056).

Both of these offences occurred at the same time, and the offences can fairly be characterized as arising from the same transaction. [ 2 ] A sentencing hearing commenced on June 23, 2015. At the conclusion of the hearing, the court indicated its desire to receive written argument from counsel pertaining to sentence. Written submissions were received from counsel by September 22, 2015, and on October 5, 2015 the court rendered brief oral reasons for decision. At that time, the court also indicated that more detailed written reasons would follow. [ 3 ] The facts pertaining to this matter are not in dispute.

Shortly after 1:00 a.m. on January 8, 2015, T.D.M. was riding a bicycle on the sidewalk at 23 rd Avenue West and Avenge G North in Saskatoon. The police spoke with this sixteen-year-old young person, and he gave his name and was generally cooperative. T.D.M. was wearing a backpack at the time of this encounter, and the police asked him if he had any weapons or guns in the backpack. When T.D.M. indicated that he had a .22 calibre rifle in his backpack, the police placed him under arrest and conducted a search of his person and his backpack. In the backpack police found a sawed-off .22 calibre rifle.

The weapon was not loaded but there were three .22 calibre rounds that were located in T.D.M.’s clothing and backpack. The police test-fired the firearm with some of the ammunition taken from the young person, and the police reached the conclusion that they were dealing with a fully operational firearm. At the time he committed these offences, T.D.M. was homeless and he had agreed to transport the firearm and ammunition for an adult because the young person needed the money.

T.D.M. refuses to name the adult in question, but it can be inferred that the reason that T.D.M. was chosen to transport the prohibited firearm and ammunition was because, as a youth, his capture by the police would attract less serious consequences than if an adult were apprehended. [ 4 ] During the sentencing hearing, a number of pertinent facts were revealed. At the time he committed these offences, T.D.M. had not previously been subject to a youth justice court sentence.

In addition, T.D.M. had served 19 days in pre-sentence custody on these charges before he was released on an undertaking under s.31 of the YCJA on January 26, 2015, which means that he had already served the custodial equivalent of a 29 day secure custody and supervision order. Moreover, T.D.M.’s Pre-Sentence Reports suggest that many of the circumstances that led to his offending behavior arose from the young person being in Saskatoon without the requisite supports or supervision. After the commission of these offences, T.D.M. relocated to the Big River First Nation to reside with his father, H.B..

While living in the Big River First Nation, T.D.M. joined a hockey team coached by his father and T.D.M. began doing casual work cutting trees for another member of the community. Consequently, T.D.M. has been engaged in prosocial activities while residing with his father in the Big River First Nation and there is reason to hope that the young person will not continue to arm himself with prohibited weapons and go out into the community. Nevertheless, the Pre-Sentence Reports do outline continuing concerns pertaining to T.D.M..

For example, it is noted that T.D.M. was using alcohol at the time of his arrest and that he was also using crystal methamphetamine when he committed the crimes before the court. The Pre-Sentence Reports also mention that school attendance and anger management remain problematic areas for the young person. SUBMISSIONS ON SENTENCE [ 5 ] Crown counsel submitted that, although the circumstances of the offences open the gateway to custody under s.39(1)(

d) of the YCJA , an appropriate disposition of these matters, especially when one considers the post-offence progress made by the young person, would consist of a deferred custody and supervision order. [ 6 ] It should be noted that by virtue of s.42(5)(

b) of the YCJA , such a sentence can only be imposed if a custodial sentence is otherwise justified by virtue of ss.38 and 39 of the Act, including the restrictions on the use of custody in s.39(1) of the YCJA . Section 39(1) of the Act provides as follows: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless

