R. v. P.(D.), 2011 ONCJ 880

Citation: R. v. P.(D.) , 2011 ONCJ 880 ONTARIO COURT OF JUSTICE YOUTH JUSTICE COURT IN THE MATTER OF The Youth Criminal Justice Act S.C. 2002, c.1 HER MAJESTY THE QUEEN v. D.P. P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE G.J. BROPHY on October 3, 2011 at WALKERTON, Ontario PROTECTED FROM PUBLICATION BY SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT **********

APPEARANCES : J. Macintyre Counsel for the Crown H. Thompson Counsel for the young person MONDAY, OCTOBER 3, 2011 THE COURT: Okay, Ms Macintyre, back to you. MS MACINTYRE: D.P.. THE COURT: Okay. MS MACINTYRE: Mr. Thompson’s matter. Could you page Hedley Thompson, please? CLERK OF THE COURT: Certainly. MS MACINTYRE: Is he right behind me? THE COURT: Could we page Mr. D.P., please. CLERK OF THE COURT: D.P., D.P. to Courtroom Number 2 please. D.P., D.P., to Courtroom Number 2 please. MS MACINTYRE: If this is for sentence today, I think the... THE COURT: Yeah.

MS MACINTYRE: ...the defence and, and Crown have made submissions. THE COURT: Well, you have but I’m going to have you just do a very brief – or were you on this before? MS MACINTYRE: No. THE COURT: No. Well, Mr. Thompson can just, just do a very brief of

summary of where we were. I recall, but I just want to give an opportunity for anything else to be said that needs to be said. MR. THOMPSON: Well, this has been put over actually since July 6 firstly, to have a psychological assessment completed, and then it was put over so that a psychiatric report could be done, and that was provided last day, and Your Honour heard submissions and put it over in order to, I think, consider the submissions that were made and I can’t really say much more about Mr. D.P. since then.

He’s, he’s continued to follow the, the terms of house arrest that he’s on and without, as far as I know, incident. He’s been dealing with Pete Doersam as I can say, he’s provided some informal counselling to him. His plans have really been on hold. He hasn’t, he hasn’t been able to really do anything about enrolling for school. It’s just, it’s just a practical matter. He’s, he’s awaiting what’s going to happen and he’s – his intention is to go back to school. And he – I think he indicates that he’s, he’s – he feels a lot better about himself and how things are going.

He’s I think a much calmer person now than he was back when he was – when Your Honour was able to see him giving evidence at, at the trial matter that was here in I think June. So really there’s – and, and there’s no further update from, from the probation officer, and we’re just really waiting Your Honour’s decision with respect to the, the import, I guess, for sentencing purposes of the psychiatric report of his doctor Mejia. I’m not quite sure how to pronounce his name. THE COURT: Okay. Mr. D.P., sorry, Ms – I’ll let you speak in just a moment. MS MACINTYRE: I just...

THE COURT: Ms Macintyre, you want to add something? MS MACINTYRE: Yeah, I just received this from... BOB MAHEU: Bob Maheu. I’m a probation officer with the Ministry of Children Youth Services. MS MACINTYRE: Okay and I think you should – I think you should just see it. It’s just a sort of – up here, Your Honour. BOB MAHEU: From Mr. Fischer who’s a probation officer. It’s just as an update as to... THE COURT: It’s an update on the pre-sentence report?

BOB MAHEU: Oh yeah, and what’s transpired... THE COURT: Okay, that’s fine. MS MACINTYRE: Thank you, sir. THE COURT: Mr. Thompson, I haven’t read it yet. Just take a look at it yourself and you can tell me whether there’s anything I need to be concerned about receiving that document. THE COURT: Any concerns about my receiving the document? MR. THOMPSON: No and, and Mr. D.P. has just reviewed it briefly with me. He’s – he doesn’t take issue with any of the sort of basic factual matters in it. THE COURT: Okay, that will be Exhibit Number 5. I’ll just mark it on here. The Clerk can catch up with this in a minute.

