HER MAJESTY THE QUEEN v. B.P. RESTRICTION ON PUBLICATION: section 110 YCJA SENTENCING DECISION BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK, 2015 NSPC 38

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Citation : R. v. B.P. , 2015 NSPC 38 Date: June 24, 2015 Docket: 2775823, 2775824 Registry: Halifax BETWEEN: HER MAJESTY THE QUEEN v. B.P. RESTRICTION ON PUBLICATION:

section 110 YCJA SENTENCING DECISION BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK HEARD: June 24, 2015 DECISION: June 24, 2015 CHARGES: sections 235 and 88(1) , Criminal Code COUNSEL: Peter Craig and Kim McOnie, for the Crown Megan Longley and Alexander Baranowski, for BP By the Court: Introduction [ 1 ] I am sentencing BP today for the second-degree murder of Daniel Pellerin on August 29, 2014. BP is being sentenced as a young person in accordance with the provisions of the Youth Criminal Justice Act (YCJA). He was 15 years old at the time of Mr.

Pellerin’s murder. [ 2 ] In sentencing BP, I have considered the relevant law, the facts, the victim impact statements, BP’s previous pre-sentence reports, his youth record, the

section 34 psychological report prepared by Dr. Simeon Hanson, the IWK/Nova Scotia Correctional Service Joint Treatment Plan, the submissions of Crown and Defence, BP’s statement to the Court, and the joint recommendation for an Intensive Rehabilitative Custody and Supervision Order, known as an IRCS’ sentence. I have also taken into account the time BP has spent on remand. [ 3 ] I accept the joint recommendation for an IRCS’ sentence, pursuant to section 42(2)(

r) of the YCJA , as the fit and proper sentence for BP. The following are my reasons. Facts [ 4 ] The facts of the murder and BP’s involvement in it were read into the record by the Crown on February 18, 2015 when BP entered his guilty plea. The facts are before me as agreed facts. [ 5 ] I do not intend to review the Agreed Statement of Facts which are filed as Exhibit 1. They indicate that Mr. Pellerin was brutally stabbed. He found himself confronted by two assailants and was defenceless. BP has admitted to producing a knife and stabbing Mr.

Pellerin “more than once.” The Agreed Facts also state that BP did not plan in advance to run into or to either assault or stab Mr. Pellerin, or to kill him. He has acknowledged however that he intended to cause Mr. Pellerin bodily harm by stabbing him and being reckless

about his death ensuing as a result. This amounts to second degree murder. The Agreed Facts indicate that in retaliation for Mr. Pellerinslapping one of BP’s friends,

an act that was itself a response to an earlier event, BP “wanted to send a message to Mr. Pellerin, andseriously harm him.” As a result of that distorted, violent reaction, a young man is dead and a teenager is going to spend a long timeincarcerated. The Victim Impact Statements [6] As I noted in an earlier decision (2015 NSPC 34), Mr. Pellerin was a deeply loved member of an extended family. Victim impactstatements were prepared by his mother and father, his brother, his sister, his nephew, his former spouse and mother of his daughters,and two aunts. The family has been devastated by Mr. Pellerin’s murder.

Their descriptions of their love for him, the loss they arestruggling to endure, their enormous grief, and their pain have been gut-wrenching to read and listen to. I thank them for their fortitude incoming forward and participating in this sentencing by sharing their statements.

Applicable Sentencing Principles [7] The maximum youth sentence for second degree murder is seven years. (section 42(2)(q)(ii),YCJA) A youth sentence for seconddegree murder is comprised of a lengthy custodial period usually followed by a period of time under supervision in the community. [8] Parliament has mandated that the youth criminal justice system “must be separate from that of adults” (section 3(1)(b), YCJA)which reflects that young persons, even those who commit very violent offences such as murder, are not adults and cannot be treated asthough they are unless certain presumptions are displaced.

The Supreme Court of Canada has held that young persons are entitled to apresumption of diminished moral blameworthiness that reflects - as a consequence of their age - their heightened vulnerability,immaturity, and reduced capacity for moral judgment. (R. v. D.B., 2008 SCC 25 , [2008] S.C.J.

