r v. X, 2011 QCCQ 428

LSJPA — 113 2011 QCCQ 428 JG2072 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... “Youth Division” No.: 505-03-015885-082 DATE: January 27, 2011 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARIO GERVAIS ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

X Young person-accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] At the end of his trial, the young person was found guilty of the dangerous operation of a motor vehicle causing the death of A, the offence in question having occurred on January 28, 2008. [ 2 ] A very favourable pre-sentence report was prepared by the delegate of the provincial director (the director).

At the end of her assessment, she recommended a discharge subject to several conditions for a one-year period. [ 3 ] The young person agreed with the director’s recommendation. [ 4 ] The prosecution objected to a conditional discharge, believing it was clearly too lenient. The prosecution recommended a sentence of a minimum of 100 hours of community service work, one year of probation with specific conditions, and a prohibition from driving for at least one year, pursuant to

section 259 of the Criminal Code .

[ 5 ] The facts relating to the offence were described in the judgment on verdict filed in the record on June 18, 2010. The Court reproduces the following elements: ➢ The automobile was driven by B. The accused was a front-seat passenger.

The victim was sitting in the back seat of the vehicle. ➢ The accused had consumed alcohol during the evening. ➢ The accused knew that the driver of the vehicle had consumed alcohol during the evening (beer and shooters) but could not say exactly how much. ➢ The vehicle was driven at night, on January 28, 2008, when the temperature was minus 12º Celsius, under “winter dry” road conditions; in other words, the tires had less grip than on a dry road during the summer. ➢ The vehicle was travelling at a speed of about 65 km/hour on the Highway 116 access road. ➢ The accused, who was the front-seat passenger, instructed the driver to take the Boulevard A exit to allow them to reach their destination. ➢ At the same time, the accused suddenly grabbed the steering wheel, [ TRANSLATION ] “pulling it hard” toward himself, in his words, pulling it a little less than 90º, so as to steer the vehicle in the desired direction. ➢ The vehicle veered towards the right and crossed the hatched road markings separating the road they were on from the exit to Boulevard A. ➢ The back of the vehicle then skidded to the left in a clockwise direction. ➢ The vehicle hit the guard rail located 48.9 metres from the start of the skid.

It rose into the air on impact. ➢ The vehicle continued on and hit a street lamp 11.5 further on, next to the rear door on the driver’s side. ➢ On impact, the back of the vehicle rose into the air and turned 180º counter-clockwise, without somersaulting. ➢ The vehicle hit the ground 23 metres further on and continued to move forward. ➢ The vehicle continued on for 30 meters after hitting the ground before stopping. ➢ The victim, the backseat passenger, was seriously injured. ➢ She was rushed to hospital, where she died a few hours later. [ 6 ] THE LAW [ 7 ] The Youth Criminal Justice Act (YCJA) [1] provides that the criminal justice system for young persons must be separate from that of adults and have its own guiding principles. [ 8 ] The criminal justice system for young persons is based on the “ recognition of the presumption of diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system. [2] [ 9 ] The most relevant provisions of the YCJA , at the sentencing stage, are the

preamble (reduced over-reliance on incarceration),

section 3 (declaration of principles that apply in the Act ), sections 38 and 39 (sentencing purpose and principles and restrictions to committal to custody) and

section 42 (youth sentences). [ 10 ] These provisions reconcile different values unique to the criminal justice system for young persons. They are, as the case may be, complementary or contradictory and seek to strike an appropriate balance between the long-term protection of the public and the rehabilitation and reintegration into society of the young person. [ 11 ] In a recent decision, [3] the Honourable Mr. Justice Michel Dubois recalled the importance of assessing the aforementioned provisions as a whole to accurately interpret the philosophy.

He stressed the importance of fashioning an individualized sentence, adapted to the character of the young offender. Mr. Justice Dubois wrote as follows: [ TRANSLATION ] While having to reconcile a multitude of apparent contradictions or diverging interests, the Court often reminds prosecutors when it comes to sentencing young persons that they are not dealing with an à la carte menu, where everyone can choose what they want, but rather a table d’hôte, where everything is included.

It’s always a matter of “made to measure” rather than “ready to wear”. [ 12 ] Authors Jean Turmel and Sophie Delisle [4] summarize in this way the purpose, the applicable principles, and the factors to be considered when sentencing a young person: [ TRANSLATION ] The purpose of sentencing

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 (section 38(1)). The sentencing principles The sentencing principles are outlined in sections 38(2) and 3 as follows:

(1) The sentence imposed on a young person must not result in a punishment that is greater than the punishment that would be appropriate for an adult in similar circumstances (section 38(2)( a ), 3(1)( b ) (ii) and ( c )).