(

a) the young person has committed a violent offence; (

b) the young person has failed to comply with non-custodial sentences; (

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act,

chapter Y-1 of the Revised Statutes of Canada, 1985; or (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [7] Defence counsel took the position that the gateway to custody was not open under s.39(1)(

d) and that, even if the gatewaywas open under this provision, the court should exercise its discretion and place the young person on probation as opposed to orderingdeferred custody and supervision. [8] There was much common ground in the submissions of Crown and defence counsel. Both counsel agreed that the leading case interpreting s.39(1)(

d) of the YCJA is R. v. W. (R.E.) (2006), (ON CA), 36 C.R. (6th) 134 (Ont. C.A.) [hereinafterR.E.W.]. Moreover, both counsel took the approach of citing cases of possession of firearm offences committed by young persons inwhich youth justice courts either made rulings or obiter comments concerning the applicability of s.39(1)(

d) of the YCJA. Counselfocused on the circumstances of the offences in these cases and attempted to compare these circumstances to the circumstances of theoffences to which T.D.M. pled guilty. The written argument submitted to this court also mentions other types of cases in which courtswere asked to make a ruling as to whether the requirements of s.39(1)(

d) were met. In all of the cases cited by counsel, where the courtruled that the gateway to custody was open under s.39(1)(d), the court invariably imposed some form of custodial order, whether that bea deferred custody and supervision order or a secure or open custody and supervision order. DECISION [9] These results are not mere happen stance. Once the gateway to custody is open under s.39(1)(d), the court must imposesome form of custodial order. [10] A close reading of R.E.W. reveals why this is the case.

In para. 44 of R.E.W., the Ontario Court of Appeal states, “Exceptionalcases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.” The onlyway that a court could come to such a conclusion under

an Act where no offence, not even one as serious as murder, results in apresumptive type of sentence or a mandatory term of imprisonment, is by assessing all of the circumstances of the offence and theoffender. Consequently, a determination that a case is exceptional under s.39(1)(

d) is an extremely idiosyncratic finding and one that isunlikely to have much precedential significance (particularly if one refers only to the circumstances of the offence). However, it shouldbe noted that the Ontario Court of Appeal in R.E.W. also states at para. 44 that, “Section 39(1)(

d) can be invoked only because of thecircumstances of the offence, not the circumstances of the offender, or the offender’s history.” This statement by the Court of Appealmust mean that if the Crown is relying on s.39(1)(

d) to open the gateway to custody, the exceptional nature of the case must result fromthe aggravating features of the offence and not, for example, from the danger posed by the young person as revealed by his or hercriminal record or a psychological report attesting to his or her propensity for future violence. Standing alone, the aggravating features ofthe offence must be such that, absent the impact of other factors, a custodial disposition would be warranted. But before the court canmake a finding that a case is exceptional within the meaning of s.39(1)(

d) of the YCJA, all of the circumstances of the case must beconsidered. These circumstances would include the circumstances of the offender, such as his or her amenability to rehabilitation, andany post-offence rehabilitative steps taken by the young person, as well as facts such as any period of pre-sentence custody served. Thus,when all of these factors are considered by the court and it makes a determination that the case is exceptional under s.39(1)(d), the courtmust impose a custodial sentence of some nature. [11] The structure of s.39 of the YCJA bolsters this

interpretation of s.39(1)(d). Section 39(2) states as follows:

(2) If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the

circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38. As noted by Judge Whelan at para. 39 of R. v. G.(H.W.) 2003 SKPC 122 , “Section 39(1)(

d) has been set apart from 39(1)(

a) to (c) . . . in . . . the consideration of alternatives to a custodial sentence.” Given the express omission of s.39(1)(

d) from s.39(2), it must be inferred that Parliament intended that once the gateway to custody was open under s.39(1)(d), a custodial sentence of some form was mandated. [ 12 ] Once the gateway to custody is open under s.39(1)(d), reference to the jurisprudence under the YCJA proves helpful in determining the type of custodial sentence that should be imposed. In para. 31 of R.E.W. , the Ontario Court of Appeal states as follows: The analysis of s.39(1)(

d) must be set against the background of s.38, which stresses the importance of interfering with a young person’s liberty as little as possible . . . Section 39(2)(e) . . . directs that youth court justices should apply the “least restrictive sentence” and “the [sentence] most likely to rehabilitate the young person.” In R. v. C.(T.) , 2012 ONCJ 849 at para. 29 , Justice Wong applied this approach and held that the gateway to custody was open under s.39(1)(

d) in the case of a fourteen-year-old youth with no prior record in possession of an unloaded handgun but the court went on to impose a deferred custody sentence as it was the least restrictive sentence likely to rehabilitate the young person and hold him accountable. [ 13 ] Turning to the matter before the court, an assessment must be conducted of all the aggravating and mitigating factors, those that pertain to the offence and the offender, and the court must be mindful of all of the unique circumstances presented by the case.

