R. v. C.N., 2016 ONCJ 582

WARNING The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. C.N. , 2016 ONCJ 582 DATE: 2016·September 21 BETWEEN: HER MAJESTY THE QUEEN — AND — C. N . , a young person Before Justice E. B. Murray Reasons for decision released on September 21, 2016

Ms. Cara Sweeney .................................................................................. counsel for the Crown Mr. Robert MacDonald ............................................................... counsel for the accused C. N. MURRAY, E. B. (J) [ 1 ] This is my decision on sentence for C. N., a 14 year old girl, who was, after a plea, found guilty of aggravated assault in an incident which occurred on December 25, 2015. The victim, J.H., is an 18 year old girl and unknown to C.. The attack caused serious injuries, physical and psychological, to Ms.

J.H., injuries from which she is still suffering. [ 2 ] The Crown seeks the maximum sentence available, 2 years in secure custody. The defence seeks a sentence of time served (124 days of pre-sentence custody, which if grossed up on a 1.5 basis is 186 days), and two years’ probation, with strict conditions. The defence asks that I direct that C. reside with her father. [ 3 ] At the sentencing hearing I heard submissions from the Crown and the defence, and received a pre-sentence report from probation officer Paul Viau and a

section 34 report from psychologist Dr. Julia Vinik of the Centre for Addiction and Mental Health (CAMH). [ 4 ] At the hearing the Crown played parts of the video which captured the attack on Ms. J.H.. The video was not of good quality, but the sequence of actions by C. and Ms. J.H. and her companion Ms. C.L. was clear. [ 5 ] I also heard from counsel for Father and counsel for the Children’s Aid Society of Toronto. Father is asking that if C. is placed on probation that she be directed to reside with him. After being charged C. was released to Father, her surety, on strict conditions.

During this time the Society commenced a protection application, seeking to bring C. into care. A temporary supervision order in the protection case was made on a without prejudice basis, providing that provided that C. reside with Father. C. was then detained because of breaches of her bail conditions. The Society has indicated that if C. returns to Father’s care that it will proceed with the motion asking that she be placed in the Society’s care. [ 6 ] I am the presiding judge in both the Youth Criminal and the protection cases.

C. has received the assistance of the Crossover Kids program, a program which offers assistance to young persons and their families who are involved in the youth criminal and the child protection systems. The offence [ 7 ] C. is the oldest of 3 children born to J.N. and Ca.N.. Her parents separated in 2007. Since separation she has gone back and forth between their homes.

At the time of this offence, she was living with Father. [ 8 ] The description of the incident that follows comes from admissions by C., information in the pre-sentence report and the s. 34 report, and the video of the incident. • In the early evening C. went to a plaza in Don Mills to hang out with 4 friends, boys and girls. They encountered 2 Korean girls, somewhat older than themselves, Ms. C.L. and Ms. J.H.. A fight ensued. • C. says that the fight began after she was bumped by one of the Korean girls.

She did not think the bump was intentional, but her friends urged her to confront the girls after they thought they heard themselves called “monkeys’. • C. admits that she threw the first punch, assaulting Ms. C.L.. • Ms. C.L. then hit C. with her purse; C. threw punches at her, thrusting with both arms. C.’s friends engaged in the confrontation. • The Crown alleges that C., when she assaulted Ms. C.L., drew the knife that she ultimately used to stab Ms. J.H. and can be seen on video waving it in her right hand. (The defence does not admit this.

It is not clear on the video whether C. is holding a knife when she is engaged with Ms. C.L.). • Ms. J.H. then attempted to come to her friend’s aid, hitting C. with her purse. C. lunged, stabbing Ms. J.H. in the thigh. She made a further stabbing motion towards Ms. J.H.. The attack hit Ms. J.H.’s femoral artery. • C. and her friends scattered, but waited nearby, observing the action. C. is seen on video disposing of the knife before she leaves the scene. • Ms. J.H. and Ms. C.L. went towards a store in the mall. Ms. J.H. is seen on video covered in blood. She collapsed.

Passers-by called 911. [ 9 ] It is acknowledged that Ms. J.H. could have died from her injuries, but for the assistance of a doctor who happened to be walking by at the right moment, who administered CPR until an ambulance arrived. [ 10 ] The Crown alleges that the video shows C. laughing as she flees the scene. That is disputed by the defence. Based on the video, I cannot find that C. is laughing. [ 11 ] C. turned herself in after a few days, and was released on strict conditions. Her recognizance provided that she live with Father, her surety. She breached those conditions and was detained.

