Her Majesty the Queen - v. -, 2013 SKPC 154

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 154 Date: September 23, 2013 Information: #s 46420505, 36654065, and 44331458 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - J.K.M. Appearing: J. Knox For the Crown 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. _______________________________________________________________________________

REASONS FOR DECISION ON SENTENCE REVIEW S. P. WHELAN , J _______________________________________________________________________________ Introduction [ 1 ] The Court rendered its decision in this matter on September 16, 2013 and undertook to provide these written reasons the following week. [ 2 ] J.K.M. brought an application for optional review of his sentence to convert the remaining portion of his sentence from closed to open custody. J.K.M. based his application upon s. 94(6)(

a) of the Youth Criminal Justice Act ( YCJA ), that he “has made sufficient progress to justify a change in the youth sentence”. While the Court awaited additional reports from a psychiatrist and psychologists, a mandatory annual review was required and the two applications were merged. [ 3 ] J.K.M. is now 16 years of age. This review concerns merged sentences imposed for a number of offences, four of which were designated as serious violent offences. They were committed when he was 14 years of age over a two month period.

He received two consecutive sentences of 16 months secure custody and 8 months community supervision. He has a lengthy record which began in April 2009 when he was 12 years of age and includes: property offences, four escapes, numerous failures to comply with release or sentence conditions and one prior assault.

He began receiving custodial sentences in 2009. [ 4 ] The Crown, the provincial director, the custodial institution and two psychologists opposed a change in the custody level, based primarily upon: a failure to respond to treatment, his high risk to reoffend violently and the risk of escape. [ 5 ] The reports describe a young person who experienced a very difficult upbringing which included family breakdown, foster care, group home placements and a gang lifestyle. There are very significant Gladue factors.

Apart from the two months during which the subject offences occurred, since June 2009, he has been in an open or secure custody facility. [ 6 ] During the review process J.K.M. was diagnosed with conduct disorder (CD) and posttraumatic stress disorder (PTSD). [ 7 ] Against this rather bleak description is evidence of significant progress, but not in keeping with the expectations of the institutional services presented to J.K.M. He has joined a local but nationally recognized community based program of the John Howard Society, STR8 UP, which is designed for people who want to exit the gang way of life. Fr.

André Poilievre, a retired Catholic priest and founder of the program, spoke in support of J.K.M.’s application and described his progress. J.K.M. spoke of his determination to continue to pursue positive changes and in presenting his perspective, explained his apparent resistance to treatment services offered.

He has done well academically while in custody and is desirous of attending a high school in the community so that he may begin to experience the socialization and reintegration that he believes he needs as part of his rehabilitation journey. [ 8 ] J.K.M.’s counsel said that he is in a “catch 22” position, referring to the diagnoses of PTSD and CD, and suggested that it was not J.K.M. who gave up on treatment but the providers that gave up on him.

She urged the Court to understand that his guarded approach with treatment providers is also born from his experience in care and the justice system and the fear that sharing information will be used against him. There was evidence of repeated attempts to engage J.K.M. in treatment and the service providers while acknowledging a greater interest and a number of positive changes, nonetheless felt that insufficient progress had been made given the serious nature of the subject offences.

The Court was informed that the characteristics of the twin diagnoses of PTSD and CD, present as barriers to treatment, and that treatment providers should adopt a persistent team approach which acknowledges J.K.M.’s need for a measure of control. [ 9 ] J.K.M. has made substantial progress and having regard to the principles governing the decision on a review, it was sufficient to justify a change from closed to open custody.

Equally as important, the Court found that being in open custody was necessary to facilitate his reintegration into society, in particular the opportunity to acquire pro-social relationships beyond those offered by STR8 UP. The Court was content that the level of supervision offered in open custody was such as to satisfy the public interest and concern for the potential to reoffend violently. Accordingly the balance of the merged sentences was converted to open custody. Background

[ 10 ] Before giving a decision on the optional review, guided in large part by Dr. Stockdale’s April 10, 2013 report, this Court requested three assessments: i. A psychiatric assessment by Dr. Quinn to address mood and appropriateness of medication for same. ii. A psychological assessment by Dr. Vandergoot to address: - underlying problems which may be influencing successful reintegration, - risk to reoffend violently and for gang affiliation, and - whether IRCS should be revisited. iii. An assessment from Dr. Torrens regarding risk to offend.

In the meantime, the deadline for the mandatory annual review under the YCJA became imminent and so armed with these reports, a progress report was ordered in anticipation of that review and the two applications were merged.

