2010 QCCQ 3935, 2010 QCCQ 3935

Unofficial English Translation LSJPA — 1012 2010 QCCQ 3935 JL3249 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... LOCALITY OF … “Youth Division” No.: 550-03-000403-061 DATE: April 28, 2010 ______________________________________________________________________ PRESIDING: THE HONOURABLE LYNNE LANDRY, J.C.Q. ______________________________________________________________________ THE QUEEN v.

X ______________________________________________________________________ DeCISION on application for an adult sentence ______________________________________________________________________ [ 1 ] The accused was arrested on June 22, 2006, and accused of the June 11, 2006, murder of Steve Istead-Thériault (“SIT”). On December 6, 2007, I convicted the accused of first degree murder. His accomplice, Christopher Lill, was also convicted of first degree murder by a jury and sentenced to life imprisonment in November 2007. [ 2 ] When he killed the victim, the accused was 17 years, 11 months old.

He was under 18 and the Youth Criminal Justice Act (“YCJA”) applied to him, even though he is now 21. [ 3 ] The Crown applied for an adult sentence for the accused. The hearing of the evidence with respect to this application began in March 2008 and continued intermittently until December 2009. Background [ 4 ] In the decision filed, I elaborated at length on the facts surrounding the commission of the offences. [ 5 ] A brief reminder of the relevant facts and the acts committed by the accused will suffice at this stage of proceedings. [ 6 ] In March 2006, the accused met a girl (“A”) on an online chat site.

In April, she introduced the accused to his accomplice, Christopher Lill. Lill was involved in drug trafficking, and he was trying to assert himself by attempting to control a drug territory. According to A, Lill was a leader who didn’t let anyone step on his toes and was not bothered by anything. [ 7 ] A also knew the victim, who lived in the same building as she did. He also sold drugs in the sector Lill wished to control. [ 8 ] A few weeks later, the accused decided to leave his family home and go live with Lill. At that time, he started to go by the name “…” suggested to him by Lill.

During that same period, he began working with Lill, doing home renovations. [ 9 ] For some time, the accused took

part in violent crimes with Lill. A co-worker of Lill and the accused state that Lill told him stories, which he described as being somewhat bizarre, about collectors.

In particular, he recalls a somewhat sordid tale told to him by the accused, in which he described the reaction of a victim that he and Lill had beaten up the night before: [ TRANSLATION ] “the last time he hit him, the guy made this grunting sound, and he thought maybe he’d killed him, he’d hit him so hard”. [ 10 ] The accused also told him that he couldn’t wait to kill someone, that he would like to kill, and that he dreamed of joining the Hell’s Angels. Finally, he said that he hung around with Lill because of his contacts in the criminal world.

[ 11 ] In June 2006, Lill sought out the victim for a matter related to a drug territory. The accused did not really know the victim, but there was a rumour circulating that the victim wanted to harm his mother. [ 12 ] On June 11, 2006, the accused was at Lill’s home with two minor girls (B and C). A told Lill where the victim could be found, and Lill suggested to the accused, who agreed, that they go [ TRANSLATION ] “beat the victim up”.

The two girls understood that this was a settling of accounts, and that the victim would be beaten up. [ 13 ] The two accomplices installed latches on the back doors of Lill’s car, met up with the victim in the parking lot of his building, told him to get into the car (whose back doors were locked), and took him, against his will, to an isolated location. [ 14 ] The two girls went to the location of the murder to watch the fight.

They went there with A in the car belonging to D, who was more or less aware of and interested in what was going on, but nevertheless allowed himself to be persuaded by the two girls, who were insistent. [ 15 ] The two girls walked along the path to within a few meters of the location where they found Lill, the accused, and the victim. They then witnessed the aggravated assault by the accused and Lill, who violently kicked and punched the victim all over his body.

At one point, the victim managed to escape, but Lill caught him, and the two accomplices began to hit him with an iron bar. [ 16 ] When the two girls were told to leave, the victim was lying on the ground, not moving, but apparently still alive. There was clearly no longer any chance that he could escape. At that point, there was no doubt that he was unlawfully confined. [ 17 ] A and D were in the vehicle at the entrance to the pathway, and they heard cries and moans coming from the pathway. When the two girls joined them, they were holding the iron bars given to them by Lill.

These individuals then went to a meeting place determined by Lill. [ 18 ] Lill and the accused remained on the pathway. It was at this point that the accused killed the victim to keep him from talking. This is the version that I have accepted based on the evidence heard during the trial. [ 19 ] The accused provided a fairly detailed description of the murder to the youth worker, [intervener 1], as well as to the two psychiatrists he met with during the medical assessments.

Basically, he explained that he had believed that the victim’s neck had been broken after he tried to escape and Lill had tackled him to bring him back. As a result, he thought that the victim would not survive, so he had complied with Lill’s request to [ translation ] “finish the job” by striking the victim three times with a hammer, with one of the blows sinking deep into the victim’s skull. [ 20 ] They then disposed of the objects used in the crime, i.e., the hammer used to kill the victim and some latex gloves, by throwing them into the river.

The two girls were in the car when Lill disposed of these objects. [ 21 ] A few hours later, the accused returned to the scene of the crime with Lill to remove any evidence of his presence there. He moved the body a few meters from the path and covered it with leaves and a rock. During this time, Lill and A waited for the accused in the car at the entrance to the pathway. He told Mr. [intervener 1] that he had hidden in the woods for thirty minutes, waiting for his accomplice to come and find him. He was stressed and panicked. [ 22 ] After that, the accused, Lill and A went to a friend’s house.

That same evening, the accused revealed to A that he was the perpetrator of the crime. [ 23 ] The accused told A about the circumstances of the assault and how he had used a hammer to deliver the fatal blows to the victim’s head. He also told him that he had [ translation ] “moved the body a little further away and then tried to hide it with leaves and a big rock”. [ 24 ] In the following days, the accused made the same confession to one of the girls who had witnessed the beating in the pathway.