Let me take a look at it. EXHIBIT NUMBER 5 : Report update from Mr. Fischer, probation officer – Produced and Marked. COURT: Is this Mr. Ostertag? What’s your name, sir? PETER DOERSAM: It’s Peter Doersam. THE COURT: Mr. Doersam. PETER DOERSAM: Yeah. THE COURT: You – you’ve been here many times, Mr. Doersam. Remind me your role in this again please. PETER DOERSAM: I’m a community support worker through Pine Hill and... THE COURT: Through Pine Hill. PETER DOERSAM: ...I get my referrals through the probation office. THE COURT: Right, okay. Is this part of a mentoring program?

Is this what this is supposed to address, Mr. Maheu? BOB MAHEU: Ah yes, counsellors for a mentoring program. The best analogy would be like a Big Brother sort of... THE COURT: Right. BOB MAHEU: ...affiliation. THE COURT: Okay. That’s fine. Mr. Thompson, just one last question and then I’ll give you my decision on this matter. Is Mr. – in the materials that I’ve read, there seems to be some emphasis particularly by the London Family Court Clinic and the psychiatrist that Mr. D.P. should involve himself in some work at CPRI. What’s your position on that?

Should he be – is, is he prepared to cooperate with that or what – what’s your position? MR. THOMPSON: Well, I’m sure he’s prepared to cooperate with anything at least superficially so, but I, I think that it’s, it’s loading too much on at a distant location and London was not made a vested venue for him in the last three years as – because he doesn’t have any support down there. THE COURT: Yeah, that’s true. MR. THOMPSON: I mean his, his grandmother’s in Durham. She’s, she’s, she’s been doing quite a lot of – not work with him but support for him. He’s got an uncle in, in – is it an uncle in Neustadt?

So I, I don’t - I think that would be – I mean he’s got a nice group of people working with him here. So I don’t see the, the point of it. THE COURT: All right. Thank you very much. Mr. D.P., stand up please. Mr. D.P., is there anything you want to say? You’re not required to say anything, but if you want to I can hear from you anything you want to tell me?

D.P.: Just lately ever since I like upon my release I’ve been, I’ve been kind of trying to stay out of trouble, you know what I mean, doing what I need to do, doing – going to all my counselling; and eventually, re-enrolling in – into school, I guess, like just - because I haven’t been able to do anything until like – until today I guess. So yeah, I don’t have anything else to say. THE COURT: Okay. Thank you. Please be seated.

R E A S O N S F O R S E N T E N C E BROPHY, J. (Orally) Young Mr. D.P., who is soon going to be eighteen I think in December of this year, has pled guilty to two offences. The first one is an indecent call to one R.R. contrary to Section 372(2) of The Criminal Code , and also uttering a threat to cause bodily harm to that individual contrary to

Section 264.1(1) (

a) of The Criminal Code . One of these events occurred on the 29 th of April 2011, and the second one occurred on the 6 th of May 2011 in reverse order to the order in which I’ve read the charges. The factual background is that Mr. D.P. was in some form of relationship with R.R. that had gone by the board. There was some dispute between the two of them as to a new friendship that had been created and as part of that, and there are various stories about how this occurred. Mr.

D.P. in some fashion suggested to Ms R.R. that he would send some compromising pictures of her that she had sent to him to other individuals and that makes out the indecent call charge. Originally, it was an extortion charge, but it was reduced to indecent telephone calls. The second charge was of a similar nature. In terms of context it was a matter of Mr. D.P. suggesting that he might have somebody else cause some harm to Ms R.R.. In and of themselves the charges although real and of substance are not the major problem for Mr. D.P..

If this was a one of situation, then of course we would mark it down as youthful indiscretions, bad judgment and matters of that nature. But Mr. D.P. comes to this court unfortunately with a significant record and I have the benefit in this case of numerous documents which set out some of the issues involving Mr. D.P.. His record as a young person - he is not yet an adult, began in 2009 when he had two assault convictions and two breaches of recognizance; and in that instance he spent 51 days in pre-sentence custody, which on youth matters is a significant period of time.

