2015 MBPC 26, 2015 MBPC 26

Cite: 2015 MBPC 26 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Mr. K. McKenzie, for the Crown - and – ) ) S.C.L., ) Accused ) ) Ms. M. Ferens, for the Accused ) ) Reasons for sentencing delivered: May 28, 2015. ) Restriction on publication : Subsection 110(1) of the Youth Criminal Justice Act , which prohibits the publication of any information that may identify a person as having been dealt with under the Act , applies to this judgment. R.L.

POLLACK P.J. [ 1 ] S.C.L. was a permanent ward of Island Lake First Nations Child and Family Services (“C.F.S.”) living in a motel room with a child care worker. He did not meet that worker until he was assigned to live in that motel room and there was no real guardianship relationship between them. Because S.C.L. was never involved with the criminal justice system, no court order required him to stay in that motel room.

Nothing inhibited S.C.L. from coming and going as he pleased because, like all workers who live with children in care in hotel rooms, his worker would not use any force at any time of day to keep him in the room. How S.C.L. became bound by a curfew: [ 2 ] On June 30, 2014 S.C.L. was not in his motel room; he was intoxicated after ingesting drugs and alcohol. With another youth who was living in that motel in similar circumstances, he was checking parked cars to find any that was unlocked. In one vehicle they found a pair of sunglasses and a trinket which they stole while security guards watched.

The guards apprehended the two and placed them in the other youth’s hotel room with the instruction that they should wait for the police who were on their way. [ 3 ] S.C.L. responded by threatening to get his gun and shoot them and picking up two plastic spoons and threatening to stab them. They were not stabbed with the spoons and there is no suggestion that a gun existed. Unhappy with the pending arrival of police, S.C.L. broke a bathroom window and the two fled.

They were arrested at another motel parking lot across the street. [ 4 ] It is not surprising that the officer in charge released S.C.L. to C.F.S. and he was placed in an emergency shelter operated by MacDonald Youth Services (“M.Y.S.”) at 1:45 a.m. The release was not unconditional and S.C.L. undertook, early that morning, to abstain from drugs and alcohol and to stay away from the motel that had been his residence. [ 5 ] That evening police were at that motel and happened to spot S.C.L. He appeared to be intoxicated and stated that he had taken pills.

This time he was detained at the Manitoba Youth Centre (“M.Y.C.”) charged with (#1) theft, (#2) uttering threats to the security guards, (#3) wilfully damaging the window at the motel and (#4) failure to comply with his undertaking to the police officer who had previously released him. Two days later S.C.L. was released on a roster of conditions which included a curfew.

Those unfamiliar with the lengthy afternoon M.Y.C. bail dockets should know that accused youth in S.C.L.’s circumstances are often released on conditions that are consented to; because the accused has consented, a judge is rarely involved in determining whether the prosecution can show cause ( Youth Criminal Justice Act, s. 29(3) ) why each condition is justified. That is how S.C.L. obtained interim release.

The curfew disobediences: [ 6 ] An important objective of the Youth Criminal Justice Act (“ Y.C.J.A. ”) is to provide “timely intervention that reinforces the link between the offending behaviour and its consequences” ( Y.C.J.A., s. 3(b)(iv) ) yet these matters were remanded by consent and without plea many times. That happens in Youth Court and it would bring justice to a standstill if the available judges were to scrutinize the dozens of daily consented to adjournments, grounds for which include:

(1) Counsel has not been retained, often due to Legal Aid Manitoba’s procedures.

(2) The defence requires disclosure, or more disclosure;

(3) The prosecutor does not have a file or the prosecutor with “file ownership” is not present;

(4) The defence lawyer only attends court at M.Y.C. on certain days;

(5) A parent/social worker/other collateral source is unavailable. After about six remands prior to counsel being appointed and another six times after legal aid was obtained, S.C.L.’s next appearance was to be November 21, 2014. [ 7 ] On October 20, 2014, however, S.C.L. was again found to be in a state of intoxication in the middle of the night. He had used some kind of inhalant and this time police found it necessary to have him medically cleared before he could be taken to M.Y.C.