Offences [ 11 ] These are the offences pertinent to this review: September 8, 2011 – first sentence date Information #46420505 Offence date April 30, 2011 – s. 268(1) aggravated assault - SVO, s. 92(1) possess firearm without a licence and s. 85(1) use a firearm in committing an aggravated assault – SVO Serious violent offence designation Sentenced to 16 months secure custody and 8 months supervision November 29, 2012 – second sentence date Information #36654065

i) Offence date March 1, 2011 – s. 268(1) aggravated assault – SVO and s. 95(

a) possess a loaded firearm without a licence ii) Offence date March 2, 2011 – s. 348(1)(

b) break and enter and commit aggravated assault – SVO and s. 87 point a firearm iii) Offence date April 26, 2011 – s. 268(1) aggravated assault – SVO Information #44331458 Offence date May 14, 2012 – s. 430(4) mischief SVO – Serious violent offence designations Sentenced to 16 months secure custody and 8 months supervision – concurrent but consecutive to the sentence of September 8, 2011.

As at the date of the Pre-sentence Report, September 5, 2013, J.K.M. was serving the secure portion of the sentence imposed November 29, 2012 and was set to begin community supervision on May 9, 2014. History of Offences [ 12 ] J.K.M.’s criminal history began when he was 12 years of age. He received his first custodial sentences before his 13 th birthday in December 1996 for property and administration offences. Prior to the subject offences, there was one common assault, entered in February 2010. There are four escapes on his record.

The review report refers to an unlawfully at large offence supposedly entered November 11, 2009; however it is not contained in the record which has been filed by the Crown and admitted to by J.K.M.’s counsel. The last escape was entered on the history of offences in November 2010, when he was not yet 14 years of age. [ 13 ] The review report of September 5 th provides a description of the offences. With the exception of the mischief that occurred on May 14, 2012, the offences took place within a two month time frame when J.K.M. was 14 years of age.

March 1, 2011 – aggravated assault and possessing a loaded firearm without a licence J.K.M. shot the complainant at close range in the abdomen. He was with two other unnamed persons. They were looking for someone to rob. One of them shouted, “Terror Squad, what’s up?” One of them tried to rob him. J.K.M. said that the complainant pulled a knife and it was then that he ran up to him and shot him. The motivation for the offence was suspected to be linked to a previous gang related case. March 2, 2011 – break and enter and commit aggravated assault and pointing a firearm J.K.M. was with two other males.

He had a sawed off rifle. They entered the home where one of them said “Do you wanna get shot?” One of the others went into the kitchen to get a weapon. Another hit the female complainant. J.K.M. pointed the rifle at the complainant and hit her twice in the back of the head with it. She fell to the ground. Another of the three stabbed her three times in the right leg. J.K.M. said that he shot at her but did not know if she was hit. There was a suggestion that this was the result of a conflict the day before. J.K.M. said that they were planning to do a robbery.

Less than an hour later, the complainant in the aggravated assault had a sawed off rifle pointed at him by J.K.M. Three males from the earlier incident were confronted by the complainant in a lane near his home. He’d noticed that they were tampering with a neighbour’s vehicle and he intervened. J.K.M. held a gun to him and said “Get back in your house man. I don’t want to kill anyone tonight. Call the cops all you want.” It ended when the complainant backed away into his garage. Note: There is some confusion over the gender and number of complainants in these incidents.

It is unclear to the Court from reading the report but counsel did not dispute the facts in the report. Upon reviewing the Information, with respect to the March 1 incident, J.K.M. entered a guilty plea concerning one male complainant (count 2) and the Crown entered a stay of proceedings concerning a female complainant (count 5). April 26, 2011 – aggravated assault J.K.M. and two unarmed friends approached the complainant, believed to be from a different gang. J.K.M. loaded the gun. One of them said “Is that what you’re down with?” J.K.M. said that the complainant pointed bear mace at them.

J.K.M. held the firearm to the complainant and was told by one of his friends to shoot him. He shot him in the right ribs/back area. A witness heard one of them yell: “IP bitches that’s what you get.” April 30, 2011 – aggravated assault, possessing a firearm without a licence, and using a firearm to commit an aggravated assault J.K.M. hit the complainant on the head with the butt of a gun, later shooting the same person with the gun in the left shoulder. It exited through the left chest beneath the clavicle. The injury was not life threatening. J.K.M. was intoxicated and it took place at a house party.

