2011 QCCQ 6022, 2011 QCCQ 6022

LSJPA — 1123 2011 QCCQ 6022 JB3513 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF … YOUTH DIVISION Nos. 525-03-047711-106 525-03-047712-104 DATE: May 12, 2011 ______________________________________________________________________ PRESENT: THE HONOURABLE NORMAND BASTIEN J.C.Q. ______________________________________________________________________ In the situation of: THE QUEEN v.

X Born on (…, 1994) ______________________________________________________________________ DECISION AND SENTENCE ______________________________________________________________________ Note : This decision was originally drafted in the French language; however, considering the mother tongue of the adolescent, an English translation was requested and filed in the Court record, and a copy was forwarded to the adolescent.

Warning: Under the Youth Criminal Justice Act, no person shall publish the name of a young person or a child, or any other information, if it would identify the young person or child as either a young person or a child dealt with under the Act, or as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person [subsections 110(1) and 111(1) of the Youth Criminal Justice Act]. [ 1 ] On October 12, 2010, X pleaded guilty to the following charges: Record 525-03-047712-104: On or about June 3, 2010, in Town A, district of Town A, did steal from Y his I-Pod, of a value not exceeding $5000.00, committing thereby the indictable offence provided by

section 334 ( b )(

i) of the Criminal Code . Record 525-03-047711-106 On or about July 1, 2010, in Town A, around 10:00 P.M., district A, did rob Z and A committing thereby the indictable offence provided by

section 344 (

b) of the Criminal Code . On or about July 1, 2010, in Town A, around 10:00 P.M., district A, did carry or possess a weapon for a purpose dangerous to the public peace, committing thereby the indictable offence provided by section 88(2) (

a) of the Criminal Code . On or about July 1, 2010, in Town A, around 10:15 P.M., district A, did rob B, committing thereby the indictable offence provided by

section 344 (

b) of the Criminal Code . On or about July 1, 2010, in Town A, around 10:15 P.M., district of A, did carry or possess a weapon for a purpose dangerous to the public peace, committing thereby the indictable offence provided by section 88(2) (

a) of the Criminal Code . [ 2 ] After the guilty plea, the facts related to the offences committed were presented and admitted by the young person. [ 3 ] On October 12, 2010, the Court, convinced that the facts presented and admitted justified the charges, found the young person guilty of the offences and asked the provincial director to prepare and submit to the Court a pre-sentence report concerning the

young person. The hearing on the sentence was postponed until December 2, 2010. [ 4 ] The pre-sentence report of Kennedy R. Carvalho was filed in the records of the Court on November 26, 2010. [ 5 ] In his report, Mr. Carvalho recommended, in particular, that the young person be subject to a deferred custody and supervision order for a period of three months (s. 42(2)(

p) Youth Criminal Justice Act [hereinafter referred to as YCJA]) Mr. Carvalho also recommended that the deferred custody and supervision order be followed by a probation order (s. 42(2)(

k) YCJA) for a period of nine months, and an order for the performance of 50 hours of community service (s. 42(2)(

i) YCJA) to be executed within a period of nine months. [ 6 ] On December 2, 2010, the representative of the Director of Criminal and Penal Prosecutions (hereinafter referred to as DCPP) informed the Court that she intended to apply to the Court for determination that one of the offences committed on July 1, 2010, i.e. the robbery of B, is a serious violent offence within the meaning of section 42(9) YCJA. [ 7 ] The victim, B, testified on December 2, 2010.

Kennedy Carvalho, the person who made the pre-sentence report, and C, the young person's mother, could not be heard before January 25, 2011, the date on which the attorneys made their representations on the determination of the offence and on the sentence each attorney deemed appropriate in the circumstances. ___________________ [ 8 ] The defence argued that the application for determination of the offence was made late; that it should have been made at the time the Court found the young person guilty of the offence. [ 9 ] The representative of the DCPP argued that the application could not have been made at the time the young person was found guilty because he did not admit an aggravating circumstance related to the offence committed.

