Her Majesty the Queen - v. -, 2013 SKPC 190

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 190 Date: November 27, 2013 Information: 46423530 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - J.E.O. Appearing: Mr. J. Knox For the Crown Ms. T.

Talbot 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 ON SENTENCE REVIEW B.G. MORGAN , J _____________________________________________________________________________ Introduction

[ 1 ] On September 15, 2012, when J.E.O. was 17 ½ years old, he committed an aggravated assault for which he was subsequently found guilty after trial. On February 12, 2013, he was sentenced for that offence, and two counts of failing to comply with a youth sentence arising out of the aggravated assault, to a sentence of three months secure custody, followed by three months open custody, followed by three months of supervision in the community. [ 2 ] The Crown appealed the sentence. The Court of Appeal, in a decision cited as R. v.

J.E.O. , 2013 SKCA 82 , undertook a detailed review of the calculation of the remand time that went into the original sentence. In doing so, the Court of Appeal noted that it was apparent that the notional sentence the judge intended to impose was a sixteen month custodial term, from which he deducted remand credit. The Court of Appeal determined that an appropriate sentence would have been twenty-four months, from which remand time would be deducted. The net effect of this is that the Court of Appeal varied the sentence to be one of eleven months in custody and five and one-half months of supervision.

Based on progress J.E.O. appeared to be making at the time of the Court of Appeal decision (heard June 6, 2013, written reasons provided August 6, 2013) the Court held that the remainder of the sentence should be served in open custody. [ 3 ] Based on the original sentence, had it not been appealed, J.E.O.’s original release from custody, at which point he would have been released on community supervision, was August 11, 2013.

The Court of Appeal decision, released five days prior to that date, had the effect of extending his release date to January 11, 2014, with the community supervision portion following that expiring on June 26, 2014. Issue [ 4 ] This matter comes before the Court by way of an optional review initiated by the Provincial Director through Jennifer Peterson, Community Youth Worker, who prepared a detailed written Optional Review Report (the report) dated October 29,

Section 94 of the Youth Criminal Justice Act (the Act ) sets out the framework for mandatory and optional reviews of youth sentences involving custody; s. 94(3) deals with an optional review application such as this. The recommendation in that report is that J.E.O. be released onto community supervision at this time, subject to a number of recommended conditions contained in the report.

The issue is whether or not J.E.O. should be released onto community supervision at this time, or whether he should complete his term of open custody before his scheduled date of release onto community supervision. [ 5 ] The hearing was heard November 5, 2013 and adjourned to today’s date for decision. The material before the Court on the hearing was the Notice of Review Hearing with the report appended.

As well, there was the Custodial Progress Report (the custodial progress report) from Yarrow Youth Farm covering J.E.O.’s time spent in that open custody facility between May 12, 2013 and August 11, 2013 (he remains there still; the reports are prepared every three months), a letter of reference from the foreman at J.E.O.’s place of employment dated October 16, 2013, and an October 15, 2013 sentence review for J.E.O. authored by Dr. Donna Torrens, a registered doctoral psychologist who has been working with J.E.O. since late May 2013.

As well, J.E.O addressed the Court, as did his common- law partner and his foreman.

Position of the Parties [ 6 ] In very succinct form, the position of the Crown is that although J.E.O. seems to be doing well, there remain significant concerns, those being the violence of the original offence, the argument that J.E.O. remains a Level 5 risk, concerns that J.E.O. was continuing gang affiliation and apparently recruiting for a gang in March 2013, and the fact that he is, in the Crown’s view, only beginning to deal with some of the support people who he would be continuing to deal with if he is released on community supervision.

In brief, the Crown argues that a proper balancing of the competing interests at stake should direct me to focus more on public safety, and that the sentence should be confirmed. [ 7 ] The Defence position is that, although I certainly need to look at the seriousness of the offence, that inquiry alone doesn’t end the matter. The Defence argues that J.E.O. has made exceptional progress, that the report is very positive, and at this point there are greater opportunities for J.E.O. in the community. In Ms.