About a year after he was sentenced for the April 30, 2011 incident, J.K.M. volunteered that he was responsible for the further offences which occurred on March 1 st and 2 nd and April 26, 2011. He then received the consecutive 2 year closed custody and supervision

sentence in November 2012. Report and Written Information [ 14 ] The Court received and reviewed the following reports and written information: Mandatory Review Report s. 94(2) YCJA – Ms. Rhonda Woolsey, September 5, 2013 Custodial Progress Reports dated June 9, 2013 and August 21, 2013 Level System Guidelines – filed by youth worker, R. Woolsley, September 5, 2013 Record filed September 5, 2013 Letter – Dr. Donna Torrens, August 16, 2013 Psychological Assessment – Dr. Keira Stockdale, April 10, 2013 Psychological Assessment – Dr. M. Vandergoot, July 18, 2013 Psychiatric Report – Dr. D.

Quinn Letter to Star Phoenix Newspaper, History Has Impact – J.K. M., March 2013 Letter dated June 6, 2013 – Fr. André Poilievre Autobiography – J.K.M. Letter filed September 5, 2013 – Stan Tu’Inukuafe, social worker, Oskayak High School [ 15 ] The review report was prepared by a youth worker assigned to J.K.M.’s case sometime after July 22 nd . It is in a format similar to the pre-sentence report which incorporates a risk assessment tool; the Level of Service Inventory-SK Youth Ed (LSI-SK).

The report examined eight risk/need factors: criminal history, education/employment, family circumstances and parenting, leisure/ recreation, companions, pro-criminal attitude/orientation, substance abuse and antisocial pattern. These eight factors appear as headings in the report. There are five progressively increasing levels of risk to reoffend. It does not measure risk to reoffend violently. J.K.M. was assessed at the highest level of risk to reoffend.

At page 9 it states that the participation in services targeted to address the major risk factors can over time decrease the assessed level of risk and risk to reoffend. The major risk concerns identified are: criminal history, family circumstances/parenting, leisure/recreation, substance abuse and antisocial pattern. One strength area was identified: education/employment. [ 16 ] The report lists its sources of information. Notably they all pre-date May 6, 2013 and no one with anything other than a professional relationship with J.K.M. was listed. Fr. André Poilievre was rather surprisingly not included.

The information gap became apparent as the information provided by Fr.

André Poilievre and J.K.M. with respect to his departure from the “gang” and his progress with STR8 UP was not fully reflected. [ 17 ] Acknowledging that J.K.M.’s youth worker changed in the midst of the optional review, in attempting to synthesize information from a number of different sources, the review report can be difficult to follow insofar as point-in-time and current relevance. [ 18 ] The report turns to criminal history and refers to incident reports conveyed by the youth custody facilities concerning the period from January 18, 2010 to May 13, 2013.

Twenty-one of the twenty-six incidents pre-date the sentences that J.K.M. is now serving. Not surprisingly, very little detail is provided about these incidents, but it was noted that of the five remaining incidents, one of them includes a mischief offence from May 14, 2012, for which he was convicted and two other incidents refer to a “mass unit disruption”. [ 19 ] The most significant incident report concerns an assault on another youth while in custody in May 2013. J.K.M.’s counsel pointed out that he was not charged with a criminal offence.

The June 9, 2013 Custodial Progress Report simply describes it as an assault in which J.K.M. was the aggressor. There was a second incident in May during which J.K.M. was kicked in the head by another youth.

This altercation caused him to “lose his levels” for a time. The criticism of J.K.M. was that he should have backed down to avoid the confrontation. The report praises J.K.M.’s subsequent handling of the consequences. The review report discusses anger management deficits and notes that there have been no incidents of inappropriately expressed anger since May 2012. J.K.M. has been able to maintain his “levels” in the custody facility for long periods of time. [ 20 ] The report discussed J.K.M.’s family circumstances and parenting.

His mother has not attended the review hearings (she has been ill), she did attend Court when he was last sentenced. There has been increased phone contact between J.K.M. and his mother. He visited her in hospital on four occasions. He hopes she will be released from hospital at the end of October 2013. J.K.M.’s father died of an overdose when he was very young. [ 21 ] J.K.M. was in and out of his mother’s care from a young age due to concerns about substance abuse and neglect. He was placed in several foster homes and with extended family.

He has been in foster care full time since 2007, the year he turned eleven. He also lived in a number of group home settings in 2008 and 2009, before he was remanded into custody in June 2009 at age 12. But for a short period of time in March and April 2011, he has been in open or closed custody since June 2009. Placements in foster care and open custody tended to break down because J.K.M. developed a pattern of running back to family, his mother in particular.

Education, Recreation and Culture [ 22 ] J.K.M. has been working on his high school education while in closed custody, completing two grade levels between October 2012 and June 2013. He is certainly performing well past expectations. [ 23 ] J.K.M. has been participating in football and hockey while in custody. He has also been working with two mentors from the Saskatoon Tribal Council. [ 24 ] It would seem too that cultural activities have been a big part of J.K.M’s progress.

