2013 NBCA 44, 2013 NBCA 44

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 182-11-CA J.S.-W. APPELLANT J.S.-W. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE J.S.-W. v. R., 2013 NBCA 44 J.S.-W. c.

R., 2013 NBCA 44 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Richard L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: December 2, 2011 (sentence) Appel d’une décision de la Cour du Banc de la Reine : Le 2 décembre 2011 (prononcé de la peine) History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 379 Décision frappée d’appel : 2011 NBQB 379 , 2011 NBBR 379 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 13, 2012 Appel entendu : Le 13 septembre 2012 Judgment rendered: July 11, 2013 Jugement rendu : Le 11 juillet 2013 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green

Concurred in by: The Honourable Justice Robertson The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Richard Counsel at hearing: For the appellant: Margaret Gallagher For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Margaret Gallagher Pour l’intimée : Cameron H. Gunn THE COURT The application for leave to appeal sentence is granted. The appeal is dismissed. LA COUR Accueille la demande d’autorisation d’appeler de la peine, mais rejette l’appel. The judgment of the Court was delivered by GREEN J.A. I.

Introduction [ 1 ] On November 4, 2011, the appellant J.S.-W., who was seventeen years of age, pled guilty to a charge that he: On or about the 11 th day of March, A.D. 2011, at the City of Saint John, County of Saint John and Province of New Brunswick, did unlawfully kill Jason Dow, and did thereby commit manslaughter contrary to the provisions of

Section 236 (

b) of the Criminal Code of Canada and amendments thereto. [ 2 ] After receiving credit for spending approximately nine months in remand, the appellant was sentenced pursuant to the Youth Criminal Justice Act , S.C. 2002, c. 1 (the Act ), to serve two years custody in the provincial youth training facility, followed by three months of conditional supervision in the community. He now seeks leave to appeal his sentence. For the reasons that follow, I would grant the application for leave to appeal, but dismiss the appeal. In my view, the sentencing judge erred, but his errors did not result in an unfit sentence.

The sentence imposed coincides with that which I would impose. II. Factual Background

[ 3 ] The appellant and the victim first made contact on the internet. The appellant had placed an ad on Kijiji, offering to do odd jobs. The victim responded to the ad, asked if the appellant would be interested in modelling, and, more specifically, in posing for a photo shoot. Eventually, the two agreed to meet. [ 4 ] On the evening of March 10, 2011, the victim picked up the appellant at a grocery store in Sussex, New Brunswick. The two had agreed the appellant would be paid three hundred dollars in advance , and given a cheque for eight hundred and fifty dollars once the photo shoot was concluded.

They then proceeded to the victim’s apartment in Saint John. [ 5 ] Over the course of the evening, the appellant consumed a total of nine bottles of beer, which were provided by the victim. The victim was not drinking. They were together for several hours, which included some intimate contact. [ 6 ] The encounter between the appellant and the victim then took an unexpected turn. The appellant became angry, went into the kitchen, grabbed a knife, and confined himself in the victim’s bathroom. While there, the appellant sent a text message to his girlfriend, stating he was going to kill the victim.

He also verbally warned the victim that if he came out of the bathroom, the victim would be killed. [ 7 ] Tragically, the appellant made good upon his threat. When the victim knocked on the bathroom door and opened it, the appellant chased him out of the apartment , and outside of the building. He then stabbed the victim multiple times , and left him to die. Returning to the apartment, the appellant took the keys to the victim’s vehicle and used it to flee. [ 8 ] Police arriving at the scene of the attack found the victim’s body outside the apartment building. He was wearing only his underwear.

Paramedics determined he could not be revived. Inside the victim’s apartment, police seized a number of items, including a large kitchen knife covered in blood, a wallet containing identification belonging to the appellant and a cheque payable to the appellant in the amount of eight hundred and fifty dollars, a digital camera, and nine empty beer bottles. [ 9 ] The appellant’s girlfriend received another text in which the appellant stated he had killed someone and asked her to meet him in Hampton (a community near Saint John).