No. 25, paragraph 41) Thatpresumption of diminished moral blameworthiness applies in BP’s case. [9] The Declaration of Principle under the YCJA indicates that the “…youth criminal justice system is intended to protect the public byholding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree ofresponsibility of the young person” (section 3(1)(a)(

i) and through “promoting the rehabilitation and reintegration of young persons whohave committed offences.”(section 3(1)(a)(ii)) [10] Accountability for young persons under the YCJA must be "fair and proportionate” and “consistent with the greater dependency ofyoung persons and their reduced level of maturity." (section 3(1)(b)(ii), YCJA) Rehabilitation and reintegration must be emphasized andthere must be “timely intervention that reinforces the link” between the crime and its consequences. (sections 3(1)(b)(

i) and (iv)) [11]

Section 38 of the YCJA which contains the purpose and sentencing principles of the legislation also references the critical factor ofaccountability: 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. [12] Accountability is to be regarded as having equivalency to "the adult sentencing principle of retribution" discussed by the SupremeCourt of Canada: 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. (R. v. M.(C.A.), (SCC), [1996] S.C.J. No. 28, paragraph 80; emphasis in the original) [13] The YCJA in section 3(1)(

c) requires that the sentence imposed on BP: • Reinforce respect for societal values; • Encourage the repair of harm done to victims and the community; and • Be meaningful for him given his needs and level of development and, involve parents and extended family, where appropriate, andthe community and social or other agencies in his rehabilitation and reintegration.

An Intensive Rehabilitative Custody and Supervision Sentence [14] For an IRCS sentence to be imposed, the young person must be found to be “suffering from a mental illness or disorder, apsychological disorder or an emotional disturbance” and there must be “reasonable grounds to believe” that the IRCS plan “might reducethe risk of the young person repeating the offence or committing a serious violent offence.” (section 42(7)(c), YCJA) The ultimateobjective of an IRCS sentence is to promote the long-term protection of the public by addressing the circumstances underlying theoffence. [15] Dr.

Simeon Hanson, a registered clinical psychologist with the IWK Youth Justice Services prepared the

section 34 psychologicalassessment. (Exhibit 3) It is a 51 page, single-spaced document which contains descriptions of interviews conducted, including onnumerous occasions with BP; discussions and interviews with collateral contacts; documents reviewed; psychological assessment andrisk assessment tests administered to BP; consultations with the forensic team comprised of Steven Gouthro, forensic psychologist andDr. Pamela Yates, the Clinical Program Lead with the IWK Youth Forensic Services; and a case conference with the multi-disciplinaryteam.

[ 16 ] I will not be summarizing Dr. Hanson’s extensive and comprehensive assessment. I have reviewed it carefully in preparation for this sentencing. I will note some of its salient features. [ 17 ] An IRCS sentence can only be ordered if the statutory requirements in section 42(7) of the YCJA are satisfied. Crown and Defence agree, as do I, that they have all been satisfied in this case. I will mention two of them now. BP has been found guilty of a serious violent offence. He has been diagnosed by Dr. Hanson with a Conduct Disorder, childhood onset, severe in nature.

I will also note that he has been diagnosed with Post-Traumatic Stress Disorder, a disorder occasioned by the domestic violence he witnessed and experienced as a child. As Ms. McOnie said in her submissions, BP grew up in a chaotic, violent environment exposed to substance and emotional abuse, an environment that no child should ever experience. For various reasons, the Department of Community Services was unable or failed to intervene. [ 18 ] Dr.

Hanson refers to BP having “a chronic history of early childhood trauma.” He includes in the assessment the description of BP’s childhood supplied by his mother: “There was always violence and lots of it.” Dr. Hanson indicates that BP “may have been vulnerable to developing issues and problems as a result of members of his family being involved in crime, substance misuse and gang membership” within the context of the impoverished community where he grew up. It is Dr.

Hanson’s opinion that the domestic abuse BP witnessed and experienced “would have had significant negative consequences” on his “self-confidence and view of himself in the world.” Dr.

