Her Majesty the Queen - v. -, 2011 SKPC 94

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 094 Date: June 07, 2011 Information: 44302504, 46420407, 44660600, 46621259 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - K.S. Appearing: Ms. Sonja Hansen, Q.C. For the Crown Ms. Joanne D.

Khan For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ SENTENCING DECISION D.C. SCOTT , J _____________________________________________________________________________

Introduction and Case History ( 1 ) The young person K.S. originally pled guilty to possession of a stolen vehicle, contrary to s. 355 (

b) of the Criminal Code ; failing to remain at the scene of an accident contrary to s. 252(1) of the Criminal Code ; and two counts of breaching her undertaking by failing to abide by a curfew contrary to s. 145(3) of the Criminal Code . The Crown proceeded by indictment on the charges under ss. 355 (

b) and 252(1) . ( 2 ) With respect to the charge under s. 252(1) , the original wording referred to the young person having been involved in an accident with an apartment building. At the outset of the sentencing hearing, Crown counsel was allowed to amend the charge to allege the young person had been involved in an accident with an individual who was the occupant of the apartment building.

The amendment was not opposed by Defence counsel and the guilty plea was maintained, even in light of the amendment. ( 3 ) I had concerns about whether the facts as alleged and admitted actually supported the charge under s. 252(1). I raised my concerns with counsel. Pursuant to s. 606(4) of the Criminal Code , the Crown indicated it was prepared to accept a guilty plea to impaired driving under ss. 253(1) (

a) and 255(1) (

b) of the Criminal Code . Defence counsel withdrew the young person’s guilty plea and entered a not guilty plea to the original charge under s. 252(1) , as amended, and entered a guilty plea to the charge of impaired driving. That plea was accepted. Circumstances of the Offences ( 4 ) At approximately 4:00 a.m. on November 6, 2010, a police officer observed a Chev pickup truck being driven by a small individual matching the description of this young person, on 8 th Street East in Saskatoon travelling at a rate of approximately 60 kilometres per hour, with the lights off.

The vehicle ultimately collided with the wall of an apartment building on 8 th Street causing considerable damage to the building. The occupant of the apartment was at home when the vehicle went through the apartment wall and came to rest inches from his head. ( 5 ) During the evening leading up this incident, this young person had been partying with friends. She reports having consumed a 1.5 litre wine cooler, some whisky and then a “big shot” of whisky which caused her to “black out”. Although she does not recall stealing the vehicle, she admits she was in possession of it.

She recalls being the operator of the vehicle, stopped at a red light. When the light turned green, she intended to pull the vehicle to the curb but blacked out again. She recalls crashing the vehicle into an apartment building. She recalls running through an apartment, hearing dogs barking, walking toward the police and being arrested. She was found by police intoxicated and disoriented. Victim Impact ( 6 ) The occupant of the apartment provided a victim impact statement. He received a small cut near his eye. He was extremely shaken and reports having been traumatized by what occurred.

He suffered from nightmares following the incident. There was considerable damage to the apartment building and the stolen vehicle. Crown and Defence Positions on Sentence ( 7 ) This young person has no previous findings of guilt. The Crown argued that the aggravating circumstances make this an exceptional case under s. 39(1) (

d) of the Youth Criminal Justice Act , S.C. 2002, c. 1( YCJA ), thereby opening the gateway to custody. ( 8 ) With respect to the impaired driving charge, the Crown asks that I impose a custodial sentence, suggesting deferred custody would be appropriate. On the charge of possession of stolen property, the Crown seeks a stand alone order for restitution and on the breaches it asks that I impose community service hours.

(9) Defence counsel argues this is not an exceptional case and asks that I impose a conditional discharge. Personal Circumstances and Background of Young Person

(10) K.S. is 14 years of age and is a member of the Fishing Lake First Nation. In February 2011, she was temporarily placed in thecare of the Ministry of Social Services, after her mother and mother’s ex-boyfriend parted company. K.S. resided initially at theSaskatoon Safe House and then Bethany Home. While at Bethany Home, she did well, generally presenting a positive and politeattitude. She has since returned to the residence of her mother, and the Ministry has closed its file in the matter.

(11) K.S. has a good relationship with her mother, who imposes reasonable house rules and consequences. K.S. receives thebenefit of guidance and positive direction from her mother and also from her grandmother, who resides on the Fishing Lake FirstNation. K.S. has mostly pro-social friends. She does not express pro-criminal attitudes.

(12) This young person began consuming alcohol at the age of twelve, approximately two times per month. She has also usedmarihuana. She reports not having consumed alcohol since February 2011 and has expressed a willingness to address areas of her lifethat may have contributed to her offending behaviour.