Since May 21, 2016, she has been at Syl Apps, a secure facility.

[ 12 ] One other young person was charged as a result of this incident. That charge is still before the court. [ 13 ] Ms. J.H. had major surgery and was hospitalized for 11 days. She has sustained lasting damage to her leg, and bears scars of the attack. She is still under a doctor’s care. The Crown made submissions concerning the impact of the offence on Ms. J.H.. • She now can walk only up to 7 minutes without pain. Her injured leg remains swollen. • She missed school, and is unable to work. • She has large scars on her belly and leg.

She fears that the scarring will diminish her chances to marry. • She is fearful for her safety. She suffers nightmares, and is afraid to go out, afraid when strangers approach her. • She is depressed. The offender C.’s history [ 14 ] C. has had a chaotic upbringing.

Children’s aid societies in Montreal and later Toronto have been involved with her family since 2005 because of concerns about neglect, inappropriate discipline verging on abuse, and exposure to domestic violence. [ 15 ] Records indicate that C. has attended 10 schools, and has had problems with inconsistent school attendance since 2010. [ 16 ] There has never been a court order or written agreement governing C.’s custody and residence.

It appears that C. moved back and forth between her parents’ homes frequently. • For the first 5 years after separation, C. was primarily with Mother, but spent most weekends with Father. • In 2013 Father was asked by CAST to care for the children because of protection concerns about Mother. The Society reported that the children were exposed to domestic violence between Mother and her then boyfriend. Further, Mother relied on C. far too much to care for her younger siblings. There was conflict between C. and Mother because of this. • As a result of the Society’s intervention, C. spent a year with Father.

However, the Society was not satisfied with the care he was able to provide. He worked long hours, and was unable to provide proper supervision. Although he had “rules” for C., he did not follow through on enforcement of those rules. It was reported that his girlfriend was harsh and sometimes abusive to C.. • Mother completed a parenting program. The Society approved a move by C. back to Mother’s care. • However, C. was unhappy in Mother’s home.

She resented being made responsible for her siblings, and her younger half-brother. • C. chose to return to Father’s care. [ 17 ] Mother has not offered to provide a home for C. at the present time. She has not participated in either the youth criminal proceeding or the protection case. She only made herself available for a brief telephone interview with Dr. Vinik. She did not respond to Mr. Viau’s attempts to contact her. [ 18 ] As stated above, C. plans to live with Father if I order a non-custodial sentence. Father works as a truck driver. He reports that he now lives alone.

The Society reports that Father failed to follow through with referrals for services during the time that C. lived with him; he says that he asked for help, and received none. [ 19 ] The Society records contain many references to Father’s problems with alcohol. He denies these problems. C. reported to Dr. Vinik that Father had such problems in the past, but denies that he does now. Society workers say that C. tends to minimize problems with either parent to protect them. Dr.

Vinik noted similar behaviour in C.’s interviews with her. [ 20 ] Father was unable to control C.’s behaviour after she was released to him on bail. C. acknowledges that he gave her too much freedom, and that she took advantage of it. She breached conditions to attend school and to stay at home except for specified exemptions. [ 21 ] Although attempts were made to arrange constructive activities for C., Father was unable to get her to those activities. There was conflict between C. and Father that erupted into an argument and, reportedly, threats by C. of self-harm and of violence to Father.

C. now denies this. [ 22 ] Father has recently been working with social worker Ms. Micah Dell from the African Canadian Legal Clinic. He has met with her 2 or 3 times to discuss parenting issues, and wants to continue this counselling. Ms. Dell is willing to work with both Father and C. if C. is released to his care. S. 34 report and pre-sentence report [ 23 ] Both the pre-sentence report and the s. 34 report note many positives about C..

• C. has no record of offences as a young person. • C. shows genuine remorse for her offence and empathy for Ms. J.H.. • C. shows insight into the issues which led to the offence, and takes full responsibility for what she did. She understands the gravity of her offence. • C. recognizes that she needs to make better choices about the peers with whom she spends time. She has shown progress while at Syl Apps in avoiding negative peers. • C.’s behaviour and school performance has markedly improved since going to Syl Apps. There have been no anger management or other behavioural problems.