Within twelve hours he was released with the consent of the prosecutor and with an additional charge (#5) of failure to comply with an undertaking curfew condition. [ 8 ] On February 5, 2015, after the curfew hour, S.C.L. called his foster parent to let him know that he was at his girlfriend’s residence. His foster parent, Mr. J.S. (about whom I have more to say) called the police to tell them that S.C.L. was in breach of his curfew and where he could be found. Just before midnight he was arrested at his girlfriend’s and taken to M.Y.C.

There he remained until he was released on February 9, 2015 facing yet another count (#6) of failure to comply with an undertaking curfew condition. The record indicates that pleas had not been taken upon any charge and more than seven months had gone by since S.C.L.’s first arrest at the motel. [ 9 ] On April 13, 2015, pursuant to the terms of a plea bargain, S.C.L. pled guilty to the six counts: theft, uttering threats and mischief from the motel incident, failure to comply with an undertaking to stay away from that motel and two failures to comply with his curfew while on interim release.

The prosecution recommended a probation order with several conditions and did not address any sentence alternatives; without reviewing the Y.C.J.A. discharge provisions, the defence sought a conditional discharge.

Neither side particularized an appropriate sentence for each charge. [ 10 ] These are the dispositions that I recorded on May 13, 2015 (and I indicated that these reasons would follow): (1) for theft, uttering threats and mischief on June 30, 2014 – an absolute discharge ; (2) for breach of his undertaking to police not to return to the motel on July 1, 2014 – a reprimand ; (3) for breach of his curfew undertaking on October 20, 2014 and on February 15, 2015 – a concurrent one-year conditional discharge on the following terms: (

a) report to the provincial director within one working day; (

b) report to the provincial director as instructed by a probation officer; (

c) attend counselling and programming as directed by a probation officer; (

d) do not attempt to communicate by any means, directly or indirectly, with K.A.D.F. (his former girlfriend) and stay 100 metres away from where she may live, work, attend school or worship; (

e) stay 100 metres away from the motel; (

f) provide 25 hours of community service during school summer holidays. S.C.L.’s background: [ 11 ] There are blanks to be filled in before the pre-sentence facts are complete. S.C.L. became a permanent ward of C.F.S. more than a year ago and in February, 2014 he was placed in foster care with Mr. J.S. By June of that year, however, the placement had broken down, in Mr. J.S.’s opinion, because of S.C.L.’s substance abuse and the peer group with which he associated. That necessitated a series of emergency placements, one of which was more than a week in that motel room.

Things did not get better for S.C.L. right away. Indeed, it took until sometime in August for Legal Aid Manitoba to issue a certificate and that came when the appointed lawyer was on vacation. [ 12 ] In September his lawyer wanted to contact S.C.L. but information on her file did not include an address. She made inquiries of C.F.S. in order to locate her client and found that there was no worker assigned to him, that his file was in a state of uncertainty and that his former worker had been moved to a head office position without his file being reassigned.

Judges who preside frequently in Youth Court know that this is not an unheard of situation. [ 13 ] Mr. J.S. reached out to S.C.L. after his arrest and release in October, 2014 and they had a successful reconnection. As a result, on November 12, 2014, S.C.L. returned to live with Mr. J.S. That placement has continued to be the right one for S.C.L., notwithstanding that night when he stayed too late at his girlfriend’s. (I am informed that she is no longer in his life.) [ 14 ] That S.C.L. managed to live in Winnipeg without coming into conflict with the law for fifteen years is remarkable.

He was born in Oxford House and lived there until he was six years of age. His grandmother remains in that First Nations community but his mother

moved to Winnipeg with him. That was not a good idea for either of them. She has substance abuse issues and the two have drifted apart, although S.C.L. does communicate occasionally with her on Facebook. [ 15 ] What is also remarkable is that S.C.L., now sixteen years of age, is a full-time student in grade eleven and his lifestyle has earmarks of what Y.C.J.A. sentencing is meant to achieve: “rehabilitation and reintegration into society, thereby contributing to the long- term protection of the public” ( Y.C.J.A., s. 38(2) ).