(13) She is taking grade 9 classes and is considered to be at an age-appropriate grade level, although her attendance isinconsistent. Her teacher describes her as a “bright girl, who is very capable and strong academically” and who could easily be one ofthe top students of the class. She is pleasant, respectful and good natured. K.S. recognizes the value of an education and her goal is tocomplete her education; she wishes to become a lawyer.

(14) K.S. has no previous findings of guilt.

(15) According to the pre-sentence report, this young person does not display indicators of a criminal attitude or of a pattern ofgeneralized trouble. She has accepted responsibility for her actions and has not attempted to deny or minimize her offences. The majorrisk concerns for this young person were identified as her substance use and abuse, as well as the lack of positive leisure and recreationalactivities. Strength areas were identified as her education, family circumstances and parenting, and companions, as well as her lack of acriminal history, pro-criminal attitude or antisocial pattern. Principles of Sentencing

(16) Section 3 of the YCJA sets out the principles upon which the Act is based and which have rehabilitation of the young person asa prime focus (R. v. R.E.W., (ON CA), [2006] O.J. No. 265 (C.A.) para. 40). According to s. 38 of the YCJA, thepurpose of sentencing is to hold the young person accountable for an offence through the imposition of just sanctions that havemeaningful consequences for and promote the rehabilitation and reintegration of the young person, thereby contributing to the long-termprotection of the public.

(17) A sentence imposed upon a young person must be proportionate to the seriousness of the offence and degree of responsibilityof the young person, must be similar to sentences imposed on similar young persons found guilty of the same offence in similarcircumstances, and must not result in greater punishment than that appropriate for an adult convicted of the same offence in the samecircumstances. Facts to be considered include the degree of participation by the young person, the harm done to victims, time spent inpre-sentence detention if any, previous findings of guilt and other aggravating and mitigating circumstances.

(18) The Court must also consider Parliament’s clear intention reflected in the YCJA to reduce the use of custody for youngpersons.

Is a custodial sentence available under s. 39 of the YCJA?

(19) Because this young person has no previous findings of guilt, a custodial sentence is available only if the offence of impaireddriving is a “violent offence” as contemplated by s. 39(1)(

a) or is found to be an “exceptional case” under s. 39(1)(

d) of the YCJA. Violent offence (s. 39(1)(

a) YCJA)?

(20) In the companion cases of R. v. C.D.; R. v. C.D.K., 2005 SCC 78 , [2005] S.C.J. No. 79, the Supreme Court ofCanada observed that custodial sentences for young persons ought to be reserved primarily for violent or serious repeat offenders. TheCourt held that in the context of the YCJA, “violent offence” should be narrowly interpreted and defined as an offence in the commissionof which a young person causes, attempts to cause or threatens to cause bodily harm.

Bodily harm is defined in the Criminal Code asany hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling innature. Bodily harm includes both physical and psychological harm.

(21) In C.D.K., the Court found that where a young person pled guilty to dangerous driving, for engaging in a police chase throughcity streets, a violent offence within the meaning of s. 39(1)(

a) of the YCJA had not been established. Even though there was thepotential for harm to others in these circumstances, it was not clear on the record whether the young person caused, attempted to cause orthreatened to cause bodily harm in that case.

(22) In the case before me, there is nothing to indicate the young person attempted to cause or threatened to cause bodily harm tothe occupant of the building. There is no suggestion that the crash into the apartment building was anything other than an accident. Theoccupant received a small cut near his eye, was traumatized, lost sleep and experienced stress as a result of the incident, and sufferedfrom nightmares. Without minimizing the impact of the offence on the victim, I am unable to conclude, based upon the informationbefore me, that the victim suffered physical or psychological hurt or injury that interfered with his health or comfort that was more thanmerely transient.

(23) I am therefore unable to find that the offence of impaired driving is a “violent offence” within the meaning of s. 39(1)(

a) ofthe YCJA. Exceptional case (s. 39(1)(

d) YCJA)? (24) Section 39(1)(

d) provides that a youth justice court shall not commit a young person to custody except: (

d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence aresuch that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. (25) Section 39(1)(

d) allows for the imposition of a custodial sentence for a non-violent offence even if there is not a prior historyof offending or a failure to comply with non-custodial sentences, but only if there are aggravating circumstances such that the impositionof a non-custodial sentence would be inconsistent with the principles articulated in ss. 3 and 38 of the YCJA (Prof. N. Bala, as quoted inR. v. S.T., 2009 BCCA 274 , [2009] B.C.J. No. 1206 (C.A.) at para. 45).

(26) According to the Court in R.E.W., s. 39(1)(

d) is to be interpreted narrowly. Exceptional cases under this

section are limited tothe clearest of cases, where the circumstances are so extreme and so shocking as to threaten widely shared community values and wherea custodial disposition is obviously the only disposition that can be justified. The Crown argues that the aggravating circumstances in thiscase are that shocking.

