R. v. Young, 2016 ONCJ 636

ONTARIO COURT OF JUSTICE DATE: 2016·02·26 CITATION: R. v. Young , 2016 ONCJ 636 COURT FILE No.: Peterborough BETWEEN: HER MAJESTY THE QUEEN — AND — Robin J. Young Before Justice R. Beninger Heard on December 10, 11, 2014 and November 26, 2015 Reasons for Decision released on February 26, 2016 F. Giordano ............................................................................................. counsel for the Crown J. Struthers and M.

Martin............................................ counsel for the accused Robin Young Beninger J.: The background of the case Robin Young was originally charged with the 2nd degree murder of his son, Christopher Young. I was the judge at the preliminary inquiry. I heard evidence at the preliminary inquiry on December 10, and Dec. 11, 2014. Further evidence of witnesses was heard in my absence on a discovery basis. I attended with counsel at a judicial pre-trial on June 4, 2015, and continued with the judicial pre-trial on Sept. 17, 2015.

On the date of the continuing judicial pre-trial, the Crown laid a new information alleging manslaughter. On that date, Rob Young pleaded guilty to manslaughter. I heard submissions from counsel at a sentencing hearing on Nov. 26, 2015. I reserved my reasons for decision until today. Crown counsel and defence counsel have put a great deal of time and effort into this case, and I thank counsel for their assistance. Review of the facts

There was an agreed statement of facts on the date of the guilty plea. I will do a very brief

summary of the facts. Later in my decision, I will be highlighting some specific facts which I have considered as being particularly relevant to the sentencing. In 2013, Rob Young primarily lived and worked in Singapore, and had a summer residence in the Municipality of Trent Lakes. He travelled home from Singapore on Aug. 10, 2013, and his wife Deborah picked him up at the airport. From there, they drove back to their residence. While travelling, Rob Young took a sleeping pill called Stilnox. He obtained it by a doctor’s prescription in Singapore.

He had taken the sleeping pill before while travelling from Singapore to Canada. In 2013, Rob Young’s son, Chris Young, was working in Stouffville. On Friday August 10, 2013, before his parents arrived, Chris Young went to stay at the Trent Lakes residence with a friend for the weekend. Rob and Deborah Young arrived home around 10.30 pm. Once they arrived, everyone at the house began drinking alcohol and socializing together. Chris Young’s guest was tired and went to sleep. Rob, Deborah and Chris Young continued drinking and talking. Around midnight, Rob Young took another Stilnox sleeping pill.

About 2 am, Deborah Young went to bed. Rob and Chris continued drinking. Around 3 am, they awakened Deborah, who got up and told them to be quiet. They continued carrying on, and she confronted them again. She gave up trying to quiet them down and decided to leave the residence for the night. As she was getting ready to leave, she and Chris got into an argument, which included some minor physical contact. Rob Young appeared, holding a kitchen knife. He said to Chris “you don’t touch my wife. You don’t hit my wife. You leave her alone.” Chris said “What?

Are you going to stab me?” Rob Young attacked Chris Young with the knife. According to the post mortem examination, Chris Young died of multiple sharp force injuries. There were six stab wounds, and all but one of them was fatal. Rob Young was not injured in the altercation. Deborah Young phoned 911. On the 911 tape, she can be heard saying “Oh my god, Rob. What did you do?” Rob Young responds, “This is not Chris.” Police attended at the residence and arrested Rob Young. The law Manslaughter is a general intent offence. On the facts of this case, Mr.

Young voluntarily consumed alcohol and the Stilnox sleeping pills in combination. Under s. 33.1 of the Criminal Code , self-induced intoxication is not a defence to a general intent offence. With his guilty plea, Mr. Young has conceded that, at the time of the offence, he was in a state of self-induced intoxication falling short of a legal automatism defence. The Crown concedes that when Mr. Young killed his son, it was not a voluntary act on his part. However, under s. 33.1(2) Mr.

Young’s actions were criminal, as they were a marked departure from the standard of care generally recognized in our community and society. The Crown position is that, given the gravity of the offence, the sentence must reflect what happened. S. 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing.

In this case, the Crown relies upon the objective as cited in subsection (a)- “to denounce unlawful conduct.” As stated in s. 718.1, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” A leading case to consider manslaughter sentencing is R. v. Jiwa 2012 ONCA 532 . The judgement quotes sentencing Justice Fuerst, in paragraph 30, as stating: “the need to consider all of the facts of the offence, the circumstances of the accused, and his or her moral blameworthiness”.