The evidence indicates that this offender: - volunteers in at least two accredited youth programs in Winnipeg; - is active in a Christian Youth Group - composes Christian hip hop music - visits First Nation Churches to share own compositions; - is involved in extra-curricular athletics. [ 16 ] S.C.L. has been assessed by the Addictions Foundation of Manitoba and attended some counselling sessions. At first I was concerned that he is no longer involved with that organization but I am informed that he receives appropriate therapy from weekly appointments with a psychologist.

He is also being referred to a psychiatrist to determine if some apparent cognitive issues can be addressed with medication. [ 17 ] At his sentence hearing S.C.L. told me that he feels that he has made real progress and that his immediate project is obtaining summer employment. He was completely candid about his abuse of intoxicants and, without any prompting, told me how easy it was to source street drugs through his friends at that time. That kind of insight is significant and I think that S.C.L. realizes that Mr.

J.S. is right in attributing the previous breakdown of the placement to those friends. [ 18 ] I am informed that, but for the return to the motel the day after his arrest, Manitoba Prosecution Service would have been satisfied with a referral to extra-judicial measures. The stolen property was recovered without damage, the threats to the security guards, while spoken, would hardly have caused fear and the only property loss was a broken window in a washroom.

It is my view (which includes great respect for prosecutorial discretion in Manitoba) that S.C.L. being at the motel the next night ought not to have disqualified him from those measures. [ 19 ] Clearly S.C.L. was a youth in crisis. He had a parent incapable of controlling him and the response of C.F.S. was to keep him in a motel room with a stranger whose orders did not include any parenting. The M.Y.S. emergency placement hardly had time to react and, with the help of friends, he found it easy to become intoxicated. Application of sentencing principles: (

i) theft, uttering threats and mischief [ 20 ] In deciding that the three offences committed on June 30, 2014 should be concluded with an absolute discharge, I have considered first that there was substantial merit in the initial reaction of the prosecution to allow S.C.L. to be dealt with extra-judicially; indeed this offender personifies the principles found in Y.C.J.A., s. 4 . By ordering an absolute discharge, I am causing a similar - but not identical - result because the three absolute discharges will remain a discoverable record for one year ( Y.C.J.A., s. 119(2)(e) ). [ 21 ] The criteria for absolute discharges under Y.C.J.A., s. 42(2)(

b) are the same as required by Criminal Code, s. 730(1) : the Court must consider an absolute discharge “to be in the best interests of the young person and not contrary to the public interest”. Clearly it is in the offender’s best interests to be discharged absolutely.

In my opinion, it is also in the public interest that these first offences, committed by an aboriginal youth who has demonstrated fifteen years of achievement despite an adverse upbringing, be noted in pencil and not in ink. (ii) breach of undertaking to police officer re: attendance at motel [ 22 ] I treat the return to the motel on July 1, 2014 differently. Having heard as much as I have about the antecedents of this offender, it is difficult to imagine S.C.L. receiving his release document and acknowledging its conditions with the kind of solemnity that makes a breach the next day either unexpected or grave.

That breach is typical of bail order breaches that are frequently spoken of in the M.Y.C. courtroom as being of lesser concern. Is it necessary to create a record that will follow this offender for a year or more? [ 23 ] A record of a breach is indeed a serious matter and I need only refer to the decision of Joyal J. (as he then was) in R. v. D.J.M. , 2007 MBQB 298 , at para. 19 , to demonstrate how significant such a record can be for a youth: . . .

Where a young person receives a reprimand, the access period is only two months , similar to a situation under the Y.C.J.A. where the charge has been dismissed or withdrawn. In other words, after two months, the conviction no longer appears on an offender's record, and the record is no longer available for use by the courts or law enforcement.

The inaccessibility and ultimate disappearance of the conviction, for court purposes, is significant in that it can impact upon the examination and assessment that a court may be required to conduct in those appropriate cases where the Crown is seeking to demonstrate under the Y.C.J.A. "a history that indicates a pattern of findings of guilt " (see paragraph 39(1)(

c) of the Y.C.J.A . ). ( emphasis added ) This is an important point because S.C.L. did not return to the comfort of a home where parental guidance was available to discuss that judicial interim release document in his back pocket. The breach the following day, in my opinion, ought not to be included in any future deliberation whether the “gate to custody” is open for this offender.

