Her Majesty the Queen - v. -, 2013 SKPC 110

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 110 Date: July 12, 2013 Information: 30563198 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - J.P. Appearing: Norma Quaroni For the Crown Patrick Reis, Q.C.

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

DECISION B. J. TOMKINS , J _____________________________________________________________________________ [ 1 ] On November 26, 2010, J.P. pleaded guilty to a number of offences as follows: January 1, 2010 Breach Youth Sentence January 1, 2010 Carrying Ammunition without Reasonable Precaution March 1, 2010 Breach Youth Sentence May 6, 2010 Fail to Appear at Court May 22, 2010 Use Firearm in course of Robbery May 22, 2010 Second Degree Murder [ 2 ] J.P. was 16 years old at the time each of these offences was committed and therefore, he was prosecuted under the Youth Criminal Justice Act (" YCJA ").

In respect of the conviction for murder, J.P. received the maximum sentence of four years custody and three years conditional supervision. At the time of sentencing, J.P. had been on remand for almost exactly six months; this was credited on a one-for-one basis.

J.P.'s net sentence was three and one-half years custody followed by three years conditional supervision. [ 3 ] For all other offences, he received concurrent periods of custody and supervision. [ 4 ] The decision as to an appropriate sentence, of course, was focused on the two most serious of J.P.'s offences: using a firearm in the course of a robbery and second degree murder.

The circumstances of those offences, as provided to the Court during the sentencing proceedings and as accepted by J.P. at that time, are disturbing. [ 5 ] Some weeks prior to the evening in question, a friend stole a rifle from his grandparents' home and gave it to J.P. to sell. He did not sell the weapon but kept it in his possession. [ 6 ] On the evening of May 21, 2010, J.P., friends and relatives were celebrating a cousin's birthday. In the early morning hours of May 22, J.P. and three others left to buy more mix. J.P. took the front passenger seat. [ 7 ] As they drove, they passed a man walking.

One of the others in the car told the driver to pull over and he got out of the car. He demanded the man to give him the sport jersey he was wearing. When the victim refused, J.P.'s friend sprayed him with mace and stole the jersey. [ 8 ] About a minute later, the vehicle drove down an alley where the people in the car could see a group of people around a fire pit in the back yard. As they turned onto the street by the side of the house, J.P. told the driver to pull over because, he said, he knew the people. He asked the driver to turn down the stereo and roll down the window.

J.P. pulled out the rifle that he had secreted beside his seat, leaned out the window and fired a single shot toward the people gathered around the fire. [ 9 ] J.P. and his friends then sped away. Shortly afterward, J.P. and another from the car were dropped off. J.P. took the rifle with him and his friend had somewhere acquired a bat. As they walked, they saw and approached a group of people. They brandished their weapons at the group and demanded their money and valuables - "their shit". None resisted but only one had any money and that was the sum only of 40 cents.

He gave this to J.P. and his friend. [ 10 ] It seemed that the incident was over and J.P. and his friend turned and started walking away. When they were about five to ten feet from the group, J.P. turned back and shot one of the men in the group in the stomach. [ 11 ] Two of the people in the group recognized J.P. and his friend. They were apprehended shortly thereafter. [ 12 ] The consequences of J.P.'s actions were significant. [ 13 ] The victim of the robbery shooting underwent surgery but the bullet could not be removed.

It remained in his stomach and he was still receiving medical treatment for the injury at the time of sentencing. [ 14 ] The bullet that J.P. shot at the group of people around the back yard fire pit struck Jodi Lynn Bryant, a 21 year-old girl who was visiting friends and relatives for the holiday weekend. She was shot in the head. Jodi was given first aid at the scene and taken to hospital. Tragically, she died during surgery. [ 15 ] I understand that J.P. did not know Jodi Lynn Bryant or, contrary to what he told his friends, anyone else who was gathered in the yard. If so, the shooting was entirely random. I.

