Her Majesty the Queen - v. -, 2014 SKPC 186

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2014 SKPC 186 Date: October 28, 2014 Information: 44000524 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - J.M.K. Appearing: J. Knox For the Crown B.

Pfefferle 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 . _____________________________________________________________________________ JUDGMENT B.M. SINGER , J _____________________________________________________________________________ Introduction

[ 1 ] J.M.K. was born […], 1995. At the time of these offences, he was […] days short of his 18 th birthday. He was charged as a young offender. [ 2 ] He pled guilty to four charges; two of robbery, one of break and enter and one charge of unlawful confinement. All of these charges arose out of one very serious and violent incident which endangered and frightened several other youth. Circumstances [ 3 ] On May 11, 2013, a number of youth were enjoying a bonfire and party at 803 7 th Avenue North in Saskatoon, when the Accused arrived uninvited and alone.

He claimed to be looking for a friend but was refused admittance into the back yard. He was unknown to the partiers but insisted on entering the yard. He was pushed back into the alley and then drew a small straight razor slashing at the victims; one individual received a significant cut to his arm. [ 4 ] He then chased an individual down the alley, held his razor to that victim ’ s neck and robbed him of his wallet and left. However, shortly after, he returned to the front of the residence and while threatening to kill the occupants, gathered them all in the kitchen of the house.

He demanded money and held them at bay with his razor, however, the police had been called so eventually the Accused left. As he was leaving he was confronted by some of the occupants one of whom he cut on the forehead. The police arrested him and the Accused screamed and banged his head in the police car and was uncooperative at the police station. [ 5 ] The Accused has little memory of his actions; he says he was high on cocaine and alcohol. The Proceedings [ 6 ] Based on these circumstances the Crown gave notice that they were applying to have J.M.K. sentenced as an adult.

He pled guilty and applied for and was granted a sentencing circle which was held over two separate days. Issues [ 7 ] There are two fundamental issues for decision in this case; should the Accused be sentenced as an adult and what is the appropriate sentence. Law [ 8 ] At the time of this offence the Youth Criminal Justice Act, SC 2002, c1, (YCJA) had been recently amended. In particular

section 72 reads as follows: 72.

(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that (

a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(

b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. [ 9 ] Subparagraph 3(1)(b)(ii) reads: 3(1) The following principles apply in this Act : ... (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following; (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. [ 10 ] As I understand these amendments, I must first determine if I am satisfied that the presumption of diminished moral blameworthiness or culpability has been rebutted. I then must determine if a sentence, following the ordinary principles of sentencing youth as outlined in

section 38 of the Act , would be of insufficient length to hold him accountable for his behaviour. If both those criteria are met, then I must sentence him as an adult. I will therefore proceed to determine what an appropriate sentence would be for him as a youth and then determine if that sentence would be sufficient to hold the youth accountable for his behaviour.

Sentencing Information [ 11 ] In this case, in addition to the outline of the incident, the Crown provided me with a copy of the youth ’ s criminal record, a Pre-sentence Report, a Psychological Report and an Intensive Rehabilitative Custodial Sentence (IRCS) assessment. Further I received a Psychological Report and letter advising that the youth qualified for a sentence under section 42(7) of the YCJA . I also had the benefit of a sentencing circle in which I heard oral reports from J.M.K. ’ s family counsellor and therapist, his youth worker, the Ministry ’ s IRCS co-ordinator and a psychologist.

As well, his parents attended and participated, as did one victim, the victim ’ s mother and a police officer who investigated the incident and spoke with the other victims. I was greatly assisted by all these circle participants and appreciate their comments. [ 12 ] The Accused ’ s record paints a picture of a young man well on his way to becoming a violent criminal.

His record began about 18 months prior to this incident and includes two previous robbery charges, five property related charges, five weapons offences, and 11 further charges involving one possession of a controlled substance, several breaches of court orders, obstructions and an escape lawful custody charge. [ 13 ] The Pre-sentence Report documents a family that struggled with J.M.K. ’ s behaviour problems. They have been supportive of him throughout, have sought family counselling and assisted in providing a counsellor for him while he has been on remand.

While they are frustrated with his behaviour and drug use, they still stand behind him. Prior to his remand, J.M.K. spent his time “ getting high ” or “ drinking ” with his buddies. The majority of his associates were involved in criminal activities and he viewed his role in these activities as one of backing up his friends, as being the tough guy or the enforcer. He was very honest with the probation officer and recognized that what he was doing was wrong. [ 14 ] The Pre-sentence Report also outlines his history with alcohol and drugs which before his arrest included drinking and using cocaine “ daily ” .

His substance abuse affected his family relationships, his schooling, his entire life and “ drove ” his criminal activity. At the time of the Pre-sentence Report, the author felt that J.M.K. displayed among other risk factors diverse antisocial behaviours, and a criminal attitude. He could not identify any “ strengths ” . The probation officer concluded that J.M.K. was a high risk to re-offend and was concerned that he would re-offend violently.

[15] A Psychological Report prepared in September of 2011, over a year prior to these offences stated: … testing suggested an individual who does have good self control and may be able to cooperate for short periods of time but whosemain interest is to gain a sense of power through manipulation, conning and deception. According to the testing, individuals with thiskind of profile tend to have an above average risk of failure when in the community.

