2015 QCCQ 6263, 2015 QCCQ 6263

Unofficial English Translation LSJPA — 1520 2015 QCCQ 6263 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT DE ... LOCALITY OF ... "Youth Division" No.: 540-03-011413-134 DATE: February 9, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE HAMEL, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

X Accused ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ NOTE: The Youth Criminal Justice Act provides that no person shall publish the name of a child or young person or any other information that would identify them as having been dealt with under that Act or as having been the victim of an offence committed by a young person, or as having appeared as a witness in connection with such an offence, subject to a court order.

Whoever violates these provisions is subject to criminal prosecution (sections 75, 110(1), 111(1), and 138 Y.C.J.A. ) . [ 1 ] On March 10, 2014, the young person pleaded guilty to five counts relating to possession of drugs for the purpose of trafficking. The events in question occurred on or about October 31, 2012. [ 2 ] On that date, a pre-sentence report was ordered. THE FACTS [ 3 ] The young person attended school A, where he was observed in the act of selling narcotics.

The young person was inside the school, near the lockers, when he exchanged money and substances with another student. [ 4 ] When the young person saw that he was being watched, he fled but was caught. [ 5 ] After being brought back to the office of the vice-principal of the school, his backpack was searched.

In it were found an amount of $65, 3.78 grams of cannabis, 0.65 grams of hashish, 2 methamphetamine tablets, and 38 other tablets which were identified as 22 tablets of a mixture of MDPV and BZP, commonly called ecstasy, and 17 tablets of an uncontrolled mixture of BZP and TRMPP. [ 6 ] A search of his locker turned up no other drugs. [ 7 ] Messages referring to drug trafficking were found, however, on an iPOD type of electronic device and on the young person’s cell phone. [ 8 ] According to the vice-principal of the school, the young person told her that he sold cigarettes, not drugs, and that the substances found in his backpack were for personal use. [ 9 ] In addition, the young person asked her not to contact the police. [ 10 ] Following a call to the police, the young person's mother was contacted and X was suspended from school for a period of five days. [ 11 ] The young person claims that he did in fact sell drugs, but only to friends, and that he does not in any way consider himself a drug dealer.

POSITIONS OF THE PARTIES

[ 12 ] [Worker 1], a youth worker, did an assessment of the young person. She filed a pre-sentence report on May 6, 2014. She recommends to the Court that the young person be sentenced to one year of probation and that he be subject to mandatory supervision by the provincial director for the first six months because of his need for monitoring and supervision. [ 13 ] The Crown agrees with the youth worker’s recommendations. [ 14 ] The young person asks the Court for an absolute discharge or, failing that, a conditional discharge. He invokes his career plans as justification for this request.

The young person is currently taking vocational training to become a concrete worker. He submits that if there is a job opening with an employer who does business abroad, a sentence other than a discharge could disrupt his plans. THE YOUNG PERSON'S SITUATION [ 15 ] Although the young person asked that the police not be called, he was fully cooperative during his arrest and the preparation of the pre-sentence report. [ 16 ] He has pleaded guilty to the charges against him, he has no criminal record, and he is not subject to any extrajudicial sanctions.

There are no cases currently pending against him. [ 17 ] The young person never had any problems in school apart from the suspension he received following the events that gave rise to the charges. [ 18 ] The young person is currently attending an adult education centre. He is enrolled in a construction course, specializing in concrete work, at school B. [ 19 ] In addition, until just recently, the young person had a full-time job at restaurant chain A. [ 20 ] Through his father, he apparently also has some job opportunities with company A.

It appears that this company has contracts in other Canadian provinces and even in the United States. [ 21 ] As part of his personal initiative, the young person was seen by a psychologist, Lucia Fernandez De Sierra. A report prepared by the psychologist says that the young person has a normal personality. He does not present any signs of sociopathy, cynicism, or conflict with authority. The young person explains that he sold drugs not to make a profit but as a favour to his friends. He seems naïve, he has low self-esteem, and there appears to be considerable group pressure.

He regrets his actions and he now understands the seriousness of the incidents. [ 22 ] Although he was slow to do so, after having entered his guilty plea, the young person began psychological counselling for the purposes of establishing his life goals, building his self-confidence, and increasing his self-esteem. His relationship with his parents seems to have improved now. [ 23 ] The young person says he is serious about staying on his current path, and he is committed to his studies and to his relationship with his girlfriend.