Talbot’s view, a proper balancing of the competing interests would compel me to release J.E.O. from custody and place him under conditional supervision at this time as, among other things, his continued

rehabilitation should help tip the balance in his favour. Jurisdiction [ 8 ] The statutory jurisdiction to deal with these matters is set out in s. 94 of the Youth Criminal Justice Act (YCJA) . That legislation has been reviewed in a number of cases, and I parse the process as follows: 1. As this is an optional review, I need to examine the grounds for review listed under s. 94(6), as a precondition to reviewing the youth sentence (see R. v. H.(D.) , 2008 ONCJ 78 , para. 14 ).

Subsection 94(5) of the Act states: If a youth justice court is satisfied that there are grounds for review under subsection (6), the court shall review the youth sentence. The relevant portions of ss. (6) state: 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; ..... (

d) on the ground that the opportunities for rehabilitation are now greater in the community;.... These are the two subsections that are relied upon to support this recommendation. 2. In the case of a mandatory review, there are no threshold issues; the Court “shall” review the sentence. In an optional review, the review process only goes ahead if the Court is satisfied there are grounds to do so. In this case, the Crown agrees that there are grounds to justify the review proceeding, although the Crown does not agree that the sentence should be changed.

Thus, I need not deal with what could otherwise be a threshold issue. As I am satisfied in this case that the grounds exist to allow me to conduct the review, I then need to look at the orders that can be made under s. 94(19), and in doing so, I am to have “regard to the needs of the young person and the interests of society” (see R. v. H.(D.) , supra , para. 14 ). The relevant portions of ss. 94(19) read: When a youth justice court reviews under this

section a youth sentence........it may....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; ..... 3. The onus of proof lies with the applicant and it is close to a balance of probabilities. The balance of proof is certainly never less than that balance of probabilities, but it may be increased to something less than proof beyond a reasonable doubt, depending on the circumstances of each case (see R. v. H.(D.) , supra , para. 16 , citing R. v. C.T.(M.), [1995] Y.J. No. 6 (Y.T. Youth C.T., at p. 31). 4.

The starting point for the review is that the original sentence is correct (in this case, I use the increased sentence from the Court of Appeal), and it is taken as a given that the sentence was made in accordance with the principles of sentencing set out in s. 38 (see R. v. H. (D.) , supra , para. 18 ).

Section 38 states that: The purpose of sentencing . . . is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and to promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. 5. The focus on the review is to consider what significant changes may have been made during the time the young person has been serving his or her sentence (see R. v. H.(D.) , supra , para. 19 ). In stating the purpose of a review under

section 28 of the predecessor to the Act , the Young Offenders Act , Kukurin J. made the following comment in R. v. G.(A.) , [2002] O.J. No. 2743, 2002 CarswellOnt2264 (Ont. H.C.J.), at para. 38 :

Section 28 uses the word “review” in the sense of a re-examination of a decision in light of information that has become available only since that decision was made. In short, the review considers some change and has to decide whether that change is sufficient to change the disposition. (see also R. v. R.L. , 2013 SKPC 21 , paragraphs 13-15 ).

6. The more serious the offence, the greater the need for exceptional evidence of change of circumstances in the offender. (see R. v. H. (D.) , supra , para. 20 ). [ 9 ] On this last point, Judge Tomkins of this Court set out a succinct statement of that principle at para. 72 of R. v. J.P., 2013 SKPC 110 : It has been held repeatedly 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. [ 10 ] Against this background, I will review the situation and determine the application.

Discussion and Analysis [ 11 ] As touched on earlier, the Crown has a number of concerns, which I now expand upon: ∙ the young person was on probation at the time of the aggravated assault he committed in September 2012, and in fact, was sentenced as well for two breaches of a Probation Order he was then subject to; ∙ he remains at a Level 5 risk category, and historically, actual re-offence rates for persons in that category are 75%; ∙ the report notes that the young person is “specifically at risk for future violence”; ∙ in March 2011, the school program he was then in (and asked to leave in April 2011) raised concerns that the young person was recruiting gang members at school; ∙ that is somewhat exacerbated by the custodial progress report which suggests that he was speaking to another young person at that facility about potentially becoming involved in the gang life; ∙ the report notes in a number of places that the young person is only beginning to start with counselling in certain areas, particularly with respect to a program to help him exit from the gang lifestyle; ∙ there are allegations of him having intimidating and controlling behaviour; ∙ he had one positive test for drug use while in custody at the open custody facility, in early August of 2013; ∙ the violence involved in the aggravated assault, in conjunction with his lengthy criminal record, with numerous violations for breaches. [ 12 ] Having said that, Mr.