This confession was to the effect that [ translation ] “he had killed the victim to stop him from talking by perforating his head with a hammer and that he had taken him further into the woods.” [ 25 ] After that, Lill intimidated the two girls, who panicked, and on June 21, they went to the police station to report what they had witnessed on June 11. [ 26 ] When the body was found, the police officers observed that the victim was lying on his stomach. The body was covered with leaves, and a large rock was found at his feet.

The upper body was in a state of advanced decay, and the skull was visible, with hollow cavities on the back of the head. [ 27 ] The pathologist who autopsied the victim concluded that death was caused by a significant head injury secondary to blows to the head with one or more blunt objects, possibly including the hammer found by the police in the river near the location indicated by the girls. [ 28 ] According to the medical evidence, the victim suffered no other fracture or lesion that could have contributed to his death.

It was therefore the hammer blows that penetrated the victim’s skull that caused his death. [ 29 ] On June 22, 2006, the accused and Lill were arrested and charged with the first degree murder of the victim. At the time of his arrest, the accused was 17 years, 11 months old. He was held at Youth Centre A before being transferred to the Pinel Centre, where he has been held since March 18, 2008. [ 30 ] On December 6, 2007, I convicted the accused of the first degree murder of the victim. I was convinced beyond a reasonable doubt that the accused had intentionally caused the death of the victim.

I also determined that the murder was concomitant with the offence of unlawful confinement as a result of the domination of the victim and the temporal and causal connection between the

unlawful confinement and the murder. [ 31 ] On November 17, 2007, the accomplice was convicted of first degree murder and sentenced to life imprisonment.

Crown’s position [ 32 ] The Crown contends that the crime committed was both objectively and subjectively serious, considering the character of the accused, which led him to commit the acts with which he was charged. [ 33 ] With regard to the crime itself, Mtre Philippe argues the following: - the objective seriousness of the crime, for which an adult would be liable to life imprisonment - the heinous nature of the murder committed in cold blood with a bladed weapon while the victim was alone, unarmed, at the mercy of and under the domination of the accomplices, whose ultimate objective was to prevent him from talking - the fact that the murder was committed to avoid being reported to the police - the behaviour of the accused after the commission of the crime: he returned to the scene of the crime to remove compromising objects and hide the victim - the intimidation of the two girls who witnessed the physical assault. [ 34 ] Turning his attention to the character of the accused, Mtre Philippe notes the following: - the coldness of the accused during the videotaped recording made following his arrest, wherein he described himself as a leader - his impassiveness throughout the entire judicial process - his lack of remorse or empathy - his earlier statements to the effect that he couldn’t wait to kill someone and that he wanted to join the Hell’s Angels, along with the letter written in the spring of 2006 titled [ TRANSLATION ] “in my head”, in which he described himself as being strong, menacing, dangerous (R-2), which would be more compatible with the commission of a murder than would the version given to the psychiatrist - all of the factors reducing the risk of reoffending – a good family environment, good intellectual abilities, academic success, and family support – were present before the offence was committed, but none of that prevented him from committing the offence - in short, the recommendations of the experts that he undergo an intensive rehabilitation program are incompatible with the evidence and the requirements of the guide. [ 35 ] He also drew the Court’s attention to the case law, including some decisions involving facts similar to those in this case, where judges had decided to impose an adult sentence on a young person.

Position of the defence [ 36 ] Supported by expert testimony and reports, the defense suggests that the youth sentence set out in the Youth Criminal Justice Act (YCJA) is sufficient under the circumstances to hold the accused accountable for his offending behaviour. Relevant statutory provisions [ 37 ] The relevant provisions of the YCJA are as follows:

Section 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to prevent crime by addressing the circumstances underlying a young person’s offending behaviour, rehabilitate young persons who commit offences and reintegrate them into society, and ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (

i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (Paragraphs (iii) to (

v) are not relevant to this case.) 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.

Section 62. An adult sentence shall be imposed on a young person who is found guilty of an indictable offence for which an adult is liable to imprisonment for a term of more than two years in the following cases: (

a) in the case of a presumptive offence, if the youth justice court makes an order under subsection 70(2) or paragraph 72(1)(b);

Section 71. The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing .

Section 72.

(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and (

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)( b )(ii) and

section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)( b )(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant. The applicable standard of proof [ 38 ] The appellant was convicted of a presumptive offence defined in paragraph 2(1) YCJA, namely, first degree murder, and therefore may be liable to an adult sentence. [ 39 ] In R v. D.B . [1] , the Supreme Court of Canada established that the burden is on the Crown to prove that an adult sentence is justified. [ 40 ] That judgment affirmed the decision of the Court of Appeal of Quebec in Quebec (Minister of Justice) v.

Canada (Minister of Justice) (In the matter of the Order in Council of the Government of Quebec concerning the reference relating to Bill C-7 respecting the youth criminal justice system) [2] to the effect that it is up to the Crown to establish the criteria for applying an adult sentence and to meet its evidentiary burden. [TRANSLATION] It is therefore up to the Crown, which wants the court to impose an adult sentence, to demonstrate the accuracy of its submissions in light of the criteria in paragraph 72(1) as soon as an application is made. It must establish the facts justifying an adult sentence.

Once this step has been taken, it is up to the court to decide whether or not to impose such a sanction on the young person. [ 41 ] As for the persuasive burden, the Court declares that it is that set out in paragraph 72(2) YCJA, which states that it is up to the applicant to demonstrate that the criteria of the provision have been met. [ 42 ] The Court also refers to the decision of Justice Normand in R. v.

J-E.I ., [3] who concluded that sentencing a young person as an adult must be the exception, not the rule, adding that the evidence presented must be conclusive. [ 43 ] Finally, we should note that the Court is not bound by expert testimony. [4] [ 44 ] The Supreme Court of Canada also decided in 2006 that, under the current regime, general deterrence is not a principle of youth sentencing. [5] Application for an adult sentence [ 45 ] In dealing with an application for an adult sentence, the Court must follow two steps. First, it imposes either a youth sentence or an adult sentence.