Apparently, he is getting along better with his parents. [ 24 ] He fears that the imposition of a sentence will hurt his career plans. THE LAW [ 25 ] The relevant sentencing provisions are found primarily in sections 3, 38 and 42 of the Youth Criminal Justice Act (the “ YCJA ”).

Section 3 of the Act sets out the objectives and principles of the criminal justice system for young persons, and

section 38, those relating to sentencing.

Section 42 establishes certain rules concerning the sanctions that the Court may impose. [ 26 ] Under

section 38 of the YCJA , the Court must determine the appropriate sentence to hold the young person accountable for the offence committed by imposing a just sanction that has meaningful consequences [1] for him and that promotes his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 27 ] Under the YCJA , it is important to impose an individualized sentence that takes into account the particular characteristics of the young person and that has meaningful consequences, [2] but that is also proportionate to the seriousness of the offence and the degree of the young person’s responsibility. [ 28 ] The measures taken against a young person should reinforce his or her respect for societal values and encourage the repair of harm done to victims and the community. [ 29 ] Under subsection 42(2) of the YCJA , when imposing a youth sentence on a young person, the Court must impose any number of the sanctions provided in the Act that are not inconsistent with each other.

These include an absolute discharge and a conditional discharge. [ 30 ] Before ordering an absolute discharge, the Court must consider it to be in the best interests of the young person and not contrary to the public interest, as provided in paragraph 42(2)(

b) of the YCJA . [ 31 ] There are some similarities between the wording of the YCJA concerning absolute discharge and that of subsection 730(1) of the Criminal Code : Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest , instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order

made under subsection 731(2) . [3] [ 32 ] In Rozon v. R ., [4] Pierre Béliveau J. discussed the notions of the best interests of the accused and the public interest: [TRANSLATION] Moreover, the best interests of the accused assume that the accused is a person of good character, that he has no criminal record, although that is not essential ( R. v.

Chevalier ), that it is not necessary to enter a conviction to deter the accused from committing other offences or for his or her rehabilitation, and that this measure would have particularly negative consequences for the accused. [5] As for the notion of public interest, it must take into account the objective of general deterrence, the seriousness of the offence, its impact in the community, the public's attitude towards it, and public confidence in the judicial system. [6] [ 33 ] It is established that an absolute discharge does not constitute an exceptional measure. [7] [ 34 ] Of course, when the case involves a young person, these principles must be applied in accordance with the objectives and principles of the youth criminal justice system as well as with the sentencing objectives and principles found primarily in sections 3, 38 and 42 of the YCJA . [ 35 ] In the case of a conditional discharge, under paragraph 42(2)( c ), the Court need not engage in the same assessment of whether the measure is in the best interests of the young person and not contrary to the public interest.

Of course, it must consider the particular situation of the accused having regard to the objectives and principles of the YCJA . [ 36 ] The Court may impose on the young person such conditions of discharge as it deems fit, including requiring the young person to report to and be supervised by the provincial director. [ 37 ] Under subsection 42(11) of the YCJA , however, a conditional discharge is inconsistent with a probation order.

Furthermore, the Court believes that a discharge should not be granted to a young person who requires monitoring and supervision to prevent him or her from reoffending or to protect the victims. [ 38 ] Certainly a conviction entails consequences for a young person. Not only are sentences including restrictive measures often imposed, a young offender is also frequently subject to other consequences that automatically flow from the conviction and sentences taking into account the existence of a criminal record. [ 39 ] Under

section 82 of the YCJA , however, a young person is deemed not to have been found guilty or convicted if he or she is discharged absolutely or as soon as the youth sentence has ceased to have effect. The young person is then deemed not to have committed any offences. [ 40 ] Such a benefit is significant because it enables the young person, in civilian life, to state that he or she has never been convicted of a criminal offence. Although in new criminal proceedings brought against the young person a conviction can still be invoked during the period where the record is still accessible, under

section 119 of the YCJA , the young person enjoys protection that seeks to lessen the impacts of a conviction, provided that he or she does not subsequently commit any other offences. [ 41 ] The young person still has a record containing the charges against him or her, details of the proceedings, the exhibits, if any, the reports ordered by the Court and, lastly, the conviction and the sentence imposed. [ 42 ] The records of young persons kept under the YCJA are governed primarily by sections 114 to 125.

