R. v. B.(R.), 2010 ONCJ 649

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) 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. Identity of victim or witness not to be published.—

(1) 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. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Brampton Info. # DATE: 2010·12·06 Citation: R. v. B.(R.) , 2010 ONCJ 649 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — R.B. Before Justice J.A. Maresca Reasons for Sentencing released on December 6, 2010 Ms. Berg .................................................................................................................... for the Crown Mr. Goldglas ..................................................................................................... for the accused R.B. MARESCA, J.:

[ 1 ] R.B. was born on June […], 1993, and is a young person under the Youth Criminal Justice Act (“YCJA”) . On September 28, 2009, he pleaded guilty to the charges of impaired driving, flight from a peace officer, dangerous driving, and refusal to provide a breath sample, all arising out of a series of events which occurred on September 13, 2009. He was released on strict bail conditions, a pre-sentence report was ordered, and a conference under s. 19 of the YCJA was scheduled. On January 6, 2010, that conference was held.

Representatives from Probation, the Associated Youth Services of Peel and the Peel School District were in attendance, and a comprehensive plan was made to provide services to R.B.. R.B. was to attend school, participate in counselling, and work intensively with the Associated Youth Services of Peel. Before this sentence was formally imposed, R.B. was arrested on two additional charges: aggravated assault, and possession of a weapon dangerous to the public peace. He was detained on these charges, pending a bail hearing. [ 2 ] While R.B. was held in detention, concerns arose as to his mental health.

While at the Roy McMurtry Youth Centre, he apparently experienced a psychotic episode, and a tentative diagnosis of schizophreniform disorder was made. Continued detention was recommended, and R.B. was transferred to Syl Apps, a secure facility with a strong treatment component. An order was made for a psychiatric assessment under s. 34 of the YCJA. That report, completed by Dr. Bradley at Peel Children’s Centre and dated February 22, 2010, was received by the Court on February 23, 2010. Dr. Bradley reported that R.B.’s psychosis seemed to be resolving, and that he had stabilized and improved while at Syl Apps.

He stated that R.B. was at significant risk to reoffend; Dr. Bradley recommended continued detention. [ 3 ] R.B. remained at Syl Apps until April 16, 2010, when a bail hearing was held. R.B. presented a plan to live with his Aunt, K.B., and her partner, Mr. McBoyle. He was released on “house arrest”, with strict terms, including attendance at Alcoholics Anonymous (“AA”) three times per week and participation in an aftercare program through Syl Apps. He was prohibited from having contact with a number of young persons involved in the offences with which R.B. was charged.

He was also prohibited from having direct contact with his family of origin, except his Aunt, except in her presence, or in the presence of someone she designated. [ 4 ] R.B. appeared before the Court again in May, 2010, when his progress was reviewed. While he had difficulties with his Aunt, he connected well with Mr. McBoyle, who agreed to care for him. R.B.’s bail conditions were varied on consent to name Mr. McBoyle as his surety. R.B. was working, attending AA, and cooperating with treatment. The matter was adjourned to August 11, 2010. [ 5 ] On the return date, Mr.

McBoyle reported that R.B. continued to do well. He was working, continued to attend AA, and had agreed to work with Youthdale Treatment Centre. The Crown indicated that on a global resolution of all charges, it was seeking an 18 month term of incarceration. The Defence advised that Youthdale was prepared to enrol R.B. in its Intensive Support and Supervision program, and would provide a report to that effect to the Court on the return date.

The matter was remanded to October 1, 2010. [ 6 ] On October 1, 2010, R.B. pleaded guilty to the charges of aggravated assault and possession of a weapon dangerous to the public peace. Submissions were made by the Crown and R.B.’s counsel with respect to a global sentence for all of the charges before the court.

The Crown sought a designation that the charge of aggravated assault was a serious violent offence under the YCJA; a sentence of 9 – 12 months custody and supervision less presentence custody; a credit for the 110 days he spent in custody prior to plea on a one to one basis; that after serving his custodial sentence, he be placed on probation for a period of 16 months; that R.B. provide a DNA sample; and that a weapons prohibition be imposed for a period of two years. The defence conceded the serious violent offence designation, the DNA sample, and the weapons prohibition. Mr.