Calling upon a friend to drive her to Hampton, the girlfriend went to meet the appellant. She found him covered in blood and in a highly emotional state. The two friends were successful in convincing the appellant to turn himself in to the police.

The appellant then gave a full account of what had transpired. [ 10 ] The appellant was originally charged with second degree murder in the death of Jason Dow, but, on November 4, 2011, the Crown filed a direct indictment and accepted a plea of guilty to manslaughter. [ 11 ] The digital camera seized from the apartment contained numerous photos, the most recent of which were of the appellant posing in various stages of undress. Abundant DNA evidence linked the appellant to the victim’s apartment, vehicle, and the kitchen knife.

The post-mortem report of the pathologist indicated the victim had died of “multiple sharp force injuries to the head, chest, abdomen and extremities.” [ 12 ] Upon the application of the Attorney General, pursuant to s. 42(9) of the Act , the sentencing judge determined the offence to be a “serious violent offence”. III.

Issues [ 13 ] As grounds of appeal, the appellant attributes the following errors to the sentencing judge: 1) Only considering a custody and supervision order, and not the full range of sentencing options as set out in s. 42(2) of the Youth Criminal Justice Act ; 2) Failing to provide reasons why a non-custodial sentence was not imposed; and

3) Failing to give sufficient weight to rehabilitation and reintegration. IV. Law and Analysis A. Sentencing Framework [14] The Youth Criminal Justice Act provides a detailed sentencing framework for dealing withyoung people within the criminal justice system, which makes it distinct from the Criminal Code, R.S.C. 1985, c. C-46. To fullyappreciate the sentencing regime under which this case was decided, and to better place the arguments of the parties in context, it isuseful to set out the provisions of the Act most relevant to this appeal. These are set out in Appendix “A”. B.

Standard of Review [15] The standard of review to be applied in sentence appeals was reiterated by Drapeau C.J.N.B. inR. v. Steeves, 2010 NBCA 57, 360 N.B.R. (2d) 88, where he summarized it as follows: In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentenceimposed is the product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v.

Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J.No. 55 (QL), 2008 SCC 62, at para. 16; R. v. L.M. [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15; and R.v. C.A.C. (2009), 349 N.R.B. (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)). If the sentenceat issue is the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in thecircumstances. [para. 25] [16] Does this same deferential approach hold true for youth sentence appeals?

Succinctly, theanswer is yes, as the Chief Justice made clear in L.R.P. v. R., 2004 NBCA 76, [2004] N.B.J. No. 544 (QL): It is settled law that appellate intervention under s. 687(1) of the Criminal Code is appropriate only if at least one of the following threequestions can be answered affirmatively: 1) Did the sentencing court commit an error of law? 2) Did it commit an error in principle? 3) Isthe sentence imposed clearly unreasonable? (See R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24 (C.A.), R. v.Parent (D.) (2001), 2001 NBCA 60 , 236 N.B.R. (2d) 370 (C.A.), and R. v.

Basque (G.) (1999), (NB CA),211 N.B.R. (2d) 273 (C.A.)). That standard of review has application to sentence appeals under the YCJA. [para. 24] See also R. v. K.G.B., 2005 NBCA 96, 291 N.B.R. (2d) 327, per Richard J.A., at paragraphs 13 to 15. As can be seen from the above, theappellant must convince the Court that at least one of the three criteria is met. C. The Imposition of a Custody and Supervision Order [17] The appellant says the sentencing judge failed to consider all available sentencing options. Hebases this assertion on the following passage from the sentencing judge’s decision:

With regard to an offence such as manslaughter, the Youth Criminal Justice Act also spells out in s. 42(2) paragraph (

o) that the Courtmust: … make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date ofcommittal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and,subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in thecommunity in accordance with

section 105. By these words parliament is sending the message that the punishment must fit the crime. [paras. 6-7] [Emphasis added.] [18] It is the use of the word “must” in paragraph 6 that forms the basis of the appellant’s position onthis first ground of appeal. We are left to consider whether this constitutes reversible error. In my opinion, it does. The word “must” ishardly ambiguous, and the surrounding wording does nothing to qualify the sentencing judge’s use of it. The implication is clear: itappears the sentencing judge felt obligated to impose a custody and supervision order.