Rules have been established to protect confidentiality and limit access to the records so that young persons will not be stigmatized by the consequences of having been dealt with under the YCJA . [ 43 ]

Section 118 of the YCJA establishes the principle of the confidentiality of records: Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act. [ 44 ]

Section 119 specifies the periods during which these records may be accessed and by whom. [ 45 ] Different periods of access are provided according to the sentence imposed and according to whether the case involves a

summary conviction offence or an indictable offence. According to paragraph 119(2)( e ), if the young person is given an absolute discharge, the period of access is the period ending one year after the young person is found guilty.

Under paragraph 119(2)( f ), if the young person is given a conditional discharge, the period of access is the period ending three years after the young person is found guilty. [ 46 ] If the young person is convicted of an indictable offence, however, as in this case, and is given a sentence that includes a sanction such as probation, the period of access is the period ending five years after the youth sentence imposed has been completed. [ 47 ] Furthermore, access to the record of a young person who has been dealt with under the YCJA is prohibited, except for the persons referred to in subsection 119(1) of the YCJA .

Apart from the young person and his or her parents and counsel, these persons include those who have responsibilities with respect to the enforcement of a law or the administration of the sentence imposed on the young person. The public and the media do not have access to the record.

ANALYSIS AND DECISION [ 48 ] The young person seeks an absolute discharge. [ 49 ] The main argument in support of his application for an absolute discharge is the negative impact of his conviction, access to his record, and the effects of these aspects on his ability to travel abroad.

He submits that it would jeopardize his chances of being hired by an employer who is interested in him. [ 50 ] Such a ground is frequently advanced in support of an application for an absolute or conditional discharge, the objective being to limit the impact of a conviction on the ability of young persons to travel abroad for their job or for personal reasons. [ 51 ] Nevertheless, the Court does not accept this argument. [ 52 ] Under

section 82 of the YCJA , a conviction against a young person is deemed never to have existed as soon as the youth sentence has ceased to have effect or if the young person was discharged absolutely. [ 53 ] Information concerning the conviction of a young person is accessible in very limited situations and for periods during which access is also controlled, under subsection 119(2) of the Act . [ 54 ] For example, an employer or any person who is interested in obtaining information concerning a young person and who is not authorized to do so under subsection 119(2) of the YCJA may under no circumstance have access to the Court record. [ 55 ] The young person may fear being refused entry to a foreign country, particularly the United States.

Although some young persons may have had their access to a foreign country limited because of their criminal record (in this case, no specific evidence to this effect was adduced), the Court is of the opinion that this cannot result from the enforcement of the provisions of the YCJA , which contains no provisions allowing the communication of such information for this purpose.

Be that as it may, nothing distinguishes in this regard a conditional or absolute discharge from the other sanctions provided in subsection 42(2) of the YCJA . [ 56 ] In addition, an absolute discharge and a conditional discharge are sanctions on the same basis as, for example, community service or probation.

Furthermore, it should be noted that, as previously mentioned, a young person is given protections under sections 82 and 119 of the YCJA ; only the time when the young person enjoys these protections may vary, according to the nature of the sanction imposed. [ 57 ] Nevertheless, if a young person suffers some inconvenience as a result of his or her conviction, this is not because of the Court's decision but rather because of the acts committed by the young person. [ 58 ] A youth sentence imposed on a young person must address the objectives of rehabilitation and reintegration into society.

Except in very rare cases where deterrence might be an objective of the sentence imposed on a young person, the principal objective of a sentence is to foster responsibility and ensure accountability of the young person and to put in place measures to limit the chances of reoffending and to encourage the young person to become a law-abiding citizen. [ 59 ] In the Court's opinion, an absolute discharge is generally appropriate in a situation where a young person has no record, where there is little or no risk of reoffending and where he has caused no harm or injury to a victim or to society, or where such harm or injury was minor or he or she has already repaired such harm or injury.

Often the judicial process itself will have the effect of fostering responsibility and ensuring accountability of the young person for the offence committed so there will be no need for monitoring or supervision to ensure that he or she will not reoffend and will remain a law-abiding citizen. Lastly, an absolute discharge should be granted when the young person should be spared the potentially harmful effects of a conviction, and there should be judicial recognition of the positive nature of the young person's personality and the low risk that the young person poses to society.

Such judicial recognition will spare the young person the possible inconveniences of a conviction. [ 60 ] In this case, the objective seriousness of the offences committed by the young person is quite considerable. The young person had in his possession a rather large quantity of narcotics and the offences were committed in school. [ 61 ] In addition, the Court sees daily the harmful effects on users of synthetic drugs and marijuana, and the consequences of such trafficking should not in any way be trivialized.