Despite C.’s poor performance at school prior to the offence, at school at Syl Apps she has been doing well. • C. has pro-social values, and wants to take steps to insure that she does not re-offend. • C. has no mental health diagnosis and has no problem with substance abuse. • There are strong ties of love and affection between C. and Father. [ 24 ] C. told Dr. Vinik that that she was carrying a knife on the night of this offence for self-protection, as she had been bullied and threatened by others in the past. She said that she became scared for her safety when she was hit by both Ms. J.H. and Ms.

C.L., and drew the knife to defend herself. Dr. Vinik noted that C.’s parents both advised that the child has had problems controlling anger. • C.’s mother reported that in the year before this offence C. had problems controlling anger and engaged in aggressive behaviour with her siblings. On one occasion, she drew a knife when arguing with her brother. • Father reported to CAST that he had difficulty managing C.’s anger. [ 25 ] Dr. Vinik assessed C. as being of moderate risk to re-offend.

The important factors that contributed to this risk were described as “C.’s family circumstances/parenting (i.e., inadequate supervision, difficulty in controlling behaviour, inappropriate discipline, inconsistent parenting, and a poor relationship with her mother), difficulties in school attendance, negative peer associations limited organized leisure activities, poor frustration tolerance, and some defiance of authority”. C.’s focus on “academic goals, strong attitudes against substance abuse, and her pro-social orientation” were noted as areas of strength. [ 26 ] Dr.

Vinik noted that the risk level described may be lowered because of C.’s recent improvement since she has had access to appropriate services at Syl Apps. Dr. Vinik was clear in her opinion that C. needed to be in a highly structured placement with access to appropriate treatment and activities in order to minimize the risk of her re-offending. [ 27 ] Although C. has no mental health diagnosis, Dr.

Vinik was also clear that her exposure to domestic violence and harsh parenting likely had a negative impact on her functioning, an impact that made it more likely that she would have “strong emotions of anger” during times of stress. She recommended that any treatment for C. be trauma-based. [ 28 ] Dr.

Vinik recommended that C. have individual therapy focussing on: • “Emotion regulation and frustration tolerance • Psychoeducation regarding responsible use of social media • Choice of peers • Managing social conflict and negotiating difficult social situations • Process and explore the impact of negativity and potentially traumatic past experiences.” [ 29 ] Dr. Vinik noted that family relationships are very important to C., and that the child wishes to live with Father. Dr. Vinik strongly recommended parent management training for Father and, if Mother chose to be involved, for Mother. [ 30 ] Dr.

Vinik said that it was very important for C. to have an older positive female role model. C. has already applied to be involved in the PACT program for this purpose. The law [ 31 ] Parliament in enacting the Youth Criminal Justice Act aimed to correct an over-reliance by the justice system on custodial sentences, a practice which evidence showed did not benefit society or the young offender. [ 32 ] The purpose of sentencing under the YCJA is set out at section 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. [ 33 ] S. 38 of the Act goes on to set out principles and factors that must be considered in fashioning an appropriate sentence.

(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 adultwho 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 sameoffence committed in similar circumstances; (

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

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all youngpersons, 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 andthe 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 thepurpose and principles set out in this section. [34] S.39 (1) allows a court to consider a custodial sentence in only four circumstances.

Because C. has committed a violentoffence, a custodial sentence is open for consideration. [35] However, s. 39(2) of the Act directs that the court must still consider all reasonable alternatives to a custodial sentence in thecircumstances that may meet the purpose and be consistent with the principles of sentencing set out in s. 38. [36] S. 39(3) of the Act sets out factors to be considered in determining whether there are reasonable alternatives to custody: (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance withprevious non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. [37] In determining whether a non-custodial sentence will meet the objectives of the Act in any case, a court must considerwhether the sentence is sufficient to hold a young person accountable for her offence. The Court of Appeal has provided guidance as towhat it means to hold a young person who offends “accountable”. In R. v.

A.O., (2007) 2007 ONCA 144 , O.J. 800, JusticeRosenberg held that “accountability in the Y.C.J.A. is the equivalent of the adult sentencing principle of retribution, reflecting “themoral culpability of the offender, having regard to intentional risk-taking of the offender, the consequential harm caused by the offender,and the normative character of the offender’s conduct.” Analysis [38] The primary question I must consider is whether a custodial sentence is required in this case to meet the principles andpurposes of the Act. I have considered the following factors in making this decision. 1.