The second step consists in imposing a sentence in accordance with the factors specific to the sentencing regime it has chosen in the first step. [6] The available penalties [ 46 ] For a young person, under the YCJA, the maximum sentence for first degree murder is ten years, comprised of six years in custody and conditional supervision for four years (s. 42(2)( q )(i). This means that, in this case, the accused could be held until June 22, 2015, at the latest, unless the court takes into account pre-sentence custody, which could mean that he could be paroled by June 22,

2012. [ 47 ] Moreover, a young person serving an adult sentence for first degree murder is given special recognition under the Criminal Code and benefits from a significantly reduced parole ineligibility period. Thus, under

section 745.1 of the Criminal Code , a young offender is eligible for parole after serving ten years of the sentence. Under some conditions, day parole can be granted after eight years. Elements to be considered with regard to the application for an adult sentence [ 48 ] As Maillet J.C.Q. notes in R. v.

X , [7] judgment upheld on appeal, the Court must assess the degree to which a youth sentence would be of sufficient length to hold the young person accountable for his or her offending behaviour (72(1)( a )), such youth sentence being in compliance with the requirements of sections 3 and 38 of the Act. [Emphasis added.] [ 49 ] Under section 38(1) YCJA : “The purpose of adult sentencing 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.” [ 50 ]

Section 3 specifies, moreover, that the criminal justice system for young persons must emphasize “their rehabilitation and reintegration, a fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity” and timely intervention that reinforces the link between the offending behaviour and its consequences. [8] [ 51 ] For the purposes of this assessment, it is paragraph 72(1) YCJA that states the factors to be considered by a court when deciding an application for an adult sentence, i.e ., the seriousness and circumstances of the offence, the age, maturity, character, background and previous record of the young person, and any other factors that it considers relevant. [ 52 ] The Youth Justice Court must weigh all of these factors and may take into account any other elements that it considers relevant.

The Court will analyze all of these factors individually, along with any other relevant factors. [ 53 ] To carry out this analysis, the Court has before it the following reports: a pre-sentence report from the youth worker at Youth Centre A [intervener 1], dated February 22, 2008, and an addendum to the report dated May 28, 2008 (exhibits R-5 and R-6), a psychiatric report from Dr. Louis Morissette, psychiatrist, dated April 30, and an addendum to the report dated June 2, 2008, (exhibit R- 9), a counter-valuation from Dr.

France Proulx, psychiatrist, dated November 10, 2008, (R-8), two letters written by the accused, one titled [ TRANSLATION ] “my head”, dated spring 2006, and the other dated December 9, 2007, written a few days after the verdict (exhibits R-2 and D-2), a report of a consultation with the victim’s family (R-7), and testimony from Dr. Gilles Dupont, attending psychologist, and Mr. [intervener 2], intervener at Youth Centre A. 1) The seriousness of the offence [ 54 ] The accused was convicted of first degree murder, one of the most serious crimes in the Criminal Code .

When committed by an adult, this crime is punishable by imprisonment for life. The objective seriousness is therefore undeniable. 2) The surrounding circumstances [ 55 ] The circumstances here are extremely serious. Among the aggravating factors is the brutal and atrocious nature of the crime. The accused and his accomplice went in search of the victim, took him to a footpath in a rural area, and attacked him with the purpose of forcing him to give up a drug territory. Ignoring his pleas, they attacked him furiously, kicking and punching him.

They prevented him from escaping and continued to attack him with metal bars. Unable to defend himself, the victim was viciously beaten by the accused and his accomplice. This was a case of extreme violence. [ 56 ] Furthermore, during the police interrogation after his arrest and during his first months at the Youth Centre, the accused denied his liability. He seemed cold, impassive, and detached. After the verdict was rendered, however, he changed his mind and admitted to the youth worker that he had committed the offences he had been charged with.

He provided details about the events that preceded the murder and the murder itself. [ 57 ] As for the murder itself, the accused explained that when the victim had tried to escape a second time, Lill had grabbed him and thrown him to the ground. Hearing the victim’s neck crack, he thought that Lill had broken his neck and that the victim would not recover. Lill then asked him to retrieve the metal bars from the car, and they began hitting him again. Both observed the condition of the victim and thought that he could not survive. They took him further into the woods.

They were afraid that the victim would report them to the police. That’s when Lill told the accused to [ TRANSLATION ] “finish the job”. [ 58 ] The accused admits that he alone then killed the victim with hammer blows to the head to avoid being reported to the police. He was the one who inflicted the lethal blows with the murder weapon. He was heavily involved in the murder and there are no circumstances mitigating his liability. He intentionally caused the death of the victim.

I nevertheless determined that the crime was not premeditated or prepared, and the statements of the accused to the experts, analyzed within the context of the evidence as a whole, support that conclusion. [ 59 ] The accused also declared to Mr. [intervener 1] and the other experts that during the entire process, he felt that he had no choice. He had acted at the request of his accomplice, who he considered to be his “boss”. 3) The age of the accused [ 60 ] The accused was 17 years, 11 months old when the murder was committed. He was three weeks shy of the age of majority.

4) Prior convictions [ 61 ] The accused had no criminal record and no alternative measures had ever been employed with him. 5) Character and background of the young person [ 62 ] This is where the situation becomes more complicated. The accused received an excellent upbringing promoting prosocial values. He suffered from no behaviour disorders. He did well at school, completed Secondary V in 2005, and began college. He was a polite, helpful, disciplined young man, always on top of things. [ 63 ] His parents gave him adequate supervision. They still support him today.