Knox candidly acknowledges that there are positive aspects to the report, such as the fact that the young person is a good worker, he has pro-social supports, and he is taking an active and serious role as a new parent to his son who is now

approximately 2 years old. [ 13 ] However, the Crown’s position remains that a proper balancing of the factors set out in R. v. K.(C.) , para. 17, would result in me confirming the young person’s sentence made by the Court of Appeal in August 2013 (R. v. J.E.O., supra ). Paragraph 17 of R. v. K. (C.) states: The review focuses on what can now best advance the needs of the young offender and the interests of society and requires a balancing of those two considerations. Consequently, no matter how compelling the attraction to serve the young person’s needs, larger public interests cannot be ignored.

The interests of society and the needs of a young offender are not distinct, wholly conflicting interests. On many fronts, they obviously promote the same objective. Rehabilitating young offenders serves the best interests of society. However, rehabilitation must include an acceptance by young offenders that they are responsible for the consequences of their conduct and that they cannot act in a manner that threatens the property or persons of others. In this fashion, and in many others, the needs of young offenders and the interests of society converge: (citing R. c .

T. (M.) , supra , emphasis in quote). [ 14 ] In brief, the Defence keys on the fact that the report shows that the young person has made more than significant advances, and in fact his progress has been exceptional. That, coupled with the fact there are now greater opportunities in the community, should move me to put J.E.O. on conditional supervision at this time, rather than waiting for that to occur in mid-January 2014.

She further argues that, by implication at least, much of the prior problems are dated, and there has been such a significant turnaround while he has been in custody that the public interest is better served by placing him on conditional supervision at this time. [ 15 ] Ms.

Talbot notes that J.E.O. has moved to progressively lower levels of supervision categories at the open custody facility, which is in itself evidence that he has made improvements, and points out that although it may be difficult to prove some things, (i.e., that he is sincere about severing any gang ties), some of the allegations, such as the allegation that J.E.O. was recruiting gang members, in either March or June 2013, is an allegation that J.E.O. denies. [ 16 ] As mentioned earlier, the report, along with the attachments, is detailed and addresses all concerns. As Ms.

Talbot phrased it, the report contains a “comprehensive and tight plan”. I will therefore go through that report, as well as the attached custodial facility report dealing with the initial three month period that the young person was at the open custody facility, and the other attachments, in order to determine the outcome of this review. [ 17 ] I will start with the identified major risk concerns. Criminal History [ 18 ] The young person, who turned 18 in March 2013, has received eight sentences as a youth, starting when he was 14 years old.

These include 11 breaches of youth sentences, 5 breaches of release conditions, 1 charge of failing to attend Court, and although not itself a criminal conviction, he admits to the fact that drugs were found in his room at the secure custody facility, six days after he started to serve the secure custody portion of his sentence. [ 19 ] The circumstances surrounding the aggravated assault are set out in great detail in the Court of Appeal decision referred to, in particular paragraphs 6 to 10, and paragraph 51.

I summarise it as follows. [ 20 ] When the young person was approximately 17 ½ years old, he was a member of the Terror Squad street gang in Saskatoon, and had attacked the victim, who was a member of the Indian Posse gang at the time. The victim was hospitalized for six days, having received “multiple stabbings and lacerations of the chest, abdomen and head”, which included “stab wounds to the right perasternal space, right posterior chest and left chest”.

His injuries included what is referred to as “grade II liver laceration”. [ 21 ] J.E.O. had been drinking alcohol before he was arrested, shortly after the stabbing, although he did not appear to the police to be drunk. However, the stabbing was the result of gang related activity. There were numerous other weapons found at the crime scene,

and the Court of Appeal notes that at the time of the stabbing J.E.O. was subject to a Probation Order which required him to keep the peace and be of good behaviour, to refrain from the consumption of alcohol, as well as other clauses. The Court of Appeal noted that the assault committed by J.E.O. “caused life threatening injuries”. It took place in the context of a gang confrontation with both J.E.O. and his victim sporting gang colours. J.E.O. took no responsibility for the offences and expressed no remorse.