Hanson also observes: [BP] may have developed dysfunctional beliefs and attitudes toward affiliations to family that generalised in later life to gangs. [BP’s] early life of violence would have made him hyper-vigilant to attack and sensitive to threat at any time, issues that he continues to present with to this day. [ 19 ] BP also experienced difficulties with learning even prior to Grade Primary, struggled in school, had high levels of non-attendance, and behavioural problems.

He was found to have a clinical presentation consistent with Borderline Intellectual Functioning. [ 20 ] BP’s criminal history began early. As his record indicates, he was first convicted at age 12. His father insisted that at age 12 he not be reliant on his mother and should be making his own money. Theft evolved into drug-dealing, an activity that was modeled by other family members. As Dr.

Hanson notes: [BP] continued to refine his street reputation by being involved in drug deals and fighting those who challenged him.” He armed himself and “demonstrated criminal leadership skills and abilities…” He used the proceeds from the drug trade to help his family purchase food and clothing. [ 21 ] As Ms. Longley submitted, BP was cast into and assumed roles in relation to his family that no young person should be burdened with. He became deeply invested in a role as a protector of his mother and siblings, acquiring a very strong sense of loyalty and feelings of responsibility.

He has perceived himself “as a “father figure” and “provider” for his family and associates.” Dr. Hanson described BP as: …invested in crime and understands life on the street as a “war to feed his family. As a result he shows little concern for others outside his immediate gang and is defiant of authority… [ 22 ] Unsurprisingly, given the engrained nature of his criminality, BP imported features of his street life into the Nova Scotia Youth Facility. Earlier this year he received disciplinary sanctions for smuggling marijuana into the Facility, drugs that were supplied by his mother.

And on February 28, 2015 he was sanctioned for creating and concealing a shank, a homemade knife crafted from a sharpened toothbrush. [ 23 ] Dr. Hanson has assessed BP as “at high risk of reoffending.” He describes him as “highly anti-social, highly pro-criminal” and as having been “raised in an environment that normalised violence as a first means of dealing with difficult situations.” Dr. Hanson characterizes BP’s role in Mr.

Pellerin’s murder as “a culmination of years of increasing violence and criminality as opposed to an unfortunate idiosyncratic event.” His Post-Traumatic Stress Disorder is thought to be responsible for “a significant portion of his hyper- vigilance to attack, reckless and self-destructive behaviour and explosive temper…” BP is described in the

section 34 assessment as being highly vulnerable to stress with low resilience and coping skills. [ 24 ] The “culmination” effect referred to by Dr. Hanson is evident in BP’s record of convictions. ( Exhibit 2 ) BP’s youth record started in July 2011 when he was 12. It includes five assaults, including two convictions for assault with a weapon in April 2013 and July 2014, threats, failure to comply with his sentence orders, break and enter, and mischief. By August 29, 2014 he had been sentenced on 7 previous occasions.

A further sentencing occurred on October 3, 2014 for firearms-related offences of September 4, 2014, the date of his arrest for Mr. Pellerin’s murder. [ 25 ] There are some positive indicators in BP’s previous history of engagement with services. For example, in the

section 34 assessment it is noted that in the past he has been open and honest about his feelings and problems and has often expressed a desire to get help. Previous counsellors have all referred to BP in positive terms and indicated he was able to develop good therapeutic relationships with them. One former counsellor spoke about BP thriving from being able to talk to someone about his feelings, described him as having a “kind heart” and viewed his anger as emerging from his sensitivity to unfairness.

Another former counsellor observed that BP has struggled with the realization that he was using violence to deal with conflict and difficult situations. [ 26 ] Dr. Hanson reports that presently BP has developed positive relationships with his key staff members at the Nova Scotia Youth Facility and shown a willingness to take direction from them. He has expressed “a desire to remove himself from a life of crime, gain some educational skills and make a living honestly.” [ 27 ] Ms. Longley has indicated that BP is very close to his young brother who has autism and wants to set a good example for him.