In short, this is a young man who, on the surface, demonstrates prosocial behaviour and values, and absolutely nothing predestined him to commit such an extreme act in conflict with accepted values. [ 64 ] In this regard, Mr. [intervener 1] summarizes the prevailing opinion of the experts whereby the accused [ TRANSLATION ] “mentalized events in his life in a particular way that led him to deal with his emotional distress in silence by adopting behaviours that endangered his health and safety”. [ 65 ] Further on, he adds that this led the accused to [ TRANSLATION ] “be dragged down by the weight of his feelings of powerlessness.

To deal with those feelings, he developed a marginal, delinquent mode of thought. This mode of thought had significant impacts: an attraction for the criminal world that resulted in a search for power and respect through intimidation and fear and a criminal lifestyle in the months prior to the murder”. (R-5 p 30 and 32). [ 66 ] Mr. [intervener 1] and all the experts who met with the accused describe several significant events in his life that seem to have had a decisive impact on the construction of his character and on the “tough guy” persona he developed and that ultimately led to the murder.

The Court believes it is important to summarize the elements reported by these experts. The reports include several remarks and opinions to which the Court will refer on occasion. While most of this information comes from comments of the accused to the various interveners and experts he met with, the Court notes that much of this information has been verified, in particular by Mr. [intervener 1], and has been critically analyzed by him. In addition, the facts provided and collected are consistent. Finally, none of this information has been contradicted.

The separation of his parents [ 67 ] The accused is the eldest of two children. His sister is two years younger than him. His parents separated when he was 9 years old. Some time after the separation, there was a legal battle between his parents to determine custody and access rights, resulting in a loss of contact between parents and children.

As a result, the accused lost contact with his father for two years, and his sister has not seen her mother since 2006. [ 68 ] The accused explained to Mr. [intervener 1] that, as a result of the separation and his feelings of being torn apart, he began feeling that he wanted to die when he was 9 years old.

It was also at that time that he began experiencing sleep problems, which continue to this day. [ 69 ] Several texts written at the beginning of high school indicate the pain he felt at the time because of the separation of his parents. [ 70 ] The accused told the experts about some humiliating experiences he had as a child. He suffered from bed-wetting until the age of 12, and this caused him a great deal of embarrassment because his cousins and family members, who knew about this situation, made fun of him.

For this reason, he refused to participate in certain outings and activities with children his age. [ 71 ] In primary school, he became involved in a schoolyard fight in an effort to defend himself. His father’s reaction marked him to the point where he became incapable of defending himself for fear of incurring his father’s displeasure. Assaults, taxing, and intimidation in high school [ 72 ] The accused explained that he was ridiculed in high school because of his physical appearance since his mother made him dress neatly and had blonde highlights put in his hair. As a result, he was taxed and made fun of.

He also believes that the fact that his mother was a school principal encouraged other students to bully and tax him. [ 73 ] He was bullied at a first high school and then a second. He claims that, at the age of 14 he was particularly traumatized when he received [ TRANSLATION ] “a whole series of blows” from other students at his high school. He suffered a concussion and went to the emergency room. According to him, the students who attacked him wanted to kill him. He did not wish to file a complaint for fear of creating more bullying problems as a result.

It was suggested that he change schools, and he did so. [ 74 ] Mr. [intervener 1] speculates that, despite a certain exaggeration of events on the part of the accused, a sense of injustice and powerlessness became deeply ingrained at that time. [ 75 ] The accused states that he was an aggressive teen with a lot of inner anger and irritability. After that, he decided that he would no longer let others walk all over him. He changed his physical appearance to free himself of his anger and become stronger. He adopted a [ TRANSLATION ] “tough guy” attitude.

He wanted to get a tattoo, and when his parents disapproved, he went ahead and did it without their permission. [ 76 ] He took advantage of the change in schools to build a new network of friends and acquire a false reputation by bragging about

his fighting exploits and drug consumption, which, he claims, were invented. [ 77 ] Mr. [intervener 1] wrote: [ TRANSLATION ] “Just as the bullying at the beginning of high school symbolized his feelings of powerlessness, so did the desire to stop being pushed around become an equally important factor in his need to be respected and, in many ways, in his shaping of a powerful persona”. (R-5, p. 22). Change of school and construction of persona [ 78 ] It was during this period that the accused met criminals much older than himself.

He was fascinated by the fact that one of them had spent eleven years in prison, had numerous tattoos, and was respected. He was treated with the same respect when he was with him. [ 79 ] Tensions grew between the accused and his mother when he demanded greater freedom, and, when he finished high school, he went to live with his father in city A; this did not work out well, as he found his father to be too rigid and controlling. He did not feel that his autonomy was respected. [ 80 ] At school, he cultivated his image as a [ TRANSLATION ] "tough guy". During lunch hours he worked out and did drugs.

Because of his size, the school’s drug dealer partnered with him, making him a sort of protector and supplying him with drugs free of charge. According to the accused, he did not need to fight – his physical appearance alone was enough to intimidate others and earn their respect. [ 81 ] He returned to region A in the fall of 2005. His goal was to live in an apartment with his girlfriend, with his mother’s blessing. His mother refused to support him, however, causing him to break up with the girl. He was angry with his parents.

According to him, his situation began to deteriorate at that point. [ 82 ] He began attending college but dropped out quickly due to lack of motivation and interest. [ 83 ] In the following months, he devoted himself to bodybuilding. He says that he wanted to wear himself out through exercise to better control his anger and aggression. He also wanted to develop his muscle mass so as to demand greater respect. Determined that he would never again be bullied, he adopted a lifestyle that earned him a certain amount of notoriety and recognition.

Drug habit [ 84 ] The evidence also shows that, at about the age of 15, the accused began to consume drugs and alcohol to an excessive degree. At 17, he dropped out of college. From that point on, his life revolved around bodybuilding and the consumption of drugs and alcohol to calm his anxiety and inner anger toward his parents and the young people who had bullied him. [ 85 ] During this period, he began to self-mutilate to relieve his inner pain. He felt desperate about his situation.