In addition, he has a record involving some 22 previous convictions, including two for carrying concealed weapons. [ 22 ] The report notes that J.E.O. took no responsibility for the offence until beginning the reassessment process he is now undergoing, and it is clear from review of the reports that J.E.O. took the view that the aggravated assault was committed in response to the victim attempting to take J.E.O.’s bicycle. He said that there was a group of people in the area who started running towards him and the victim after the assault, so he fled on his bike.

This version of what J.E.O. said happened would confirm that J.E.O. did not take full responsibility for this. [ 23 ] With respect to alcohol consumption at the time, the report indicates that J.E.O.’s version is that he had consumed a 30 pack of beer and a 26 oz. bottle of rum, and had also used marihuana, which if true would, one would suspect, have led the police to conclude that he was drunk at the time of the assault.

However, as noted by the Court of Appeal, J.E.O. did not appear to the police to be drunk at the time of his arrest shortly after the assault. [ 24 ] The custodial report notes that J.E.O. has not received any new charges during the period covered in open custody (mid-May to mid-August 2013). [ 25 ] Further, the material confirms that while J.E.O. has been on reintegration leave he has been free of any further problems.

I will return to that later but the point at this time is that his history of criminal offending ends as of his most recent conviction of February 2013, which was based on the aggravated assault and breaches of probation which occurred September 15, 2012. Specifically, I’ll address the allegations of continuing gang involvement and drug involvement as a separate issue, although I note that those are not proven criminal convictions. Education/Employment [ 26 ] The report notes that J.E.O. has a Grade 9 education.

He was enrolled in the Open Doors Program (ODP) from January of 2011 until April 2011, at which point he was asked to discontinue. ODP is an educational program that is adapted to deal with youth who have had problems in a traditional school setting. From April of 2011 until his arrest in September 2012, he was not in school, and he had a rather poor employment record, although it was acknowledged that he had some work on a sporadic basis.

However, it appears he lost any employment he had by not showing up for work; one could conclude he was not particularly motivated to complete his education, or to hold a job, during that time. [ 27 ] However, the report notes that while he was in the secure custody facility for three months, between February 2013 and May 2013, he started working on his Grade 10, and when he was in the open custody facility, he has been working towards a Grade 11 science credit.

In June 2013, he began working for a local roofing company, and his foreman, who attended the review and spoke on the young person’s behalf referred to him as a “diamond in the rough”. Additionally, he filed a letter in which he referred to J.E.O. as a “hard, dedicated worker”, stating that “to say he is a great asset to my crew would be an understatement”.

It was clear that his foreman thought the rough edges were starting to become more smooth. [ 28 ] Further, the staff at the open custody facility noted that this same foreman has gone above and beyond what would be expected from an employer, noting that the foreman is helping to support J.E.O. in the community, is helping him with transportation to work, and is going to set him up with a financial adviser.

I can only conclude that, whereas J.E.O. may not have been a model student and may not in fact have actively pursued further education, he is a hard worker, who since obtaining this employment in June 2013, has become an exceptional employee. Leisure/Recreation [ 29 ] The reports note that there are few activities that J.E.O. participates in while in the community, although he is beginning to

partake in some. It is clear that his primary focus at this time is to spend time with his 2 year old son, which is what it is noted he did primarily as well before he went into custody in September 2012, following the aggravated assault he committed. [ 30 ] Further, the Court notes that he has been tremendously successful in open custody in the reintegration leave process. It is noted that the extent of time he is allowed to spend with his family, both overnight during the week, and during the day on weekends, is rare in an open custody facility.

By all accounts, these reintegration leaves have been nothing short of completely successful. [ 31 ] Generally, the reports paint a picture of a young man whose focus is his family, and who is working to support his family, a conclusion that is evidenced by the fact that he is taking some of his employment income and directing it toward such support. Companions [ 32 ] J.E.O. has few what one might refer to as pro-social companions, although the support he receives from his mother, his aunt, his spouse, his foreman and the various counsellors he is dealing with at this time is without doubt.

The wild card, if you will, is whether or not he will remain involved with gang associates. On this point, he is adamant he had discontinued his gang involvement shortly before or around the time his son was born, the birth of his son seeming to be a watershed moment in his life. However, as his son was almost two years old at the time Dr. Torrens wrote her report in mid-October 2013, his son would have been almost one year old at the time J.E.O. committed the aggravated assault in September of 2012, and that assault, as noted by the Court of Appeal, was clearly gang related.

