R. v. D.P., 2018 NSPC 31

YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. D.P. , 2018 NSPC 31 Date: 2018-02-14 Docket: 8015660 Registry: Pictou Between: Her Majesty the Queen v. D.A.P. ANNUAL REVIEW DECISION Restriction on Publication:

Section 110 of the Youth Criminal Justice Act Judge: The Honourable Judge Del W. Atwood Heard: 14 February 2018 in Pictou, Nova Scotia Charge:

Section 94, Youth Criminal Justice Act Counsel: Patrick Young for the Nova Scotia Public Prosecution Service Douglas Lloy QC for D.A.P.

PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110 (1) and s. 111(1) OF THE YOUTH CRIMINAL JUSTICE ACT , S.C. 2002, c. 1 APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. 110. (1) – Identity of offender not to be published – Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. 111. (1) – Identity of victim or witness not to be published – Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person 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.

By the Court: [ 1 ] On 1 February 2017, D.A.P. was sentenced as a young person as defined in s. 2 of the Youth Criminal Justice Act for a single count of dwelling-house-break-enter-and-theft to a 22-month custody-and-supervision order under para. 42(2)(

n) of the YCJA . The sentence as imposed was an outcome recommended jointly by counsel and was accepted by the court. D.A.P.—who was 17 years old at the time— and an accomplice broke into a private residence and took a laptop computer as well as some athletic footwear. The break-in was opportunistic, and did not appear to have been plotted much in advance. D.A.P. was identified when the accomplice posted on a social- media site a “selfie” wearing the stolen sneakers. The accomplice got arrested, owned up to the works and implicated D.A.P. [ 2 ] Subsection 94(1) of the YCJA states:

94(1) When a young person is committed to custody pursuant to a youth sentence under paragraph 42(2)(n),(o), (

q) or (

r) for a period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court without delay at the end of one year from the date of the most recent youth sentence imposed in respect of the offence — and at the end of every subsequent year from that date — and the youth justice court shall review the youth sentence. [ 3 ] Sub-ss. 94(5)-(6) provide: Review

(5) If a youth justice court is satisfied that there are grounds for review under subsection (6), the court shall review the youth sentence. Grounds for review

(6) A youth sentence imposed in respect of a young person may be reviewed under subsection (5) (

a) on the ground that the young person has made sufficient progress to justify a change in the youth sentence; (

b) on the ground that the circumstances that led to the youth sentence have changed materially; (

c) on the ground that new services or programs are available that were not available at the time of the youth sentence; (

d) on the ground that the opportunities for rehabilitation are now greater in the community; or (

e) on any other ground that the youth justice court considers appropriate. [ 4 ] Sub-s. 94(19) states:

(19) When a youth justice court reviews under this

section a youth sentence imposed in respect of a young person, it may, after giving the young person, a parent of the young person, the Attorney General and the provincial director an opportunity to be heard, having regard to the needs of the young person and the interests of society, (

a) confirm the youth sentence; (

b) release the young person from custody and place the young person under conditional supervision in accordance with the procedure set out in

section 105, with any modifications that the circumstances require, for a period not exceeding the remainder of the youth sentence that the young person is then serving; or . . . . [ 5 ] As observed in J.C. (Re) , 2017 NSPC 14 at para. 26 : The judicial exercise of discretion under section 94(19), that is, a judge's determination of which option -- confirmation of the sentence or release into the community -- must be structured by the considerations, found in section 94(6), that ground the sentence review. As Mr.

Kennedy pointed out, these considerations have the unifying theme of a material change in circumstances since the sentence was imposed.

The language of the provisions contemplate that the court will have evidence of something having occurred to justify the review - for example, that sufficient progress has been made by the young person to justify a change in the youth sentence (section 94(6) (a)); that the circumstances that led to the youth sentence have changed materially (section 94(6)(b)); that new services or programs are available that were not available at the time of the youth sentence (section 94(6)(c)); or that the opportunities for rehabilitation are now greater in the community (section 94(6)(d)). [Emphasis added.] [ 6 ] The burden of proving that there has been a material change in circumstances justifying a review is borne by the young person on a balance of probabilities: R. v.

T.P ., 2017 ABPC 253 at para. 36 ; R. v. A.A.Z., 2013 MBCA 33 at para. 121 ; R. v. D.H. , 2008 ONCJ 78 at para. 17 . [ 7 ] Sub-ss. 94(6) and (19) appear to describe a two-staged process: first, the court screens the case to determine whether there has been a change in circumstances sufficient to warrant a review; second, if the court is satisfied that the criteria for convening a review have been met, the court must determine, having regard to the needs of the young person and the interests of society, whether the young person ought to be released or the sentence left alone. This is consistent with judicial

interpretation of sub-ss. 28(1) and (3) of the Young

Offenders Act (YOA) in R. v. M. (J.J.), (SCC), [1993] 2 S.C.R. 421. Those subsections of the YOA—which weresubstantially similar to sub-ss. 94(6) and (19) of the successor YCJA—stated: 28.