He says that he had suicidal thoughts but was too cowardly to kill himself, so he put himself in dangerous situations where he ran a high risk of being killed. He felt that he had nothing left to lose and that nobody could help him tame his inner demons. The months prior to the murder [ 86 ] In early 2007, he met a young woman on-line who suggested that he become a drug enforcer. He accompanied her as a bodyguard to intimidate customers. [ 87 ] She introduced him to Christopher Lill. From the very first meeting, a sort of ritual took shape for the accused.

He went to … with Lill, who asked him to see if a couple sitting in a car had drugs, to steal it from them if they did and, if they resisted, to beat up the male. But the couple sensed the danger and hurried away. [ 88 ] The next day, the accused was invited by Lill to go [ TRANSLATION ] “control individuals”. They went to a parking lot, stopped two young people with drugs in their possession, and asked them the name of their supplier.

Once the supplier was identified, he was beaten up. [ 89 ] With regard to this incident of three-against-one violence, the accused told Mr. [intervener 1] that [ TRANSLATION ] “he wasn’t proud of it, he felt despicable”. [ 90 ] The accused went to live with Lill and was with him 24 hours a day. He began to work with him in the construction industry and accompanied him as an enforcer. In May 2006, he was involved with him in an assault against a drug seller, the subject of a pending case. [ 91 ] He stopped consuming any drugs or alcohol at the request of Lill, who did not wish to work with a drug addict.

Without drugs or alcohol, he says that he felt angrier than ever. [ 92 ] At that time, he was convinced that Lill was associated with the criminal world of the Hell’s Angels and that he could be recruited by them. Mr. [intervener 1] summarized the accused’s motivation in this way: [ TRANSLATION ] “the promise of material gains, a motivation linked to his need for recognition and respect. He had to prove himself to be ‘chosen by the bikers’”. [ 93 ] Having checked the facts, Mr. [intervener 1] doubts Lill’s affiliation with the bikers.

He suggests that Lill maintained the illusion [ TRANSLATION ] “of belonging to organized crime among the young people with whom he associated or wished to intimidate to strengthen his image”. [ 94 ] While he was living with Lill, the accused maintains that he was afraid of his reactions. He felt that he had to obey, that he

was caught up in the chain of events, and that if he disobeyed or tried to end the partnership, Lill would retaliate. [ 95 ] This idea of having no choice with regard to his accomplice is described by all the experts as being a form of obedience to authority. Level of maturity [ 96 ] The experts stressed his lack of maturity. [ 97 ] Dr. Morissette wrote: [ TRANSLATION ] “X tried to appear mature and strong in his answers, but he had great difficulty expressing his emotions – especially anger.

His interview showed that he is an easily influenced young man who struggled – and still struggles – with a conflict of loyalty between his parents. He tends to hide behind a mask to protect himself and to present an image of power. He describes the peer rejection he experienced at a young age and all the elements mentioned in the longitudinal and developmental history that have affected him”. (Report dated April 30, 2008, p. 8) [ 98 ] According to Dr.

Proulx: [ TRANSLATION ] “In recent years, X has cultivated the image of a ‘tough guy’ seeking to inspire respect, without having acquired the level of maturity of an adult. His self-esteem is still fragile. He has developed narcissistic defences to deal with his feelings of powerlessness.

He presents an appearance of pseudo-maturity rather than real abilities to manage his emotions in an appropriate manner”. [ 99 ] In spring 2006, he wrote a letter titled [ TRANSLATION ] “my head” in which he wrote the following: [ TRANSLATION ] “so it’s by making them feel the pain that I feel each day that people understand that I am, yes, more intelligent, but also more unhappy than anyone else. … They feel the power of the lion, of the martyr who allows himself to be kept alive in a cage … people feel that, in my place, they would have killed themselves … when I get so angry that I leave my body, they start to cry or to be very, very afraid.” And a little further on: [ translation ] “people understand when I say that I’m dangerous when I lose control, I’m not just blowing smoke, because now they see it in my eyes …”. [ 100 ] According to the testimony of Dr.

Dupont, attending psychologist, hired by his father after the accused’s self-mutilation at the Youth Centre, who was asked to comment on this letter: [ TRANSLATION ] “it throws light on the accused’s state of mind in the spring of 2006; this is not a letter written by someone in good mental health. It shows that he was very disturbed at the time, very depressed”. He links this episode to a type of depressive state: [ TRANSLATION ] “in the six months prior to the events, he was a time bomb. He was very depressed”.

He added: [ translation ] “X was too insecure to be a true manipulator … rather it is in line with the path he was following at the time”. Liability of the accused, remorse and empathy [ 101 ] At the time of his arrest and throughout the judicial process, the accused appeared to be impassive, without reaction. His attitude, which he maintained throughout the first months of his stay at the Youth Centre, was closed. He acknowledged no wrongdoing and refused to acknowledge his responsibility.

He maintained the attitude of a tough guy. [TRANSLATION] When he was arrested, in his mind, he no longer had anything to lose because he was going to jail for 25 years. What he had heard from those in his milieu was that the more [ translation ] “fucked up” you were, the more you would be left alone (with regard to what awaited him in prison). So he said that during the questioning he had tried to control his breathing and his stress, even though he says he had been close to the breaking point several times when the investigator touched on sensitive areas.

Ultimately, he believes that, he continued to play his role during the questioning. (Report of Mr. [intervener 1], R-5, p. 13) This role was very present during the first months. By his own admission, he was acting like a thirty-year-old man just released from prison who had to find his place by maintaining that image. (Report of Mr. [intervener 1] (R-5) p. 28) [ 102 ] After the verdict, the accused’s attitude changed. He acknowledged his liability in the offence. He gave his version of the facts to the youth worker and the other experts he met with. He did not minimize his involvement.

He spoke openly about what had been done but remained somewhat emotionally detached and showed little remorse. [ 103 ] In the letter that he wrote on December 9, 2008, a few days after the verdict, he stated that he couldn’t understand what had happened to him and how he could have done such a thing. In addition, he showed some sympathy for the family of the victim: [ TRANSLATION ] “If you only knew how bad I feel when I realize just how stupid and heartless I was. How much I hurt so many people. Whether it’s my family, my girlfriends, my relatives, and those of the victim.