There was no such obligation. In fact, as set outabove, s. 38(2) of the Act requires that “all available sanctions other than custody that are reasonable in the circumstances should beconsidered” and the sentence imposed “must be the least restrictive […] capable of achieving the purpose set out in subsection (1)”. Thatis not to say the sanction under s. 42(2)(

o) is unavailable or inappropriate; it is, however, but one in a range of possible sanctions, and itwas certainly not the only disposition open to the sentencing judge. [19] The respondent urges the Court to look at the whole of the record and the decision in its entiretyprior to reaching a conclusion on this ground. The respondent maintains that, in so doing, it becomes apparent no error was made. Withrespect, I do not agree. It is one thing for a reviewing court to consider inference or implication. It is quite another to engage inspeculation or conjecture.

Rather than trying to interpret what the sentencing judge may have intended to say, as we are invited to do bythe respondent, I prefer to consider what was actually said, and therein lies the reversible error. D.

Sufficiency of Reasons and Section 39(9) [20] Section 39(9) of the Act places an obligation upon the sentencing judge to “state the reasonswhy [he] has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1).” The appellantargues this was not done, and the resulting omission constitutes an error of law. [21] For its part, the respondent relies upon R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, whereinMoldaver J. states: I would not give effect to this submission.

The appellant’s chief complaint is that the trial judge failed to consider all the evidencerelevant to intent before deciding on that issue. A failure of a judge to consider all the evidence relating to an ultimate issue of guilt orinnocence constitutes an error of law: R. v. Morin, (SCC), [1992] 3 S.C.R. 286, at p. 296; R. v. J.M.H., 2011 SCC 45, 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 31-32.

However, as Sopinka J. made clear in Morin, there is “no obligation inlaw on a trial judge to record all or any specific part of the process of deliberation on the facts”, and “unless the reasons demonstrate that[a consideration of all the evidence in relation to the ultimate issue] was not done, the failure to record the fact of it having been done isnot a proper basis for concluding that there was error in law in this respect” (p. 296).

I see no failure to consider all the relevant evidencein this case. [para. 46] [22] The appellant is correct in pointing out that the sentencing judge did not make a clear anddefinitive statement that would prima facie meet the requirements of s. 39(9). Walle has no application here. There is a statutoryrequirement pursuant to which the appellant was entitled to receive a clear statement as to why the sentencing judge determined a non-custodial sentence was not adequate. It did not happen, perhaps because the sentencing judge felt he “must” impose a custody andsupervision order.

Whatever the explanation, the result is the same: reversible error.

E. Rehabilitation and Reintegration [ 23 ] The appellant argues the sentencing judge did not accord sufficient weight to the requirement under s. 38(1) that the sentence imposed promote the appellant’s rehabilitation and reintegration into society. The respondent counters with the assertion that the judge had these imperatives firmly in mind when crafting the sentence. [ 24 ] It cannot be successfully challenged that the sentencing judge plainly and repeatedly acknowledged the need for rehabilitation and reintegration. Both are included in the

summary of the purposes and principles of sentencing set out in the early stages of the decision (see paragraphs 4 and 5). The sentencing judge then addressed the issue more directly: I have considered the circumstance of this tragedy […] the mitigating circumstances of his turning himself in and admitting responsibility to the police immediately after the incident.

I have to particularly think of what needs to be done to promote his rehabilitation and reintegration into society . […] For these reasons I will sentence the youth to a sentence that gives a little credit for him admitting responsibility and help with his transition into society . […] […] Hopefully that three-month period of close supervision after his two years in custody will help smooth his transition and rehabilitation . [paras. 37, 40 and 41] [Emphasis added.] [ 25 ] Admittedly, a judge may include such empathetic statements in a decision in an effort to “say the right thing,” and yet impose a sentence which clearly fails to give them practical application.

