R. v. T.D.N., 2013 NSPC 15

YOUTH JUSTICE COURT FOR THE PROVINCE OF NOVA SCOTIA Citation: R. v. T.D.N., 2013 NSPC 15 Date: 2013/02/27 Docket: 2526408, 2533762, 2538916, 2540634, 2544186, 2561507, 2563546, 2563547, 2563548 Registry: Pictou Between: Her Majesty the Queen v. T. D. N. SENTENCING DECISION Revised Decision: Minor corrections have been made on March 4, 2013. This decision replaces the previously distributed decision. Judge: The Honourable Judge Del W. Atwood Heard: February 27, 2013, in Pictou, Nova Scotia Charge:

Section 137 YCJA x 7 Section 430(4) Criminal Code of Canada Section 270(2) Criminal Code of Canada Counsel: Jody McNeill for the Nova Scotia Public Prosecution Service Douglas Lloy, Nova Scotia Legal Aid, for T.D.N. Corey Roberts for the Minister of Community Services ORALLY :

[ 1 ] This is a sentencing hearing for D.T.N. Ms. N. has pleaded guilty. There are a large number of charges, but most of them involve just one particular type of activity: skipping out of the Janus Program after curfew. [ 2 ] On 15 February 2013, things came to a head. Police were called in and there was a major blow-up. This was something that was almost bound to happen, because the approach that was taken here was to lay a new charge for every, single curfew breach.

A huge number of charges wound up being laid, almost all of them for a quick succession of curfew breaches that occurred over a fairly brief span of time. I am sure that, in Ms. N. ’ s mind, it became an overwhelming tidal wave of legal problems. This is not to second guess the charging decisions made by police.

Police are entitled to exercise their lawful discretion in the laying of charges; however, in relation to young people, law-enforcement agencies ought always to be mindful of the principles that are behind the Youth Criminal Justice Act , (the “ Act ” ) particularly the importance of preventing youth crime by looking at underlying causes, as outlined in the

preamble of the Act and in sub-para. 3(1)(a)(i). And, again, as I say, it ’ s almost as though what happened on 15 February was something that was bound to happen, because I ’ m sure that Ms. N. probably felt overwhelmed by what she was facing. [ 3 ] I remember when Ms. N. was before the court earlier in the month and pleaded guilty: charges were consolidated and many of the counts were withdrawn, which was a very commonsense approach to arriving at result meaningful to Ms. N. [ 4 ] I do not agree with the Crown that the gateway to custody is open under para. 39(1)(

b) of the Act . Ms. N. has only two prior findings of guilt before the court and only one of them resulted in the court making a probation order. Accordingly, the breaches before the court all have to do with violations of that one particular probation order. Ms. N. ’ s first sentence was a reprimand. Although that was, indeed, a sentence under para. 42(2)(

a) of the Act , it had a point-in-time duration; the sentence ended when it was imposed, so that it cannot be said that Ms. N. failed to comply with it when she committed the offences that bring her to court today. [ 5 ] None of the charges before the court was prosecuted indictably; therefore, para. 39(1 )(

c) of the Act, as amended by S.C. 2012, c. 1, s. 173, in force 25 October 201 2 by SI/2012-48, has no application here. [ 6 ] Custody is possible in relation to the charge of assaulting a police officer; however, taking into account the circumstances of what led up to the incident on 15 February, I am satisfied that custody is not required here. While the court must now take into account principles of denunciation and deterrence, given para. 38(2)(

f) of the Act , that fairly recent amendment does not suspend or alter the principles of youth criminal justice as set out in s. 3, which, indeed, now codifies the principles of diminished moral blameworthiness and culpability of young people; and it does not take priority over the other principles of sentencing in s. 38, including the principle that a sentence be the least restrictive sanction capable of accomplishing the sentencing objectives in sub-s. 38(1). [ 7 ] The pre-sentence report, amplified by the very informative and helpful material submitted by Mr.

Roberts who appears for the Minister of Community Services – the Minister being Ms. N. ’ s parent under a permanent-care order – satisfies me that a probation order is the right way to go here, particularly as the Minister is very willing to provide for the maintenance and care of this young person, as comprehended in para. 55(2)(

f) of the Act. And, in my view, a short term of probation will allow Ms. N. to prove that she means what she says about turning her life around.