Just the fact of having killed someone – I don’t know how I could have done such a thing.” A little further on: [ TRANSLATION ] “I have no excuse to justify what I did, and I know that only too well. Whatever my past was like, whatever I went through – I have no excuse. I take full responsibility, and I’ll have to live with that for the rest of my life”. [ 104 ] The experts qualify the accused’s apparent lack of empathy, noting the psychological variables that must be taken into account to explain his attitude. [ 105 ] Dr.

Morissette states: [ TRANSLATION ] “… young people rarely have the capacity to experience strong emotions (their mental development makes that almost impossible); as a result, strong feelings of sadness and uneasiness are blocked and not felt. They tend to act, to hide from their emotions, but have difficulty experiencing them fully.” [ 106 ] The psychiatrist Proulx expresses the same point of view as Dr.

Morissette in explaining the apparent impassiveness of the accused at the time of his arrest and in the first months of his stay at the Youth Centre, stating that, like many young people, he had not developed the ability to manage his negative emotions.

[ 107 ] She added: [ TRANSLATION ] “it is this inability that explains the accused’s self-mutilation – behaviour that aims to relieve the emotional tension that the individual is incapable of mentalizing or managing in an appropriate manner.” Expert testimony and reports [ 108 ] During his stay at Youth Centre A, the accused functioned adequately at residence A, with no behaviour disorders.

Mr. [intervener 1] testified about three phases: First, the phase where he maintained his “tough guy” image, which changed fairly quickly (his body image changed and he rejected the lifestyle he had adopted in the months prior to the murder). During this period, he began to self- mutilate. That was how Dr.

Dupont, psychologist, came to be involved with the accused. [ 109 ] This was followed by the phase of being invested in the process, with the accused participating in the program, but no more than that (he behaved well and did what was asked of him, but without making any real changes.) [ 110 ] Finally, there was the phase of openness following the verdict, where the accused became more actively involved in the change (admission of liability, greater openness to questioning his own behaviour and accepting help.) [ 111 ] In his overall assessment of the accused, on page 27 of his pre-sentence report dated February 22, Mr. [intervener 1] concluded that the accused had exhibited atypical delinquency (he had no criminal record, and delinquency arose during late adolescence) and that he had followed an extremely imprudent path (in the sense of high-risk conduct) since childhood (suicidal thoughts at age 9-10, excessive consumption of drugs and alcohol, self-mutilation at about 15 also evident during detention, tough-guy persona developed at about age 15 with exposure to criminals who strengthened his image and his model of seeking respect and recognition and, finally, deterioration of conduct to murder.) [ 112 ] With regard to the synthesis of the accused’s personality, his social adjustment, and his delinquency, he stated, [ TRANSLATION ] “these significant events had a decisive impact on the construction of his personality, but what set him apart was that he ended up turning the meaning of those events against himself.

We hypothesize that this helped strengthen the “tough guy” persona that he created for himself.” [ 113 ] Further on, he added, [ TRANSLATION ] “our analysis was complicated by observations made since the beginning of his detention. In the eyes of his family and of those who spent time with him on a daily basis, he somehow reverted to being the X of the good old days, with an essentially conventional image and prosocial values.

But, practically speaking, he did not begin to make any real changes to deal with his problems … nothing was resolved”. [ 114 ] He therefore began to pose questions regarding the murder, wondering whether this was the culmination of an action reflecting the crystallization of a deeply rooted delinquent mode of thought or rather the result of factors that only a psychiatric assessment could explain.

He gave the following examples related to his questioning: in the months prior to the murder, the accused’s way of life, which was the exact opposite of his early life, his association with criminal peers, the fact that he submitted to a higher authority, the absence of choice because he wanted to obey his “boss”, the complete abnegation of his upbringing and values as he appeared to be dominated by the situation despite opportunities to end it, and the lack of emotion related to the acts committed. [ 115 ] In short, the answers to these questions were not sufficiently conclusive to establish a clear diagnosis and prognosis. [ 116 ] On February 26, 2008, the Court ordered a psychological and psychiatric assessment and the accused was sent to the Institut Philippe-Pinel. [ 117 ] The psychiatric report written by Dr.

Louis Morissette and Dr. Navidzadeh, psychiatry student, dated April 30, 2008, along with the counter-valuation by Dr.

France Proulx, psychiatrist, resulted in the same diagnosis: behavour disorders beginning in adolescence, in institutional remission, alcohol and cannabis abuse and dependence, in remission since 2006, chronic adjustment disorder with elements of abandonment depression secondary to intrafamilial and extrafamilial losses and conflicts. [ 118 ] Fragility of the personality with elements of inadequacy at a young age and antisocial, narcissistic, and paranoid personality traits were also noted. [ 119 ] Dr. Morissette and Dr.

Navidzadeh are of the opinion that, from a social point of view, [ TRANSLATION ] “a youth sentence would ensure the safety of the community over the medium- and long-term and allow for the rehabilitation and eventual reintegration of X into the community”. [ 120 ] They conclude that a youth sentence is sufficient to allow the accused [ TRANSLATION ] “to better understand himself, accept responsibility for his crime, learn acceptable ways to manage emotions, conflicts, and needs and develop higher self esteem – all factors that would reduce the potential for reoffending”. [ 121 ] Among the factors favouring a good prognosis, they list the following: [ TRANSLATION ] family environment respectful of social rules, no history of chronic victimization in the family environment, good intellectual ability, academic success, late beginning of behaviour problems, good behaviour and cooperation at the Youth Centre since his arrest, parental support (now being put in place), positive attitude toward biopsychosocial intervention, good mentalizing capacity (promoting introspection and self-questioning) [ 122 ] They suggest that the Institut Philippe-Pinel take in the accused for the length of the detention established by the court. [ 123 ] In his supplementary report dated May 28, 2008, Mr. [intervener 1] recommends that the accused be given a youth sentence under the YCJA , considering the following: the general attitude of the accused since the verdict, his admission of responsibility, his openness to change, his rejection of his prior way of life, the fact that his personality traits have not crystallized , his lack of record of delinquency, the fact that his delinquent behaviour began in late adolescence, his basic social skills, and the support of his family

network. [Emphasis added.] [ 124 ] He specifies that this sentence was [ TRANSLATION ] “unanimously endorsed by the support committee at Youth Centre A”. [ 125 ] Given the rehabilitation needs of the accused, he believes that the maximum statutory sentence of ten years – six years in custody and four years under conditional supervision – would be sufficient. [ 126 ] Several questions were submitted to Dr.