(27) In S.T. the Court dismissed the young person’s appeal of a 12 month custody and supervision sentence for theft and arson(stealing and setting fire to a truck), concluding it was an exceptional case under s. 39(1)(d), based upon the trial judge’s finding that itwas a “horrendous property crime”. The young person was 15 years of age at the time of the offence and had no prior criminal record.

He drank 24 cans of beer, then stole a pickup truck, but lost control of it and crashed. In order to avoid discovery, the young person set fire to the truck. Reports indicated the young person lacked parental supervision and was immature, troubled, had academic potential but lacked motivation. The Court of Appeal adopted the test in R.E.W. with respect to “exceptional case”. The Court held this case was “close to the line” but that the trial judge’s conclusion that the offence involved a “horrendous property crime” was a finding of fact which it would not disturb. ( 28 ) The Court in S.T. provided a valuable survey of the cases found to be exceptional under s. 39(1)(

d) and those where the circumstances did not meet the necessary threshold (see paras. 50 – 52). I have considered these cases, and will not repeat them here. However, it is my observation that “exceptional cases” as found by the Courts most often involve violence, have resulted in serious bodily harm or death, or were extreme, deliberate acts. ( 29 ) Examples of two driving cases where different conclusions were reached by the Courts follow. ( 30 ) In R. v.

L.E.S. , 2007 SKPC 138 , the Court found an “exceptional case” where a youth who was found guilty of two counts of impaired driving causing death and three counts of impaired driving causing bodily harm and theft, had used violence to steal a vehicle, deliberately drove in a manner so as to frighten the passengers in his vehicle and intentionally swerved to cause injuries. ( 31 ) In R. v. K.K. , 2006 ONCJ 75 (Ont.

C.J.), where the young person, guilty of dangerous driving, had stolen a vehicle, participated in a police chase in a residential area and driven directly at the police cruiser three times, recklessly indifferent to the consequences, the circumstances did not amount to an exceptional case, but the offence was found to be a violent one under s. 39(1)(a). ( 32 ) The following are aggravating circumstances of the offence in the present case: ∙ the young person was in possession of a stolen vehicle ∙ she was driving at the age of 14 years ∙ the young person’s level of intoxication was very high ∙ she accidentally drove into a building ∙ substantial property damage was caused ∙ vehicle tires narrowly missed striking the victim’s head ∙ the young person left the scene. ( 33 ) The young person has pled guilty to impaired driving.

Driving while impaired is inherently risky behaviour. While the potential for harm to this young person or others was significant, no actual harm was sustained. Property damage was substantial, however. That the highly intoxicated young person while driving a stolen vehicle, lost control of the vehicle and struck a building, are certainly aggravating factors.

However, there is nothing to suggest the young person intended to drive the vehicle into the building or turned her mind to whether someone might be behind the wall into which she drove. ( 34 ) An adult guilty of impaired driving, on a first offence, would face a range in sentence from a minimum fine of $1,000.00 to a term of imprisonment of not more than five years, where the Crown proceeded by way of indictment, as here. Even in these circumstances, it is unlikely that an adult would attract a jail sentence, unless the principles of deterrence or denunciation were applied.

It is not open for a youth justice court to apply the sentencing principles of deterrence and denunciation. ( 35 ) While certainly very serious, this is not the clearest of cases. These circumstances are not so heinous, egregious, shocking or out of the ordinary that they require a custodial sentence to achieve the purposes of the YCJA . Rather, it is my view that the imposition of a non-custodial sentence would not be inconsistent with the principles of ss. 3 and 38 of the Act .

It is my view there are alternatives to custody that are reasonable in the circumstances and in keeping with the purposes and principles of sentencing under the Act . I therefore decline to find this to be an “exceptional case” within the meaning of s. 39(1)(d). The gateway to custody is therefore not open in this case.

What is the appropriate sentence?

(36) According to s. 38 of the YCJA, I must impose the least restrictive sentence that would hold this young person accountablethrough the imposition of meaningful consequences that would promote her rehabilitation.

(37) Based upon the information contained in the pre-sentence report, this young person has a very good likelihood of successfulrehabilitation. She has a positive and supportive family. There are rules in the home, by which this young person abides and there areconsequences for her failure to do so. She does very well in school and values her education. She has mostly pro-social friends. And,she has set future goals for herself.

(38) She has accepted responsibility for her behaviour, without minimizing it in any way. She has already taken initial steps toaddress her alcohol abuse by discontinuing her consumption of alcohol. This demonstrates insight into the connection between heralcohol consumption and her offending behaviour. She has expressed a willingness to address those areas of her life which contribute toher offending behaviour.