On Aug. 11, 2013, a life was lost, and, as the Crown submits, case law is clear that the sanctity of human life is a core value in

our society. The Crown fairly acknowledges that, in Mr. Young’s case, rehabilitation is not a sentencing consideration. The Crown fairlyacknowledges that the principle of specific deterrence has little or no application in the case. The Crown position rests upon the gravity of the offence, general deterrence in the community, and a respect for the sanctity ofhuman life. The Crown position is that a fit sentence is a low end penitentiary sentence, which would be a sentence of more than twoyears in jail. The defence position is that there should be a non-custodial sentence.

The defence argues that the wrongful conduct by Mr.Young was in mixing a prescription drug with alcohol. The defence submits that, in these unique circumstances, the moralblameworthiness of Mr. Young is at the lowest end of the sentencing range. Notwithstanding the gravity of the offence, Parliament has not set any minimum sentence for manslaughter. The sentencingoptions available range from a suspended sentence to life in prison.

As stated in R. v Clemons 2003 MBCA 51 , paragraph 7,“the sentences are all over the map.” That relates to the nature of the offence of manslaughter where the degree of wrongdoing maycover a spectrum of

an act which is something more than an accident to an event that is just short of murder. A sentencing option that used to be available to the Court was that of a conditional sentence. That is a custodial sentence to beserved in the community. One of the criteria in qualifying for such a sentence is that an offender be able to serve the sentence in thecommunity without representing a threat to the community. In my view, Mr. Young would meet the criteria for a conditional sentence. Over a period of more than two years, he never breached his bail terms.

There are case precedents at the low end of the sentencing range for manslaughter in which conditional sentences have beenimposed. One of those cases was R. v. Turcotte (ON CA), 48 OR (3d) 97 [OCA]. On the facts, a son strangled hismother after mixing alcohol and sleeping medication. The son was found guilty of manslaughter after a trial. The son and mother hadpreviously had a very good relationship. There are some differences in the facts, but there are also some similarities to this case. TheOntario Court of Appeal upheld the trial judge’s conditional sentence of two years less a day.

Subsequently, the criminal code was amended to eliminate the availability of conditional sentences for a number of offences,including manslaughter. The Supreme Court of Canada has addressed the relevant sentencing principles for manslaughter. In R. v.

Creighton (1993) 83CCC (3d)(SCC) pg. 375, Justice McLachlin wrote: “Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible…the sentence can be and is tailoredto suit the degree of moral fault of the offender… ‘The more flexible sentencing scheme under a conviction for manslaughter is in accordwith the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender.” In 2015, the Supreme Court addressed the issue of punishment for general intent offences in the case of R. v. Tatton 2015 SCC33.

As Justice Moldaver wrote: (para 20ff) “The classification of an offence as one involving general or specific intent has important consequences for the accused. The law doesnot allow offenders to rely on self-induced intoxication falling short of automatism as an excuse for general intent offences… there arelikely to be strong policy reasons militating against an intoxication-based defence. I find Justice Moldaver’s judgement to be helpful and instructive when he states the following, in paragraph 45: “…the presence of judicial sentencing discretion may be a factor to consider.

If the crime is one for which the accused will receive aheavy minimum sentence upon conviction, it may be unduly harsh to preclude consideration of intoxication. However, if the judge hasdiscretion to tailor the sentence to the facts of the case and to consider the accused’s intoxication as part of that assessment, precludingthe accused from advancing a defence of intoxication is less worrisome” As I read R. v. Tatton, the presence of judicial discretion in sentencing acts as a safety valve to balance out the rigidity of thecriminal liability the accused is subject to in a general intent offence.

The defence of intoxication is not available, but the sentence leviedmay take into account and consider the level of wrongdoing and moral blameworthiness of the offender. Relevant facts re this case On the facts of this case, Mr. Young mixed alcohol and a prescription drug, being a Stilnox sleeping pill. He took a Stilnoxsleeping pill while travelling. When he got home, he started drinking alcohol. Around midnight after arriving home, he took anotherStilnox sleeping pill. He continued drinking more alcohol after that. The precise blood alcohol level of Rob Young at the time of the event is not known.