Proulx by Mtre Philippe, counsel for the prosecution, in connection with the second psychiatric assessment: the progress of the accused at the Institute, the risk of reoffending, the length of his stay at the Institute and its relevance, the maturity of the accused with regard to his [ translation ] “cold and detached” behaviour following the event, how to explain his self-mutilation versus his apparent impassiveness after the murder, etc. [ 127 ] She explained the progress of the accused since his arrival at Pinel in this way: [TRANSLATION] The interventions to date, whether at the Youth Centre or at the Institut Philippe-Pinel, have led to significant changes in X.

He is better able to deal with his emotions. He has developed greater empathy. His state of mind shows overall improvement with fewer symptoms of depression and irritability. There is no evidence that the maximum benefits to be expected from such interventions have been achieved. X has indicated that he is willing to continue the treatments begun. Difficulties remain with regard to his ability to open up and abandon the image he has built for himself in recent years.

Work still needs to be done with regard to raising his self-esteem. [ 128 ] With regard to the risk of reoffending, she wrote: [TRANSLATION] For the accused, the factors that would increase the risk of reoffending are related to the adoption of dangerous behaviours such as addiction, self-mutilation, and membership in groups of delinquents or criminals. Feelings of having nothing to lose could also increase the risk of reoffending. Moreover, there are important factors that reduce his risk of reoffending. He comes from a family with prosocial values. He has held jobs in the past.

He had no history of juvenilie delinquency before the murder. He has shown an ability to comply with institutional rules and to manage his impulsiveness.

He has no serious mental illness. [ 129 ] Like the other experts, she concluded that [ TRANSLATION ] “a youth sentence under the YCJA would have sufficient length to allow X to develop a sense of responsibility for his offending behaviour and make sufficient progress to enable him to safely reintegrate into the community”. [ 130 ] She added that [ TRANSLATION ] “the treatment plan combines pharmacological treatment, psychotherapy, and milieu therapy since all of these interventions are indicated and appropriate for the objectives related to X”.

ANALYSIS AND DECISION [ 131 ] As part of the decision-making process on an application for an adult sentence, the Court must determine whether a youth sentence would have sufficient length to hold the young person accountable for his or her behaviour. In making this decision, the Court must weigh the various factors outlined in

section 72, while ensuring that the youth sentence complies with the objectives and principles set out in sections 38 and 3 of the YCJA . [ 132 ] Bear in mind that the objective of applying for an adult sentence is to obtain a harsher sentence since the criminal justice system for young persons already sanctions all criminal offences, from the smallest wrongdoing to first degree murder, no offence being excluded. [ 133 ] Accordingly, the onus is on the Crown to show that the conditions stated in section 72(1) are met and that an adult sentence is appropriate. [ 134 ] Counsel have submitted several decisions related to sentencing, some that concern cases of homicide and other serious crimes and others for the statements of principle they contain. [ 135 ] While some decisions are germane to this case with regard to the seriousness and circumstances of the acts committed, significant differences set them apart from this case in terms of the profile of the accuseds, their family, social, or judicial backgrounds, their risk of reoffending, or the factors analyzed.

The court will refer to some of these decisions. [ 136 ] For example, in R. v. X [9] , Maillet J. imposed an adult sentence on a 17-year-old youth who had committed a murder just a few months before reaching the age of majority. The case involved an attack by a group of young persons invited to a party in a private home. A disturbance erupted involving the victim, the accused, and other young persons. The group dispersed when the police arrived. The group then found the victim again, and the accused stabbed him with a knife.

The victim struggled to his feet and fled, but some members of the group caught up with him and began savagely punching and kicking him. The victim was then stabbed again by the accused. [ 137 ] The accused had no criminal record but had been involved in several other crimes, which he had tried to hide from the experts along with some details of the murder.

[ 138 ] In this case, the youth worker recommended an adult sentence given that the accused’s glamorization of violence and lack of empathy made the curative approach unlikely to succeed in the youth criminal justice system, and the two psychiatric experts disagreed about the prognosis.

Maillet J. stressed her serious reservations concerning the conclusions of the experts called by the defence before rejecting their evidence. [ 139 ] Maillet J. held that an adult sentence was required: [ TRANSLATION ] “In light of the specific circumstances of this case, the lack of transparency of the accused when speaking with those charged with assessing him, including his own experts, and the very tentative beginnings of self-questioning, which have been observed only recently , the court does not share the optimism of certain experts regarding the sufficiency of the length of treatment to safely reintegrate the accused into society”. [ 140 ] Relying, in particular, on an Ontario decision cited below, Maillet J. concluded as follows: [ TRANSLATION ] “For all of these reasons, the Court is satisfied that, even envisaging the statutory maximum, a youth sentence would not be long enough to rehabilitate and reintegrate him into society in such a way as to promote the long-term protection of the public.

Moreover, the Court is also of the opinion that a youth sentence would be insufficient to lead him to accept responsibility for his crime”. [ 141 ] The decision was upheld on appeal. [ 142 ] In R. v. J.M ., [10] a 15-year-old youth who had pleaded guilty to first degree murder received an adult sentece. The youth had no criminal record and came from an average family, but he had personality problems. There were some indications that he had been going through a phase where he was depressed and unhappy. [ 143 ] The victim was a 14-year-old classmate whom he had strangled.