OPTIONAL REVIEW - GROUNDS AND PROCESS [ 16 ] J.P. was sentenced under section 42(2)(q)(ii) of the YCJA to a period of three and one-half years in custody, followed by three

years of conditional supervision. J.P.'s sentence was to be reviewed annually pursuant to section 94(2), which reads as follows:

(2) When a young person is committed to custody pursuant to youth sentences imposed under paragraph 42(2) ( n ), ( o ), (

q) or (

r) in respect of more than one offence for a total 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 earliest youth sentence imposed — and at the end of every subsequent year from that date — and the youth justice court shall review the youth sentences. [ 17 ] J.P.'s sentence was reviewed under this

section on November 2, 2011 and November 27, 2012. J.P. agreed on each of those occasions that no change to his disposition was appropriate and the sentence was confirmed. [ 18 ] The matter now comes before me pursuant to section 94(4) for an optional review. For ease of reference, the portions of the Act relevant to an application for optional review are:

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

q) or (

r) in respect of an offence, the provincial director may, on the provincial director’s own initiative, and shall, on the request of the young person, the young person’s parent or the Attorney General, on any of the grounds set out in subsection (6), cause the young person to be brought before a youth justice court to review the youth sentence, (

b) when the youth sentence is for a period exceeding one year, at any time after six months after the date of the most recent youth sentence imposed in respect of the offence.

(4) The young person may be brought before the youth justice court at any other time, with leave of the youth justice court judge.

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

(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. [ 19 ] The most recent review having been conducted on November 27, 2012 and therefore less than six months before this application came before me on May 1, 2013, this application for an optional review is made pursuant to subsection 94(4) and requires leave of the Court. [ 20 ] While the Notice filed in this case does not specify the section 94(6) ground or grounds on which the application is based, the Crown has conceded that the application lies on at least one of the grounds for review and that, therefore, leave should be granted pursuant to subsection (4) and the review should be undertaken pursuant to subsection (5). [ 21 ] Submissions of counsel suggest that J.P. advances his application on the ground that he has made sufficient progress to justify a change in his sentence and on the ground that opportunities for his rehabilitation are now greater in the community - by way of open custody - than they are if he continues serving his sentence in closed custody. [ 22 ] Given the Crown's concession and submissions indicating the grounds relied on, I am prepared to proceed with the review and leave is therefore granted. [1] II.

JURISDICTION - CONVERTING SECURE CUSTODY TO OPEN [ 23 ] J.P.'s application is to convert the balance of the custodial portion of his sentence from closed custody to open custody. However, section 94(19) sets out the powers of the youth justice court upon an application for review - mandatory or optional - as follows:

(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 (

c) if the provincial director so recommends, convert a youth sentence under paragraph 42(2) (

r) to a youth sentence under paragraph 42(2) (

q) if the offence was murder or to a youth sentence under paragraph 42(2) (

n) or ( o ), as the case may be, if the offence was an

offence other than murder. [ 24 ] Converting a secure custody sentence to one of open custody is not one of the options authorized under section 94(19). [ 25 ] Notwithstanding what would appear to be a bar to my making the decision requested, I am satisfied that this Court does have power to order the conversion of a secure custody sentence to one of open custody. My reasons are as follows. [ 26 ] The YCJA was proclaimed in effect on April 1, 2003 and replaced the Young Offenders Act (" YOA ") which was repealed on the same date.

The YCJA , on its face and in respect of the issue before me, omits or changes two critical aspects of custodial sentencing from parallel provisions of the YOA . [ 27 ] First, the YCJA provides, in section 85(3), that the level of custody in which a young person will be placed will be determined by the provincial director, whereas under the YOA , the Court made that determination.

In effect, under the YCJA , the Court determines only that a young person will be placed in custody and the provincial director decides the placement level. [ 28 ] Second, the parallel provisions of the YOA dealing with mandatory and optional reviews, allowed the Court the following options under section 28(17): [2] Where a youth court reviews under this

section a disposition made in respect of a young person, it may, after affording the young person, his parent, the Attorney General or his agent 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 disposition; (

b) where the young person is in secure custody pursuant to subsection 24.1(2) , by order direct that the young person be placed in open custody; or (

c) release the young person from custody and place the young person (

i) on probation in accordance with

section 23 for a period not exceeding the remainder of the period for which the young person was committed to custody, or (ii) under conditional supervision in accordance with the procedure set out in

section 26.2 , with such modifications as the circumstances require, for a period not exceeding the remainder of the disposition the young person is then serving. [ 29 ] As I noted above, the YCJA does not include the option of converting secure custody to open custody that is included in subsection (

b) of section 28(17) of the YOA . [ 30 ]

Section 88 of the YCJA , however, provides a means by which questions respecting level of custody might remain with youth justice court judges. It reads: 88. The lieutenant governor in council of a province may order that the power to make determinations of the level of custody for young persons and to review those determinations be exercised in accordance with the Young Offenders Act ,

chapter Y-1 of the Revised Statutes of Canada, 1985. The following provisions of that Act apply, with any modifications that the circumstances require, to the exercise of those powers: (

a) the

definitions “review board” and “progress report” in subsection 2(1) ; (

b) section 11 ; (

c) sections 24.1 to 24.3; and (

d) sections 28 to 31 . [ 31 ] This power was exercised in Saskatchewan by Order in Council 203/2003 which was made on March 25, 2003, in anticipation of the proclamation of the YCJA and repeal of the YOA .

