R. v. V., 2016 NSPC 26

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. V. , 2016 NSPC 26 Date: 2016-05-03 Docket: 2921892, 2921894 Registry: Pictou Between: Her Majesty the Queen v. M.V. SENTENCING DECISION Restriction on Publication: s. 110 (1) of the Youth Criminal Justice Act Judge: The Honourable Judge Del W. Atwood Heard: 27 April & 3 May, 2016 in Pictou, Nova Scotia Charge: Para. 267 (

b) of the Criminal Code of Canada and s. 137 of the Youth Criminal Justice Act Counsel: T. William Gorman for the Nova Scotia Public Prosecution Service Stephen Robertson for M.V.

PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110 (1) and s. 111(1) OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2002, c. 1 APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. 110. (1) – Identity of offender not to be published – Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111. (1) – Identity of victim or witness not to be published – Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

By the Court: [ 1 ] M.V. pleaded guilty to one count of assault causing bodily harm which proceeded summarily; he pleaded guilty also to a companion

summary charge of breaching a keep-the-peace condition of a probation order made under the Youth Criminal Justice Act . [ 2 ] The facts which the court heard on 27 April 2016 in support of a finding of guilt under s. 36 of the YCJA were that M. attacked the victim after school. M.’s motive for the attack was that he had heard that his sister and the victim had ended their boyfriend-

girlfriend relationship, and that the victim had sent insulting text messages to the sister after the breakup. M. approached the victim and stated: “Don’t call my sister a bitch.” He then struck the victim a blow to the face; the force was sufficient to cause the victim a traumatic loss of two of his teeth and leave him with a lacerated lip. [ 3 ] As the pre-sentence report did not include the results of an interview with the victim, as would be required ordinarily under para. 40(2) (

b) of the YCJA , I inquired of the prosecution whether the victim had been advised of the right to submit an impact statement, as provided for in s. 50 of the YCJA , which incorporates by reference the provisions of s. 722 of the Criminal Code . The prosecution informed me that he had received correspondence from the local victim-services office to the effect that the victim did not wish to submit one. [ 4 ] Although any crime of violence is serious, there are degrees of severity. M. struck the victim one blow to the face.

There was no salvo of fists, or kicking someone who has been incapacitated by an opening assault. The victim suffered a significant physical injury; however, there is no evidence before me of any long-term sequela, either physical or psychological. There is no evidence that M. tracked down the victim. Rather, this was a crime of opportunity—an opportunity to avenge a perceived insult, which is always a mistake, but not a calculated or planned ambush.

Accordingly, I find M.’s degree of responsibility as being at the lower end of severity. [ 5 ] Counsel were prepared to have the sentencing hearing concluded straightaway on 27 April; however, I adjourned the hearing to today’s date as there was no representative of the Minister of Community Services before the court. The pre-sentence report informs me that M. had come under the care of the minister pursuant to the terms of a temporary-care order made under the provisions of the Children and Family Services Act when M. was fourteen years of age.

I was told today by an official with the Department of Community Services that M. remains in the care of the minister, although he is now sixteen years of age. Therefore, the minister is M.’s parent as defined in

section 2 of the YCJA : [P]arent includes, in respect of a young person, any person who is under a legal duty to provide for the young person or any person who has, in law or in fact, the custody or control of the young person, but does not include a person who has the custody or control of the young person by reason only of proceedings under this Act . [ 6 ] In R. v.

A.B ., I recited the entirely correct statement of the law, made by counsel for the minister in an unrelated proceeding, regarding the obligation of the court to seek and consider parental representations in a youth-justice sentencing hearing, particularly when the parent of the young person being sentenced is the Minister of Community Services. Counsel for the minister stated in his brief as follows: 169. Before passing sentence, the Court must consider any representations from the young person's parent. ( Youth Criminal Justice Act , S.C. 2002, c. 1, s. 42(1)) 170.

The parent of a young person has a right to be present at all hearings and may not be excluded from any hearing except on very limited and specified grounds. ( Youth Criminal Justice Act , S.C. 2002, c. 1, s. 132(2)(b)) . . . . 195. The Minister has the right to receive every summons, appearance notice, promise to appear, undertaking or recognizance in relation to [identifying information redacted]. . . . 196. Failure to give the Minister notice of steps in the proceeding may render the proceeding invalid , unless specific exceptions apply. . . . 197.

Before passing any sentence on [identifying information redacted], the Court must consider any representations of the Minister. . . . 198. The Minister has the right to be present at all hearings concerning [identifying information redacted] any may not be excluded from any hearing except on very limited and specified grounds. . . . [1] [ 7 ] Unfortunately, as in A.B ., the absence of a representative of the minister led to an improvident delay of M.’s sentencing hearing.