Not to mention the financial costs that this entails for society. [ 62 ] The young person never considered himself a drug dealer, however, and nothing in the evidence allows the Court to draw such a conclusion. The young person says that he bought drugs for his personal needs and that the quantity he purchased enabled him to pay a lower price for the drugs.

He admits that he occasionally sold small quantities of drugs to friends but says that he did not really make any profit on these sales. [ 63 ] The young person acknowledges the seriousness of his actions, however, and he is concerned about the disappointment he is causing his family.

He has changed his ways and says that he stopped all use of drugs about seven months ago and that he no longer sees the same circle of friends. [ 64 ] The young person is standing before the Youth Division for the first time, he has no criminal record, and he has never been dealt with under the program of extrajudicial sanctions. [ 65 ] The offences to which he pleaded guilty occurred in October 2012, and there are no cases pending against him since. [ 66 ] Since the offences, the young person has always held a job or been enrolled in a school program. [ 67 ] He is voluntarily undergoing psychological counselling, which may help him with his personal problems.

[ 68 ] The young person has a rather favourable profile and the fact that he poses little risk of reoffending suggests that an absolute discharge would be preferable for him. [ 69 ] Because of the nature of the offence, its objective seriousness, and the context in which it was committed, however, the Court believes that an absolute discharge in this case would be contrary to the public interest and, as such, is not the appropriate sentence here. [ 70 ] Concerning the recommendation of a sentence of probation with monitoring, the author of the pre-sentence report wrote: [TRANSLATION] We note that X's functioning is comparable to that expected of young persons of his age and that he poses a very low risk of reoffending.

The sporadic delinquency exhibited by this young adult does not reveal an assumed status characterized by harmful thoughts. However, in moments of stress, sorrow or irritation, X may be weakened and given to constantly questioning himself, a state in which it would be difficult for him to make sound decisions and to weigh the negatives.

It would therefore be important for this young adult to acquire self- confidence and thus to be able to form a firm and stable identity. [ 71 ] It is for these reasons that she recommends an order of probation, with the first six months under the supervision of the provincial director. [ 72 ] This report was prepared on May 6, 2014. Since then, the young person has been involved in socially acceptable activities that foster his development and his integration into society as a responsible, law-abiding adult.

He is in school and has likely job prospects. [ 73 ] He is undergoing psychological counselling in order to resolve his personal problems. In the Court's opinion, this counselling largely meets the support objectives of a probation sentence.

In the Court's view, such a sentence does not appear necessary in the circumstances and would be disproportionate. [ 74 ] The Court is convinced that a probationary measure is not necessary to ensure the young person's good conduct; he does not pose a real risk of reoffending. [ 75 ] The sentence must be proportionate to the seriousness of the offence, however, and it must have a meaningful consequence for the young person in order to foster his responsibility and ensure his accountability for the acts he committed. [ 76 ] A conditional discharge thus appears appropriate in this case.

In the Court's opinion, such a sentence is fit for young persons who pose little or no risk of reoffending and who have no prior record or one that is not extensive. Generally, the conditions imposed seek to repair the injury or harm caused to the victim or to society in order to make the young person accountable and responsible for the harm caused and to lessen the impact of the acts.

Lastly, as with an absolute discharge, the young person should be spared the potentially harmful effects of a conviction, and there should be judicial recognition of the positive nature of the young person's personality and the low risk that he poses to society. [ 77 ] The Court thus believes that the young person should continue the psychological counselling that he has begun and that is proving beneficial for him. In addition, the young person should symbolically repair the harm he caused to society by doing community service.

This will make him more aware of the impact of his delinquent behaviour on the community. [ 78 ] Consequently, the Court grants the young person a conditional discharge for a period of six months during which he must continue his psychological counselling as recommended by the professional who is treating him, and he must perform 20 hours of community service. [ 79 ] The Court believes this is a just sentence that has a meaningful consequence, that fosters responsibility and ensures accountability of the young person in accordance with the principles of the YCJA , and that is conducive to his reintegration into society.

FOR ALL OF THESE REASONS, THE COURT : [ 80 ] DISCHARGES the young person with the following conditions: CONTINUE his psychological counselling according to the recommendations of the professional who is treating him; PERFORM 20 hours of community service. __________________________________ PIERRE HAMEL, J.C.Q. Mtre Jessica Bergeron For the Prosecutrix Mtre Louise Deschênes For the accused Date of hearing: November 26, 2014