(1) Where a young person is committed to custody pursuant to a disposition made in respect of an offence for a period exceeding oneyear, the provincial director of the province in which the young person is held in custody shall cause the young person to be broughtbefore the youth court forthwith at the end of one year from the date of the most recent disposition made in respect of the offence, andthe youth court shall review the disposition. ...

(3) Where a young person is committed to custody pursuant to a disposition made in respect of an offence, the provincial directormay, on his own initiative, and shall, on the request of the young person, his parent or the Attorney General or his agent, on any of thegrounds set out in subsection (4), cause the young person to be brought before the youth court at any time after six months from the dateof the most recent disposition made in respect of the offence or, with leave of a youth court judge, at any earlier time, and, where theyouth court is satisfied that there are grounds for the review under subsection (4), the court shall review the disposition. [8] In M.(J.J.), at para. 33, the Court described the purpose of s. 28 of the YOA in these terms: The

section is obviously salutary. It provides an incentive to young offenders to perform well and to improve their behavioursignificantly as quickly as possible. As well, it gives an opportunity to the court to assess the offenders again and to make certain that theappropriate treatment or assistance has been made available to them. It introduces an aspect of review and flexibility into the sentencingprocedure, with the result that any marked improvement in the behaviour, outlook and performance of the offender can be rewarded andany deterioration assessed. The Act provides a system that it is akin to, yet broader than, the probation review provided for adultoffenders. [9] A concurring

interpretation of the YOA was given in R. v. M.T., [1995] Y.J. No. 6 at para. 16: 16 A mandatory review offers a young offender an opportunity and a challenge. The opportunity is to reduce the original sentence, thechallenge is to walk the talk of rehabilitation sufficiently to move the focus of the state along the spectrum of intervention frompunishment to rehabilitation. Equally, a mandatory review offers an invaluable opportunity for young offenders and their communities toreconnect in a constructive manner.

The review ought to rally family, friends and the community to develop a supportive environmentcapable of rescuing young people from being driven further into crime by the demise of their self-esteem, self-respect, and loss of hopearising from the disconnecting experience of incarceration. 17 Reviews, intended to be salutary, underline the objectives of the Young Offenders Act to explore and develop all reasonableprospects for guiding and assisting young people toward the positive potential life offers. [10] Cases that have dealt with sub-s. 94(16) YCJA reviews have required, typically, evidence of “significant changes . . . madeduring the course of the young person serving his sentence” or “exceptional evidence of change”, the more serious the offence, thegreater the need for exceptional evidence: R. v.

A.A.Z., 2013 MBCA 33 at paras. 124-125; R v. A.C., 2005 BCPC 450 at para. 21; R. v.D.H., 2008 ONCJ 78 at paras. 20-21; R. v. T.P., supra; R. v. D.F., 2017 ONCJ 495 at para. 7. While exceptional evidence might berequired to be presented to the court, the principles of sentencing as set out in s. 38 of the YCJA lay out the criteria to which thatexceptional evidence ought to apply: 38

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through theimposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation andreintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principlesset out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has beenconvicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offencecommitted in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for thatoffence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, withparticular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 11 ] In R. v. S.M., 2014 ONSCJ 5510 at para. 15, the Court stated: 15 The YCJA is very much focused on rehabilitation. Indeed, s. 38 outlines the purpose and principles of sentencing under that Act .

It notes that the purpose of sentencing a youth is to: ... promote his or her rehabilitation and reintegration into society thereby contributing to the long-term protection of the public. 16 If we are truly committed to that principle of rehabilitation then when a young person does all that can be reasonably expected of them, and more, to demonstrate that they are committed to improving themselves as a person, we, as the society to which that young person will eventually return, ought to both reward that change and encourage its continuation.

That is in our own self-interest as much as it is in the young person's interest. It is that basic concept that s. 94(6) encapsulates. If we simply hold rigidly to the notion that more time in custody equates to increased safety, we will never achieve the desired objective of rehabilitation.

I note on that point that there is no evidence before me that suggests that S.M. would be a risk to the public if he is permitted to move to open custody. [ 12 ] It is clear from these authorities that the purpose of a review is not to affirm the correctness of the original sentence of the court, but to determine, should grounds exist warranting a review, whether the young person ought to be released, given the needs of the young person, not as they were at the time of sentencing, but as they are at the time of the review hearing, and given the interests of society as the court might determine them to be, again, at the time of the hearing. [ 13 ] I have received a progress report from the provincial director, which includes additional family-history for D.A.P. and present- environment information, in accordance with sub-s. 94(9)-(10) of the YCJA.