Furthermore, she argued that the law does not stipulate when an application for determination within the meaning of section 42(9) YCJA is to be made, provided that the young person is given an opportunity to be heard. [ 10 ] In support of her contentions, the representative of the DCPP filed a decision emphasizing the legislator's silence as to when an application for determination may be made: [ translation ] The wording of section 42(9) does not explicitly or implicitly indicate that the application must be made before the pre-sentence report is drawn up. The legislator did not impose any such rigid framework.

In fact, the Act does not indicate when the Crown must make its application, whereas it has specific provisions concerning an application for determination that a young person is liable to an adult offence (s. 64 YCJA). … The fundamental element of the process is that the accused must be able to present his or her arguments regarding the application for determination before a decision is reached on the application. [1] ___________________ [ 11 ] Consequences of the "determination" of an offence [ 12 ] As mentioned by the Honourable D.

Thibault J. in her aforementioned decision, there is much at stake in "the determination of" an offence, since there are far-reaching consequences. The determination "precludes a deferred custody and supervision order since section 42(5)(

a) YCJA stipulates as an application condition that the young person must have been found guilty of an offence that is not a serious violent offence". [2] [ 13 ] Furthermore, an intensive rehabilitative custody and supervision order (s. 42(2)(

r) YCJA) is also excluded from the available sentences when a young person is found guilty of an offence that is determined to be a serious violent offence (s. 42(7)( a )(ii) YCJA). [ 14 ] By allowing the Courts to determine that an offence is a serious violent offence, the legislator pursued another, even more fundamental objective: a third offence determined to be a serious violent offence must, in certain circumstances, be considered as a presumptive offence (s. 1 YCJA, para. (

b) of the definition of "presumptive offence"). [ 15 ] The legislator wanted a young person found guilty of a presumptive offence to be presumed to be liable to an adult sentence unless the young person demonstrated that a "youth sentence", i.e. a sentence for a young person, would have sufficient length to hold the young person accountable for his or her offending behaviour. That consequence (reverse onus) was found to be unconstitutional, and was neutralized by the Supreme Court of Canada. [3] ___________________ [ 16 ] The application for determination further to the filing of a pre-sentence report

[ 17 ] As regularly noted, the legislator never specified any "time" for submitting an application for determination, nor did the legislator provide that such an application had to be made by means of any specific notice. [ 18 ] As part of the hearing on the determination of the offence, the Court "shall, before imposing a youth sentence, consider" any pre-sentence report (s. 42(1) YCJA).

Before imposing a custodial sentence, the Court must, in particular, consider a pre-sentence report (s. 39(6) YCJA), unless all the parties and the Court are satisfied that the report is not necessary (s. 39(7) YCJA). [ 19 ] When the Court is required under the Act to consider a pre-sentence report before rendering a sentence, the Court must “require the provincial director to cause to be prepared a pre-sentence report in respect of the young person and to submit the report to the Court” (s. 40(1) YCJA). [ 20 ] In section 40(2), the legislator lists the information that must be included in the pre-sentence report, to the extent that it is relevant " to the purpose and principles of sentencing set out in

section 38 and to the restrictions on custody set out in

section 39 ...". Reference is made, in particular to "the results of an interview with the young person ", " his or her willingness to make amends", his or her "plans ...to change his or her conduct or to participate in activities or undertake measures to improve himself or herself". [ 21 ] The pre-sentence report must also include ("shall...include") any information that may assist the Court in determining under section 39(2) whether there is an alternative to custody, as well as any recommendation that the provincial director considers appropriate.

The report must also include any information that the director considers relevant, including any recommendation that the director considers appropriate . [ 22 ] In order to determine the relevant information to be included in the report, the person who made the report must refer to the purpose and principles of sentencing set out in

section 38 and to the restrictions on custody set out in

section 39. Thus, in making his or her report, the person must ensure that the information presented to the Court will allow it to impose the most appropriate youth sentence while taking into consideration the principles enacted in

section 3 and those listed in section 38(2) YCJA, in particular the following principles: 38(2)(

d) all available sanctions other than custody that are reasonable in the circumstances should be considered..; 38(2)(

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; 38(2)( e )(

i) the sentence and must be the least restrictive sentence capable of achieving the purpose set out in subsection 1. [ 23 ] It would be inappropriate for the Court to ask for a pre-sentence report if not all the elements necessary for it to be made are known. Indeed, how can the Court consider "the seriousness of the offence" if there are aggravating circumstances not known to the person making the report?