It gives the youth justice court for Saskatchewan the "power to make determinations on the level of custody for young persons and to review those determinations in accordance with the Young Offenders Act ." (Emphasis added.) [ 32 ] It is by virtue of this Order in Council that youth justice court judges in Saskatchewan decide the level of custody - secure or open - at time of sentencing and that the decision is thereby removed from the provincial director, notwithstanding section 85(3) of the YCJA . [ 33 ] The Manitoba Court of Appeal, in R. v. C. (W. J.) [3] held that

section 88 of the YCJA authorizes the lieutenant governor in council of a province to order that the youth court determine the level of custody not only at the time a custodial sentence is imposed but also upon review of such custodial sentences. In this regard, see the italicized part of the quoted portion of the Saskatchewan Order in Council in paragraph [31] above. [ 34 ] Thus, the province has taken steps to provide that this Court retains the power to determine a young person's level of custody initially and to review that determination, as was the case under the YOA and in accordance with the YOA . Indeed, the Saskatchewan

Order in Council states: It is desirable and in the public interest to order that the power to make determinations as to the level of custody for young persons and to review those determinations be exercised in accordance with the Young Offenders Act (Canada). Thus, the purpose and effect of

section 88 of the YCJA and of the Order in Council - though through lengthy reasoning - is ultimately clear. [ 35 ] The fact that the YOA has been repealed does not affect this conclusion. In R. v. C. (W.

J.) , supra , the Court held that the coincidental repeal of the YOA and enactment of the YCJA did not invalidate the YCJA's provision that incorporated these provisions of the YOA . [ 36 ] In the result, the youth justice court will conduct mandatory and optional reviews in accordance with the provisions of the relevant provisions of the YOA and may, therefore, make any decision authorized by section 29(17) of the YOA , including a decision to order that the balance of a young person's secure custody sentence be converted to open custody. [ 37 ] I am supported in these conclusions by the Saskatchewan Court of Queen's Bench in R. v.

R. K. M. [4] III. THE APPLICATION [ 38 ] The burden of proof on an application for optional review lies with J.P., the Applicant, on a balance of probabilities. Pursuant to section 28(17) of the YOA , the decision is made "having regard to the needs of the young person and the interests of society". There are no criteria specified. [5] [ 39 ] The application of this balance is not straightforward. J.P., through counsel, suggested that the considerations are or might be different for an optional review than they are on mandatory review. I do not agree with this submission.

The legislation does not differentiate between the purposes and considerations for review depending whether the matter comes by way of the mandatory review provisions or the optional review provisions. Nor, in my view, should they. [ 40 ] The Yukon Youth Court, in R. v. M.T . [6] , provided a thoughtful overview of virtually all aspects of mandatory review. As to its purpose, Judge Stuart wrote: A mandatory review is designed to assess whether the circumstances have sufficiently changed since the sentence was imposed to warrant altering the sentence.

In making this determination, the principal considerations and objectives molding the initial sentence are relevant, but not determinative. Unlike a sentencing appeal, the review focuses on what can now best advance the needs of the young offender and the interests of society, not on whether the sentencing adequately addressed the guiding principles of sentencing and properly accounted for all mitigating and aggravating circumstances at the time of the sentence. It must be taken as a given that the original sentence was appropriate. [ 41 ] The purpose of this optional review is no different.

From this perspective, I begin the review. IV. ACTIVITIES AND PROGRESS IN CUSTODY [ 42 ] I have been provided an extensive report detailing J.P.'s activities and progress since his placement in secure custody at the Paul Dojack Youth Centre in November 2010.

I have also had opportunity to review the reports prepared for purposes of his mandatory reviews in November 2011 and November 2012. [ 43 ] These reports show that upon his placement in secure custody, a case plan was developed that focused primarily on violence counselling, one-on-one mentorship, grief counselling, cultural exploration, education and participating in various programs offered in the secure facility. His progress in various areas is described below. A.