I am satisfied that J.E.O. is committed to making a final break with his past lifestyle, one that he first became involved with when he was 12 or 13. I cannot conclude that he was recruiting for a gang in March or June of 2013. As he has been in custody since that assault, it may well be that his time away from the street lifestyle has changed his outlook. As noted, he has stayed out of trouble generally since being in custody, and there is no suggestion of any gang activity going on during reintegration leave; he spends all of that time with his child, his partner, and his extended family.

It is not easy to make the break, but he has made, at the very least, a substantial disconnection, and he is committed to continuing his counselling and efforts to completely sever all such ties. Attitude/Orientation [ 33 ] It is noted generally that J.E.O. identifies as having pro-social goals, such as finishing school, continuing to work and taking an active

part in raising his son. In the past, he may have had few supports, although it is clear that he has a number of supports put in place now through the various programs and counselling sessions he is taking.

The report notes that he has “actively advocated for himself to ensure he receives services” through the Saskatoon Tribal Council reintegration program, that he has connected with Str8-up, a program working with gang members who are in the process of exiting the gang life, he is taking addictions counselling and counselling addressing violence and relapse issues, the latter two through the Youth Mental Health and Addictions Services.

As well, he is reconnecting with people through ODP who he had previously been working with. [ 34 ] The report notes that J.E.O. had historically struggled with supervision in the community, a fact which would be obvious from his record, although it appears that he is taking a different view at this point. I accept that there has been a change in attitude, one very much for the better. Substance Use/Abuse [ 35 ] The report notes that substance use/abuse was involved with the aggravated assault and that J.E.O. was in possession of a hydromorphine pill on February 13, 2013, while in secure custody.

However, there have been no further concerns while he has been in custody and he is consistently passing drug tests he is now taking twice weekly in response to the concerns as to drug use. [ 36 ] What is of concern is that he has been using drugs and marihuana since he was 12 years old, although any concerns on that are somewhat allayed by the fact that his plan is to reside with his mother, who does not allow alcohol or drugs in her home.

Further, it is noted, there have been no incidents of non-compliance while on reintegration leave, from which I assume there have been no issues of him drinking or using drugs while on such leave.

[ 37 ] Thus, it can fairly be said that alcohol and drug use was a concern prior to him going into custody, and there is of course the drug charge of February 18, 2013.

J.E.O.’s explanation is that he received the pill from someone in detention in the courthouse on his sentencing date of February 12, 2013, although he does not use hard drugs. [ 38 ] On the plus side, however, the report notes that “substance use has not appeared to be having a significant negative impact on all areas of [J.E.O.’s] life”, noting that his use is infrequent, he does not use at his home, and he puts his son’s welfare ahead of his substance use.

Anti-social Pattern [ 39 ] Although there were issues identified, no specific anti-social pattern was identified in a psychological assessment completed March 27, 2013. Of note is that this testing did identify some high scores for “potential future violence”; however it is also noted that the assessor concluded that J.E.O.’s risk of further violence could not be fully assessed at that time due to the pending appeal that was ongoing at the time of the assessment. No further risk assessment has been done, leaving the extent of that risk, based on a formal assessment, a somewhat open issue. [ 40 ] Further, as Ms.

Talbot argues, it is always difficult to disprove a negative.

There is some comfort that can be derived from the fact that there is counselling ongoing at this time, and the recent history has been that there have been no problems since the September 2012 aggravated assault, and whereas that could obviously be attributed partly to the fact that J.E.O. has been in custody throughout that period of time, it is also noted that he has stayed out of trouble while on reintegration leave and it is specifically noted in the reports that he has stayed out of trouble while in custody with the exception of two allegations of drug possession, the second of which I will deal with later in this decision, and the allegations of him recruiting for gangs.

Strength Areas Family circumstances - parenting [ 41 ] The report notes that the youth reports “a high level of satisfaction with his relationship with his mother”, and it is noted that staff members from Yarrow Youth Farm, the open custody facility, have “continued to report positively about parental support and supervision”.