How can the Court consider and recommend "the least restrictive sentence" or even sanctions other than custody if aggravating circumstances are not recognized or proven? [ 24 ] The Court's decision to determine that an offence is a serious violent offence is necessarily an aggravating element to be taken into consideration at the time of sentencing, all the more so that such a decision precludes certain sanctions. [ 25 ] Following a guilty verdict rendered further to a trial, all the facts are known to the Court.

At the request of the DCPP, the Court may, after hearing the parties' observations, decide whether the offence is a serious violent offence. [ 26 ] Further to a guilty plea, the Court must consider whether the facts recognized or admitted justify the charge. If convinced thereof, the Court finds the young person guilty of the offence.

At that very moment, the representative of the DCPP knows whether there are unrecognized aggravating circumstances to be submitted as evidence, either for the purposes of an application for determination, or to allow the Court to take stock of all the recognized and proven relevant facts in its determination of the offence.

If the representative of the DCPP is unable to proceed at the time the young person pleads guilty, he or she may request an adjournment of the hearing and should then specify whether he or she intends to use the additional evidence to bolster an application for determination. [ 27 ] In this Court’s opinion, there is no valid reason to justify making an application for determination after the filing of a pre- sentence report.

Forgetfulness or a "strategy" to circumvent a recommendation of the report is not a legitimate justification. [ 28 ] Being informed in due time of the intentions of the representative of the DCPP allows the Court to ensure that the person making the forthcoming pre-sentence report is aware of all the recognized and proven circumstances needed to draw up a report including all the relevant information listed in section 40(2) YCJA. ___________________ [ 29 ] Safeguarding the fair treatment of young persons [ 30 ] In addition to its

preamble, the YCJA includes certain guiding principles. Some of these principles are specific and apply only to a particular step in the judicial process. Examples of these are the principles set forth in

section 4 YCJA, which apply to "extrajudicial measures", and

section 38 YCJA, which stipulates the principles guiding a youth justice court that has to impose a youth sentence. [ 31 ] The principles set out in

section 3 apply to the entire act, i.e. to every step when intervening with a young person, namely, to the hearing for determining whether a young person should be released, to the preliminary inquiry (where applicable), to the trial, to the hearing for determination of an offence, and to the sentencing hearing.

[ 32 ] In section 3(1)( b )(iii), the legislator enacted the following principle: (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: . . . (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, . . .are protected. [ 33 ] Moreover, statements made by a young person in the course of the preparation of a pre-sentence report concerning him or her are admissible in evidence in sentencing proceedings (regarding the offence committed) (s. 40(10) YCJA). [ 34 ] The Court must ensure that the statements made by the young person in the course of the preparation of the pre-sentence report concerning him or her are not used to subsequently justify an application for determination or to circumvent a recommendation made therein with regard to the recognized or proven facts communicated to the person who made the report. [ 35 ] This is necessary fair treatment to be safeguarded by the Court.

In this respect, we can but agree with the opinion of the Honourable Luce Kennedy J. in her decision of September 3, 2010. [4] The Court is of the opinion that it would be unfair, once the said pre-sentence report is completed on the basis of all the information supplied by the accused, for that information to be subsequently used by the prosecution in the course of an application to the Court for determination of the act.

Before asking the Court to order a pre-sentence report to be made, the prosecutor should have notified the Court that she had the intention of applying to have the offence committed by the accused determined to be a serious violent offence. The accused should not be subjected to such prejudice. [ 36 ] As quoted above, when applying the YCJA, "enhanced procedural protection" must be taken "to ensure that young persons are treated fairly and that their rights. . . are protected".