Education [ 44 ] Whereas prior to custody, J.P. rarely attended school and did not use his little time there constructively, in custody he applied himself to his education and has shown a strong work ethic from the outset. He has completed all but four credits for his grade 12 and achieves above average marks, holding an 83% average for his grade 11 classes. He is described as an above-average student who "puts forth exemplary effort in setting and achieving his academic goals".

These efforts continue outside school hours and during J.P.'s free time which he frequently uses to work on school assignments or other constructive activities. [ 45 ] If this application is successful and J.P.'s sentence is converted to open custody, he intends to continue and complete his grade 12 at the Adult Campus and then attend the Gabriel Dumont Institute's apprenticeship program in pursuit of a career as an electrician or in construction. [ 46 ] His support team is confident that these goals are within J.P.'s capabilities. B.

Family [ 47 ] J.P.'s childhood and youth years were marked by interfamilial violence, neglect and a lack of constructive support and supervision. He was raised by his biological parents until his mother's suicide in 2002. J.P.'s father, while continuously employed, struggled to provide financially for the family and J.P. was raised in poverty. [ 48 ] J.P.'s father struggles against alcohol and its effects. His father, brothers and many extended family members have significant

criminal involvement. Despite these challenges, J.P. maintains a positive relationship with his father and brothers and visits with them regularly. He has taken on a new role as a positive influence for family members. [ 49 ] Through his time in custody, he has come to better understand the dynamics of these relationships. In particular, he participated in a program that required him to acknowledge and explore grief and resentment related to his past. This helped him understand how family relationships have influenced his past behaviour.

He has recognized the stresses facing family members and has learned, with help, to support their efforts to manage their lives but to not immerse himself in those struggles. He realizes he must focus on his own goals and growth. [ 50 ] The author of the report hopes, though did not appear optimistic, that J.P.'s family might eventually become more involved in planning for his eventual discharge and play a role in supporting his transition into the community. [ 51 ] J.P. is reaching out to an uncle and aunt who are not criminally involved and who might offer positive support.

He hopes, when he is eventually released into the community, that this aunt and uncle will be a significant resource for him. C. Leisure [ 52 ] Prior to custody, J.P. did not spend his time constructively as he is reported to have held no positive or healthy interests. His free time - which was virtually all of his time - was "consumed by his addictions issues and often involved gang-related activities." [ 53 ] In custody, J.P. has actively participated in virtually all activities offered through the facility. In addition, he uses his free time for homework, development work or activities with other residents.

He is also an enthusiastic participant in gym programs where his competitive nature is occasionally seen to compromise his sportsmanship. However, when this is drawn to his attention, he rethinks his earlier behaviour. [ 54 ] J.P. is reported to understand that healthy leisure time must be used constructively and that this is a matter he will have to be particularly alert to when he is eventually released into the community.

He has chosen a healthy lifestyle while in custody and it is important to his successful rehabilitation that he retain this when he is eventually released into the community. [ 55 ] With this in mind, it is recommended that he connect with a mentor who can help with his transition to the community in May 2014 and provide ongoing support and guidance. It is recommended that this relationship be commenced and nurtured upon J.P.'s release to open custody, if this application is successful.

In this manner, his transition to a community setting could begin while he is in open custody and strong, positive support would be in place for his eventual release. D. Companions [ 56 ] J.P. was and admits he was heavily involved in gang activity prior to his incarceration, though he denies absolutely that any of his offences on May 22, 2010 were gang-related. He admits that his peer group was entirely comprised of people with gang involvement and who were also heavily involved in alcohol, drugs and criminal activity.

He realizes that upon his release, he will need to cultivate an entirely new and positive group of friends and that his prior associations must end. [ 57 ] In the secure custody setting, with some exceptions, J.P. has shown maturity and chosen to associate with other residents who are also trying to better their behaviour and circumstances. Specific programming he has taken is intended to help him better understand the difference between healthy and unhealthy relationships and how to handle social pressures; he appears to have learned from this programming and to positively apply the lessons he has learned. E.

Programming [ 58 ] During his time in secure custody, J.P. has completed an impressive number of programs, individual and group, including every program recommended by the facility and additional programs at his own request.

It is reported that he has "participated in all programming available to youth serving a secure custody sentence and all of the new services, programs and opportunities for rehabilitation are now greater in the community." His participation was enthusiastic and positive. [ 59 ] In addition, he has, in the last several months, engaged in one-on-one meetings with an aboriginal Elder and participated in the facility's Resident Drum Program. He participates in sweats at the facility. In this manner, he is attempting to foster his understanding of and adherence to First Nations culture. F.