It goes on to note that there have been no concerns with respect to his being at home during reintegration leaves, and they note that the young person has been granted the opportunity to have overnight visits at home, “multiple nights per week” a privilege that is rarely granted. [ 42 ] The report does emphasize that J.E.O. has pro-social, family, familial support. His mother was present at the hearing, as was the young person’s partner (the mother of his child), who says that “ever since he got that job”, J.E.O. has been much better.

Further, the reports note he does take an active role in raising his son, and he is, to the extent possible in his current situation, co-parenting his son. [ 43 ] The report goes through additional concerns/client issues, noting that there have been in the past, clear problems with compliance. [ 44 ] With respect to alleged intimidation and controlling behaviour, that arises out of a time when J.E.O. was asked to leave the ODP program.

The report says that a teacher had “identified” J.E.O. to be intimidating in class, due to his position within the street gang, and initially he was attempting to use intimidation with staff themselves. This last point refers to one incident that occurred on the

day J.E.O. was asked to leave the ODP program for reasons of non-compliance. According to the report, staff felt he was attempting to intimidate them. [ 45 ] That may or may not be the case; it is equally possible that J.E.O.’s alleged intimidation was a response to quasi-parental authority exhibited by a then 15 year old gang member. In either event, even if it was intimidation, it occurred over two and one-half years ago, and as such, I do not give it undue weight in considering the situation at this time.

Based on the situation at this time, intimidation is not an issue. [ 46 ] Other concerns noted are that J.E.O. has peers outside his age range. He appears to be underachieving (which may well be the case with respect to his schooling), as he is two years behind his age group, but that is somewhat balanced by the fact that he appears to be achieving quite nicely while employed.

From this I take that whereas he may say he enjoys school, that he is a capable student, and whereas his level of achievement at school is below his capabilities, it is more likely that his focus at this time is on his employment, and the benefits that employment has for him and his family. [ 47 ] The report also notes that he has a criminal history for carrying a weapon, and breaches of youth orders for carrying a weapon when prohibited from doing so and of course the assault that led to his incarceration.

He may have witnessed family violence when he was younger, although this latter point is not sufficiently identified to cause me concern. [ 48 ] The conclusion of the report is that there are a number of programs put in place, there is a recommendation for continuing ongoing support and counselling, and when looking at the potential options under s. 94(19), the author recommends, after “careful consideration” that this young person be released onto conditional supervision on the grounds that he has made significant progress to justify a change in the youth sentence, and on the grounds that his opportunities for rehabilitation are now greater in the community.

A number of specific recommendations are set out. [ 49 ] The custodial report has been somewhat incorporated into the review report. It does stress, however, that during the period of time covered by that report (mid-May to mid-August 2013), the young person was doing work given to him by the ODP to try to get his Grade 12, and refers to progress that has been made. It is as well a positive report. [ 50 ] One other concern addressed in that custodial report is that on August 1, 2013, a drug test was taken of J.E.O. that came back positive for Gabapentin, Oxezepam and Temazepam.

J.E.O. explained that he had been given those pills by his mother to help him with some pain/sleep related issues. J.E.O.’s mother confirmed this, the counsellor he is dealing with respecting addiction was informed of that and discussed that matter with J.E.O. during their sessions, and drug tests for J.E.O. have been increased. As noted earlier, he continues to pass those tests. [ 51 ] What is concerning is that his mother has stated that her home is drug and alcohol free, and I accept that she does not advocate the use of either substance by her son.

She is aware that substance use has been a problem for her son in the past, although not a significant problem; that is, she is aware that he used drugs and alcohol, but it was not, in her view, to excess, and not in her view, to the point where it interfered with his ability to be an effective parent to his son. That notwithstanding, I do find it troubling that his mother provided these drugs to him while he was, I assume, at home on a reintegration leave, although I accept it was probably more an error in judgment on her part than it was any type of deliberate attempt to thwart his progress.

I would trust that, when J.E.O. is on community supervision, whether that starts at this point, or on the presently scheduled date of mid-January 2014, these things are not repeated. [ 52 ] In addition to the information provided at the hearing, there is a letter from Dr. Torrens, registered doctoral psychologist, who has been working with J.E.O. since late May 2013, which is incredibly supportive of the recommendation.