[ 24 ] A point not considered by Joyal J. but of equal significance is that a lasting record for this minor breach has implications should this offender find himself on a M.Y.C. bail docket again. When the gate to custody is open, the presumption against pre-sentence detention does not apply ( Y.C.J.A., s. 29(2)(a)(ii) ).

Even if this offender was to be arrested again, such a minor breach should not be available to support a prosecution demand for detention on a less serious offence because it may demonstrate a pattern of breaching. (iii) breach of undertaking to a justice re: curfew (2 counts) [ 25 ] The failure of S.C.L. twice to comply with his curfew while on interim release requires a meaningful consequence of disobeying a court order. I attribute a higher degree of responsibility to S.C.L. on those occasions.

Even if it can be said that he was still somewhat out of control and succumbing to intoxication last October, by February of this year he was living with Mr. J.S. in a much better environment and, in all other respects, displaying a sense of responsibility and compliant behaviour.

It is therefore important, in my opinion, that there be a record of these latter offences that is discoverable well past his 18 th birthday as articulated by Joyal J. [ 26 ] For the reasons that follow, it is my opinion that he is not only eligible for a discharge but that the conditional discharge provisions should be a first consideration in a case such as this. Y.C.J.A. conditional discharges are not subject to the same dual-interest criteria as absolute discharges: R. v. P.J.S. , 2008 NSCA 111 ; in fact, the Y.C.J.A. specifies no criteria for a conditional discharge.

Interestingly, both absolute and conditional discharges are not an alternative to entering a conviction against the offender; this is an important distinction between adult and youth discharges. All Youth Court dispositions are records and the Y.C.J.A. specifies disclosure rules in each case. A conditional discharge, regardless of its length, will remain subject to disclosure for three years from the date of sentencing ( Y.C.J.A., s. 119(2)(f) ). Its criteria are implied by the various Y.C.J.A. statements of principle and purpose. [ 27 ] A helpful

summary of the Y.C.J.A.’s sentencing principles is found in R. v. R.P. , 2004 ONCJ 190 . Notwithstanding the age of that judgment and Parliament’s recent modification of the prohibition against sentencing to denounce and to deter in Y.C.J.A., s. 38(2)(f) , the judgment of Duncan J. remains sound and it is frequently cited ( e.g. Harris, Peter J. and Bloomenfeld, Miriam H.

Youth Criminal Justice Act Manual (Toronto: Canada Law Book, 2014 – 42:21000)): 13 If I am correct in the above conclusion that the discharge test will almost always be met (particularly in the case of conditional discharges), then candidates for non-custodial sanctions such as probation will usually be eligible for a discharge as well. The question then arises as to whether youth sentencing principles provide any guidance to assist the youth court in choosing between a discharge and other non-custodial disposition. Those sentencing principles are set out in

section 38 and in turn are to be read in the context of the general principles of youth justice contained in

section 3 of the Y.C.J.A..

To roughly summarize, those principles call for sentences that are meaningful (38(1); 3(1)(a)(iii)) and proportionate to the offence and the degree of the offender's responsibility (38(2)(c); 38(2)(e)(iii); 3(1)(b)(ii)); that hold the youth accountable (38(1); 3(2) (c)); that repair harm done to others and the community: (38(2)(e)(iii); 3(1)(c) (ii)) that promote the offender's rehabilitation (38(2)(e)(ii); (3(1)(b)(i)) and also protect the public (38(1)). 14 Dealing with the last point first - rehabilitation and public protection - there is a striking similarity between probation (42(2)(k)) and a discharge on conditions (42(2) (c) ).

In both cases the offender is out of custody, is under the supervision of the court, is subject to and bound to comply with conditions and is liable to prosecution for breach. Any differences are largely, if not completely, technical. It seems to me that whatever protective, restorative or rehabilitative value is possessed by the one sanction is also shared by the other and there is no distinction between the two sanctions in their ability to serve these principles of youth sentencing.