He was placed on probation at that point in time for 12 months. Then in 2010 on July the 21 st , he was convicted of four sexual assaults, a breach of probation and failure to comply, and he was placed on probation for 24 months. Although it is not set out on the CPIC record that is reproduced in the pre-sentence report, there is reference in other materials about pre-sentence custody that was served on those charges and there was something unusual happening in terms of the sentencing taking place before a

Section 34 assessment could be completed. And it was felt urgent to complete that sentencing because he was in custody. So although it is not reflected in the pre-sentence report there was apparently some pre-sentence custody associated with those sexual assault matters. And then on August the 30 th , 2010 he was convicted of breach of probation, placed on probation for another eight months; and then on November the 17 th , 2010 he was convicted of failing to appear in court. He was placed on probation for six months and then on March 21 st , 2011 in Walkerton, he was convicted of breach of probation.

He served five days pre-sentence custody and this court, by that I mean myself, gave him a reprimand. The reprimand was felt proper given the nature of that particular breach which involved confusion as to when he should or shouldn’t be at his grandmother’s residence where his two sisters were residing, and as at least one of those sisters was the victim of the sexual assault, he was not to be in their company. As a result I thought appropriate to only provide him with a reprimand.

In addition in May in 2011 he was convicted in London by Justice McGrath I believe of a further breach of probation order and that is his criminal record. Obviously the sexual assaults and the assault matters are the matters of substance that have to concern this court. Mr. D.P. has a very unfortunate personal history and I will not detail that in an extensive way in this reasons. It is set out in the pre- sentence report. It is repeated in the psychological assessment, and the other supporting documentation. Suffice it to say that at a very early age Mr. D.P. parents separated. Mr.

D.P. lived briefly with his mother as a young person. His mother then left. Apparently she no longer plays a role in his life and lives in the United States. His father ultimately took up care of him. His father unfortunately had a significant substance abuse problem and the children, by that I mean to say Mr. D.P. and his two sisters were treated abominably – that is the only way to describe it by various caregivers as self-reported by Mr. D.P.. On a number of occasions he was personally abused. As a function of all of that and numerous moves, Mr.

D.P. has attended a variety of schools including at least four secondary schools and

he has been in the care of individuals who have taken advantage of him. Mr. D.P. ultimately became somewhat aggressive in school. He was suspended on many occasions for fighting and breaches of various forms of school regulations. Ultimately, he at a very young age took up substances himself, and has according to reports I have read, sampled pretty much every street drug that is available in our communities and he has abused his body in that sense. Having said that, Mr.

D.P. says he has withdrawn from those substances and the only material that he currently uses and the report is a little bit uncertain on this regard, is marijuana, although I think alcohol might still play some role in his life. This is quite a load for an individual who is not yet quite eighteen. But there is more.

His father who from time to time was able to provide some accommodations for him and his grandparents, particularly his grandmother who lives I believe in Durham, has provided accommodations for him; and indeed, has assisted him with reference to acting as a surety from time to time, although she has had to revoke on at least one occasion because of Mr. D.P.’s misbehaviours. They provided some places of safety for him. Unfortunately, Mr. D.P., the father in 2010 entered into a marriage with one A.P. which was extremely short- lived. It lasted only a month or two.

Presumably there was some form of relationship prior to that and Mr. M.P., the father and D.P. were effectively booted out of Ms A.P.’s home and they had to take up residence at the Salvation Army’s Men’s Hostel in the City of London where they lived in a rooming house in circumstances which were very unfortunate to say the least. So ultimately, what happens is Mr. M.P., the father returns to the Walkerton area where he had family connections and D.P. came with him. It is important to note that the father, Mr.

M.P. is a man I think of 42 or 43 years of age and he testified at one point in these proceedings when Mr. D.P. was seeking to be released, I believe in late June or early July, and it was apparent and it is consistent with the reports I received that Mr.