(2) The sentence must be similar to the sentences imposed in the region in similar circumstances (section 38(2)( b )) …

(3) The sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence (section 38(2)(

c) and (e)).

(4) All available sanctions other than custody should be considered (section 38(2)( d )).

(5) Subject to the principle of proportionality (section 38(2)( e ), 3(1)( a )(ii) and ( c )), the sentence must: o be the least restrictive possible o be the one that is most likely to rehabilitate the young person and reintegrate him or her into society o promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community and promote his or her rehabilitation o reinforce respect for societal values o be meaningful for the individual young person given his or her needs and level of development o respect ethnic and other differences.

The factors Section 38(3) sets out the factors to be considered by the court when sentencing a young person, which are the degree of participation by the young person, the harm done to victims and any reparation made, the time spent in detention, the previous findings of guilt of the young person, and any other aggravating and mitigating circumstances related to the young person or the offence.

The Supreme Court [5] has held that the wording of the sentencing regime leads inevitably to the conclusion that Parliament deliberately excluded general deterrence as a factor of youth sentencing. [ 13 ] ANALYSIS [ 14 ] The court distinguishes the act with which the young person is charged, grabbing the steering wheel to make a sudden turn, from that of a person who has driven a car at high speeds and carried out various dangerous manoeuvres. [ 15 ] In this sense, the young person’s action was not malicious but rather a result of his carelessness.

The offence was an atypical crime in that there was no way of predicting his action or its tragic consequences. The consequences of his action were nevertheless serious and irreversible since a young woman died. [ 16 ] At the scene of the accident, the young person did everything possible to help the victim and to keep her alive until help came. The lawyers have informed the Court that, in the courtroom at the end of the trial, the victim’s parents gave him a hug and thanked him for helping their child. [ 17 ] The young person sincerely regrets his action and feels deeply guilty about the victim’s death.

He is aware of the irreparable wrong he has done to the victim and her loved ones. [ 18 ] The young person comes from a loving and supportive family. His parents raised him to have strong prosocial values, which he has embraced without reserve. [ 19 ] The young person’s parents attribute the act with which he is charged to an error in judgment. They are still very involved with him and plan to support him, whatever the sentence imposed. [ 20 ] The young person has always been very functional in all spheres of his social life. Often first in his class, he has an exemplary academic record.

He is now studying civil engineering at University A. For the past few years he has worked part time to pay for his studies. He has a good social network and keeps good company. He is involved in various sporting activities.

[21] The young person is described as being an intelligent young man, independent, helpful, a perfectionist, respectful, empathetic,peaceable, and working toward highly positive goals. [22] The young person does not have an alcohol problem and does not take drugs, although he has experimented with soft drugs inthe past. [23] The risk of re-offending is almost non-existent. The Court has nevertheless been informed that the young person has beenstopped twice for speeding since the alleged offence, once for travelling at 93 km/h in a 50 km/h zone and once for travelling at 91 km/hin a 70 km/h zone.

In both cases the offences under the Highway Safety Code were committed on country roads. The most recent eventoccurred in February 2009. He has been charged with no offences under the Highway Safety Code for almost two years. [24] The young person has no previous record [25] A’s life ended brutally and much too soon; she was only 22 years old when she died. [26] Through the words of her family, the Court has come to know A. She was an extraordinary young woman, endearing, lively,cheerful, imaginative, creative, generous, and caring.

She had a significant positive impact on her family and on those around her. [27] Her loved ones are inconsolable. Their pain and suffering are still strong. At the same time, they are grateful for having hadthe chance to know the child, sister, and close friend that they still love deeply.

They also feel anger, incomprehension, sadness, anddistress at having been deprived of her presence so suddenly and at this unfair death. [28] The Court finds itself obliged to impose a sentence in an emotionally charged situation involving the young person, hisfamily, and that of the victim. [29] Above all, the Court is aware that no measure provided by the YCJA can enable the victim’s family to obtain redress.

Nothingcan bring A back. [30] It is now well established that a conditional discharge, ordered under the YCJA, is not an exceptional measure.[6] In fact,pursuant to sections 42 et seq. of the Act, it may be considered for any offense except murder.[7] [31] Nevertheless, a conditional discharge must be imposed in accordance with Parliament’s objective, the applicable principles,and the factors to be considered when sentencing.

It must in particular be just and commensurate to the offence, the degree ofresponsibility of the young person, and his character. [32] The test required in the case of an unconditional discharge, according to which the measure must be in the best interests of theyoung person and not contrary to the public interest, does not apply to a conditional discharge.