As BP said in his statement to the Court: “…I plan on doing something different for myself so that when I’m out I can be the one to show my brother the right way in life, so he doesn’t make the same mistakes…” [ 28 ] In Dr. Hanson’s opinion, while BP’s complex issues and high risk potential, “chronic and longstanding emotional and behavioural issues” present formidable challenges to successfully rehabilitating him, given his amenability to treatment, “well-tested forensic research

does indicate that offenders who pose a higher risk of re-offense should receive the most intensive services in order to maximize their chance of rehabilitation and reduce risk.” Dr. Hanson’s opinion continues as follows: …intensive therapeutic treatment presents the only viable way that [BP’s] risk to society may be potentially reduced within the context of a youth sentence.

Without an intensive therapeutic treatment of the longest possible time period it is unlikely that his risk of violence and reoffending would be meaningfully reduced and he would continue to present as a clear and present danger to himself and society at large… [ 29 ] BP is described by Dr. Hanson as “a young man with a complex trauma…at high risk for violence and criminality.” He goes on to say that supporting BP will require “an intensive program of treatments over a prolonged period of time.” Dr.

Hanson states that BP’s “entrenched pro-criminal attitudes and tendencies” and values will require “considerable, consistent and continued” remedial work. BP’s proven ability to connect with therapeutic supports will be essential to that work. The IRCS Joint Treatment Plan [ 30 ] Dr. Hanson’s recommendation that approval for an IRCS sentence be sought led to the preparation of the IWK/Corrections Joint Treatment Plan. ( Exhibit 5 ) [ 31 ] I have not to this point mentioned the remaining statutory requirements for an IRCS sentence.

They are that a plan of treatment and intensive supervision be developed for the young person, that there are reasonable grounds to believe the plan might reduce the risk, which in this case, has been identified by Dr. Hanson, and that the provincial director has determined that an IRCS program is available and the young person’s participation in it is appropriate. ( section 42(7)(

c) and (d), YCJA ) [ 32 ] In a letter dated June 18, 2015, the Provincial Director advised as follows: I have reviewed the proposed IRCS plan, in accordance with section 42(7) YCJA. I find that it is comprehensive and responsive to the specific needs of this young person and that his participation in this program is appropriate. [ 33 ] The Joint Treatment Plan for BP is structured over four phases – Stabilization, Intensive Treatment, Transition, and Reintegration.

Its objectives, listed in order of priority, are to: reduce the risk to reoffend; reduce the risk of violence; reduce pro-criminal attitudes/values and beliefs; reduce the risk for substance abuse; reduce the psychological effects of trauma; establish pro-social goals; and establish a successful transition to community life.

Some of the components of the Plan include: intensive assessments, development by BP of a risk management plan while in custody; assisting BP understand pro-social life goals; targeted and intensive therapy; reducing the psychological effects of trauma associated with developmental modelling and experience and its link to criminality; acquisition of a high school diploma; eventual transition to supervision in the community that will include electronic monitoring and police checks; and a reintegration process to be effected during the community portion of BP’s sentence with the implementation of appropriate supervisory conditions.

The Joint Recommendation [ 34 ] The Crown and Defence have made a joint recommendation for BP to receive the sentence that has been proposed by the experts at the IWK, an IRCS sentence. An IRCS sentence for second-degree murder is available under section 42(2)(

r) of the YCJA . The sentence must not exceed seven (7) years from the date of committal, structured under the Act as follows: a period not to exceed four years in custody, and, subject to section 104(1) which can mean a continuation in custody, a placement under conditional supervision in the community in accordance with conditions provided for under

section 105 of the YCJA . [ 35 ] I am satisfied that the joint recommendation for an IRCS sentence is the only appropriate sentence for BP under the YCJA . It is a sentence that represents a meaningful consequence that will hold him accountable and serve to promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. No other youth sentence could possibly offer any hope of effectively confronting BP’s complex issues and addressing and reducing his risk. As Dr.

Hanson has said: …Further, this assessment highlights that in order to work toward these ends given the context of a youth sentence [BP] requires immediate, intensive and long-term treatment beyond that which could be reasonably expected of a facility to offer and implement within normal budgetary and resource constraints, and is beyond that which is currently offered by the [Nova Scotia Youth Facility.] [ 36 ] In considering the joint recommendation for an IRCS sentence, I have taken into account the factors that must be considered in determining a youth sentence.

