2013 QCCQ 13554, 2013 QCCQ 13554

LSJPA – 1355 2013 QCCQ 13554 JC0B11 COUR DU QUÉBEC CANADA PROVINCE DE QUÉBEC DISTRICT OF [...] LOCALITY OF […] « Youth Chamber » N° : 760-03-010492-125 DATE : September 3, 2013 ______________________________________________________________________ SOUS LA PRÉSIDENCE DE : L’HONORABLE BÉATRICE CLÉMENT ______________________________________________________________________ LE DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Poursuivant vs.

X Born on […]1994 Defendant ______________________________________________________________________ DÉCISION ON SENTENCING (1) ______________________________________________________________________ [ 1 ] On October 2 nd 2012, the Defendant pleads guilty to a charge of aggravated assault in relation to an incident occurring the preceding April 11th.

In view of sentencing, the Court requests the confection of a presentence report and further hears the parties on August 6, 2013. [ 2 ] The presentence report suggests a probationary period of 14 months, with supervision, including various conditions and specifically the payment of an amount of 500$ in either compensation to the victim or a donation. [ 3 ] The defence suggests that the recommendations of the report are appropriate and an adequate reflection of the situation. [ 4 ] The prosecution submits that the gravity of the offence justifies the imposition of a six month deferred custody, followed by a 1 year probation.

She also recommends that the Court consider additional rehabilitative measures of compensation to the victim and community service. [ 5 ] FACTS RELATIVE TO SENTENCING [ 6 ] On April 4, 2012, the adolescent and the victim meet for a pre-determined confrontation on the outskirts of the high school they jointly attend. The Defendant, aided by his friends, instigates this meeting, believing that the victim, Mr. A, has stolen a value of approximately 20,00$ worth of marijuana from him.

The adolescents are acquaintances. [ 7 ] During the sentencing hearing, the Court views a video recording of the incident. [ 8 ] The victim and the Defendant are seen outside, surrounded by other students. Initially, the victim has his hands in his pockets and is motionless. The Defendant takes on a fighting stance, jumps in place and punches his fist. They exchange a few words. Taunts are heard from the others present. After a certain hesitation, the Defendant launches himself at Mr. A and punches him in the face. The victim falls to the ground, is taken in a headlock and receives other hits to the head.

They both get up and exchange punches. The victim receives a final punch and staggers off to the side. [ 9 ] The victim sustains substantial physical injuries, more particularly: • A fractured septum under the left eye;

• Shattering of the orbital floor; • A fractured left cheekbone; • Stitches to both the bottom and upper eyelids; • A chipped tooth; • Bruises and scratches on his arms, knees and legs; [ 10 ] The victim produces an impact statement and testifies before the Court. [ 11 ] He stays in the hospital for three days and suffers pain and numbness for 2 to 3 months. At present, he testifies that the most significant remaining prejudice is as to his vision and occasional periods of dizziness. His weakened eyesight may impede his career aspirations to become a pilot.

Any further corrective surgery may not be covered by medicare, therefore incurring costs to himself, of which the exact sum the evidence is unable to confirm. Furthermore, he must be careful to not sustain any further head injury because of the steel plate he now has, as a result of the fight. [ 12 ] He is unaware if the provincial indemnity fund for victims of criminal acts (IVAC) can cover costs related to further surgery. [ 13 ] He submits that the Defendant didn’t foresee the injury he inflicts on him and believes he is not a bad person. He seeks no prohibition of contact with the Defendant.

He adds that he holds no grudge against the Defendant, demonstrating a generous view and maturity, which belie his young age. [ 14 ] As to the Defendant, the evidence sustains that the aggression of which he is the instigator is neither a reflection of his personality, nor functioning. On the contrary, the presentence report, testimonies, as well as numerous written testimonials produced in evidence, describe a persevering, hard working youth, who has an overall positive history. [ 15 ] The Defendant is surrounded by a family environment, which is supportive and promotes pro-social values.

The parents censure their son's actions and wish him to assume responsibility for his actions. [ 16 ] The Defendant has a previous conviction of drug possession in 2011, for which he receives a conditional absolution. He respects the conditions imposed by the Court, which include performing 50 hours of community service. He adequately participates in the follow-up. [ 17 ] The Defendant is subject to social censure. The incident receives media coverage and the Defendant is recognized as the aggressor.

He is expulsed from school and misses his graduation ceremony. [ 18 ] The Defendant presently lives autonomously while attending school. He comes home on weekends and presents an overall quiet life. He plans on pursuing his education, but remains uncertain as to his orientation. [ 19 ] He maintains an occasional consumption of marijuana and defies being bound to cease such consumption, considering his promotion of its legalization. [ 20 ] ANALYSIS AND DECISION [ 21 ] The Court must determine the most appropriate sentence, in respect of the principles outlined by the Youth Criminal Justice Act.