That is not the situation here. I have no doubt this sentence was intended to provide the appellant with a meaningful opportunity for rehabilitation and reintegration, should he choose to embrace it. On this third ground of appeal, I find no error on the part of the sentencing judge. F. Imposing a Fit Sentence [ 26 ] As explained in Steeves , having found the sentence under appeal is tainted by reversible error, it becomes the responsibility of the reviewing court to impose the sentence “it considers fit in the circumstances.” This authority is exercised within certain parameters.

For example, it is not open to this court to increase the sentence imposed in the absence of a Crown cross-appeal. In undertaking the required analysis, I come to the conclusion that the custody and supervision order imposed was, in fact, a fit sentence. As indicated earlier in these reasons, I am fully cognizant of the sentencing court’s obligations under the Act , and, while a custody and supervision order is not mandatory, it is the proper sentence given the circumstances of this case.

I will briefly elaborate. [ 27 ] The following findings of fact on the part of the sentencing judge are particularly pertinent: […] He was not a misguided young fellow who was under the influence of older young fellows who were misleading him. It was he himself, and only him, who got the knife and attacked this victim. He did not need to do it. He is not like some people we see in court who are dragged along by group leaders. His degree of participation is one hundred percent. […]

The family of the victim are utterly devastated to have lost the deceased. […] [paras. 22 and 24] [ 28 ] Imposing a non-custodial sentence is not reasonable given the circumstances of this case. A young life has been extinguished, needlessly and brutally. The appellant had numerous options but made a conscious decision to kill. He did so after sending a message to his girlfriend that he intended to do so. He willingly accompanied the victim to the apartment, accepted payment, and willingly participated in the activities that unfolded. Nothing in the record before us suggests otherwise.

This was a senseless, violent crime. The appellant acted alone, of his own volition. The harm done was catastrophic. To impose a lesser sentence would minimize the gravity of the offence and would not sufficiently denounce the unlawful conduct. It would fly in the face of the purpose of sentencing, as it would not make the appellant sufficiently accountable for his conduct. Moreover, the appellant requires the structure and programming associated with secure custody in order to best promote his rehabilitation and reintegration into society.

In my view, although imposed for the wrong reason –because the sentencing judge felt he was obliged to – the sentence imposed nevertheless satisfies the purpose and meets the principles of sentencing set out in s. 38(1) of the Act . Anything less than a sentence that features a custodial portion would neither achieve the relevant sentencing objectives nor contribute to the long-term protection of the public. V. Disposition [ 29 ] The appellant has successfully challenged the decision of the sentencing judge with respect to the first two grounds of appeal. I would grant the application for leave to appeal.

That said, when I undertake the required analysis, I come to the inescapable conclusion the sentence imposed was fit, reasonable, and proper in the circumstances of this case. Accordingly, I would dismiss the appeal. _____________________________ BRADLEY V. GREEN, J.A. WE CONCUR: ______________________________ J.T. ROBERTSON, J.A. ______________________________ J.C. MARC RICHARD, J.A. APPENDIX “A” /

ANNEXE « A »

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: […] (

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 Objectif 38.

(1) L’assujettissement de l’adolescent aux peines visées à l’article 42 (peines spécifiques) a pour objectif de faire répondre celui-ci de l’infraction qu’il a commise par l’imposition de sanctions justes assorties de perspectives positives favorisant sa réadaptation et sa réinsertion sociale, en vue de favoriser la protection durable du public. Principes de détermination de la peine

(2) Le tribunal pour adolescents détermine la peine spécifique à imposer conformément aux principes énoncés à l’article 3 et aux principes suivants : […]

c) la peine doit être proportionnelle à la gravité de l’infraction et au degré de responsabilité de l’adolescent à l’égard de l’infraction;

d) toutes les sanctions applicables, à l’exception du placement sous garde, qui sont justifiées dans les circonstances doivent faire l’objet d’un examen, plus particulièrement en ce qui concerne les adolescents autochtones;

e) sous réserve de l’alinéa c ), la peine doit : (

i) être la moins contraignante possible pour atteindre l’objectif mentionné au paragraphe (1), (ii) lui offrir les meilleures chances de réadaptation et de réinsertion sociale, (iii) susciter le sens et la conscience de ses responsabilités, notamment par la reconnaissance des dommages causés à la