Goldglas, on R.B.’s behalf, argued that he should be given credit for the 110 days spent in presentence custody on a 1.5 to one ratio, and that the sentence should be time served plus a period of time in the intensive support and supervision program run by Youthdale Treatment Centre. [ 7 ] A brief outline of the facts surrounding the charges is as follows. On September 13, 2009, at 3:00 am, R.B. was observed by police to be driving a black Honda Civic on Queen Street in Brampton. R.B.’s driving was highly erratic: he was swerving across multiple lanes, at times crossing into the oncoming lane.

Police pulled him over, and tried to convince R.B. to turn the car off. R.B. backed up, backed onto the road, and fled from the police. His car was ultimately pinned between two police cars, and R.B. continued to attempt to flee, moving his car forward and backward into the police cars. R.B. was belligerent and uncooperative when arrested, and exhibited signs of impairment. He was taken to 22 Division, where he refused to provide a breath sample, saying that he would either be dead or locked up for life within four years, guaranteed.

He was charged with the first set of offences referred to above. [ 8 ] While on release into his mother’s care, R.B. committed the two additional offences for which he is now sentenced. The facts relating to these charges are as follows. On December 27, 2009, R.B. was at his mother’s home, and hosted a small gathering of friends. Hank Edwards was not invited, but attended nevertheless with several friends, also uninvited. An altercation ensued, and R.B. chased Mr. Edwards and his friends out of the home. In doing so, he struck Mr. Edwards twice in the head with a ball peen hammer. Mr.

Edwards had a cracked skull, and was taken to hospital. He underwent emergency brain surgery, and was kept at St. Michael’s Hospital for four days prior to being released. He sustained a traumatic brain injury, with long lasting sequelae, including limitations to the mobility of his left arm, headaches, and difficulty sleeping. He continues to receive rehabilitation therapy at a brain injury clinic.

No victim impact statement was submitted. [ 9 ] Prior to the commission of these offences, R.B. had no youth record aside from findings of guilt on one charge of theft under and one charge of mischief under, for which he was sentenced to a conditional discharge. He successfully completed the conditions imposed under that sentence. [ 10 ] R.B. has a troubled background. Both his parents were substance abusers, and he was often neglected and left to his own devices at a very young age. His family had a lengthy history of involvement with the Children’s Aid Society.

He suffers from alcoholism, and has little family support. Mr. McBoyle has been in a relationship with R.B.’s Aunt, in whose home R.B. resided for a period of time. His Aunt was unwilling to continue to provide a place for R.B., and Mr. McBoyle stepped into the breach. R.B. has been living with him since July 2010, and that arrangement has provided support and stability for R.B.. R.B. has complied with all of his release conditions, and has had no further involvement with the police since his arrest in December 2009. He attends Alcoholics Anonymous regularly, and has found the support of that group helpful.

Until he was laid off just before his sentencing hearing, he worked two jobs which were offered to him by one of his AA colleagues. He has been compliant with treatment, including attending

counselling and taking prescribed medications. Mr. McBoyle reported that he has seen slow but steady progress in R.B., and continues to offer him a stable home. [ 11 ] There is no dispute as between the Crown and the defence with respect to several issues. Both agree that the charge of aggravated assault is a serious violent offence as defined under the YCJA . There is consent that R.B.’s DNA be taken under s. 487.05 of the Criminal Code , and that a weapons prohibition order under s.51 of the YCJA be made for a period of two years.

Where the Crown and defence are not in agreement is whether R.B. should be given a sentence of custody and supervision or an order of intensive support and supervision; and whether he should be credited with presentence custody at a ratio of 1:1 or 1.5:1. [ 12 ] Dealing with the latter issue first, the Crown argues that a significant portion of the time R.B. spent in detention was for the purposes of obtaining a s. 34 assessment, and that as a result, he should be given credit for presentence custody on a ratio of 1:1.

I note that R.B. spent his time in detention at the Roy McMurtry Youth Centre and Syl Apps, both highly secure settings. He served a period of 110 days prior to being released on bail in April 2010. While on release, R.B. was on virtual “house arrest”, and his freedom was significantly curtailed. I see no reason in these circumstances to depart from the usual practice of granting credit for presentence custody on a 1.5:1 basis. In this case, that equates to 165 days credit. [ 13 ] The Crown argues that a fit sentence is a further period of detention and supervision in the range of 9 – 12 months.

