r v. X, 2011 QCCQ 2522

LSJPA — 119 2011 QCCQ 2522 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... LOCALITY OF ... “Youth Division” No.: 350-03-000044-100 DATE: March 23, 2011 ______________________________________________________________________ PRESIDING: THE HONOURABLE LUCIE RONDEAU (JR1015) ______________________________________________________________________ Director of criminal and penal prosecutions Prosecutor v.

X Defendant-young person, born ..., 1993 ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The young person has admitted that, on March 14, 2010, he committed assault using a weapon (summary conviction offence set out in

section 267 (

a) of the Criminal Code ). At the relevant time, he was 17 years and 1 month old. The incident (described in greater detail further on) occurred at the end of a hockey game. Counsel jointly suggested that the Court grant the young person (who made a $100 donation to the Crime Victims Assistance Centre) an absolute discharge under

section (42(2)(

b) of the Youth Criminal Justice Act (” Y.C.J.A ” . ). For the sake of transparency, the prosecutor nevertheless informed the Court that the victim’s mother did not agree with this joint suggestion, [ 2 ] The Court must therefore determine the sentence that, under the principles of the Y.C.J.A. , would be appropriate for the young person. The facts [ 3 ] The young person and the victim played on opposing teams in a recreational league ([League A]). The hockey game ended with a 5-4 victory for the victim’s team. The referee blew the whistle to end the game. The victim headed over to his team’s bench.

The defendant came up behind him, slipped his hockey stick between his legs, and lifted the stick hard, in a shovelling motion, hitting him in his genitals. The victim fell down. [ 4 ] The referee ordered the defendant to leave the ice. He laughed and refused. When he was told that he would not be able to play hockey again, he answered, [ TRANSLATION ] “I don’t care. This is my last year”. The victim was in serious pain and was taken to hospital, where bruises were observed. Fortunately, his situation did not require special treatment, and he soon left the hospital.

The situation of the defendant [ 5 ] The young person has no criminal record and has never been subjected to extra-judicial sanctions. During the police intervention, he told the police that he regretted his action. He never expressed any regrets, however, or offered any apology to the victim. Counsel for the defence claims that he had been unable to do so because of the condition prohibiting him from communicating with the victim during the proceedings. The young person did not testify before the Court. [ 6 ] The young person lives with both of his parents and his younger brother.

He has always had trouble at school. The last year he completed in a regular program was his first year of high school. In early 2010, his parents agreed that he could drop out of school, since he was unlikely to graduate. For a few months in 2010 he held a job, but he was temporarily laid off because of lack of work. According to his father’s brief testimony, the young person has no particular problems aside from his trouble at school. The opinion of the victim’s mother

[ 7 ] The victim’s mother believes that the sentence recommended by counsel does not reflect the seriousness of the young person’s gratuitous gesture and his subsequent attitude, all before a crowd of witnesses who were astonished by what happened. She maintains that no one can claim that the attack suffered by her son is an inherent risk in the practice of hockey. The submissions of the parties [ 8 ] Both counsel maintain that the courts have generally granted discharges under

section 730 of the Criminal Code to adults who have committed the same offence in similar circumstances. Therefore, they are of the opinion that the absolute discharge of the young person is appropriate in light of the principle whereby a young person’s sentence must not result in a punishment that is greater than the punishment that would be appropriate for on an adult who has committed the same offence under similar circumstances (section 38(2)(

a) Y.C.J.A. ). The Crown adds that it was inspired by the decision of Jacques A. Nadeau J.C.Q. [1] who, basing himself on this reasoning, granted an absolute discharge to a young person who had committed an assault with a weapon during a hockey game. [ 9 ] Defence counsel makes a more specific argument, stating that the Court should take into consideration a number of mitigating factors. He cites the young person’s guilty plea, the fact that the offence was a rash action committed in the heat of the moment, his client’s age, and the fact that hockey can sometimes be violent.

He added that the victim did not lose consciousness, suffered no after-effects, and was not hit in the head. He concluded by saying that the risk of reoffending is very low, considering that the young person no longer plays hockey. The appropriate sentence [ 10 ] The main argument of counsel is that an adult who commits a similar offence is generally granted a discharge (under

section 730 Cr. C. ). It is worth taking a closer look at this argument. Conditional discharges subject to probation orders with strict conditions have been granted to professional hockey players who have caused serious injuries. [2] The main reason for those decisions was that any other sentence could have hindered the reinsertion and rehabilitation of the adult offenders by considerably limiting their overseas travel, which was essential to their careers as professional hockey players.

Courts have twice imposed sentences other than discharges on adults. [3] [ 11 ] The two decisions reported in Quebec granting absolute discharges involved players in the Quebec Major Junior Hockey League. The first [4] involved an (adult) goaltender guilty of simple assault against the opposing goaltender. The accused agreed to make significant donations to organizations in the area where the events occurred.

It appears from the judgment that, in imposing that sentence, the Court assigned particular weight to the following factors: • The accused expressed sincere remorse and apologized to the victim. • The accused and his family suffered prejudice as a result of the extensive media coverage. • A sentence other than discharge would have considerably hindered the international career aspirations of the accused. • At the time of the events, the prosecution did not authorize charges when the offence with which the accused was charged occurred during a hockey game.