M.P. is extremely unwell and he is now unfortunately paying the price for years of abuse with reference to drugs and other matters, and it is a sad bit of business, but D.P. has been unfortunately a person who has had to try and cope with his father’s illness, and as is reported in this most recent update that has been provided by the probation services, there is a deterioration in the relationship between the father and son; and that Mr. M.P. is not able to offer any significant and real supports to his son.

As a result of many of these issues, and I could go on in some detail, I have read these reports with care. Mr. D.P. has been asked to participate in a number of assessments. In Sarnia in 2010 he was asked to participate in a

Section 34 psychological assessment and there is quite a story about how that was not able to be completed, but it would appear clear that young Mr. D.P. was avoiding participating in that assessment. There is only one bright light associated with that and that is as part of that process that was underway at the time, Mr. D.P. became connected with a social worker, a Michelle Van Grunsvan in Sarnia I believe and Ms Van Grunsvan – I may be wrong about that. It may be London, but having said that, Ms Van Grunsvan was able to remain connected with Mr.

D.P. for a number of months and has provided updates on her take on Mr. D.P.’s circumstances from time to time. So she has provided some supports for this individual. Mr. D.P. failed to comply with that

Section 34 assessment in the first instance in 2010. There was a report prepared which made it clear that it was urgent that Mr. D.P. cooperate with that assessment process, and that if he was to reappear in the courts that that assessment should be followed up on. And indeed, that is what happened this past summer. This court ordered a further

Section 34 assessment from a psychologist and from a psychiatrist and those reports were prepared. So they are available to the court as well. Young Mr. D.P. appears to be an individual who has a good mind. He is reported by the various persons who have met with him as being intelligent, perhaps somewhat above average in intellectual abilities. His schooling has been abysmal because of his personal difficulties and his moves and matters of that nature.

It is interesting that while he was at Pine Hill in 2011 he actually was able to accomplish some work with reference to education, and that would suggest that there is a young man here who is capable of doing well. Having said that, it is important to note that in the various reports I have received it is clear that Mr. D.P. can be charming and can be conversant, but there is a sense in some of the reports that he is also manipulative with reference to saying the right things to the right people at the right time.

In other words, he has been schooled, if I can put it that way, in how to say things that will produce appropriate results for him. So that is a factor that is of consequence in this matter. I have received and reviewed the pre-sentence report and the update that has been provided today. It is interesting to note that there has also been a report from the Canadian Mental Health Association under the signature of Ms Johnson who is well known to this court, and she makes a couple of very interesting comments. She says that over time Mr.

D.P. has moved from being a victim to a perpetrator of violence and has developed a substance abuse habit. So that is perhaps the best

summary of Mr. D.P.’s circumstances to date. In her report she purposefully concentrates on commenting about his strengths and she recites those in her report from June 15 th , 2011; and comments most positively about the 18 months of connection with Ms Van Grunsvan. Ms Johnson makes

some recommendations with reference to what will be of benefit to Mr. D.P. and she comments that he may benefit from living independently with support from counsellors through the Keystone agency and the CMHA. She also says that he should be addressing mental health issues, substance abuse issues, sexual abuse and offending issues; and she talks about it is most important that he develop some positive peer interactions. So Ms Johnson is in effect in Mr. D.P.’s corner by referencing what would be of some benefit to him. I then have the two reports from the London Family Court Clinic.

One is the psychological assessment that has been prepared under the signature of Dr. Joyce Radford and a caseworker, Jacquie Officer. The second is a report from Dr. Jose Mejia, that’s J-O-S-E M-E-J-A- I-A, [ sic ] a forensic psychiatrist who has prepared a written report as well. What is interesting about the reports is that they are very concerned and say with some emphasis that Mr. D.P. is a person who is at high risk for future violence. This is compounded by the fact that in the assessment particularly of the psychiatrist Dr. Mejia there are some concerns that he has – and these are the words of Dr.