I have heard from counsel. I invited submissions from D.A.P.’s father, as it is important for the court to foster parental involvement at all stages of YCJA proceedings: R. v. T.D.N ., 2013 NSPC 15 ; R. v. A.B. , 2014 NSPC 77 ; R. v. M.V. , 2016 NSPC 26 ; D.A.P.’s father declined comment. D.A.P. spoke through his counsel. [ 14 ] Defence counsel seeks to have D.A.P. released from custody under conditional supervision in accordance with para. 94(19)(

b) of the YCJA . [ 15 ] The prosecution argues that none of the criteria in sub-s. 94(6) has been met in this case, a review is not called for, and, event, the custody-and-supervision order should be confirmed in accordance with para. 94(19)(

a) of the YCJA . [ 16 ] To the contrary, I find evidence in the progress report of exceptional change in D.A.P.’s commitment to self-improvement. [ 17 ] D.A.P. has grown closer to his parents since he was sentenced a year ago; he has enjoyed successful reintegration visits at home.

This was described in the progress report: [D.A.P.] has been able to develop and maintain positive relationships and communication with both his mother and father. [D.A.P.] has been in constant communication with his father since his admission to NSYC. [D.A.P.]’s relationship with his mother has grown significantly over the past few months. He communicates with her over telephone more frequently than he had initially upon his arrival, and has been on two Reintegration Leaves (RL'

s) in the community with his mother; one escorted by staff and the other unescorted in the local community. Both RL's were reported as positive. With [D.A.P.]’s Reintegration Leave Plan, he was eligible to earn an unescorted Reintegration Leave to go home for Christmas to spend time with his family. Due to his positive behavior and progress in sentence plan, [D.A.P.] was granted a Reintegration Leave for Christmas Eve with his father and Christmas Day with his mother at their homes. The RL's to parent's homes were completed successfully, with [D.A.P.] returning to the NSYC on the evening of December 26th. Both parents have also visited with [D.A.P.] on multiple occasions at NSYC.

[ 18 ] That is not all: [D.A.P.] attends regularly scheduled classes in an effort to address his Academic development. According to comments and JEIN notes made by his classroom teacher, [D.A.P.] uses his time effectively, is not a behavioral concern in the classroom, and shows an interest in learning the material. [D.A.P.] has been preparing and studying for the GED examinations. His goal since arriving to NSYC is to complete his GED before his release. . . . In terms of Attitudes/Orientation, the long-term goal was for [D.A.P.] to seek and receive help.

Initially [D.A.P.] became involved in meeting with Kami Anderson as it was strongly recommended to him by NSYC staff. He began meeting with Kami Anderson, IWK Clinician, on a biweekly basis in April 2017, with a two-month therapy break over the summer of 2017. After the summer break, [D.A.P.] resumed therapy again around anxiety, mood regulation, and coping with stress. [D.A.P.] has sought support from Kami Anderson around family and interpersonal issues during this time as well.

More recently, [D.A.P.] has been participating in risk management work that involved identifying and exploring risk factors that will likely be relevant to him when he is released into the community. According to reports, [D.A.P.] has been engaged in conversations, role playing and practicing around scenarios he might face in the community, and attempting to plan for success when released from custody. It has also been noted that [D.A.P.] has been pleasant and agreeable to sessions as offered.

The plan now is to increase the biweekly sessions to weekly sessions as he gets closer to his release date for increased risk management work. [D.A.P.] has been a positive participant in the Unit Substance Abuse Education Program. [D.A.P.] has participated in several sessions of the Substance Abuse Program, earning his certificate for completion of the program in the spring of 2017.

Restorative Practices is another component of the NSYC that D.A.P. has been involved in since admission to the facility. [D.A.P.] is noted as a positive participant in the Morning Circles and is also noted to have chosen topics for discussion and has facilitated the Morning Circle both as a resident of Unit 2A and in Unit 2B. [ 19 ] The community assessment report presented to the court provided additional helpful detail: During [D.A.P.’s] time in custody, he has been attending counselling with Kami Anderson, IWK. He noted he attends regularly.

Prior to his incarceration, he was attending counseling with Emily McLean, for community based services. She is also employed through the IWK. He does not believe any further counselling would be beneficial and does not particularly plan on attending any community based services should he be released at his review. Contact was established with Kami Anderson and she confirmed she is supportive of an early release. She added she would have preferred the subject have more employment type releases available for him during his time in custody, so as to "ease" him back into the community. Ms.