Proceedings against the accused were commenced after that policy was amended. [ 12 ] None of these reasons apply to this case, which greatly limits the impact of that decision. [ 13 ] The second decision is that of Nadeau J.C.Q. [5] (relied on by the Crown to justify its position), who granted an absolute discharge to a minor under section 42(2)(

b) Y.C.J.A. for assault with a weapon. In that decision, the Court concluded that, given the decisions rendered in cases involving professional players, imposing any other sanction on a young person would be contrary to the principle that the punishment imposed on a young person must not be greater than what would be appropriate for an adult who has committed the same offence in similar circumstances (section 38(2)(

a) Y.C.J.A. ). Nadeau J.C.Q. also took into consideration that it would be contrary to the interests of the young person (who was planning a career in the United States, where he was studying while his family lived in Quebec) to impose a sentence that could make it difficult to travel outside the country.

Nadeau J.C.Q. was inspired, in this regard, by the caution of Bastien J.C.Q., [6] who hypothesized that Canadian police authorities notify other people or organizations, such as the immigration services of foreign countries, that a young person has been “convicted” under the Y .C.J.A. .The undersigned, however, does not share the opinion of Nadeau J.C.Q. for two reasons. [ 14 ] First of all, one of the reasons behind decisions ordering an absolute or conditional discharge for adults who have committed assaults during hockey games is to avoid the impact of a conviction on the offenders’ right to travel outside the country given their professional aspirations.

As we shall see, however, the conviction of a minor does not have this impact. To determine whether a punishment imposed on a minor is greater than that imposed on an adult, we must look beyond their common names (absolute or conditional discharge) and consider the terms and effects of each of these sanctions and their impacts. A colleague at the Ontario provincial court [7] has carried out a succinct analysis of this subject in English, which has inspired me to prepare this slightly different analysis in French: • A discharge under the Cr.

C. is an alternative to the imposition of a conviction to avoid giving adults the legal consequences under the Criminal Records Act , which do not apply to minors given the definition of sentence under that Act. • Not so under the Y.C.J.A . This Act does not provide for a decision that, like a discharge under the Criminal Code , does not result in a “conviction”. The cumulative effect of sections 36 and 42 Y.C.J.A. clearly shows that the only power of the youth justice court is to convict and impose one of the sanctions designated under the Act, including a conditional or absolute discharge.

This situation is explained by three considerations: o Under

section 82 Y.C.J.A. , the young person is deemed not to have been found guilty once the sentence has ceased to have effect. o The information regarding the conviction of a young person is accessible only in the context of judicial proceedings or of a police

investigation and only for limited periods set out in article 119(2) Y.C.J.A . These record access periods vary according to the nature of the sentence imposed and to whether the offence is an indictable offence or an offence punishable on

summary conviction. These periods are as follows: • Two months after conviction in the case of a reprimand, the lightest sanction under the Y.C.J.A. • One year after conviction for an absolute discharge • Three years after: o Conviction for a conditional discharge o The sentence has been completed for a

summary conviction offence (subject to a new conviction during this period) • Five years after the sentence has been completed for an indictable offence (subject to a new conviction during this period). o From the date that a record is created until the end of the applicable period, access is limited to the persons and organizations specifically enumerated in section 119(1) Y.C.J.A ., which does not include immigration or customs authorities in other countries. • The Y .C.J.A. imposes a specific criterion for an absolute discharge (section 42(2)(

b) Y.C.J.A. : that the measure be in the best interests of the young person and not contrary to the public interest), which is not applicable to a conditional discharge. On the other hand, in the case of adults, the court must apply the same criteria (set out in

section 730 Cr. C. ) for both a conditional and an absolute discharge. • The discharge restrictions set out in

section 730 Cr. C. [8] are not applicable to young persons. The Y .C.J.A. does not impose limitations for the imposition of a discharge, which may be ordered for any offence except murder. • An adult who is discharged conditionally is subject to a probation order (

section 730 and 731(2) Cr. C. ), which is not the case for a young person (section 42(11) Y.C.J.A. ). [ 15 ] The terms and the impact of these two sanctions, set out in different statutes ( Cr. C. and Y.C.J.A. ), each with their own sentencing principles, show that they are distinct and their consequences are not similar.

So we cannot say that a minor should be discharged simply because that is the sentence usually imposed on an adult. [ 16 ] The second reason the undersigned diverges from the decision of Nadeau J.C.Q. [9] is that, in my respectful view, he places too much importance on the prudence of Bastien J.C.Q., [10] who deems it appropriate to consider the possibility that Canadian authorities will contravene the Y .C.J.A. rules limiting the communication of information about the convictions of young people.

Instead, we should assume that the prohibitions set out in sections 118(1) and 127(4) of that same Act are respected rather than give way to an apprehension not based on evidence. [ 17 ] The danger of the joint suggestion of counsel in this case is of creating a judicial automatism that discharge is the appropriate sentence for any indictable offence that occurs during a hockey game, eliminating the important principle of the individualization of sentences based on the distinctiveness of each case, the situation of the offender, and the applicable principles set out in the Cr. C. or the Y .C.J.A.