Mejia - a profound hatred and disdain for women. That is the language used on Page 6 of that report. That combination of factors, the history that is involved, the substance abuse issues that are involved, lead this court to be very concerned about the future for Mr. D.P.. Having said that the court is mindful of the fact that it is not for this court to over-react to the proper penalties that should be imposed in terms of the nature of the particular offences that are in front of me, but I have to respond as well to the reports and to the record that is in play.

The psychological assessment which is supported in detail by Dr. Mejia indicates that it would be important for Mr. D.P. to participate in a sex offence specific assessment at CPRI and that would be recommended by the psychologist and by inference Dr. Mejia; however, they also go on to say that Mr. D.P. should participate in the Men’s program for Partner Assault Response in Owen Sound and Walkerton, and that he should continue his active involvement with Keystone.

And obviously from what has been said in the various reports that I have received it is useful that the Pine Hill mentoring program has been in play as well. One of the principal issues that arises in this case is the fact that Mr. D.P. has had very few positive involvements with peers generally and adults specifically. Outside of Ms Van Grunsvan and his grandmother, the adult persons who have connected with him have not been role models that have been helpful to his positive development.

It seems to me that with the continuation of supports through the Keystone program and the Men’s program and what is being able to be offered through the youth probation services with the mentoring program that may be the best we can do to assist Mr. D.P.. I am mindful of what Mr. Thompson says in terms of the reference to CPRI. It may well be that the youth services with references to rehabilitation programs that I am going to put into the documentation that is going to be released, may well require Mr.

D.P. to participate in various assessments; and that might be important and it may well be that at some point there is some funding provided to get him to CPRI in London. But I am not going to make it a positive statement in these documents that he attend at CPRI. I will leave that to the youth probation services to make a determination about how best to provide that facility to Mr. D.P.. It is important for the court not to try and micro-manage what clearly is evident to all persons who are dealing with Mr. D.P.. In sum, before I provide you with the specific orders that are going to be made, Mr.

D.P. is an intelligent young man. He has some abilities to speak to the world at large. He has a capacity to do well in the world if he is able to rein in and control his responses to the social situations he finds himself in. Now Mr. D.P. is listening to all of this of course, and I suspect that he is not internalizing very much of it. One hopes, however, that over the time with the various persons you’re going to be working with, Mr. D.P., they will be able to make some breakthroughs that will be of some assistance to him.

I was struck by one comment made in the psychological assessment on Page 6 with respect to one of the particular measurements that was being used with reference to Mr. D.P., and it is to this effect and I think it is very real: that Mr. D.P. has a tendency to externalize his internal feelings of distress through external behaviours; such as self-mutilation, aggression, inappropriate sexual behaviour and other activities that can postpone his sense of being alone. What I take from that is that Mr.

D.P., notwithstanding what might be described as a fairly brash exterior, has been alone most of his life in terms of being able to deal with the world. He has not had the supports that are appropriate. He needs some supports now and it is not too late for Mr. D.P.. Mr. D.P. has to look at this seriously and has to understand that now that he is about to turn 18, if he continues to behave in manners that are completely anti-social, are abusive towards women and are aggressive, that in the adult criminal justice system Mr. D.P. will unfortunately probably spend a significant amount of time in custody.

And as I understand the history of his father

that is essentially what happened with his father. His father spent – I think young Mr. D.P. reports perhaps as much as a combined total of 15 years in jail, and yet he is only 42 years old and in poor health. So Mr. D.P. can accept the supports that are being offered and if he does, then there is hope that he will do well in the world. If he does not accept those supports and he does not understand and recognize what is really happening here, then it will be a difficult situation for him and for persons he encounters. So we can only hope for the best.