In this regard, the Court agrees with theanalysis of the Honourable Madam Justice Michèle Lefebvre:[8] [89] The attorney for the Crown argued that in order for a discharge to be considered in this case, the Defendant had to prove that it wasin his best interests and not contrary to the public interest. [90] With respect, while such criteria does indeed apply to an absolute discharge in compliance with paragraph 42 (2)(

b) of the YCJA,this criteria is not required in paragraph 42(2)(

c) of the YCJA which refers to a conditional discharge. [91] Section 42(2) states: (

b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young personand not contrary to the public interest; (

c) by order direct that the young person be discharged on any conditions that the court considers appropriate and may require theyoung person to report to and be supervised by the provincial director; [92] While one might argue that the same criteria is tacitly implied in paragraph 42(2)(

c) of the YCJA, the Supreme Court has recentlyruled otherwise in R. v B.W.P; R. v. B.V.N., 2006 SCC 27 , 2006 C.S.C. 27, The Crown had argued that paragraphs 42(2)(

n) and42(2)(

o) of the YCJA must be read in tandem so as to require the Court to impose two-thirds of the sentence in custody and one-thirdunder supervision, in order to ensure that offenders sentenced under 42(2)(o) [presumptive offence] spend at least as significant a portionof the sentence in a custodial custody as those sentenced under 42(2)(n) [less serious offences]. Unanimously the Supreme Court rejectedthis

interpretation, declaring that it was clear from their wording that the two provisions were different, and since the ordinary meaningof the words was clear, they should be read accordingly. [93] It follows that paragraph 42(2)(

c) should be read as it is worded, the only criteria applicable being therefore the principles andpurpose contained in sections 3 and 38 of the YCJA. [33] Applying all of these principles to this case, the Court believes that the sentence recommended by the director in her pre-sentence report and suggested by the young person’s lawyer is a fit sentence under the circumstances.

[ 34 ] In doing so, the Court imposes an inherently individualized sentence, specific to the character of the young person. An exhaustive review of case law regarding sentencing leads to the conclusion that the young person’s character in this case is one of the most positive seen to date.

This young person’s case is truly exceptional among those brought to justice. [ 35 ] The Court notes that this last factor does not obscure all the other considerations taken into account and described in the preceding paragraphs – on the contrary. [ 36 ] The Court considers that the particular circumstances of this case are such that a sentence of discharge upon strict conditions appropriately reflect the need to reinforce “the link between the offending behaviour and its consequences” ( section 3(1)( b )iv) YCJA ) so that the sentence is “ proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence ” (38(2)(

c) YCJA ) . [ 37 ] The question of the sentence and the rules of law governing it has been considered from the perspective of the survivor, the young person, with all due respect for the memory of the deceased and with regard for her family. The sentence contemplated by the Court is the result of the particularly difficult and complex exercise it has engaged in. [ 38 ] Such a sentence is not without precedent, in that the Honourable Mr.

Justice Oscar D'Amours, in an unreported case, [9] imposed a conditional discharge under the YCJA regime to a young person convicted of dangerous driving causing death. [ 39 ] The Court intends to attach all the necessary conditions to the order of discharge to make it a just sanction, with meaningful consequences, promoting the rehabilitation of the young person and the long-term protection of the public. These conditions and their duration will surpass the recommendations thereon. [ 40 ] Finally, the Court does not intend to make the discretionary prohibition order prescribed by

section 259 of the Criminal Code . [ 41 ] Nevertheless, the Court does intend to restrict the young person’s right to drive under the terms of the conditional discharge. [ 42 ] FOR THESE REASONS, THE COURT: [ 43 ] IMPOSES on the young person a conditional discharge with the following conditions: ▪ Keep the peace and be of good behaviour ▪ Appear before the court when required ▪ Advise the court of any change of address ▪ Report to the A municipal police at ...

A Boulevard once a month, within the first five days of the month, for one year ▪ Report to the provincial director and be under his or her supervision , for one year ▪ Participate in a mediation process with the victim’s family, if it agrees to do so, for one year ▪ Complete two hundred forty hours of community service, including the possibility of giving personal “testimonials” at driving schools, high schools, colleges, youth centres, and other appropriate locations to educate young people about the dangers of driving.

In such a case, the hours spent preparing and presenting will be included in the total of two hundred forty hours to be completed ▪ Appear before the director or an alternative justice organization as required to carry out the community service work ▪ Prohibition from operating a motor vehicle on public or private roads, except for the purposes of attending school, going to work, reporting to the police, meeting with the provincial director, or doing community service work in accordance with the preceding conditions ▪ Prohibition from consuming alcohol.

THE WHOLE, for a period of two years. ________________________________ Mario Gervais, J.C.Q. Mtre Jacques Diamant Criminal and penal prosecuting attorney Mtre Marie-Josée Dionne For the accused