I do not have any expert evidence before meas to the effect of mixing alcohol and the Stilnox sleeping pills. The Crown has conceded, in the agreed statement of facts, and in theirsubmissions, that the mixing of alcohol and the Stilnox sleeping pills by Rob Young led to this event. The next day, Rob Young told police that he had no recollection of stabbing his son. He also told police that he knew he was notsupposed to mix the Stilnox sleeping pills with alcohol.

The mixing of the alcohol and sleeping pills was reckless conduct, for which he has no legal defence. The act of mixing the alcohol and the prescription drug is the blameworthy conduct that is the focus of the punishment. The evidence I have is that Mr. Young had no intention to harm his son, and I note the following: 1) There were no bad feelings between Rob and Chris Young. On the contrary, the reunion at the house between them was a happy one. It was described by the house guest as being “a very happy occasion.” There was a very good relationship between father and son leading up to the date of the event.

They had future plans together. 2) After the stabbing, Rob Young is heard on the 911 call saying “that’s not Chris.” 3) I heard evidence at the preliminary hearing from the police of Rob Young’s demeanor when police attended at the house. He was described by different police officers as “dazed”, “vacant looking”, “staring blankly” and “lacking in response”. 4) When he was arrested at the house, a gun was accidentally discharged by police in close proximity. While police reacted to the gunshot, there was no apparent reaction from Rob Young.

Mitigation There is very substantial mitigation in the guilty plea and acceptance of responsibility. There were triable issues in this case, and Mr. Young gave up his right to have a trial. The Crown acknowledges that the remorse expressed by Mr. Young is sincere. Mr. Young is 59 years old. He has no criminal record. He is a highly accomplished individual with widespread support in the community. At the sentencing hearing, family members and friends spoke on behalf of Mr. Young. Most of those persons attended at Court, with many of them coming from considerable distances to do so.

There were other family and friends who participated from different parts of the world by Skype. The defence filed three binders of character references from family and friends. Many of the letters were read on videos that were provided to myself and the Crown at the judicial pre-trial stage of the case. I watched all of the videos. At the sentencing hearing, everybody attending at court in support of Rob Young introduced themselves. A number of persons read statements in the Courtroom. A number of persons read statements from other locations by way of a Skype connection.

In my career as a lawyer, and my time as a judge, I have never seen the level of support that I saw for Mr. Young at the sentencing hearing. The fact that he is responsible for the death of his son has impacted Rob Young in every way. On evidence and submissions I heard, it has impacted him personally, professionally and financially. It has changed everything in his life that followed the event. Crown counsel saw what I did at the sentencing hearing, and the Crown takes no issue with Mr. Young as an individual and member of the community.

The Crown quite fairly points to a terrible and shocking event when Chris Young died. The Crown submits, correctly, that the sentencing should not just be about the offender Rob Young. Rob Young’s character is one of a number of factors that I have to consider. Proportionality and Individualized Sentencing Professor Benjamin Berger recently made a presentation to a group of judges, including myself, on the subject of Proportionality and Individualized Sentencing. [ftnote the cite for his paper- “Sentencing and the Salience of Pain and Hope” (2015) 70 Supreme Ct. LR (2d), p. 317] Prof.

Berger noted a theme of individualized proportionality in sentencing in recent Supreme Court of Canada cases, including R. v. Nasogaluak 2010 SCC 6 , R. v. Pham 2013 SCC 15 , R. v. Zinck 2003 SCC 6 and R. v. Ipeelee 2012 SCC 13 . As Justice LeBel notes in R. v. Ipeelee, at para 86 , “Who are courts sentencing if not the offender standing in front of them?” Prof. Berger notes that, with reference to Justice LeBel’s approach, (pg. 343)

“He underscores that sentencing is, at its heart, an individualized process. The question is always what is fit and appropriate- what is aproportionate sentence- given the particular circumstances of the offence and the offender.

Those individualized circumstances are whatguide a judge in selecting sentencing objectives…The fitness of the sentence- the ultimate standard for all punishments- is a function ofresponsiveness to these circumstances.” To again quote Justice LeBel: (pg. 359 of the Berger article) “the measurement of a just sanction is ‘a highly individualized process’” Chief Justice McLachin of the Supreme Court of Canada stated in R. v.

Nur, 2015 SCC 15, at para 43, “It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise,tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime…” Credit for Time spent on Bail The defence submits that I should consider pre-trial custody credit for Mr. Young for the time he spent on bail. The leading case on credit for time spent on bail is R. v. Downes (2006) (ON CA), 205 CCC (3d) 488 OCA.The principles are set out by Justice Rosenberg at paragraph 37 of the case.