I quote: In this time [from late May, 2013 to October 15, 2013, the date of the letter], J has presented as one of the most mature, responsible, intelligent youth that I have worked with in the number of years I have worked with young offenders. [ 53 ] She goes on to state:

Overall, I have been very impressed with J’s level of commitment to make positive changes in his life and placing his family as a priority. I do not think he will receive further rehabilitation benefits from remaining in open custody and think his behaviour in the community has shown that he is able to manage his risk and make pro-social choices. It is recognized that J’s current offence is very serious (and this is the reason for the increased sentence) and that he has a fairly lengthy history of criminal behaviour in the past.

However, he appears to be genuine in his efforts to make long-lasting lifestyle changes in order to avoid further criminal activity. Given his efforts and progress, I would support his being released from open custody to continue being monitored under the conditions of a community supervision order. As part of those conditions, I would plan on continuing to work with J on areas of risk reduction while in the community. [ 54 ] Such a glowing letter of recommendation from a professional intimately involved in the treatment of this youth is not to be taken lightly.

Conclusion [ 55 ] I start by noting that the preconditions for undertaking this review have been met; J.E.O. has, in my view, made significant progress, and the prospects of him continuing the rehabilitative process are better met now in the community. [ 56 ] Applying the principle set out earlier at paragraph 13 of this decision, I reiterate that the “review focuses on what can now best advance the needs of this young offender and the interests of society and requires a balancing of those two considerations”.

Although it is without question that the aggravated assault that led to the sentence under review was a serious offence, that does not end the matter; if the seriousness of the offence was the determining factor, there would be no need for a review mechanism at all.

As noted throughout this decision, the resolution of the application requires a balancing of the needs of the young person, and the interests of society, on a proper consideration of “all relevant considerations”. [ 57 ] In carefully considering that balance, and looking at the declaration of principles set out in s. 3 of the Act , as well as s. 38 of the Act respecting the purpose and principles of sentencing, I have come to the conclusion that the public interest is best served by releasing J.E.O. from custody and placing him under conditional supervision in the community at this time, for the remainder of his youth sentence, pursuant to s. 94(19)(b).

The proposed conditions put forth by Ms. Peterson, the community youth worker, are comprehensive, well thought out, and will adequately and appropriately protect the public. The conditions are designed to continue with the young person’s rehabilitation. There is, of course, never a guarantee that anyone, young person or not, will succeed: however, the statutory preconditions for this decision have been met, and in my view, the proper balance between “the needs of the young person and the interests of society”, as set out in s. 94(19) of the Act , are met by this decision. [ 58 ] The conditions will be: 1.

Keep the peace and be of good behaviour; 2. Appear before the youth justice court when required by the Court to do so; 3. Report to the provincial director (or designate, sometimes referred to as the youth worker) immediately on release, and then report when required to do so, and in the manner directed to do so, and be under the supervision of the provincial director or a person designated by the provincial director or youth justice court; 4. Inform the provincial director immediately on being arrested or questioned by the police; 5.

Report to the police, or any named individual, as instructed by the provincial director; 6. Reside with your mother at her current residence, and confirm that address with the provincial director on release 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 the young person’s normal occupation, including employment, vocational or educational training and volunteer work, (iii) in the young person’s 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; 7. Not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order; and 8.

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. As well, the following conditions will be imposed: 1. Do not change your residence without express permission of the youth worker; 2. Remain inside your residence between the hours of 10:30 p.m. and 6:00 a.m. the following morning, unless with written permission of the youth worker; 3. Present self at the door of the approved residence to any peace officer or youth worker; 4.

Have no contact directly or indirectly with Mike Apooch; 5. Attend school and/or day programming regularly and/or actively seek and maintain employment and not miss school/employment except with a doctor’s certificate/not give reason to be discharged from school; 6. Refrain from the use, possession or consumption of alcohol and non-prescribed (illicit) drugs/not to be near a place where the primary purpose is the sale or consumption of alcohol; 7. Attend/participate in addictions treatment, education, counselling (which may include inpatient treatment) as directed by the youth worker or designate; 8.

Attend/participate in other forms of counselling as and when directed to do so by the youth worker or designate; and 9. Not possess any weapons as defined by the Criminal Code or knives outside your residence unless for employment purposes.

_______________________ B.G. Morgan, J