After his arrest, the accused had shown no real remorse for his crime. [ 144 ] The Court stated that a youth sentence must be long enough not only to reflect the seriousness of the offence and the accused’s role in it, but also to provide reasonable assurance that the accused would be rehabilitated when he reintegrated society. [ 145 ] In R. v. X [11] , Sophie Bourque J. of the Superior Court imposed an adult sentence on a 17-year-old youth who had committed a murder a few months before reaching the age of majority. The facts were similar to those in the case referred to above.

In a savage and totally unjustified attack in a bar by members of a street gang, the victim was punched and kicked to death. [ 146 ] The court concluded that an adult sentence was necessary considering the accused’s [ TRANSLATION ] “denial of responsibility, his lack of empathy, the length of his stay at the youth centre, and the ineffectiveness of the programs he had taken”. The accused already had a juvenile record. This was his fourth appearance as an adolescent for violent crimes: theft, robbery, and group sexual assault”. [ 147 ] In R. v.

X . [12] , the Court of Appeal set aside the youth sentence imposed by the trial judge and substituted a penitentiary sentence. [ 148 ] The accused, aged 17 years, 8 months, intoxicated from the consumption of drugs and alcohol, had mortally wounded a friend by stabbing him in the throat. He pleaded guilty to second degree murder.

The trial court rendered a decision contrary to the evidence of the experts, who were of the opinion that the accused could not be freed before the end of treatment without endangering society. [ 149 ] The Court of Appeal overturned the decision, taking into account his previous delinquencies, the fact that he had been aggressive and rebellious each time he had stayed at a youth centre, at the Institut Philippe-Pinel, or at the Centre carcéral Bordeaux, and the fact that during his incarceration following the murder, he had threatened to kill someone, the very crime for which he had been charged and sentenced.

Finally, he expressed no sincere regret and even boasted about the murder he had committed. [ 150 ] When reviewing the decision and imposing a penitentiary sentence, the Court considered the seriousness of the offence, how close he was to the age of majority, his character, his criminal record, his lack of remorse, and his inexcusable behaviour at the institutions where he had been held. [ 151 ] These decisions and others cited by the Crown differ from this case. The Court believes that each case is unique and must be judged on its own merits. [ 152 ] The Court agrees with Larue J. in R .v.

X , [13] who stated that [ TRANSLATION ] “the particular circumstances of each case require that we find the most appropriate solution to the unique problem before us. Sentencing is thus a balancing act, where the decision maker seeks the best way to achieve the ultimate goal of protecting society while remembering that it is an individual who is being sentenced, an individual member of the community that we seek to protect”. [ 153 ] In this case, the accused was 17 years, 11 months old when he committed the offence.

Although just 3 months shy of the age of majority, he was still a young person within the meaning of the YCJA . [ 154 ] The circumstances surrounding the commission of the offence are highly aggravating. While the crime was not premeditated, since the original intention was just to beat up the victim, the murder was committed by the accused in cold blood while the victim was under his control. There is no doubt about the seriousness of the offence. [ 155 ] The accused had no criminal record, and his delinquency manifested itself at the end of his adolescence.

The prognosis is favourable according to the experts who studied the accused’s behaviour to understand what happened and recommend remedies to reduce the risk of re-offending and ensure the protection of society. [ 156 ] Aside from the very negative factor of the seriousness of the offence, the evidence presented as a whole, and particularly the expert testimony and reports and the testimony and report of the youth worker, who conducted a painstaking and highly comprehensive analysis of the delictual and psychosocial aspects of the case and the degree of responsibility of the accused, favours the rehabilitation

and reintegration of the accused while he serves a youth sentence. [157] The experts were unanimously of the view that the accused needed more psychological and psychiatric help and that treatmentwas necessary and should continue, but that it was possible to impose a youth sentence that would be long enough to hold himaccountable for his behaviour without endangering the community. They were also unanimous about the proposed treatment. None ofthe testimony or reports was contradicted. [158] Since the verdict, the accused has acknowledged what happened and fully admitted his responsibility.

He cooperates in allaspects of his treatment and has made significant progress. According to the experts, he is capable of understanding the chain of eventsthat led him to commit the crime. He has the intellectual ability to adopt a different lifestyle, attend school, hold a job, and make a placefor himself in society. The risk of reoffending is low. Impact of the crime on the victims [159] The harm done to the victim’s family was significant. Indeed the report of the consultation with the victim’s family (R-7)reveals that the victim’s mother is extremely angry with those responsible for her son’s death.

She says that she has attempted suicide.She wants the accused to be sentenced as an adult. She says that [TRANSLATION] “anyone who does such a thing does not deserve toget out”. [160] The victim’s half-sister and her son have also been very fragile since the crime. Ms. D fears the impact on the family and therepercussions if the accused is tried in the youth system. [161] I agree with the words of Bourque J. in the case cited to the effect that no sentence can relieve the pain of a mother who has losta son under such horrible circumstances or fill the void left by his loss.

Conclusion [162] From the evidence as a whole, the Court concludes that the Crown has not met the burden of proving that an adult sentence isjustified. [163] The Court believes that the evidence shows that the youth sentence under section 42(2) of the YCJA is sufficient to make theaccused aware of his actions while promoting his rehabilitation and social reintegration in accordance with the principles and criteria setforth in sections 3 and 38 of the Act. __________________________________ LYNNE LANDRY, J.C.Q. Mtre Manon GuitardCounsel for the accused Mtre Mark PhilippeCrown Counsel [4] Ratti v.

The Queen, (SCC), [1991] 1 S.C.R. 68. [5] R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 , [2006] 1 S.C.R. 941. [6] R. v. J-E.I, (QC CQ), AZ-50336018. [8] X v. The Queen, LSJPA – 0827, EYB 2008-134855.