Having said all of that, it seems to me that the appropriate disposition today to reflect the nature of the charges, but also the serious record is to impose on Mr. D.P. a deferred custody and supervision order for a period of six months. I have the ability to do that with reference to the provisions of The Youth Criminal Justice Act , and particularly Sections 42 (2) and (

p) and also with reference to Subsection 5 of that

section that says a court may make that order if the young person is found guilty of an offence that is not a serious violent offence, and that is not the case given the nature of these two offences. And it is consistent with the purposes and principles set out in

Section 38 and the restrictions on custody set out in

Section 39. With reference to the restrictions on custody in

Section 39, Mr. D.P. has passed that Rubicon by the various breaches of the various probation orders that are outstanding and I think that that is not in doubt. With reference to the general principles, it seems to me that Mr. D.P. has to be held accountable for his actions and the harm caused by him by those actions, and it is completely consistent with

Section 38 principles to impose a deferred custody and supervision order. That will be for a period of six months and there will be then a probation order to follow for a period of 18 months which will make the total period of time 24 months which is the maximum that can be imposed under The Youth Criminal Justice Act . I will give the terms of those orders in just one moment. In addition, with reference to these matters the uttering threat matter is a secondary DNA order, I believe, so that order will go. It seems to me totally appropriate to impose a two year firearms prohibition pursuant to the terms of

Section 51 of The Youth Criminal Justice Act and

Section 110 of The Criminal Code . Now with reference to the terms of the preferred custody and supervision order, that order will be imposed in the following manner: Mr. D.P. will while he is serving this order be subject to these terms and conditions and these are all as set out in Section 105(2) and Section 105(3). There are mandatory terms in Section 105(2) and the discretionary terms appear in Subsection 3. So the mandatory terms will be imposed in the usual fashion; that is to say, he will keep the peace and be of good behaviour.

He will appear before the Youth Justice Court when required to do so by the court. He will report to the provincial director or the provincial director’s delegate immediately on release and thereafter be under the supervision of the provincial director or the provincial director’s delegate. He will inform the provincial director or the provincial director’s delegate immediately upon being arrested or questioned by the police. He will report to the police or any named individual as instructed by the provincial director or the provincial director’s delegate.

He will advise the provincial director or the provincial director’s delegate of his address of residence on release and after release report

immediately to the clerk of the Youth Justice Court or the provincial director or the provincial director’s delegate of any change in that address or his normal occupation including employment, vocational, educational, training or volunteer work, in his family or financial situation and any other matters that might be reasonably expected to affect his ability to comply with this order.

Further, as part of the order he is not to own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance; and further he is to comply with any such reasonable instructions as the provincial director or the provincial director’s delegate considers necessary in respect of any condition of this order to prevent a breach of that condition or to protect society. In addition, with reference to discretionary terms Mr.

D.P. will attend school or a program of education as directed by the provincial director and provide proof of that attendance; or alternatively he will make reasonable efforts to obtain and maintain suitable employment. He will reside at a place specified by the provincial director and be amenable to the routine and discipline of that residence. He will abstain absolutely from the purchase, possession and consumption of alcohol or other intoxicating substances.

He will abstain absolutely from the purchase, possession and consumption of any controlled or prohibited drug as defined by the Controlled Drugs and Substances Act , except in accordance with a medical prescription in his name. He will as part of the order be subject to a curfew to be in his place of residence between the orders of 9:00 p.m. and 6:00 a.m.

Sunday through Thursday and 11:00 p.m. and 6:00 a.m. every Friday and Saturday unless he is in the company of a person who has written authorization from his youth worker to be with him, or he has in his possession written permission of his youth worker to be absent from his residence.

Further, as part of this order he will attend and participate in such assessment, counselling or rehabilitative programs as recommended by the provincial director and sign any releases to confirm his attendance, participation in that programming, and produce and show reports confirming attendance and participation in that programming as directed by that provincial director or his delegate; and he’s not to leave or discontinue that programming until he has been discharged from it.

That programming may include counselling for: alcohol abuse, substance abuse, anger management, family counselling, sexual abuse, relationship issues, mental health issues, sexual offender issues, sexual offence specific assessment issues and grief counselling. Further, as part of this specific order, he is not to associate or hold any communication directly or indirectly with R.R..