He has participated regularly in drumming, talking circles, sweats and meetings with elders and has encouraged other youth to become more involved in their culture. He has been meeting weekly with a pastor. He is artistically given and completed a mural for his unit. [ 25 ] The review report does acknowledge pro-social supports in his family including siblings and two aunts with whom he has enjoyed visits. He has shown a keen interest in maintaining contact with his family. He has immediate and extended family members who are gang affiliated or have criminal records.

He was denied visits with certain male family members who were alleged to have active legal involvement. J.K.M. spoke about contact with gang members. Of his friends and family who are associated with gangs, his interest in them is as friends and family. He said it’s difficult to meet anyone who is not gang-affiliated in custody. Surprisingly the review report states that there are no strong bonds indentified in the community with pro-social acquaintances or friends. His association with Fr.

André and Stan Tu’Inukuafe of STR8 UP certainly represent a strong pro-social bond. [ 26 ] The review report maintains that assessments for treatment for violence and addictions have not been completed and treatment has not progressed because of J.K.M.’s reticence in discussing the offence patterns with the specialists. Defence counsel maintained that J.K.M. doesn’t understand why things have not progressed. Counsel, relying upon the report of Dr.

Vandergoot, who indicated that the characteristics of his dual diagnosis of post traumatic stress disorder and conduct disorder explain the reticence, suggested that the professionals should have tried harder to work with him. [ 27 ] J.K.M.’s counsel criticized the approach taken by some of the professionals who offered programming; suggesting that they unnecessarily suspended work with J.K.M. while the Court awaited completion of reports as part of the optional review.

If that was the case, it was not the Court’s intent; rather the hope was that there would be a renewed opportunity and effort to engage in programming. The Court sought to better understand where the problems lay and what might be done about the difficulties with programming. Courage to Change [ 28 ] Apparently in response to the advice that his youth worker and the custodial facility would not be supporting his optional review, J.K.M. began working on a self directed learning program called Courage to Change (C2C) and completed it in August 2013.

Addictions [ 29 ] The information in the review report puts in doubt whether addictions is a current concern. J.K.M. met with Mel Sysing who

remarked that addiction is not a primary consideration and many offences were committed while lucid and not under the influence. The author of the report also indicated that J.K.M.’s motivation was unclear due to a lack of participation and an abrasive attitude. It concludes that the connection is at an impasse at the present moment; however it would appear that there was no further attempt nor was the question raised with J.K.M. for some time, possibly many months.

Antisocial Pattern and Completion of Assessments [ 30 ] The review report appears to be limited to the period ending at April 2013, with the exception of subsequent reports. With respect to risk to reoffend violently, it relies upon information obtained from Dr. Torrens, Dr. Vandergoot and Dr. Stockdale.

It remarks upon the failure to complete an assessment for antisocial pattern or risk for further violence, stating: J. has not yet fully participated in a specialized psychiatric assessment or specialized secondary assessment, despite previous orderings and recommendations, in order to identify an antisocial pattern or answer questions of risk for further violence according to the admitted record for violence. The Court was not aware of ordered assessments that had not been completed, save for an assessment by Dr. Nanson that was to have been completed in 2009 when he was 12 years of age.

The review report stated that the IRCS assessment/treatment plan and risk for further violence assessments were not completed because of J.K.M.’s failure to dialogue about the occurrences. These assessments were not undertaken as a result of a court order. According to the author of the review report, further or updated assessments may be completed in future if J.K.M. demonstrates a change in motivation. It was unclear to the Court if or how motivation was determined following Dr. Stockdale’s report of April 2013. J.K.M. cooperated fully with Dr. Vandergoot’s assessment and he resumed seeing Dr. Torrens.

Other Concerns/Client Issues [ 31 ] Under this heading and the further subheading “Intimidating/Controlling” the review report indicates that J.K.M. continues to operate behind the scenes influencing/controlling other youth on the unit. In speaking to the Court in September, J.K.M. maintained that he has tried to influence other youth in a positive way, especially in order to avoid problems that may result in a loss of privileges for the unit. With respect to all of the information conveyed including the custodial progress reports, I was not satisfied that J.K.M. exhibited intimidating controlling behaviour.