Substance Abuse [ 60 ] There is no question that J.P. is substance dependent, both as to alcohol and drugs. While in custody, he has completed programming directed at this. He also recognizes that much more intensive and personal programming will be required if he is to manage his additions once released. [ 61 ] J.P. hopes to participate in in-patient treatment and also to attend regularly at AA and NA meetings when he is in the community. He may require one-on-one counselling and recognizes this as well. V.

ANALYSIS [ 62 ] As was stated above, the decision whether or not to allow the balance of J.P.'s sentence from one of secure to open custody requires a balance of the needs of J.P. and the interests of society. However, the rehabilitation of the young person will take greater focus, provided the interests of society can nonetheless be protected. This is because, even on review, the purposes and principles of the YCJA continue to apply and those purposes and principles promote the rehabilitation of the young person.

[ 63 ] This was affirmed by the Supreme Court of Canada in R. v. J.J.M. [7] when, in respect to subsections 28(1) and (3) [8] of the YOA regarding mandatory and optional reviews: The

section is obviously salutary. It provides an incentive to young offenders to perform well and to improve their behaviour significantly as quickly as possible. As well, it gives an opportunity to the court to assess the offenders again and to make certain that the appropriate treatment or assistance has been made available to them.

It introduces an aspect of review and flexibility into the sentencing procedure, with the result that any marked improvement in the behaviour, outlook and performance of the offender can be rewarded and any deterioration assessed. [ 64 ] J.P. has generally excelled in custody, especially considering the nature of his offences and his circumstances, behaviour and activities prior to custody. Early in his placement on remand, he appears to have decided that he needed to change, that he wanted to change and that he would do what was necessary to achieve that goal.

He participated enthusiastically and with purpose in all programming and activities made available to him and even so, sought more. [ 65 ] The Mandatory and Optional Review Reports show a continuing pattern of commitment and progress. There is nothing to suggest that J.P.'s behaviour is calculated to create a positive impression where none is warranted. I am satisfied his purpose is sincere. [ 66 ] The provincial director, through the Optional Review Report, and all members of J.P.'s support team recommend that the balance of his sentence be converted to open custody.

They say that J.P. has essentially taken advantage of all programming available to him through the secure custody system and that there are opportunities available to him through the flexibility of open custody that would allow him to continue the progress he has already made. [ 67 ] Further, it was submitted that as J.P. will be released to conditional supervision in May 2014 in any event, spending the balance of the custodial portion of his sentence in open custody will allow him to transition more gradually to the community.

In this manner, his chances of successful reintegration will be enhanced. [ 68 ] If the sentence is converted to open custody, I was advised, J.P.'s opportunities to continue toward his educational goals will be improved as he would be able to attend the Adult Campus to complete his grade 12 and to begin the apprenticeship course offered at GDI. [ 69 ] Opportunities for addictions programming such as AA and NA, one-on-one counselling and perhaps in-residence programming will be available if J.P. is placed in open custody; these are not available if he remains in secure custody. [ 70 ] In addition, the following services can be added or continued: • Participation in mentoring relationship which would continue through his time in open custody and during the years of conditional supervision; • Attendance at a gym; • Participation in school, employment and/or social organizations that will allow him to meet and develop relationships with people who will provide him a positive influence and example; and • Continued participation in the Touchstone Program, an intensive treatment program that he has participated in since May 2011 which includes meeting weekly with Elizabeth McGrath, a psychologist, with also the participation of his custody counsellor. [ 71 ] The offence for which J.P. was convicted is the most serious and profound of all criminal offences: J.P. took the life of another person.

He also shot the victim in the robbery incident and that might as easily have resulted in death as in survival; it was certainly not through any action or intent of J.P.'s that the victim survived. [ 72 ] It has been held repeatedly [9] that, in a review application, the more serious the offence, the greater the need for evidence of exceptional changes in the offender and for substantial prospects toward rehabilitation. Rehabilitation is a primary focus in a review application but it does not override the public interest which includes both the safety of the public and confidence in the administration of justice.

The latter will be compromised if the sentence - whether initial or upon review - does not adequately reflect the seriousness of the offence. [ 73 ] Indeed, rehabilitation itself requires that J.P. recognizes the seriousness of his actions and society's intolerance and abhorrence of what he did. This degree of accountability includes, in its core, respect for the administration of justice and the public interest. In this manner, rehabilitation and the public interest are intertwined. [ 74 ] Based on submissions made at the time of sentencing, the Court was provided no reason for the offence.