Further, as part of this specific order, he is not to attend at or enter into premises known to him to be the residence, place of education or place of employment of R.R. and he is not to be within 500 meters of any residence known to him to be that of R.R.. Finally, it seems to me that he should be performing some community service work which will get him out into the community and participating in a positive manner. So he is going to perform 40 hours of community service work under the supervision of a youth worker designate.

That work is to commence as directed by the provincial director or his delegate and should be completed at a rate and to the satisfaction of his supervisor within six months of today’s date. It seems to me through the winter months that should not be hard to do. Now those are the terms of the deferred custody and supervision order. I can hear from counsel in a moment if there is anything else they would like me to address. In addition, he will be subject thereafter to a probation order for a period of 18 months.

The terms and conditions of the probation order will mirror to a great extent the same terms that I have already been referenced.

Specifically he will keep the peace and be of good behaviour. He will appear before a Youth Justice Court when required to do so. He will report to a youth worker and he will as part of this probation order notify that youth worker assigned to his case of any change of address or change of his place of employment, education or training. He will continue to attend school or a program of education as directed by his youth worker and provide proof of his attendance or he will make reasonable efforts to obtain and maintain suitable employment.

Further, he will continue to reside at a place specified by his youth worker and be amenable to the routine and discipline of that residence. Further, he will continue to abstain absolutely from the purchase, possession and consumption of alcohol or other intoxicating substances. And he will continue to abstain absolutely from the purchase, possession or consumption of any controlled or prohibited drug as defined by The Controlled Drugs and Substances Act , except in accordance with a medical prescription in his name.

Further, as part of this probation order, he will abstain from owning, possessing, controlling or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substances or weapons as defined by The Criminal Code of Canada , and not reside in any residence where firearms are present or stored.

Further, with reference to curfew, he will be at and remain within his residence in accordance with the curfew set by his youth worker in writing, and he will not be absent from his residence without written permission from that youth worker in accordance with that curfew. Further, counselling will be as I have already described it in the deferred custody order. Non-association as I have already described it. Non-attendance as I have already described it. And those are the terms that I think are appropriate to the probation order. So that concludes the orders I am prepared to make.

THE COURT: Ms Macintyre, is there anything else you want me to address? MS MACINTYRE: No, Your Honour, thank you. THE COURT: Mr. Thompson? MR. THOMPSON: I, I don’t know. I, I think it’s not appropriate to note any credit for pre-trial custody in this case, and I say that because it would effectively move the, the sentence beyond a range that would be permitted. THE COURT: I think you are correct about that. I had considered that question when I was deciding the length of time that the deferred custody and supervision order should run.

I recognize there was pre-sentence custody and I have taken that into account in general terms, but my overall intention in this matter was to impose a two year control over Mr. D.P. mostly for the purposes of providing him

with significant supports which hopefully will see him over this period of time; and in those terms then I have thought that assigning pre- sentence custody, particularly given the way in which that was adjusted through the early summer months would not add anything to the calculation. MR. THOMPSON: Yeah. And he is to be – you mentioned the May 10 th finding of guilt and that, he’s, he’s yet to be sentenced on a breach in London so I don’t know that you’re... THE COURT: Oh, was there a further, a further breach? MR. THOMPSON: No, no, he wasn’t sentenced. The, the initial, the initial pre-sentence report...

THE COURT: Oh, oh, I thought he had been sentenced on that, but you’re saying he hadn’t been. MR. THOMPSON: ...was from the London court. No, no, he’s been awaiting this... THE COURT: Ah, I see. Well, presumably – well, I correct my remarks on that regard then. Presumably, what I have said here on the order that has been made will play some role in what happens in London. MR. THOMPSON: I, I can’t imagine this comprehensive sentence would be added to or much adjusted. THE COURT: It shouldn’t make any difference I wouldn’t think. MR. THOMPSON: Thank you. THE COURT: Okay, thank you very much.