The best way to do this with regard to an application for determination under section 42(9) is to make sure that the intention to apply is announced at the time the Court finds the young person guilty, or at least before a pre-sentence report concerning him or her is made. [ 37 ] Such an approach will necessarily avoid applications for determination that are purely strategic in nature and that seek to counter a deferred custody order within the meaning of section 42(2)( p ). ___________________ [ 38 ] For the majority of the jurisprudence, the application for determination must be made at the time the accused is found guilty. [ 39 ] In September 2007, [5] the Honourable E.

Demers J. had an opportunity to rule on the time at which the application for determination must be made. Her scrutiny of the jurisprudence then available should be quoted: [ translation ] In a 2003 judgment in British Columbia, R. v. A.E.B. , 3 it was stated in paragraph 22 that an application for determination that the offence is a serious violent offence must be made immediately after the guilty plea is entered or after the young person is found guilty.

The purpose of this, as explained in the judgment, is to allow the determination to be discussed and to allow the person making the pre- sentence report to bear in mind that he or she has or does not have the option of recommending deferred custody. Closer to hand, on July 13, 2005, my colleague Denyse Leduc J.C.Q., in R. v. J.T. , 4 clearly stated that the application for determination must be made clearly and the Crown must submit specific evidence.

Leduc J. added the following at paragraph 28: [ translation ] . . .Although the law does not stipulate the appropriate time for the Crown’s application, the Court is of the opinion that it must do so after the accused is found guilty but before the pre-sentence report is drawn up .

The same holds for the judgment rendered by the Honourable Robert Proulx of the Court of Québec who, on January 27, 2006, 5 wrote the following with respect to the time at which the determination of a serious violent offence must be made: . . .As concerns the Court, should the young person plead guilty, the Crown must, to avail itself of the exclusion provided for in 42(5)( a ), notify the defence at the time the guilty plea is entered in order to ensure that the young person fully understands the consequences of his or her decision (para. 44). . . . . .As far as the trial is concerned, notice must be given as soon as the verdict is rendered and before the pre-sentence report is requested in order to discuss the matter. (para. 45). . .

Again, as concerns the time at which the application for determination is to be made, Louis Grégoire J. was also very clear: . . .The application for determination is made after the guilty plea and the determination must be made beyond a reasonable doubt. . .6 All those judgments are in total harmony with other judgments from other provinces on the same subject, and I quote: - R. v. D.P., 2006 BCCA 409 , [2006] B.C.J. No. 2113 (BCCA) - R. v. E.F., 2007 ONCJ 113 , [2007] O.J. No. 1000 - R. v. M.H., [2007] M.J. No. 6 - R. v. V.J.T., 2007 MBCA 45 , [2007] M.J. No. 122 (Man.

C.A.).[6] … Conclusion: The determination that the offence was a serious violent offence must be explicitly requested. This is done after the guilty plea, andwhether the determination is made or not is clearly at the judge’s discretion. ___________________ [40] For all these reasons, this Court is of the opinion that the application for determination made at the hearing on the sentence,after the filing of the pre-sentence report, was late. The application should have been made or announced at the time the young personwas found guilty.

Consequently, the application for determination is dismissed. ___________________ [41] THE SENTENCE A. The offences [42] Although the application for determination is dismissed, the Court recognizes the aggravating circumstances submitted asevidence with regard to the assault against B (record 525-03-047711-106). The assault was savage and "gratuitous". B was assaultedwith a padlock tied to a bandana. The padlock and bandana were in the possession of X on July 3, 2010 (two days after the last events)when he was arrested for "obstructing a peace officer".

The expert biology report confirmed that these objects were used during therobbery of B [43] X categorically denied having personally used "that weapon" to rob B, and the latter cannot affirm that X's assault took placein that manner. [44] Consequently, it cannot be concluded that X personally struck B. That aspect does not in any way lessen the physical andpsychological consequences to B, who had to be hospitalized for several hours, with regular medical follow-up. As of December 2, 2010,his injuries were still painful.