The objective gravity of C.’s offence is high. Ms. J.H. suffered very serious injuries. Physical pain still limits her day -to -day

functioning. Psychological pain limits her ability to interact with others without fear. 2. C. was primarily responsible for the offence. Although she was egged on by her peers, it was she who threw the first punch. It was she who drew the knife. 3. C. was only 13 years old at the time of this offence. Her intention in carrying a knife that night was not to hurt others, but to use to scare others, for self-protection. Despite that intention, C. did not flee the situation when she could have, after Ms. C.L. responded to her punch by hitting her. 4.

C. had so little control of her emotions that she lashed out with the knife, without thought of the harm she could (and did) cause. That harm was reasonably foreseeable. 5. C. has taken responsibility for her offending behaviour by pleading guilty. 6. She has spared Ms. J.H. the stress of reliving the attack if required to give evidence. 7. C. is genuinely remorseful, and has written a letter to Ms. J.H. expressing this remorse. Given her young age, C. is not in a position to make financial reparation to Ms. J.H.. 8. C. has no prior record of offending. 9.

C.’s repeated non-compliance with the terms of her recognizance on this charge raises concern as to how she might comply with a non-custodial sentence, unless she is residing with a caregiver who provides a highly structured environment and consistent oversight. 10. C. has been exposed to domestic violence, and inconsistent and neglectful parenting. She has had difficulties managing anger and aggression, and in identifying non-violent ways to handle conflict. 11. C. has since she was detained at Syl Apps shown great improvement. She has complied with the rules of the facility.

She has not demonstrated problems managing anger, and has not been aggressive to others. She has progressed in school. She has recognized and stayed away from negative peers. 12. As noted by Dr. Vinik, Syl Apps is a “highly structured environment … with clear and predictable expectations”. 13. Father in the past has not been able to provide a structured, positive environment for C., an environment which gives the child appropriate supervision. Father has recognized that he needs help in this respect, and has just begun to meet with Ms. Dell from the African Canadian Legal clinic to obtain assistance. 14.

C., prior to my determining her sentence, served 4 months in a secure facility. As noted above, she was detained because of non- compliance with the terms of her recognizance. C. has had access to extensive programming and treatment at Syl Apps. [ 39 ] The Crown, in her submissions, heavily emphasized the gravity of the offence in arguing for the maximum custodial sentence available.

She argued further that in C.’s circumstances, a custodial sentence was required to assist in her rehabilitation, as the child’s parents had been ineffective in controlling her behaviour in the past. [ 40 ] Defence counsel that submits that the time C. has spent in detention is sufficient to recognize the gravity of her offence. He referred me to two cases from the provincial courts in which aboriginal young persons found guilty of aggravated assault in which serious injury was caused were given non-custodial sentences.

Counsel recognized that C. had not in the past been closely supervised by Father, but argued that Father was getting the help required to give C. the assistance she needs. Counsel reminded the court of the provisions of s. 42(5) of the Act, which provide that a court shall not “use custody as a substitute for appropriate child protection, mental health or other social measures”. [ 41 ] Does the gravity of C.’s offence require a custodial sentence? I note that the circumstances of the offenders in the cases cited by defence counsel differ from the instant case in important respects. In R. v.

D.J.H.S., 2016 SKPC 21 , the young person had complied with strict bail conditions for over a year. A pre-sentence report noted the significant progress he had made in his rehabilitation. The trial judge accepted that a custodial sentence might have a negative effect on this rehabilitation, and he imposed a sentence of 2 years’ probation. In R. v. K.C., 2011 ONCJ 364 , the Crown and the defence joined in requesting a non-custodial sentence, given the progress the offender had made in rehabilitating himself.

The trial court imposed a sentence of 2 years’ probation. [ 42 ] Courts of Appeal have held in cases with circumstances similar to this case that a non-custodial sentence is not a fit sentence, and have imposed custodial sentences of varying lengths, from 6 to 24 months of custody and supervision. • In R. v. D.S [1] . a 16 year old offender was one of a group that kicked and punched a victim whom had been involved in a prior dispute with the group. D.S. was found guilty of aggravated assault. D.S. was not the main perpetrator and in fact did not himself deliver any blows. The victim suffered brain damage.

D.S. was aboriginal and had a prior criminal record and "a tragic upbringing". The Ontario Court of Appeal upheld the trial judge's finding that a custodial sentence of 24 months was appropriate, after reducing the sentence to give appropriate credit for pre-sentence custody of 7 months. • In R. v. K.O [2] ., a 16 year old offender with no prior record participated in a home invasion in order to avenge a friend who claimed she was abused by her step-father. The victim grabbed K.O., and K.O. stabbed him. The victim suffered two collapsed lungs.