These factors are found in section 38(3) of the YCJA . They are: (

a) the degree of BP’s participation in Mr. Pellerin’s murder; (

b) the harm done to the victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention as a result of the offence; (

e) the previous findings of guilt; and (

f) any aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in

section 38. [ 37 ] As evidenced by the Agreed Facts, BP has a high degree of moral blameworthiness in relation to Mr. Pellerin’s death. The harm has been catastrophic. BP is before me with a record that includes violence. There is no dispute about the significance of these factors in this sentencing. [ 38 ] However I am not convinced, despite the Crown’s submissions, that BP feels no remorse. The

section 34 assessment and BP’s statement this morning indicate that he has begun to appreciate the damage he has done and the loss and grief being experienced by the Pellerin family. He commented on a mother losing a son and Mr. Pellerin’s two children losing their father. Dr. Hanson reports in the

section 34 assessment that BP had kept a folder containing the victim impact statements that he had “clearly read and recalled” during their interview. Dr. Hanson notes that BP: “…described at times covering the book over with material in order to take it out of his vision at times.” [ 39 ] It is also relevant that BP pleaded guilty to second-degree murder and has through that plea and the Agreed Statement of Facts,

taken responsibility for the unjustified, brutal killing of Mr. Pellerin. [ 40 ] Given the facts of this case, BP’s role in the offence, and the significant underlying causes for the violence that led to Mr. Pellerin’s death, BP will receive the maximum available youth sentence for second-degree murder, a sentence of 7 years. The maximum sentence is warranted in BP’s case in order for it to be a meaningful consequence that delivers on the requirement of accountability. BP has been assessed as “a complex young man at high risk of violence and recidivism that will require immediate intensive intervention…” Dr.

Hanson has stated in his assessment that: [BP] is largely unaware of behavioural norms and struggles to identify strategies for problem solving situations without resorting to anger, aggression and bellicose behaviour. As a result his conflict resolution score is poor and his ability to self-reflect is limited. [ 41 ] Based on BP’s

section 34 psychological assessment, I am satisfied that he will require, as Dr. Hanson has said, “a substantial period of time in custody and…will require intensive work and treatment” to address his level of dangerousness and the complex web of issues that led him to commit murder. What is necessary here is a sentence that, to repeat Dr. Hanson’s words, provides “…intensive therapeutic treatment of the longest possible time period…” Time Spent on Remand [ 42 ] Section 38(3)(

c) of the YCJA states that, “In determining a youth sentence, the youth justice court shall take into account…any time spent in detention by the young person as a result of the offence.” [ 43 ] I have been told that BP’s remand time amounts to 26 actual days or the equivalent of 39 days at the 1.5 to 1 ratio contemplated by the YCJA . The Crown does not oppose BP being credited 39 days against the custodial portion – the 4 years – of his IRCS sentence. I am advised that the IWK treatment team has confirmed there are no clinical implications to crediting the remand time in this manner.

The remand credit will be applied accordingly to reduce the 4 year custodial portion of BP’s sentence by 39 days. Concluding Remarks [ 44 ] BP, I cannot truly appreciate what your life has been like any more than I can appreciate what the Pellerin family is going through. But judges are human beings, and as well as applying the law, we deeply hope that something positive will emerge from horrific, tragic events. Vengeance and hatred, wherever it is directed or by whom, will never make anything better. It will only mean more violence, more heartache, more tragedy.

You and those who love and support you need to focus on how the sentence I am imposing can make a real difference for you and your future. Much will depend on you, BP. This sentence will not be a walk in the park. It will be challenging, demanding, and difficult. It has the potential of liberating you from the damage done by your experiences and the enormous burdens you are carrying of trauma and anger. But only you can make the changes that have to be made.

You must be prepared to use the skills you have been shown to have – the ability to connect to people trying to help you and the willingness to be open and honest – and you must be resolute, determined to grab this opportunity and re-make yourself as a man who does not resort to criminality and violence.