That is the decisive analysis that will determine whether or not the Court should accept the joint suggestion of counsel, which cannot be rejected if it takes sufficient account of the objective and subjective seriousness of the offence and the sentencing principles. [11] [ 18 ] The guiding sentencing principle under the Y.C.J.A. is to impose a sentence that is fair and proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence with a view to promoting the long-term protection of the public (section 3 and 38(1) and (2)(

c) Y.C.J.A. ). An absolute discharge may be granted if, in light of all these principles, the Court considers it to be in the best interests of the young person and not contrary to the public interest (section 42(2)(

b) Y.C.J.A. ). [ 19 ] Parliament has clearly expressed the objective seriousness it assigns to assault with a weapon (although it may, as in this case, constitute a

summary conviction) by providing for a stronger sentence, or 18 months of imprisonment (section 267 Cr. C. ), than that usually applicable (section 787 Cr. C. ). [ 20 ] Moreover, certain aggravating circumstances are such that the subjective seriousness of the offence is relatively high. The offence did not occur in the heat of the moment. The game was over. The victim was not involved in an argument with the defendant. The defendant’s action was nothing more than a voluntary gesture expressing his frustration at losing the game.

This seriousness was amplified by the desire to offend the victim’s personal dignity by hitting him, in front of the crowd, in his genitals. On the other hand, in considering the subjective seriousness of this offence, we must also consider that it was not planned but was rather the result of impulsiveness and uncontrolled frustration. [ 21 ] In contrast, the defendant’s degree of responsibility is high, since he is the only person responsible for the offence, which was committed in late adolescence (17 years of age).

The young person’s guilty plea is a neutral factor in this case given the lack of ambiguity about the facts relating to the offence, which occurred in front of many witnesses. [ 22 ] The experience of the victim must also be considered. It would be wrong to argue that the absence of temporary or permanent after-effects minimizes the seriousness of the offence. The victim certainly suffered a degree of personal humiliation in addition to uncertainty about his physical condition. The defendant does not appear to have been sensitive to that situation.

We do not know the nature of the regrets he expressed to the police officers, so we can draw no conclusions about whether or not he was showing empathy for the victim. The young person’s argument that he could not communicate with the victim is unconvincing since he could have written him a letter and submitted it to the Court or testified to that effect. The young person’s misconduct immediately following the assault is another indication of his lack of awareness of the harm he had done. The sentence should therefore promote a sense of responsibility in

the young person in this regard (section 3(1)( c )(ii) and 38(2)( e )(iii) Y.C.J.A. ). [ 23 ] It should also “reinforce” respect for the values of society (section 3(1)( c )(

i) Y.C.J.A. ), which does not tolerate violence. It is important to state clearly that the Court rejects the defence argument that hockey can be a violent sport. Of course, hockey requires strength and intensity and when there is physical contact between two players, it can happen that, in the heat of the action, one of them inadvertently exerts too much force during the series of skilful manoeuvres that must be quickly carried out. But that is not what happened here. The young person’s violent conduct had nothing to do with the practice of this sport.

The game was over, and there was no interaction between the victim and the defendant. The Court agrees with the victim’s mother that no young person implicitly agrees to such actions when agreeing to play hockey. And no parent anticipates such a possibility when signing up their child to play hockey. [ 24 ] Moreover, in this case, in accordance with the criteria set out in section 42(2)(

b) Y.C.J.A. , there is no evidence that the joint recommendation by counsel of an absolute discharge is in the best interests of the young person and not contrary to the public interest. There is therefore reason to reject this joint recommendation, which is inconsistent with the Y .C.J.A. sentencing principles. [ 25 ] Considering the rejection of the joint recommendation and in accordance with the well-known rules, [12] the Court asked the parties to submit additional observations that they deem relevant. Defence counsel suggests a discharge conditional on the performance of a community service.

Crown replies that it would be inconsistent to order a discharge conditional on the performance of a sanction specifically set out in section 42(2)(

i) Y.C.J.A. . The Crown’s position and the suggestion of the defence are well-founded. This sanction strikes a fair balance between the need to promote a sense of responsibility in the young person, the fact that this was a first offence that was likely not premeditated, and the fact that the young person made a donation to an organization that assists crime victims. [ 26 ] Finally, we note that an order to perform a community service over the coming months, after which the young person will be deemed not to have been found guilty of the offence (section 82 Y.C.J.A. ), is not a greater punishment than might be imposed an adult who, as part of an absolute discharge under

section 730 Cr. C ., is subject to a probation order of several months. FOR THESE REASONS , the Court: ORDERS the young person , under section 42(1)(

i) Y.C.J.A. , to perform 25 hours of unpaid community service, within the next four months; ORDERS the collection of bodily samples from the young person for the purpose of DNA analysis, pursuant to

section 487.051(1) Cr. C. __________________________________ LUCIE RONDEAU, J.C.Q. Mtre Hugo Breton, Criminal and penal prosecuting attorney Mtre Luc Ouellette for the young person-defendant /yd Hearing dates: December 22, 2010, January 16 and March 23, 2011