The results from the violence assessment suggesthis situation has many high risk factors associated with violence. [16] A more recent Psychological Assessment was prepared, dated April 9, 2014, and was presented to the Court. Thisreport described an individual who at the time of the incident had been abusing alcohol, marijuana and cocaine for a number of years,was not really living anywhere, who demonstrated “a generalized antisocial pattern”, was highly sensitive to perceived authoritariancontrol and who reacted badly to oppose those he thought were his controllers.

The psychologist diagnosed him with a ConductDisorder, substance related disorders and Oppositional Defiant Disorder. [17] The report indicated that in the three or four months preceding the writing of the report, the Accused had begun tomake significant improvement and it reflected the general opinion expressed at the first sentencing circle that he had made steps inmaturing, recognizing his addiction issues, his psychological issues and was beginning to show empathy for his victims.

In particular, thereport suggested that the Accused was making positive steps toward managing his anger, forming positive relationships with theprofessionals that were dealing with him and was acknowledging the hurt he caused people. It recommends “J.M.K. would be affordedthe greatest success if he were able to continue working on his risk factors in a very structured environment.” [18] This view, that the Accused was improving, but had a way to go, was what was also expressed by his psychologistat the sentencing circle, by his parents and by the Accused himself.

Partly to see if these positive trends continued and also to see if asentence under section 42(7) of the YCJA was appropriate, the sentencing circle was adjourned. When we met again, the Accused hadbeen in custody for over 17 months. His positive behaviour had continued. He was no longer in the secure unit but was participating inprogramming and education. The reports from his custodians were that his behaviour was exemplary.

From being a person who createdviolence he was now one who created peace. [19] Section 42(7) of the YCJA allows for an Intensive Rehabilitative Custody and Supervision sentence for youth whohave been found guilty of three serious offences that could have caused bodily harm, are suffering from a mental or psychologicaldisorder, where a plan of intensive supervision has been developed and where there are reasonable grounds to believe that the plan mightreduce the risk of the young person repeating the offence or committing a serious violent offence.

The Assistant Deputy Minister ofJustice filed a letter with the Court indicating that the Accused not only qualified for the program but that it was appropriate in his caseand that such a program had been developed. [20] The Deputy Minister’s recommendation was made as the result of the report of Dr. Donna Torrens.

Of greatimportance was the conclusion that a treatment plan could be developed that would reduce the risk of this youth from committing crimesof violence in the future, that he appears to be managing well with the current supports in secure custody and that he will require agradual transition from secure to less structured settings. The report identifies many concerns but also many ways that his treatmentproviders can work with him to decrease the risk of future violent crime.

Conclusion [21] I have determined on the basis of the several psychological assessments and police reports, that at the time of thisincident the Accused was high on drugs and alcohol. In addition he had many unresolved psychological issues that were influencing hisbehaviour. He was not mature, even though he was almost 18 and quite intelligent. Seventeen months is a long time in the life of a youthand he has made significant progress in dealing with his addiction problem and his psychological issues in that time.

A plan is in placethat would allow him to continue to develop and might reduce the risk of future violent behaviour. [22] Section 72(1) that allows for an adult sanction to be imposed on youth is intended to deal with those relatively rarecases where the ordinary youth justice sentencing regime is considered inadequate to hold the youth accountable for a particularly seriousoffence. While youth are accountable in the youth sentencing regime there is a greater emphasis on rehabilitation in the way in which thejustice system holds the youth accountable.

Accountability has always been based upon moral culpability [R v M(CA), (SCC), 1996 1 SCR 500 at para 80]. Nicholas Bala in his work Youth Criminal Justice 2003, Irwin Law at page 524 stated:

However, this assessment of the adequacy of the Act ’ s accountability regime must be undertaken in accordance with the purposes and principles for sentencing young offenders as set out in section 3(1)(b)(ii) of the Declaration of Principle and

section 38, which sets out the general principles of youth sentencing. That is, all the principles that govern youth sentencing are to be considered in deciding whether to hold a youth accountable as an adult . (Emphasis mine) [ 23 ] In this case the Crown suggests that as an adult the Accused would have to receive a sentence of at least six years in the penitentiary.

Realistically, the Court must consider the fact that adults can receive parole at 1/3 or 1/2 of their sentence and that I would have to apply a 1 to1.5 ratio of time spent in remand; all of which significantly reduces the length of his adult sentence. The Court must also consider that if a youth sentence is imposed, I am not obliged to take into account his remand time, that he will serve the entire sentence under closed or open custody or a well monitored and restrictive release program based upon his progress and that the length of time of such a sentence could be up to three years.

In this case I have a youth who has specific psychological issues. There is a general belief that placing any youth in an adult facility is psychologically destructive, particularly for an individual who has a conduct disorder such as his. This would be only asking for trouble. [ 24 ] Even though what he did was violent and upsetting to his victims, I cannot say that the Crown has overcome the presumption that his moral blameworthiness is diminished.

I conclude that a sentence, specifically under s. 42(7) of the YCJA , which is in accordance with all of the principles and purposes of sentencing in the YCJA, would be of sufficient length to hold him accountable. I therefore conclude that the application to have him sentenced as an adult is dismissed.

Sentence [ 25 ] He shall receive a sentence, on each of his youth charges, of three years concurrent, and I make an order under section 42(7) that he serve that sentence as an intensive rehabilitative custody and supervision order, he is to serve 18 months in secure custody, six months in open custody and one year under strict supervision. The timing and nature of these periods of custody and supervision will be closely monitored and if adjustments are required to their lengths, the Provincial Director may apply to the Court for the necessary orders. _____________________ B.M. Singer, J