Anderson confirmed the information she provided in the progress report completed by the facility, and noted there are no changes since she provided those comments. [ 20 ] Ms. Anderson noted one concern to the author of the report: To her knowledge, [D.A.P.] is not interested in exploring community based treatment upon his release. She mentioned [D.A.P.] has been able to actively seek out help if he feels he needs it. Ms. Anderson did recommend he follow through with meeting with Emily McLean upon his release. Ms.

Emily McLean, Clinical Social Worker at IWK Youth Intervention Services, confirmed she met with the subject for 4 sessions between October 2016 and January 2017. She added, when he was sentenced again, [D.A.P.] resumed the treatment at the Nova Scotia Youth Facility that he was involved in prior to his release. Same informed, while in the community, the treatment plan agreed upon was to work on criminogenic risk factors and further, focus on "anti-social attitudes and substance abuse." Ms.

McLean described the subject as having participated in their sessions, although noted he was "hesitant to acknowledge he required support through treatment." According to Ms. McLean, the subject is able to resume his treatment in the community when he is released. [ 21 ] Furthermore, D.A.P. has been involved in a small number of isolated disciplinary matters; however, the progress report records no infractions since June 2017; in fact, the report notes optimistically: Although he has received these incident reports, there is no clear, on-going negative pattern.

Since June 2017, it would appear that [D.A.P.]’s behavior has been on a steady positive path for the past seven months. Daily progress reports indicate that [D.A.P.]’s daily interactions are for the most part, positive, with staff and the other youth on the Unit, and he is not considered a behavioral concern. [ 22 ] Courts can be conned, to be sure. However, steady improvement is a good circumstantial guarantee of authentic—and not feigned—personal growth and development. The progress report satisfies me that D.A.P. has, through hard work and concerted effort, transformed his character remarkably.

A year ago, he exhibited behaviour that was defiant of authority, bent toward drugs, indifferent to harm inflicted on others, and destined to lead to greater conflict with the law. However, since he was sentenced, D.A.P. has engaged fully in programs that have helped him get clear of substance abuse, develop his intellect, improve his community, and reconnect with his parents. He has a plan to further his education. He has progressed from receiving permission for escorted leaves to earning unescorted leaves, and proven himself worthy of that trust.

I am satisfied that this evidence warrants a review of D.A.P.’s sentence, and supports a decision that he be released [ 23 ] D.A.P. plans to live with his father, who has lined up a job for him. This job will require D.A.P. to be subject to drug testing. D.A.P. intends to complete his G.E.D. These are achievable plans which can be integrated into a release order under the provisions of para. 94(19)(

b) and s. 105 of the YCJA , to run until what would have been the expiry of the custodial portion of the custody and supervision order; D.A.P.’s release date under that order was 21 April 2018. This release plan addresses D.A.P.’s need to upgrade his education, obtain productive employment, reunite with his family, and contribute to his community. It addresses as well the interests of

society in reintegrating into it a young person who has gained over the past year knowledge, insight, skills and empathy which will help him make good, pro-social choices and decisions. [ 24 ] I order that D.A.P. be released on conditional supervision with these terms: (

a) keep the peace and be of good behaviour; (

b) appear before the youth justice court when required by the court to do so; (

c) report to the provincial director or delegate on release at 161 Terra Cotta Drive, Suite #2, New Glasgow, Nova Scotia, no later than 4:00 p.m. 16 February 2018, thereafter as directed, and then be under the supervision of the provincial director or a youth worker; (

d) inform the provincial director immediately on being arrested or questioned by the police; (

e) report to the police, or any named individual, as instructed by the provincial director; (

f) live at [address redacted], Nova Scotia and after release report immediately to the clerk of the youth justice court or the provincial director any change: (

i) in that address, (ii) in your normal occupation, including employment, vocational or educational training and volunteer work, (iii) in your family or financial situation, and (iv) that may reasonably be expected to affect the young person’s ability to comply with the conditions of the order; (

g) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order; (

h) comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society; (

i) make reasonable efforts to obtain and maintain suitable employment; (

j) work out with your youth worker a plan to complete your GED program and keep your youth worker updated on your progress; (

k) do not possess, take or consume any alcoholic beverages or any controlled drug or substance except as authorized for you in a medical prescription, and not enter any place where alcohol is sold as a primary product; (

l) notify your youth worker in advance of any absences from living at your place of residence greater than 24 hours, including employment related absences; (

m) attend for counselling as directed by your youth worker, and notify your youth worker of any missed counselling appointments; (

n) do not be within 100 metres of [address redacted], Nova Scotia; and (

o) abide by a daily curfew and be inside your place of residence from 10:00 p.m. until 6:00 a.m., except as otherwise authorized by your youth worker, in advance. JPC