Despite his involvement in gang and gang-related activities at the time, J.P. was and is adamant that the murder was not gang-related. [ 75 ] Disturbing as gang activity is, it would have at least provided the Court some explanation and it would have provided J.P.'s custodians an indication of the motivation that drove his actions. This, in turn, might have guided their work toward his rehabilitation. [ 76 ] However, J.P. has, during his time in custody, become more forthcoming and, the author of the report believes, more honest in describing those activities.

He has worked hard - harder than any other young person his custody counsellor has worked with - to understand his motivations and actions on the night he committed these offences and to manage his life, attitude and expectations so those motivations will not reoccur and such actions will not be repeated. [ 77 ] J.P.'s time in custody was not unmarred. Of particular significance for this young man who admitted gang involvement prior

to his placement at the facility, he was found to have been instrumental in the formation of a sort of gang shortly after he was sentenced in late 2010. It appears that the group engaged in gang-related conduct within the facility but its existence was not discovered until June 2012. [ 78 ] Reports provided to me indicate that J.P. was not shown or believed to have been involved in the incident that brought the existence of the gang to light. By that time, it is reported, J.P. had distanced himself from the gang and any activities of its members.

I was assured that J.P.'s "mindset, attitude and awareness of this behaviour has changed significantly over time and it is the opinion of this writer and [J.P.'s] treatment team that choices he made in the past, specifically regarding gang activity, are not reflective of his current attitudes and beliefs, nor would they represent the choices he may make at this time." While the Crown argued that this activity is, in itself, of concern, it did not take issue with the quoted comment regarding J.P.'s current attitude to such activities. [ 79 ] Despite its not being discovered until 18 months after the gang was formed, J.P. received consequences for his actions in 2010; these included a reduction in his security level.

He was able, by his behaviour, to achieve increased security levels and regained his original level in December 2012. [ 80 ] There have been no serious issues or official incident reports involving J.P. at the secure facility since June 2012. [ 81 ] J.P. faces many challenges. In assessing his risk to re-offend, he was rated at the highest level and all relevant factors were challenges for him: family, addictions, education and employment, psychological health, companions among them.

Through the facility and those who care for and about him there, he has worked actively and diligently to prepare himself to respond positively on all risk factors when he is released. [ 82 ] However, he has made his progress in the confines of the structure and supervision of a secure custody facility. It is, in a sense, an artificial environment and very different from what he will encounter in the community or even in an open custody setting where he can be allowed substantial independent time.

There he will face temptations and opportunities - positive and negative - that he has been shielded from in secure custody. [ 83 ] However, I agree with the submission that moving J.P. now into open custody will provide him a period of transition in preparation for his inevitable release into the community in May 2014.

Especially given the number and severity of the challenges he faces, J.P.'s chances of succeeding in leading the healthy, constructive and law-abiding lifestyle he has worked toward will be much reduced if he is released directly into the community. [ 84 ] A period of time in open custody will reintegrate J.P. into the community in a limited, purposive and supervised manner. It gives him a better chance of succeeding when he is released on community supervision, when the level of guidance and supervision will be reduced.

If he remains in secure custody until that time, J.P. would leave custody without an opportunity to test what he has learned, recognize his shortcomings and address them through daily access to the expert advice and consultation that will be available to him in an open custody setting. [ 85 ] On the other hand, we must be mindful that the more serious the offence, the more exceptional the change that will be required to support a change in custodial level or length of time in custody.

J.P.'s offences are the most serious that come before this Court. [ 86 ] However, I am satisfied that his progress has indeed been exceptional, as is the level of support for this application from those who supervise and counsel him. He has done all that was asked or made available to him and more. In fact, I was advised that he has successfully completed all programs that are available in the secure custody facility and that if he remains there, the facility will have to secure or develop other resources for him.

Given J.P.'s circumstances, behaviour and lifestyle at the time of his arrest, this is remarkable. [ 87 ] A period in open custody will provide J.P. a degree of involvement in the community but with an attendant level of supervision. This not only supports his needs but supports the interests of society.

J.P.'s success best respects the interests of society and his successful reintegration in the community will promote confidence in the administration of justice. [ 88 ] For these reasons, I order that the balance of J.P.'s sentence of secure custody imposed on November 27, 2010 will be converted and he will serve the balance in open custody. [ 89 ] Dated at Regina, Saskatchewan this day of 12 th day of July, 2013. _________________________________________ B. J. Tomkins, J