K.O was found guilty of aggravated assault and entering a dwelling house. K.O. was extremely remorseful, had strong positive family support, and was assessed by a psychologist as low-risk to re-offend. The Manitoba Court of Appeal found that the sentence of 2 years' probation imposed by the trial judge was unfit, and that a 6 month sentence of custody and supervision was appropriate. However,

because of the lengthy period between the sentencing and the appeal during which K.O. had made "great strides", the Court declined to vary the sentence. • In R. v. K.L [3] . a 15 year old offender with no prior record was found guilty of assault causing bodily harm. K.L. was part of a group which went to a plaza to confront young men from another group. K.L. played a significant role in the assault on the victim, who suffered a broken jaw and concussion and lost two months' work. K.L. had strong family support.

The Ontario Court of Appeal set aside a probationary sentence as unfit, substituting a 6 month sentence of custody and supervision. • In R. v. N. (C.) [4] , a 17 year old offender with no prior record and good family support was found guilty of aggravated assault when he slashed another boy with a knife, causing serious injuries. The young person was sincerely remorseful, and had engaged in appropriate counseling since the offence. It did not appear that a custodial disposition was required to rehabilitate the young person. The trial judge imposed a sentence of two years’ probation, with strict conditions.

The Ontario Court of Appeal set the sentence aside as demonstrably unfit, given the seriousness of the offence and the offender’s degree of responsibility, and imposed a sentence of 9 months custody and supervision followed by 6 months’ probation. [ 43 ] C. has spent 4 months in secure detention at Syl Apps. In determining a custodial sentence, the court is required to give C. credit for pre-sentence detention.

The Ontario Court of Appeal has found that the starting point for the assessment of that credit is 1.5 days for each day served, but that various factors may lead to a further enhancement or reduction of that credit. [5] [ 44 ] In this case, considering the following factors, I would give C. credit only on a 1:1 basis for the period she spent in detention prior to sentencing. • Conditions of detention. It was not alleged that C. suffered from poor conditions in detention at Syl Apps. C. has been provided with and taken advantage of many services during her detention. • Reason for detention.

C. was detained because of multiple breaches of her conditions. • Need for further custody to serve the objectives of the Act. As set out at more length below, at present a custodial sentence is needed to promote C.’s rehabilitation. [ 45 ] Given the seriousness of the offence and C.’s role in the offence, I doubt that 4 months in detention followed by a term of probation would be a fit sentence, a sentence sufficient to hold C. accountable.

However, I might have considered this option further if there was evidence that a custodial sentence was not required to assist in C.’s rehabilitation, or might even compromise her progress. [ 46 ] That is not the case. [ 47 ] A custodial sentence is required to meet the objectives of the Act in order to facilitate C.’s rehabilitation. I accept Dr.

Vinik’s finding that a highly structured environment with careful supervision is required for C. to obtain the services which she needs, for C. to be in a position to manage her anger without resort to aggression, and to develop non-violent ways of handling conflict and dealing with her fear of aggression by others. Dr. Vinik’s final recommendation contains a caution which highlights the importance of proper supervision for C.: “All of these above suggestions of course rely on C. actually attending classes/services and asking for and receiving help from the staff involved.

Therefore, it is of utmost importance that her attendance and behavior be monitored and that she continues to be supervised both inside and outside of school/programing to ensure that she is going to any services agreed to, as well as classes, and refraining from antisocial peer associations.” [ 48 ] The only non-custodial plan for C. currently before the court is a sentence of probation, with C. residing with Father. I am not persuaded that Father is able to provide C. with the care and supervision needed at present. He loves C. dearly, and she loves him. He wants to care for her.

However, in the past he has been unable to control her behavior, insure that she comply with conditions of release, and arrange for her to obtain appropriate programming. Father has not shown ability in the past to work with agencies that would help him manage C.. There is no evidence that he has family or friends who can assist him. [ 49 ] Father now acknowledges that he needs assistance, and has just begun to obtain that assistance. However, 2 or 3 meetings with Ms.

Dell are insufficient for Father to demonstrate that he is now able to provide the supervision and guidance which C. requires. [ 50 ] The only available disposition now that would meet the requirements of the Act—to impose the least restrictive alternative that would promote C.’s rehabilitation and re-integration into the community—is a custodial disposition.