The Defence submits that R.B. has served sufficient custodial time, and that with intensive support and supervision, his sentence should be served in the community. [ 14 ] The principles embodied in the YCJA are set out in s. 3 of the Act. The Act attempts to balance the need for long term protection of society with the needs of the young person. There is a strong emphasis on accountability and rehabilitation. In my view, the application of these principles serves to protect society in ensuring that young persons understand the consequences of their actions, and receive assistance to change their behaviour.

Sections 38 and 39 of the Act set out the principles and factors which must be taken into account in sentencing. Having considered all of these factors, I find the following most helpful in determining an appropriate sentence for R.B.. [ 15 ] R.B. must be held accountable for his behaviour, and any sentence must take into account the seriousness of his conduct and the degree to which he is morally culpable. The sentence must be proportional to the offence, and consistent with sentences imposed on young persons in similar circumstances.

The degree of harm suffered by the victim and the role of the young person in directly causing that harm must be considered. Previous findings of guilt and the length of time the young person has spent in presentence detention are relevant. [ 16 ] In applying these principles, the Court must always be mindful of the need to impose the least restrictive sentence consistent with them.

Even where a custodial sentence is permitted, the Court must consider all other possible sentences before incarcerating a youth. [ 17 ] As noted above, both Crown and Defence agree that the charge of aggravated assault, in the circumstances of this case, is a serious violent offence under the Act. There is also no dispute that the offence qualifies as a violent offence pursuant to s. 39(1)(

a) of the YCJA so as to permit the court to impose a custodial disposition for R.B.. Despite this, s. 39(2) requires this court to consider all reasonable alternatives to custody before imposing a custodial sentence. [ 18 ] In examining the circumstances of this case, I note the following: - R.B. was 16 when he committed the offences, and had only one minor brush with the law prior to September 2009 when the first offence occurred. - R.B. has had a significantly neglectful and abusive upbringing.

His closest family members are negative influences in his life. - Like his parents, R.B. is an alcoholic. - R.B. was exhibiting paranoid ideation and had a psychotic break immediately after his arrest on the second set of charges. He is compliant with treatment, and is currently mentally stable. - When he committed the aggravated assault, R.B. was attempting to remove uninvited and unwanted visitors from his mother’s home. - The injuries suffered by the victim are serious, and will likely have lifelong consequences for him.

- R.B. committed the aggravated assault while on release pending sentencing on the first set of charges. - R.B. has accepted responsibility for all of his actions in entering pleas of guilt to all charges. - R.B. has already served 110 actual days of presentence custody in highly secure settings for which he is credited with 165 days, essentially five-and- a-half months. - R.B. has been on house arrest and under strict bail conditions since his release into the community in April 2010. - Since April 2010, R.B. has been compliant with all conditions of his re lease, and has done well under close supervision. - R.B. now has the support of Mr.

McBoyle, who continues to offer him a stable home and a positive role model. [ 19 ] In considering sentence, I have had the opportunity to review the caselaw submitted during the sentencing hearing. In R. v. C.N. 2006 CanLII 32902 (ON CA) , [2006], 83 O.R. (3d) 473, a case heard by the Ontario Court of Appeal, the young person was charged with aggravated assault. The young person was described as the ringleader of a group of four teenagers who stalked, caught, and repeatedly slashed and stabbed another young person with a box cutter, causing serious injury.

The judgment summarized the attack as follows: “As M.F. lay on the ground, being beaten and held by the others, C.N. tore open M.F.’s clothing and repeatedly stabbed and slashed him with a box cutter”. The Court found that “His violence conduct was sustained and cowardly”. At the time of the offence, C.N. was on release pending sentencing on another matter. He had the support of a stable and supportive family, and pleaded guilty to the charge. He had not served any presentence custody.

The Court of Appeal imposed a sentence of six months open custody and three months supervision, followed by 6 months of probation. [ 20 ] In R. v. M.E. 2008 ONCJ 99 , O.J. No. 919, the young person and another youth bullied and intimidated the victim. They attacked the victim’s friend at school, and when the victim attempted to help his friend, they attacked him, slashing him in the face with a knife. M.E. admitted to bringing the knife to school, and the other youth was found to be carrying two pairs of scissors. Justice Bloomenfeld held that “M.E. incited, perpetuated and intensified the assault”.