The amount of credit to be given is discretionary, and there isno formula to apply. To quote Justice Rosenberg: “The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; thestringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships,employment and activity.” Mr. Young was on bail terms from Sept. 24, 2013 to Aug. 11, 2014 on house arrest terms with sureties. The bail terms includedprovisions that:

a) Prohibited him from living at his home

b) Effectively stopped him from being able to work.

c) Made him subject to electronic monitoring. The bail terms were varied on August 13, 2014 to add his wife as a surety and to allow him to live at home. He continued to beunder house arrest, unable to work and subject to electronic monitoring. The bail terms were further varied on September 17, 2015, the date of his guilty plea, to remove the house arrest and electronicmonitoring terms. As a

summary of the applicable factors relating to credit for time spent on bail:

a) He was on house arrest for about two full years

b) The terms were stringent. The terms included electronic monitoring which restricted his liberty.

c) He had very limited ability to carry on normal relationships, employment and activity. He was unable to work. For about 11months, he was unable to live at home with his wife. He was unable to accompany his wife at times while she was undergoing seriousmedical treatment. He was unable to attend his father’s funeral. On the submissions I heard at the sentencing hearing, Mr. Young is a man with close family relationships, and whose ability towork and be productive in the community is very important to him.

I find that the bail terms he was subject to significantly impactedevery aspect of his life over a period of approximately two years. I find the appropriate credit for the time spent on bail under house arrest conditions in this case to be 9 months. In addition, Mr. Young was in jail for 44 days after the offence until he was granted bail. On a 1.5 to 1 basis, there is pre-trialcredit of 66 days. My Analysis

Most judges will say that the most difficult thing they do is determining what is a fit sentence in each case. At the sentencing hearing, I heard many people speak on behalf of Rob Young. It’s a fair question to ask who speaks for Chris Young. Last year, Parliament passed the Victims Bill of Rights Act. The offence before the court pre-dates the Act, but Parliament’s intention is instructive.

Section 3 of the Act defines persons who may exercise a victim’s rights under the Act if the victim is dead. Many of the persons who spoke at the sentencing hearing on behalf of Rob Young met the

section 3 definition under the Act. I heard from many of Chris’s family members, and I heard from many of Chris’s friends. At the beginning of the Crown’s sentencing submissions, the Crown Attorney held up a picture of Chris Young. It showed his body dead on the floor. Nobody can forget that’s why we’re here today. The aggravating factor in this sentencing is the gravity of the offence. The issue I have to determine is whether I sentence Rob Young to go back to jail and, if so, for how long. In my view, his pre- trial credit for custody is almost one year.

In saying that, I am taking into account actual pre-trial custody and credit for his time on restrictive bail terms. Taking that pre-trial credit into account, do I sentence him to further custody based on his wrongdoing on the evidence I have? I take into consideration the following: 1) The wrongful conduct was in mixing alcohol and prescription sleeping pills. The evidence is that he knew he shouldn’t do that, but there is no evidence to suggest he knew what the potential effect of mixing the alcohol and prescription drugs might be. 2) There was no history of conflict between the offender and the victim.

The evidence I have is to the contrary. 3) On the evidence, Rob Young did not know what he was doing when he stabbed his son. The 911 phone tape supports that. Witnesses, including police officers, who saw him immediately after the event described him as being vacant and unresponsive. The Crown concedes that the stabbing was not a voluntary act on his part. 4) With his guilty plea, Rob Young has taken full responsibility for the offence. There is no minimum sentence for manslaughter. Accordingly, there must be exceptional circumstances in which the lowest end of the sentencing range is available.

The principle of denunciation focuses on conduct and behaviour which conflicts with our basic community values. The conduct and behaviour here was the voluntary consumption of alcohol and the sleeping pills. No one is arguing that Rob Young intended to kill his son. If there was no pretrial credit available, I would sentence Rob Young to a custodial term in the reformatory range. He has about a year of pretrial credit. The question I have to consider is whether, taking all of the evidence and applicable law into account, it is necessary to send Mr. Young back to jail.

In my view, this is an exceptional and unique case. I don’t find that sending Mr. Young back to jail would protect the community in any fashion. On the totality of the evidence of this case, I do not find it necessary to order him back into custody. I am going to note the pretrial custody credit, suspend sentence, and impose the maximum term of probation, with the maximum amount of community service.

Released: February 26, 2016 Signed: “Justice R. Beninger”