Delay in the adjudication of youth-justice cases can have a detrimental impact on young persons, as highlighted in the Nunn Report . [2] The absence of a ministerial representative was additionally disconcerting as it was based on submissions of counsel for the minister made to the court on 6 January 2016 that the court ordered the preparation of a psychological and psychiatric report for M. under the provisions of s. 34 of the YCJA . It is that report which provides the weightiest evidence in this hearing.

One might have assumed properly that, as it was a ministerial representative who had sought the forensic assessment in the first place, the minister would have wanted a representative of her department in court on the day set originally for sentencing in order to speak to it. As I felt that input from the minister was crucial to this hearing, I issued an order for parental attendance under the provisions of s. 27 of the YCJA .

I heard today from a representative of the minister, and the submissions which he made to me were informative. [ 8 ] The prosecution seeks a custody-and-supervision order under para. 42(2) (

n) of the YCJA for a term of 90-120 days, followed by a lengthy term of probation. The prosecution referred the court extensively to the psychological report prepared by Dr. Julie Harper and the psychiatric report prepared by Dr. José Mejia. [ 9 ] The prosecution cited page 3 of Dr. Mejia’s report in which M. is quoted as self-reporting that, once he gets into fights, he has difficulty stopping. But there is more to it than that. Dr. Mejia also mentions M. as affirming that he does not find any pleasure in hurting others and has never used weapons to attack people. [ 10 ] The prosecution referred to Dr.

Mejia’s description of M.’s polysubstance use. Dr. Harper’s psychological report covers that

issue in greater depth, and establishes that M.’s drug use has dropped off recently as a result of his vastly improved living arrangements. [ 11 ] The prosecution made extensive reference to Dr. Harper’s assessment. The prosecution sought to have the court assign significant weight to M.’s endorsement of violence against the victim at the beginning of page 3 of the report. However, once again, there was a nuance. Dr. Harper noted M.’s willingness to come to the defence of family member, but quoted M.’s avowal that he is not actively looking for a fight. [ 12 ] The prosecution referred to Dr. Harper’s conclusion in

Part IV of the psychological report that M. was evasive in answering her questions regarding drug use, pro-criminal activities and family dynamics. I find it difficult to draw any adverse inference from this, at least any adverse inference that would affect the outcome of this hearing, given that Dr. Harper met with M. on two occasions only, which might suggest that the opportunity for rapport building between them was somewhat limited.

Furthermore, M.’s autobiography, as interspersed throughout the psychological and psychiatric assessments, suggested to me that he was candid with his assessors about his past, although not proud of it. [ 13 ] While it is true, as the prosecution pointed out, that M. did not consent to Dr. Harper contacting the family with whom he now resides, he did grant consent to Dr. Harper having access to all official records and file information, from which Dr. Harper was able to make an informed assessment of M.’s current living arrangements.

I am able to understand M.’s reluctance to get his de facto guardians drawn into court proceedings. As described my Mr. Robertson, M.’s participation with his biological parents in Family Court has been fraught with conflict and turmoil, and has been followed by the fracturing of relationships. M. quite justifiably wants to preserve the most positive thing to have happened to him in a long time: his successful integration into his host family. [ 14 ] The prosecution referred to Dr. Harper’s assessment of M. as having an oppositional and hostile persona, one easily angered. Skipped over was Dr.

Harper’s observation that M. was able to display moments of calm, which appeared to her to be genuine. [ 15 ] M. is a sixteen-year-old young person; he is not an adult. His guardedness, reliance on confrontational self-help when dealing with interpersonal conflict, and his sense of resentment are all understandable, given that, as described by Dr.

Harper at page 7 of her report, “a chaotic, unstable, and conflicted home environment has been [M.’s] experience of family life.” [ 16 ] In the absence of appropriate parental nurturing and support during his formative years, M. has learned combative self-reliance, which manifested itself in this case in vigilantism and resort to violence in coming to the defence of his sister. This is something that was instilled in M. because of his family’s history; he did not innovate it. Having witnessed and been a victim of violence in his home, M. has learned violence as a problem-solving tool.

His settlement in those attitudes well before being taken into care by the Department of Community Services has resulted in him being placed in many different group homes for weeks to months at a time—as described at page 9 of Dr. Harper’s report—which would hardly have instilled in him a sense of security, safety and stability. Frequent moves have led to numerous interruptions in M. receiving appropriate counselling and programming. [ 17 ] Moody? Irritable? Easily provoked? Defiant of authority? Escalating misconduct? Little wonder. M. has never been given an opportunity to thrive.

Instead, he has been presented with a destiny that has required him to cope, often inappropriately. [ 18 ] At least until now. [ 19 ] Since moving in with family friends late last year, M.’s choices—and the outcomes that have flowed from those choices—have improved significantly. He has abided by the terms of bail imposed last winter—including observing a strict curfew. School is still a problem; however, in the context of the challenges M. has had to encounter in his life, it is not an insurmountable one.