The sentencing court can get where it wants to go with either. 1 5 However there are also the principles that a youth sentence be meaningful, proportional and hold the youth accountable. There is a perception that a youth conditional discharge is a significantly more lenient disposition than youth probation -- and therefore it might be argued that, in many cases, a discharge would not give effect to these principles. The Crown's frequent opposition to discharges, I think, is based on this perception. The perception of leniency may be fostered by the structure of

section 42 of the Y.C.J.A. that suggests a hierarchy of sanctions with conditional discharges at the lower end. But I think the perception is mainly caused by judges and lawyers habitually - and wrongly - thinking in adult terms when dealing with youth matters. As discussed above, the "big break" of no criminal record that is the central feature of an adult discharge is not part of the youth scheme. The discharge advantage to an offending youth is miniscule. In my view , it is incorrect to consider that a youth conditional discharge under 42(2) (

c) is necessarily a more lenient disposition than a youth probation order under 42(2)(k) . Rather, it is the length of the term and the conditions that are imposed that determine the strictness/leniency of the sanction and not the vehicle, - probation or discharge - that is used. The leniency of a conditional discharge per se as compared to probation is largely misperceived and over-stated in youth matters. Properly viewed, there is no reason why the principles of proportionality and accountability cannot be achieved as effectively through a discharge as probation. 16 In

summary, it is my view that there is little to choose between youth probation and discharge on conditions. That being the case, on what basis is the choice to be made? Parliament evidently intended that there be the two different sanctions and that the courts employ one or the other in appropriate cases. However I do not think it is desirable or even possible to define the circumstances that call for the one sanction over the other.

Nor do I think that is a productive exercise in an individual case to anguish over the differences and attempt to come up with a unified model of sentencing under this Y.C.J.A., particularly since the lawmakers apparently gave it little thought.

Instead, I think the Court should chose a sanction (or sanctions) that can achieve its sentencing goals in the individual case and not concern itself with whatever alternatives or over-lap may be offered by other sanctions. (emphasis added) [ 28 ] Before deciding whether binding S.C.L. to a series of appropriate conditions by way of a discharge can address accountability while adhering to the Y.C.J.A.’s restraint requirements, some further analysis is required.

This concerns whether it is necessary that S.C.L. be required, by court order, both to keep the peace and be of good behaviour and to appear before the Court when required . Those are mandatory probation order conditions ( Y.C.J.A., s. 55(1) ). But probation orders, authorized by Y.C.J.A., s. 42(2)(k) , are not available as terms of a conditional discharge: 42(11) An order may not be made under paragraphs (2)(

k) to (

m) in respect of an offence for which a conditional discharge has been granted under paragraph (2)(c). ( emphasis added )

[29] In R. v. M.S.S., 2008 SKPC 5 , 2008 SKPC 005, Whelan J. concluded her excellent analysis of the relevant principles indetermining whether to discharge or to order probation with conditions with this succinct statement: It would seem that, should a judge in his or her discretion consider it desirable that a young person be required by Court to “keep thepeace and be of good behaviour” and “appear before the Court when required”, a conditional discharge under the YCJA would not beappropriate.

A conditional discharge continues to be a rather flexible sentencing alternative as it does permit supervision for the purposeof programming or other restrictions, and conditions which are mandatory to a probation order are unnecessary to carrying it out. As I have already noted, S.C.L. is demonstrating progress in rehabilitation; I would go so far as to include in that demonstration hisreporting his own breach of curfew to his foster parent.

I am persuaded that a court order is not required for him to be trusted to keep thepeace and that there is no reason to require his appearance before a judge as part of his supervision; that can be accomplished by theProvincial Director through a probation officer or other youth worker. [30] From a proportionality perspective, S.C.L. has not been the beneficiary of particularly lenient sentences under the circumstances:he will be under supervision in the community for one year; his record of conditional discharge will be sustained for two more yearsafter the completion of his supervision; he will provide some community service without remuneration.

And it ought not to go unnoticedthat he has been detained for a week at M.Y.C. notwithstanding his ineligibility for custody and that he was under court-ordered interimrelease for about ten months with some success. Perhaps it is better to describe his sentences as optimistic. “Original signed by” R.L. POLLACK P.J.