The victim’s face was permanently disfigured. M.E. served 7 days of presentence custody, and was sentenced to three months deferred custody and supervision, followed by 24 months probation. [ 21 ] In R. v. K.I.D. 2003 BCPC 427 , the British Columbia Provincial Court found K.I.D. guilty of assault with a weapon and assault causing bodily harm, after a full trial. The young person, with a group of other youths, randomly, and without provocation, attacked two youths on the street. When one fled, K.I.D. pulled a metal sign out of the ground and viciously attacked the victim, causing serious, long lasting injuries.

K.I.D. continued the attack even after being ordered to stop by police who attended at the scene. The victim had been a Canadian gold medal winner in diving before the attack, and was not able to perform at his previous level after his injuries. The young person had a record, and had been previously sentenced to an order including intensive support and supervision. He had failed to comply with that order, and his pre-sentence report indicated that he responded poorly to community supervision. He had been in pretrial custody for 75 days.

He was sentenced to four months custody and 16 months probation. [ 22 ] In all of the cases to which the Crown referred where custodial sentences were ordered, there were serious injuries caused to the victims, as in the case at bar. There are aggravating factors in those cases which are not present in R.B.’s case. First, in some, the assaults occurred in school, and the perpetrators brought weapons into that setting. Second, the young persons were part of a group involved in bullying, intimidation and stalking behaviour. In R. v.

K.I.D. , the youth had already been sentenced to a period of intensive support and supervision, without success. [ 23 ] As noted above, R.B. has already served the equivalent of 165 days, or five-and-one-half months, in secure detention. He has been in the community on bail for almost seven months without incident. He is compliant with treatment, and is willingly participating in programs to address his needs.

According to the facts read in by the Crown at the plea to aggravated assault, R.B. was attempting to remove intruders from his mother’s home when he assaulted the victim. [ 24 ] I also note that R.B. has agreed to participate in the one-to-one mentoring and life coaching program run by the community organization PACT. This organization, funded solely by community donations, offers youths in trouble with the law a number of programs which foster skill development, personal growth, and contribution to the needy in society.

PACT has agreed to involve R.B. in programming, and will, as I understand, provide him with a life coach who will work intensively with him. [ 25 ] In addition, I heard evidence from Ms. McDonald-Gordon, a clinician from Youthdale Treatment Centres, about the Intensive Support and Supervision Program offered by that agency. R.B. has been evaluated by their program, and has been accepted into it.

The program offers intensive support to youth with mental health issues, working with them, their families or caregivers, and other service providers. [ 26 ] After considering the directives of the YCJA, all of the evidence submitted and the caselaw , I am satisfied that a sentence

of further incarceration is not necessary in this case. I am satisfied that the long term interests and safety of society will be protected, and that R.B.’s rehabilitation will best be achieved by the following sentence to run concurrently on all charges: 1. R.B. shall participate fully in the Intensive Support and Supervision Program run by Youthdale Treatment Centres for a period of twelve months. 2. R.B. shall be subject to a probation order for a period of two years, with the following conditions, in addition to the statutory conditions: a. He shall report to probation as often as required. b.

He shall participate in the ISSP run by Youthdale Treatment Centres, including any follow up or transitional programming recommended by them. c. He shall maintain regular contact with a qualified psychiatrist, and shall comply with the treatment recommendations made by that psychiatrist. d. R.B. shall attend school, work, and/or volunteer his time to a community organization for a combined period of at least 25 hours each week, and to provide proof thereof to his probation officer as requested. e. R.B. shall engage in a sporting activity at least 5 hours per week f.

R.B. shall attend AA meetings at least twice per week, and shall provide proof thereof to his probation officer as required. g. R.B. shall participate in the PACT program as offered by that organization. 3. R.B. shall provide a sample of his DNA pursuant to s. 487.05 of the Criminal Code of Canada within 10 days. 4. A weapons prohibition under s. 51(1) of the YCJA shall be imposed for period of two years. 5. R.B. shall have no contact with Hank Edwards, directly or indirectly, and shall not attend at any place he knows Mr. Edwards to be, except for incidental contact through school or employment.

Released: December 6, 2010 ___________________________ Justice J.A. Maresca