A custodial sentence can insure that C. has a highly structured environment, with access to the services which she requires. [ 51 ] Should C. be in secure or open custody? [ 52 ] Determinations about the level of custody are guided by s. 24.1(2) of the Young Offenders Act, which is made applicable by Order-in-Council 498/2004, in accordance with s. 88 of the Youth Criminal Justice Act . Sections 24.1(2) and (4) provide: 24.1(2) Subject to subsection (3), where the youth court commits a young person to custody under paragraph 20(1)(

k) or (k.1) or makes an order under subsection 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order whether the custody is to be open custody or secure custody.

(4) In deciding whether a young person shall be placed in open custody or secure custody, the youth court or the provincial director shall take into account the following factors:

(

a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to (

i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances, in which that offence was committed, (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services, (iii) the safety of other young persons in custody, and (iv) the interests of society; (

b) that the level of custody should allow for the best possible match of programs to the young person's needs and behaviour, having regard to the findings of any assessment in respect of the young person; (

c) the likelihood of escape if the young person is placed in open custody; and (

d) the recommendations, if any, of the youth court or the provincial director, as the case may be. [ 53 ] If C. is sentenced to secure custody, she will remain at Syl Aps in Oakville. If she is sentenced to open custody, she will be transferred to Marjorie Amos in Brampton. [ 54 ] Given the principle of least containment, there are factors favoring an order of open custody. There is nothing in C.’s history that suggest that she might try to escape from an open facility. The programming recommended by Dr. Vinik and by Mr. Viau would be available if C. was at either facility.

Father has been able to visit regularly while C. has been at Syl Aps, and he would be able to continue to visit her regularly if she was in Brampton. [ 55 ] However, there are important factors which have persuaded me that an order of secure custody should be made. • The seriousness of the offence. • The security of other young persons in the facility. This is a concern, given the circumstances of the offence (a violent unprovoked attack on another young person), • C.’s needs. Dr. Vinik notes that C. is slow to trust, and needs a trusting relationship to progress in treatment.

She is doing well in her program at Syl Apps. A transfer could impede her progress. [ 56 ] In my view, the appropriate sentence for C. would be 10 months of custody and supervision, and a term of probation; after deduction of her 4 months in custody prior to today, the sentence which I order is one of 6 months custody and supervision—4 months in actual custody, followed by 2 months of community supervision—followed by 13 months of probation. [ 57 ] I am ready to review this sentence at any time, and on review this sentence may be varied.

I am aware that the Society may proceed with its application and secure an order of wardship for C.. I am also aware that other family members may be prepared to offer to have C. reside with them. I also recognize that Father may be able to demonstrate after further work with Ms. Dell and other services (obtained from working with the Crossover Kids staff or with the Society) that he is able to insure that C. receive with him the environment required to promote her rehabilitation. [ 58 ] I order the following conditions for the community supervision portion of C.’s sentence. 1.

C. shall have no contact, direct or indirect, with Ms. J.H. or Ms. C.L.. 2. C. shall attend a program of education regularly. 3. C. shall participate in programming, counseling, and treatment as directed by the provincial director and sign releases to allow the provincial director to monitor her compliance. 4. C. shall apply to and, if accepted, participate in the PACT program. 5. C. shall reside in a place approved by the provincial director. 6. C. shall be in her place of residence from 10 p.m. to 6 a.m. each day, unless the person or facility having custody of her authorizes

her absence in writing. 7. C. shall participate in a psycho-educational assessment. 8. C. shall not possess any weapons, as defined by the Criminal Code . [ 59 ] The above terms will also apply to the term of probation I have ordered, with the additional term requiring C. to report to a probation officer as directed. [ 60 ] As recommended by Dr.

Vinik, I order a psycho-educational assessment of C. pursuant to s. 34 of the Act. [ 61 ] I confirm my prior order that the s. 34 assessment already completed, and the further assessment which I have ordered be released to probation, to any facility in which C. is serving her sentence, and to CAST and the Crossover Kids program. I direct that the psycho-educational assessment when completed be released to the persons identified above, as well as to the director of any school which C. attends. [ 62 ] I also make a DNA order and a 5 year weapons prohibition pursuant to

section 51 of the Act. Released: September 21, 2016 Signed: Justice E. B. Murray