The court has conducted this assessment in coming to a decision on sentence. [ 14 ] However, one factor in particular that was cited by defence counsel must be specifically addressed. Defence counsel submits that the young person’s impecunious state must be considered a mitigating factor on sentencing.

There are many things this young person could have done in order to obtain subsistence and the court would have considered the motive to sustain oneself as a mitigating factor if he had committed an offence that was directed solely towards providing himself with the necessities of life such as the crime of shoplifting food. However, when T.D.M. decided to transport a prohibited weapon and ammunition for money in the heart of the largest city in Saskatchewan, he was engaging in an activity that could significantly endanger the public. Defence counsel asks the court to note Justice Gage’s decision in R. v.

G.(N.) , 2007 ONCJ 129 in which the court held that the gateway to custody under s.39(1)(

d) was not open in a case involving a young person found in possession of a sawed off shotgun and ammunition. Yet, in that same ruling, Justice Gage also indicated at para. 46 that if the offence had been motivated by a commercial or monetary purpose, his decision might well have been different. Clearly Justice Gage considers such a motive to be a key aggravating factor as does this court. [ 15 ] Nevertheless, the court is also in agreement with Justice Gage, as the foregoing reasons hopefully demonstrate, that the determination of an “exceptional case” within the meaning of s.39(1)(

d) is by its nature fact-specific. Because these facts must include an assessment of the entire constellation of circumstances before the court, including those pertaining to the accused, other determinations of exceptional cases will be of limited value. [ 16 ] Rosenberg J.A., writing for the Ontario Court of Appeal in R.E.W. , held at para. 44 that when interpreting s.39(1)(

d) of the YCJA , “One example, of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.” Taking all of the relevant factors into account, it is clear that T.D.M.’s case is an exceptional one where the circumstances are so shocking as to threaten widely-shared community values. Consequently, the gateway to custody under s.39(1)(

d) is open and the court must impose a custodial sentence. [ 17 ] After duly considering all of the relevant facts in this case, including the lengthy period that the young person was in the community on conditions that limited his liberty (from January 26, 2015 until the rendering of the oral judgment in this matter on October 5, 2015) and the time he spent in pre-sentence custody as well as the factors outlined by Crown and defence counsel, an appropriate sentence for T.D.M. in relation to the crimes to which he has pled guilty would consist of a deferred custody and supervision order of relatively short duration followed by a more lengthy probation order.

ORDER [ 18 ] The court imposes a global sentence on T.D.M. consisting of a 1 month deferred custody and supervision order followed by an 11 month probation order. The mandatory terms of the deferred custody and supervision order under s.105(2) of the YCJA will apply to the period of deferred custody and supervision and the mandatory terms of the probation order under s.55(1) of the YCJA will apply to the period of probation.

In addition, the following optional conditions are ordered in relation to both the deferred custody and supervision order and the probation order: (1) the young person shall reside with his father, H.B., or at a residence approved by his youth worker; (2) the young person shall abide by a curfew of 11:00 p.m. to 7:00 a.m. daily and present himself to any peace officer, youth worker or designate checking on the curfew; (3) the young person shall refrain from the use, possession or consumption of any beverage alcohol and/or any drugs except as prescribed for him by a medical doctor and where so prescribed, take only as prescribed; (4) the young person is prohibited from entering any premises where the primary function is the sale or consumption of alcohol; (5) the young person shall undergo an assessment for alcohol and drug abuse and, if the assessment indicates that the young person should undergo counseling for such addictions, he will take such counseling, including inpatient treatment, as directed by his youth worker; and (6) the young person shall take such personal counseling, including anger management counseling, as arranged and directed by his youth worker.

In addition, as a condition of his probation order, T.D.M. is ordered to report to his probation officer within twenty-four hours of the termination of his deferred custody and supervision order and to report thereafter as directed to do so by his probation officer. Under s.51 of the YCJA , the court also makes an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of two years.

This court is compelled to issue this prohibition order by virtue of T.D.M.’s finding of guilt under s.95 of the Criminal Code . ____________________ S.S. Anand, PCJ