(39) No cases were brought to my attention and I could find none, where a young person had been sentenced for impaired driving,where damage to property but no injury was caused. In the following cases, the consequences were much more serious than those in thepresent case.

(40) In R. v. A.T., [2009] O.J. No. 4013 (Ont. C.J.), where a young person pled guilty to impaired driving, after driving through ared light and striking another vehicle, causing that vehicle to strike a light pole, seriously injuring the passengers and driver in thatvehicle, the Court denied the Crown’s application for a “serious violent offence” designation under s. 42(9) of the YCJA, but imposed aterm of deferred custody. The young person had previous findings of guilt.

(41) In R. v. C.C.R.S., [2010] O.J. No. 4497 (Ont. C.J.), a young person, with no previous record, pled guilty to two counts ofdangerous driving causing bodily harm and one count of possession of stolen property over $5,000.00. The 16 year old, who was notlicenced to drive, operated a stolen vehicle with two passengers in the vehicle, at a rate of speed estimated at 140 kilometres per hour. Helost control of the vehicle, resulting in a violent collision with a stone retaining wall. All of the occupants, including the young person,were severely injured. The Crown sought a deferred custody order, but the Court imposed a sentence of two years’ probation.

(42) In R. v. K.L.M., 2004 BCPC 200 , [2004] B.C.J. No. 1396 (P.C.), a young person who pled guilty to one count ofdangerous driving causing bodily harm and one count of impaired driving causing death, was sentenced to two years’ probation, 240hours of community service work, and a driving prohibition. The Court found that although these were serious violent offences under theYCJA, the young person’s personal circumstances had mitigated against a custodial sentence.

(43) In R. v. A.J., 2010 ABPC 23 , [2010] A.J. No. 414 (P.C.), a young person who pled guilty to one count of dangerousdriving causing death and one count of dangerous driving causing bodily harm, was sentenced to two years’ probation, 175 communityservice hours and a driving prohibition. Even though the gateway to custody was open, the Court found there were reasonablealternatives to custody and that the young person’s rehabilitation was more likely to be achieved in a community setting.

(44) In R. v. F.S.P., 2007 MBPC 57 , [2007] M.J. 390 (P.C.), a young person who pled guilty to two counts of impaireddriving causing death, dangerous driving, taking a vehicle without the owner’s consent and failure to comply with a youth sentence wassentenced to two years’ probation, along with onerous conditions which included 240 hours of community service work and a drivingprohibition.

(45) While, as I have said, I do not believe a custodial sentence is available or appropriate in this case, neither is a conditionaldischarge appropriate as was requested by the young person, given the seriousness of the circumstances.

( 46 ) In all of the circumstances, it is my view that an appropriate sentence for the impaired driving offence would be a period of probation. A period of probation would promote this young person’s rehabilitation, while at the same time impose a meaningful consequence and hold the young person accountable. Conditions imposed could address this young person’s risk factors with respect to substance use and abuse, while supporting the areas of strength in her life.

Such a sentence would be proportionate to the gravity of the circumstances in this case. ( 47 ) Therefore, on the impaired driving charge, I impose a sentence of 12 months’ probation with the following conditions, that you: 1. Keep the peace and be of good behaviour; 2. Report to Court when required to do so; 3. Report to a Youth Worker no later than 4:00 p.m. on Wednesday, June 8, 2011; 4. Reside at a residence approved by your Youth Worker or Family Service Worker and not change that address without the express written permission of the Youth Justice Court or Youth Worker; 5.

Abide by a curfew of 10:00 p.m. to 7:00 a.m. daily unless with the written permission of the Youth Worker or in the actual presence of your mother; 6. Attend school regularly as directed; 7. Abstain from the use, possession, consumption of alcohol and non-prescribed (illicit) drugs; 8. Attend for an addictions assessment and any subsequent counselling or treatment as directed by the Youth Worker/addictions counsellor; 9.

Complete 40 hours of community service work by June 7, 2012. ( 48 ) On the possession of stolen property, the Crown seeks a stand alone restitution order of $700.00, which represents the insurance deductible lost by the owner of the vehicle. The young person agreed with the imposition of such an order. The young person could satisfy a restitution order by participating in the Youth Works Program. Repaying the victim for his loss, would impose a meaningful consequence for this offence.

I am prepared to make a stand alone restitution order for the repayment to the owner of the stolen vehicle, in the amount of $700.00, to be satisfied by December 31, 2011. ( 49 ) On each of the two breaches, I direct that K.S. complete five hours of community service work by August 31, 2011. ( 50 ) Given the age of this young person, the Crown did not ask that a driving prohibition be imposed and I therefore decline to do so. ______________________ D.C. Scott, J