Therefore, in relation to all of the charges before the court, there will be a six-month term of probation that starts immediately: to keep the peace and be of good behaviour; report to court as and when directed; report to a youth worker at 115 MacLean Street, New Glasgow, Nova Scotia, no later than 4:00 p.m. on 1 March, 2013, and after that as directed; comply with the directions of your social worker and the youth worker regarding school attendance and follow school rules; live at a place that the Minister of Community Services or her agent may direct, and follow all the rules of that place including rules regarding conduct, discipline and curfew.

I ’ m not going to impose a curfew. I ’ m going to leave that up to the Janus Program.

No alcohol, no illegal drugs; obey right away any requests for urinalysis or other controlled-substance screening or alcohol screening as made by a youth worker or peace officer; go to all assessment and counselling meetings as arranged by the Minister of Community Services, or her agent, or the youth worker, including mental health, substance abuse, anger management, educational or psycho-educational assessment and counselling and any other assessment and counselling directed by the youth worker; participate in and co-operate with all assessments, counselling or programs directed by the youth worker or the minister; follow and obey all electronic or voice-recognition monitoring as directed by your youth worker; and you shall sign immediately, as directed by your youth worker, all consents to the release of information required by your youth worker to assist in your counselling and treatment. [ 8 ] I will address the submission by the prosecutor that Ms.

N. be directed not to return to the Janus Program – a submission

opposed by the Minister. Clearly, the lawful sentencing authority in this case is this court in virtue of Sections 13 and 14 of the YCJA , ; while parental views must be considered by the Court, given the provisions of sub-s. 42(1) of the Act , those views do not overtake the judgment of the court.

However, it is important to recognize that the Minister of Community Services is no ordinary parent: the Minister has available to her an array of material, institutional, professional, curative, corrective, therapeutic and legislative resources that allow the Minister, her agents and staff to respond proactively to the changing, day-to-day needs of young persons in care. This is not a matter of two-tiered justice; it is merely a recognition of the fact that the Minister of community services is a very involved parent who has the will to act, and the means to act, in order to help young people placed in her care.

Appropriate parental involvement must be fostered, as recognized in sub-para. 3(1)(c)(iii) of the Act . [ 9 ] I do agree with Mr. Roberts that the time may be reached when, in order to apply the principles of youth justice, particularly in relation to the protection and safety of the public (now addressed expressly in para. 3(1)(

a) of the Act ), the care of the Minister might have to be substituted by the custodial care of the Provincial Director; however, Ms. N. is not at that point. [ 10 ] It is important also that I apply the principles that were laid out Sriskandarajah v. United States of America, 2012 SCC 70 at para. 11 regarding the dividing line between the executive and judicial branches of government; these principles recognize the need to respect the proper authority of each branch.

It is clear to me that the placement of a young person who is the subject of a permanent- or temporary-care order or agreement in any particular group home involves essentially the exercising of a ministerial discretion; this discretion is necessary for the effective administration of the law pertaining to the care of children in need of protection. In such circumstances, the exercising of discretion by the Minister should attract a high degree of deference, and the court is going to defer to the discretion of the Minister regarding where Ms. N. ought to be placed. [ 11 ] In an earlier unreported decision, R. v.

C. (J.J.) , case numbers 2526398, 2526401, 2500908, 2500909, 2491530, I determined that I had the authority to impose a condition, as part of a probation order, requiring the relocation of a young person from a group home selected by the Minister. That case is now the subject of a judicial-review hearing in Supreme Court, to be argued next month. The reviewing judge who hears that case will have to form an independent judgment of its merits.

What I can say is that, having had the opportunity of reviewing the submissions made by counsel for the Minister in that application, I am persuaded quite strongly that I was in error in that case. It is not for this court to decide which group home might be best for a young person in conflict with the law. [ 12 ] So, it ’ s a six-month probation order, Ms. N. I know that there are going to be a number of challenges that you ’ re going to be facing. You ’ re going to have a lot of people who are going to be backing you up.

I really do believe that this will work out for you because I know that you ’ re committed to making it work. [ 13 ] I ’ ll have you go back with the sheriffs, please, and once you ’ ve signed the probation order, you ’ ll be able to go with Ms. Lennox. Thank you. J.P.C.