In any event, truancy should not be treated as a criminal offence. [ 20 ] The prosecution argues that a custody and supervision order would afford M. structure that would promote his rehabilitation. I would observe that group-home structure has not produced that effect; furthermore, sub- s. 39(4) of the YCJA prohibits use of custody as a substitute for appropriate child protection, mental health, or other social measures. [ 21 ] The prosecution asserts further that a custodial sentence is needed to denounce M.’s use of violence and deter him from acting violently ever again.

These are legal sentencing criteria under para. 38(2) (

f) of the YCJA . However, it is important that I not make the mistake of conflating them with general deterrence. The Nova Scotia Court of Appeal varied yesterday a YCJA sentence which I imposed last summer, based on my improper reliance on the inadmissible criterion of general deterrence. The Court stated as follows: [25] There can be no doubt that general deterrence is a legitimate part of the sentencing regime for adult offenders. As will be demonstrated, not so for young persons. [26] The YCJA expressly provides that the treatment of young persons is different from that of adults: 3(1) The following principles apply in this Act : (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability … (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; …

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [27] The YCJA sets out the purpose of sentencing and the principles to be applied in sentencing a young person: Purpose 38

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on

similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to 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 by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [28] Read together, ss. 3 and 38(1) show the clear and meaningful difference in the objectives to be considered and the principles to be applied by a judge when sentencing young persons as opposed to adults. [29] Over the years, the Supreme Court of Canada has repeatedly emphasized that there are two sentencing regimes, one for young persons and one for adults.

See, for example, R. v. D.B ., 2008 SCC 25 where, at ¶ 1, Abella J. described how young people are “differently accountable” and, at ¶ 41, she reiterated that Canada has “a separate legal and sentencing regime for young people” because of their vulnerability, and lower maturity and capacity for moral judgement which “entitles them to a presumption of diminished moral blameworthiness or culpability.” [30] Section 38(2)(f)(ii) states that a youth sentence may include as an objective the deterrence of “the young person” from committing offences.

The judge’s reasons show that he considered general deterrence when he concluded that a custodial sentence was appropriate. He took into account “the prevalence of this particular type of crime” in the community and emphasized the need to effectively deter the “scourge” of such conduct. In doing so, the judge broadened deterrence beyond specific deterrence of “the young person” to general deterrence of others in the community from committing such an offence. [31] General deterrence plays no part of the YCJA sentencing analysis. See, for example, R. v. H.(B.), 2013 CarswellNfld 435 (Prov.

Ct) at ¶ 43 , 45 and 48; R. v. S.(S.N.J.), 2013 BCCA 379 at ¶ 27-30 ). In including it as a factor in crafting an appropriate sentence for a young person, the judge erred. [3] . . . . [ 22 ] The prosecution drew the court’s attention to M.’s record, which is properly before the court in accordance with s. 119 of the YCJA . M. has been found guilty in the past of 3 counts under s. 137 of the YCJA , two counts of uttering threats, and one count of common assault. The sentences for those offences ranged from absolute discharges to moderate terms of probation. M. never has served a custodial sentence.

I was not provided with evidence regarding the circumstances of those offences; however, the sentence outcomes were such that I am able to infer that the offences did not involve a high degree of criminality. Furthermore, the offences before the court today were M.’s only violation of a probation order which had been made nine months earlier; nine months of going offence free is a success—qualified somewhat, perhaps, but a good sign nonetheless. [ 23 ] Defence counsel proposes a brief term of probation.

Defence counsel asserts strongly that M.’s present living arrangement is the best thing to have happened to M. in a long time. If measured by evidence of outcomes, I cannot help but agree. [ 24 ] Although Dr. Harper assessed M.’s risk for general criminal recidivism as being high, and his risk for violence in the community as high, these assessments came with the qualifier that the risks would remain elevated only if no interventions were put in place to address M.’s risk factors. [ 25 ] The court is alert and alive to the fact that M.’s parent is the Minister of Community Services. As I noted in R. v.

T.D.N. , [4] the minister is no ordinary parent. The minister has available 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 meting out two-tiered justice, one for those in the care of the state, another for everybody else; 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 whose wellbeing is her particular responsibility.

The court must foster appropriate parental involvement, as recognized in sub-para. 3(1)(c)(iii) of the YCJA . [ 26 ] Combined with the services available to M. through the Department of Community Services, a brief term of probation with appropriate rehabilitative conditions will serve as an appropriate intervention suitable to managing M.’s risk to the community. [ 27 ] The court will impose a six-month probation order in relation to the charges before the court with appropriate rehabilitative conditions.

As a primary-designated-offence DNA collection order was not opposed, I believe that it is appropriate to grant that order, taking into account the fact that the charge before the court involved the infliction of bodily harm, given the minimally intrusive nature of DNA collection, and given the risk factors identified in M.’s psychological profile. I believe that this is consistent with the principles of the YCJA as analysed by the Supreme Court of Canada in R. v. R.C. [5] As the prosecution very fairly did not seek a s. 51 prohibition order, the court shall not issue one. JPC