R. v. K.G.S., 2011 NUCA 1

In the Nunavut Court of Appeal Citation: R. v. K.G.S., 2011 NUCA01 Date: 20110207 Docket: 08 09 005 CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - K.G.S. Appellant Restriction on Publication: No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act. See the Youth Criminal Justice Act, s. 110(1). No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person.

See the Youth Criminal Justice Act, s. 111(1). _______________________________________________________ The Court: The Honourable Madam Justice Marina Paperny The Honourable Mr. Justice Jack Watson The Honourable Madam Justice Patricia Rowbotham _______________________________________________________ Memorandum of Judgment Appeal from the Sentence by The Honourable Mr. Justice R.G. Kilpatrick

Dated the 27th day of March, 2009 (2009 NUCA 09 Docket: 08 09 005 CAP) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Introduction [1] KGS, an Inuit youth living in Rankin Inlet, plead guilty to a string of 20 offences committed over nine months beginning in July2008, including 15 residential break and entries, two break and entries into public institutions, and three breaches of bail orders.

OnMarch 27, 2009, he received a global sentence of 11 months open custody and community supervision and one year of probation. [2] KGS was 16 years old at the time of sentencing and had no previous findings of guilt under the Youth Criminal Justice Act. Thesentencing judge determined that, considered collectively, the circumstances of the offences were sufficiently aggravating to constitutean exceptional case under s. 39(1)(

d) of the YCJA, given the persistent pattern of criminal conduct exhibited by KGS and the significantimpact of the offences on the collective sense of security of the people of Rankin Inlet. The sentencing judge found that the principles ofsentencing in s. 38 of the YCJA could not be satisfied by the imposition of a non-custodial sentence. He found that KGS needed to beplaced in a structured living environment where he could be physically prevented from accessing intoxicants.

He determined that only acustodial sentence would achieve those aims and accordingly sentenced KGS to 11 months open custody at Nunavut’s youth facility. [3] KGS appeals the custodial portion of his sentence. He says that the number of offences before the court is not a relevantconsideration under s. 39(1)(d), but rather that the

section is intended to take into account the aggravating circumstances of eachindividual offence. He says that in applying s. 39(1)(

d) in this case, the sentencing judge rejected the reasoning of the Courts of Appealfor Ontario and British Columbia which have held that the “exceptional case gateway can only be utilized in those very rare cases wherethe circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values.”: R. v. S.T., 2009BCCA 274 at para 43; see also R. v.

R.E.W. (2006), (ON CA), 205 CCC (3d) 183 (ONCA). [4] KGS also argues that the sentencing judge improperly used custody as a substitute for other social and treatment measures thatare not available in KGS’s community, contrary to s. 39(5) of the YCJA. [5] The appellant’s sentence has been completely served. Counsel were asked to make submissions as to whether his appeal shouldbe declined by the Court as moot and they have done so in writing. [6] Borowski v. Canada, (SCC), [1989] 1 SCR 342, 57 DLR (4th) 231 is the leading authority on the question ofdismissal for mootness.

A court may decline to decide a case which raises a merely hypothetical or abstract question. Borowski sets out atwo step test to be applied by a court in considering whether to decline to hear a case. First, the court must determine whether therequired tangible and concrete dispute has disappeared, rendering the appeal moot.

If so, the court must then determine whether it shouldnevertheless exercise its discretion to hear the appeal, having regard to the presence of an adversarial context, the concern for judicialresources, and the awareness of the court’s proper law-making function. [7] KGS finished serving the custody and supervision portion of his sentence in February 2010. Any appeal from that sentence isclearly academic.

KGS argues that the sentence may have a future effect on him as it may have an impact in future sentencing hearings.We are not convinced that speculation about future offences and resulting sentencing hearings should be the determining factor in acourt’s decision that an appeal raises a live issue. In any event, as the Crown points out, KGS is now an adult and the exact disposition hereceived as a youth would have little impact on any new adult sentences. The appeal is, therefore, moot.

[ 8 ] We must therefore decide whether to exercise our discretion to hear the appeal, notwithstanding the fact that it is moot. The lack of an adversarial context is not a concern here; both parties have filed factums and are prepared to argue the merits of the appeal. However, it does not appear that there would be a benefit to the hearing of this appeal that would warrant the application of scarce judicial resources to that hearing. Sentencing of young persons under the Youth Criminal Justice Act is an individualized process: R. v. P. (B.W.), [2006] 1 S.C.R. 941, 2006 SCC 27 , at para. 31 . In that light, a decision whether a specific offender’s case falls within s. 39(1) (

d) of the Act, and further that the limitation under s. 39(2) of the Act does not apply, are fact-sensitive issues. In effect, both parties here ask us to put an interpretive gloss on the wording of s. 39(1)(

d) of the Act the effect of either

interpretation being to fetter the discretion of judges under the Act. In light of the mootness of the case, we decline to do so. [ 9 ] The legal issues raised by this appeal are not evasive of review; it will not be difficult to bring these issues forward in a future case, should they arise again. Nor, as noted above, will a determination of this appeal have a practical effect on the rights of the parties. In all the circumstances, we have decided that it is not appropriate for us to exercise our discretion to hear the appeal. The appeal is dismissed for mootness.

Written submissions only Memorandum filed at Iqaluit, Nunavut this day of February, 2011 Paperny J.A. “as authorized by” Watson J.A. Rowbotham J.A. Appearances: S. Boucher for the Respondent S. Wheildon for the Appellant