The documentation will be prepared and Mr. D.P. can sign the documents before he leaves today. Okay? Thank you very much. . . . R E C E S S U P O N R E S U M I N G: . . . THE COURT: Mr. Clerk, would you page Mr. D.P. back in the courtroom. There are a couple of things I just have to amend – just technical matters. Mr. Thompson is here. Could we page Mr. D.P. in and if he is not here quickly, we will... MR. THOMPSON: He’s just here. THE COURT: Oh good. It will take three minutes or not even three minutes. It will take 30 seconds for me to just make these changes.

R E A S O N S F O R S E N T E N C E (CONTINUES) BROPHY, J. (ORALLY) Okay, Mr. D.P., would you come forward please. I just have something I have to add to what was said previously. I skipped over these in my notes. I should not have but I did. I am adding to both the deferred custody and supervision order and to the probation order two additional terms. One is that you will attend the Grey Bruce Men’s program which was recommended in the material. In addition, this language is important. You will not associate or communicate either directly or indirectly with female persons under the

age of 16 without application to the court for special exemption unless in the presence of such persons approved of in writing by your youth worker. Now I know there has been some discussion about what contact you should have or not have with you sisters, but if that is all worked out in an approved manner, then it can happen; but in a general sense, you should not be associating with female persons under the age of 16 unless it is under controlled circumstances. The last point – so those two additional points, Grey Bruce Men’s program, female persons under the age of 16.

Further, I am directing that the psychological assessment of the psychiatric report be released to the youth workers to assist them in terms of fashioning appropriate programming. Okay? All right. MR. THOMPSON: I, I don’t know whether Mr., Mr. Mayhew is here as well, but that there’s an immediate concern about part-time employment and education where you’re going to be associating casually with... THE COURT: Well, simply put, it seems to me the youth worker can sit down with Mr. D.P.. They can work out the circumstances in which all of that is going to occur and if a proper plan can be presented.

He is working, for example at Tim Horton’s then, that can be approved of in writing, if that is appropriate. But it seems to me it can be managed, and if it cannot be managed, then you can come back and I can deal with the change in the order. MS MACINTYRE: Were the other counts withdrawn, Your Honour? THE COURT: You did not say it on the record, but you are withdrawing them? MS MACINTYRE: Yes please. The other counts... THE COURT: Okay. MS MACINTYRE: ...that were not pled to, to be withdrawn. THE COURT: So ordered. Thank you very much. MS MACINTYRE: Thank you. THE COURT: Okay, Mr. D.P., thank you very much.

We are still working on the documents. They will be ready for you in a few minutes. Okay? D.P.: Okay. Thank you. . . . * * * * * * * * * * C O U R T C O N C L U D E D FORM 2 CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Kathleen Inksetter, certify that this document is a true and accurate transcript of the recording of R. v. D.P. in the Ontario Youth Court

of Justice held at 207 Cayley Street, Walkerton, Ontario N0G 2V0 on October 3, 2011 taken from Recording Numbers 0311-2-301- 2011, 0311-2-302-2011 in Courtroom No. 2, the original of which has been certified in Form l. _____________________ ________________________________ Date Court Reporter Form 1 Certificate of Recording Evidence Act, Subsection 5(1) I, Penny Cossitt certify that Recording Nos. 0311-2-301-2011 and 0311-2-302-3011 is the recording of the evidence and proceedings in the Ontario Youth Court of Justice held at 207 Cayley Street, Walkerton, Ontario on Monday, October 3, 2011 and that I was in charge of the sound recordings device during those proceedings. ______________________ ______________________________ (Date) (Court Reporter) ONTARIO YOUTH COURT OF JUSTICE T A B L E O F C O N T E N T S PROTECTED FROM PUBLICATION BY SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT W I T N E S S E S WITNESSES IN-CH CR-EX RE-EX (none) E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE

5 Report update from Mr. Fischer 3 REASONS FOR SENTENCE 5 LEGEND (ph) – Indicates preceeding word has been spelled phonetically. [ sic ] – Indicates preceeding word has been reproduced verbatim and is not a transcription error. Transcript Ordered. . . . . . . . . . . . .____________________ Transcript Completed . . . . . . . . . . . ____________________ Ordering Party Notified . . . . . . . . . .____________________