B is now fearful and apprehensive about going for walks alone in the evening. [45] Even if X did not personally use the "weapon", i.e. the padlock tied to a bandana, on July 1, 2010, he nonetheless played anactive role in the events of the evening on which the weapon was used to commit two robberies. During the first incident that evening,the victim was not struck. On seeing the weapon, Z gave the two young persons $1 and they left the scene. [46] During the incident of June 3, 2010, X acted alone. He saw the victim with his I-Pod and asked to see it.

He then fled withthe device, which he sold for money to go to a restaurant and buy alcohol. B. Prior convictions [47] On November 2, 2010, X was found guilty of breach of recognizance and obstructing a peace officer. The Court ordered thathe perform 20 hours of community service within a period of six months, and six (6) months of probation ending on May 2, 2011. C.

Family situation [48] X and his family presently receive services in accordance with an "agreement on voluntary measures" under the YouthProtection Act, for the reasons summarized as follows by the person who made the pre-sentence report: … X and his family are receiving services to address X’s behaviour and to address the family dynamics at home (pre-sentence report, at15). D. The risk-needs assessment [49] Mr. K.R. Carvalho, who made the pre-sentence report, had X undergo a risk-needs assessment on November 11, 2010.

The instrument has four levels that indicate which range a youth falls into in terms of being at risk to recidivate. The low range is (0-8),the moderate-risk range is (9-26), the high-risk range is (27-34), and the very high-risk range is (35-42). The results for X are twenty(20) which places him in the moderate range to recidivate in this instrument (pre-sentence report, at 9). E. The conditions imposed on the young person since July 16, 2010

[ 50 ] After his arrest, X was detained until July 16, 2010 (three days), after which, he was placed in the care of a responsible person, i.e. his mother, on the following conditions in particular: 1. appear before the Court as required; 2. keep the peace and be of good behaviour; 3. reside with my mother, C, at …, Town A; 4. be at my residence 24 hours a day, except in the presence of my mother, C, or my stepfather, D, or for school purposes; 5. report immediately to the clerk of the youth justice court any change of address; 6. not possess any weapon whatsoever, imitation of a weapon or any other object that may be used as a weapon; 7. not communicate, directly or indirectly, or be in the presence of the victims, Z, A, B, E, and Y; 8. abstain from communicating in any way whatsoever, directly or indirectly, or to be in the presence of persons who, to my knowledge, are part of a street gang or wear distinctive symbols, clothing or accessories demonstrating street gang affiliation; 9. abstain from wearing distinctive symbols, clothing or accessories demonstrating street gang affiliation. [ 51 ] X has been subject to these conditions for almost ten months now, and they seriously restrict the young person's movements.

F. The conclusions and recommendations of the pre-sentence report [ 52 ] Mr. Carvalho summarized as follows his observations further to the meetings necessary to make his report: The information provided in the pre-sentencing report notes that X does not take full responsibility for his actions, minimizes his involvement in the crimes including not holding a weapon and stating that he was a follower for the majority of the crimes. The undersigned is concerned with the fact X has minimized his role in the offences.

He appears in the undersigned’s opinion to have been an equal and free willing participant in all of theses crimes which in its totality impacted on the lives of four victims. Given X’s explanation, the undersigned is of the opinion that he may lack the strength to walk away in inappropriate situations in the future so as to save face. Of greater concern in that the youth was raised in a caring, loving, supportive environment, as reported by his mother. Nonetheless he lacked the moral fortitude to walk away from participating in committing these crimes.

There is nothing to indicate at this time that he will not be influenced and or participate in similar behaviours again in the future. X’s mother informed this worker that in her opinion her son is fully responsible for his actions regardless of his role. During the course of gathering information for the pre-sentencing report, both his mother and F informed this worker that X’s overall functioning at home has improved significantly since he was charged by the police.