To this end, the Court cites the basis of these principles: • 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. [ 22 ] The law also stipulates that the Court must seek the measures that are the least restrictive necessary to achieve the objectives of the law, which require the weighing of the aggravating and mitigating factors relating to the adolescent, as well as the act for which he is before the Court. [ 23 ] Without a doubt, the objective and subjective gravity of the aggression for which the Defendant is before the Court, are significant.

Not only does this criminal act render him admissible to a custodial sentence, further consideration of the specific facts determine that the results on the victim are serious and result in long term damages. [ 24 ] The Defendant doesn't present a delinquent personality, but a risk of recurrence remains present considering his preoccupation with his image and tendency to react to negative influence by peer pressure.

The pre-sentencing reports underlines four weaknesses, namely a difficulty expressing his feelings, a need to be accepted by peers, a defiant attitude towards the law and its system and a lack of empathy for the victim. [ 25 ] Particularly, the Court cites the presentence report: X needs to learn self-examination. He will only understand the full impact of his behaviour once he recognizes his own feelings. He is focused on others when he tries to be the spot light of attention and judges the value of his actions based on the crowd's response. This can be a dangerous and misleading way to choose how to act.

X needs to gain confidence in his own judgement by considering his own feelings, then those of others. In this way, he will reassume full responsibility for his actions and stop relying on the ''crowd pleasing'' factor. Though he is mostly unaware of his inner feelings and he has a strong need to be perceives as self-sufficient, the results indicate that X

is open to intervention. (p. 13) [ 26 ] After considering all the circumstances, the Court considers that a custodial sentence is not required to affect meaningful consequences on the defendant, nor protect the public on a short or long-term basis. Although a deferred custodial sentence certainly is an objectively meaningful consequence for the Defendant, subjectively, the assurance of its respect leaves little in the way of sustaining a reflective accountability for his act, other than affording him a more serious sentence on his record. [ 27 ] Although the impact on Mr.

A is an essential element in the evaluation process, the Court recognizes that no appropriate sentence can be proportional to the injuries, both moral and physical; he suffers as a result of the Defendant's act. [ 28 ] Overall, the presentence report presents a conscientious analysis of the various factors and reflects an approach that respects the needs of society, as well as those of the Defendant as to his rehabilitation. [ 29 ] Notwithstanding, the Court considers that it is appropriate to affect additional rehabilitative measures that represent meaningful consequences for the Defendant, while more aptly reflecting the gravity of his act.

To these ends, the Court orders reparation to society by the imposition of community service, as well as to the victim by way of compensation. [ 30 ] Furthermore, the Defendant's drug consumption being a causal factor to his delinquency, the Court considers appropriate to afford a condition as to its evaluation and treatment within the probation, should the provincial director so see fit. [ 31 ] FOR THESE REASONS, THE COURT: [ 32 ] IMPOSES on the defendant, in accordance with paragraph 42 (2) (

k) of the Youth Criminal Justice Act , a probation for a period of 14 months, under the following conditions: 1. Keep the peace and be of good behaviour; 2. Appear before the youth justice court when required by the court to do so; 3. Attend a learning institution on a full time basis and make the necessary efforts to succeed or actively seek employment; 4. Participate in the workshop Laws and Consequences offered by Justice Alternative du Suroît; 5.

Report immediately to the clerk of the youth justice court, at in Town A (Québec), and the youth delegate assigned to his case, any change in address, occupation, employment or school institution; 6. Report to the provincial director and then be under the supervision of that person; 7. Write a letter of apology to the victim, Mr. A, under the supervision of the youth delegate, within the next 3 months; 8. Actively participate in a psychological evaluation and respect the recommendations of the said evaluation for the duration of the probation period; 9.

Upon recommendation of the provincial director, submit to an evaluation of his drug consumption with GROUP A, and follow its recommendations. [ 33 ] ORDERS the defendant, under paragraph 42 (2) (

e) of the Youth Criminal Justice Act , to pay by way of compensation to B, a sum of 500,00$ within the next year, payable at the court, situated at[…] in Town A (Québec); [ 34 ] ORDERS the defendant, under paragraph 42 (2) (

i) of the Youth Criminal Justice Act , to perform 75 hours of unremunerated community service under the supervision of the provincial director, within the next year; [ 35 ] PROHIBITS the defendant, in accordance with section 51 (1) of the Youth Criminal Justice Act , from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 2 years; [ 36 ] ORDERS the defendant to

schedule an appointment with the SQ police department within 5 days of the present, for the taking of bodily substances for forensic DNA analysis; __________________________________ BÉATRICE CLÉMENT J.C.Q. Youth Chamber Me Marie-Eve Rondeau, Attorney for the DPCP Me Philip Shneider, Attorney for the defendant

Hearing dates August 6 and September 3, 2013