(

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; […] (

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. Committal to custody 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; […] (

d) in exceptional cases where the young victime et à la collectivité;

f) sous réserve de l’alinéa c ), la peine peut viser : (

i) à dénoncer un comportement illicite, (ii) à dissuader l’adolescent de récidiver. Facteurs à prendre en compte lors de la détermination de la peine

(3) Le tribunal détermine la peine spécifique à imposer en tenant également compte :

a) du degré de participation de l’adolescent à l’infraction;

b) des dommages causés à la victime et du fait qu’ils ont été causés intentionnellement ou étaient raisonnablement prévisibles; […]

f) des autres circonstances aggravantes ou atténuantes liées à la perpétration de l’infraction ou à la situation de l’adolescent et pertinentes au

titre des principes et objectif énoncés au présent article. Placement sous garde 39.

(1) Le tribunal pour adolescents n’impose une peine comportant le placement sous garde en application de l’article 42 (peines spécifiques) que si, selon le cas :

a) l’adolescent a commis une infraction avec violence; […]

d) il s’agit d’un cas exceptionnel où l’adolescent a commis un acte criminel et où

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. Alternatives to custody

(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. […] Reasons

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1) , including, if applicable, the reasons why the case is an exceptional case under paragraph (1)( d ). […] Youth sentence 42.

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of

section 231 of the Criminal Code , the court shall impose a sanction set out in paragraph (

q) or subparagraph ( r )(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate: les circonstances aggravantes de la perpétration de celui-ci sont telles que l’imposition d’une peine ne comportant pas de placement sous garde enfreindrait les principes et objectif énoncés à l’article 38. Solutions de rechange

(2) En cas d’application des alinéas (1) a ),

b) ou c ), le tribunal pour adolescents n’impose le placement sous garde qu’en dernier recours après avoir examiné toutes les mesures de rechange proposées au cours de l’audience pour la détermination de la peine, raisonnables dans les circonstances, et être arrivé à la conclusion qu’aucune d’elles, même combinée à d’autres, ne serait conforme aux principes et objectif énoncés à l’article 38. […] Décision motivée

(9) Toute peine spécifique comportant une période de garde doit donner les motifs pour lesquels une peine spécifique ne comportant pas de placement sous garde ne suffirait pas pour atteindre l’objectif mentionné au paragraphe 38(1) , y compris, le cas échéant, les motifs pour lesquels il s’agit d’un cas exceptionnel visé à l’alinéa (1) d ). […] Peine spécifique 42.

(2) Sous réserve des autres dispositions de la présente loi, dans le cas où il déclare un adolescent coupable d’une infraction et lui impose une peine spécifique, le tribunal lui impose l’une des sanctions ci-après en la combinant éventuellement avec une ou plusieurs autres compatibles entre elles; dans le cas où l’infraction est le meurtre au premier ou le meurtre au deuxième degré au sens de l’

article 231 du Code criminel , le tribunal lui impose la sanction visée à l’alinéa q ) ou aux sous-alinéas r )(ii) ou (iii) et, le cas échéant, toute autre sanction prévue au présent

article qu’il estime indiquée : […]

[…] (

o) in the case of an offence set out in

section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code , make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with

section 105 ;

o) dans le cas d’une infraction prévue aux articles 239 (tentative de meurtre), 232, 234 ou 236 (homicide involontaire coupable) ou 273 (agression sexuelle grave) du Code criminel , l’imposition, par une ordonnance de placement et de surveillance, d’une peine maximale de trois ans à compter de sa mise à exécution, dont une

partie est purgée sous garde de façon continue et, sous réserve du paragraphe 104(1) (prolongation de la garde), l’autre en liberté sous condition au sein de la collectivité aux conditions fixées conformément à l’

article 105 ;