The undersigned also contacted G (Vice-Principal at Laurent Adult Center) who reported that X is performing at a low level and has issues regarding his absenteeism. G also stated that X has conducted himself in a polite and respectful manner. The undersigned has noted that X has shown the capacity to change and his potential to orient his life in a positive direction; however, these changes are recent and may be as a result of the structure provided in the

Article 31 undertaking. In addition, it is significant to note that X was found guilty of a failure to comply with a temporary detention or an undertaking Article 31(3) during the period of time in which he has been waiting for his sentencing hearing. Therefore, the undersigned is of the belief that it is important to provide X with the structure and support to ensure that he does not regress to his past patterns and peer associations’. (pre-sentence report, at 16 and 17). [ 53 ] Mr. Carvalho consequently recommended a deferred custody sentence of three months, subject to compliance with certain conditions.

It was his opinion that the sentence should be followed by nine months of probation. He also recommended that X be ordered to perform 50 hours of community service. G. The sentence [ 54 ] Two recent decisions of the Quebec Court of Appeal [7] emphasize the importance to be given to the principle demanding that " the sentence must be the least restrictive sentence that is capable of achieving the purpose " of subsection 1 of

section 38, i.e.

"to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public". [ 55 ] The Court is of the opinion that the nature of the events of July 1, together with those of June 3, 2010, is such as to justify a custodial sentence, and the defence, moreover, has recognized this. [ 56 ] However, the opinion of this Court is that a deferred custody sentence will serve the purposes of the Act (s. 38(1) YCJA). [ 57 ] The Court must take into consideration that the young person has been subjected to rigorous conditions for almost ten months, and that these conditions must be taken into account. [ 58 ] For each offence, the Court orders the following sentence (to be served concurrently): [ 59 ] A deferred custody and supervision sentence of three months, subject to compliance with the conditions mentioned in section

105(2) and the following conditions: - to report to the youth worker as often as requested by the latter and to be under the supervision of that person; - for the next 2 months , that X be given a curfew whereby he must be within the residence of his mother daily from 9 p.m. to 7 a.m. the next day.

The exception being if he is accompanied by his mother C his stepfather, D, or for school or work purposes; - that X have the obligation to attend school or seek out and maintain full-time employment and provide proof thereof to his youth delegate; - to participate and complete the Victim Sensitization Program approved by the youth worker at the dates, times, place, and modality as instructed by the youth worker and to respect any rules established; - to participate and complete the Anger Replacement Training Program or a Conflict Resolution Program approved by the youth worker at the dates, times, place and modality as instructed by the youth worker and to respect any rules established; - X is to refrain from communicating directly or indirectly with his victim, Y (…, 1997), A (…, 1993), Z (…, 1994) and B (…, 1963); - X is to refrain from communicating directly or indirectly with his accomplices, H (…, 1992); - the prohibition to have in his possession a weapon, an imitation weapon, or any object that could be used as a weapon; [ 60 ] The custody and supervision sentence will be followed by probation for six (6) months, under the following conditions: - X is to keep the peace and be on good behaviour; - X is to appear before the court whenever required to do so; - X meet with the delegate as often as requested to do so by the latter; - that X have the obligation to attend school or seek out and maintain full-time employment and provide proof thereof to his youth delegate; - to participate and complete the Victim Sensitization Program approved by the youth worker at the dates, times, place, and modality as instructed by the youth worker and to respect any rules established; - to participate and complete the Anger Replacement Training Program or a Conflict Resolution Program approved by the youth worker at the dates, times, place and modality as instructed by the youth worker and to respect any rules established; - X is to refrain from communicating directly or indirectly with his victim, Y (…, 1997), A (…, 1993), Z (…, 1994) and B (…, 1963); - X is to refrain from communicating directly or indirectly with his accomplices, H (…, 1992); - the prohibition to have in his possession a weapon, an imitation weapon, or any object that could be used as a weapon; [ 61 ] Furthermore, X will have to perform 35 hours of community service within a period of four months from today. __________________________________ NORMAND BASTIEN J.C.Q.

Mtre. Marie-Eve Dubeau Criminal and penal prosecutor Mtre. Christian Benoit AU0715 Counsel for the accused