Escapes [ 32 ] The Crown’s concern that closed custody is necessary to prevent an escape was unfounded. The escapes in his history of convictions appear to have been tied to a desire to be closer to family, in particular his mother. It would also seem that they took place when he was 12 and 13 years of age, with the last entry on his record being in November of 2010. Circumstances have changed. Custodial Progress Reports [ 33 ] There are two reports, dated June 9 and August 21, 2013. These reports are apparently prepared every three months and they follow the same format.

They are repetitious and one has to carefully compare each to give the content a point-in-time. Some of the information has been referred to under specific headings in the body of this decision. The report is really quite strong in the area of J.K.M.’s leisure and recreation activities. Both reports indicate that he has not engaged in any negative peer activity since his move to the West Unit. Indeed he has exemplified positive leadership qualities.

The report confirms that he has agreed to a referral to the High Risk Violent Young Offender Initiative and that he has been working with psychologist Donna Torrens since May 24, 2013. As of August 21 st they have met about six times. Dr. Quinn’s Report of August 20, 2013 [ 34 ] Dr. Quinn acknowledged the Court’s request that he determine if there was a mood disorder and did not identify a problem with depression. He screened for problems such as ADHD, Oppositional Defiant Disorder and Conduct Disorder and mentioned the self- report conducted as well as a discussion with an aunt. Dr.

Quinn questioned J.K.M.’s level of insight and asked to continue his evaluation by way of a follow up and further information gathering. He undertook to make it available in six weeks time. Dr. Stockdale’s Psychological Assessment of April 10, 2013 [ 35 ] The report summarizes and concludes: J. (age 16) was referred for an IRCS (Part

C) Psychological Assessment. The assessment process was interrupted by J. confessing to new violent charges for which he was subsequently convicted. J. has declined to discuss both the original and new offences with the writer. While he has prepared and shared a detailed autobiography which includes offence- related material, the dynamics associated with past violence could not be explored with J. Consequently, neither a comprehensive violence risk

assessment, nor a detailed treatment plan, could be advanced as part of the current assessment. As such, it is unclear how best to proceed in this case. Preliminary recommendations have been advanced and an updated assessment could be requested at a future date. Under the heading, Offence Dynamics, Dr. Stockdale refers to an autobiography provided to her by J.K.M. It was not certain that she was reviewing the same autobiography provided to the Court.

However the discussion of a number of incidents appears to be in reference to the offences and their sentences which are currently under review. [ 36 ] With respect to addictions, based on a self-report screening, Dr. Stockdale concluded that J.K.M.’s scores suggest a high probability of substance dependence. [ 37 ] Dr. Stockdale discussed J.K.M.’s willingness to participate in IRCS (intensive rehabilitative custody and supervision - see s. 42(7) of the YCJA ) programming.

J.K.M. verbalized a willingness to participate in IRCS programming; however, he had refused to participate in violence-specific treatment in the past. Accordingly efforts were made to tailor treatment interventions to suit his stated preferences. He was referred to a male therapist, Mr. Mel Sysing of Forensic Substance Management, though he denied significant problems regarding substance use. Dr. Stockdale wrote that Mr. Sysing reported that it has been difficult to develop joint treatment goals and J.K.M’s motivation for treatment remained unclear.

She noted that after becoming involved in STR8 UP that J.K.M. stated a preference to be involved in group-based programming as opposed to one-to-one intervention. [ 38 ] Finally Dr. Stockdale suggested that J.K.M.’s level of engagement appeared consistent with being in the pre-contemplation stage of change. She suggested that he may derive greater motivation from external events such as legal reviews, than intrinsic factors such as a desire to change. Dr. Stockdale stated that the preparation of the autobiography could be viewed as an important first step in the process of change. [ 39 ] Dr.

Stockdale gave a number of recommendations, that I have attempted to summarize as follows: 1. High level of structure and supervision to assist in risk management, 2. Caution regarding group-based programming, 3. Recommended individualized forensic treatment services initially to address treatment readiness and therapy-interfering behaviours, 4. Offering support without threatening independence with clear goals and external rewards, 5. A positive team approach so as to avoid the tendency to withdraw, 6. Support for J.K.M.’s cultural interests, 7.

Support for positive extended family involvement in planning, and 8. Referral to a physician for medication to address his irritable mood. Dr. Vandergoot’s Report of July 18, 2013 [ 40 ] Dr. Vandergoot noted that he has been characterized as resisting previous attempts to engage him in assessments and treatment. She acknowledged his autobiography; a requirement of involvement in the STR8 UP program which entails a four year commitment to embrace a positive and healthy lifestyle. She noted this remark about the STR8 UP program in the autobiography: “Now I’m among them, I am among people who truly understand me.

Not with a gang or set, but doing me, myself and I.” [ 41 ] Dr. Vandergoot did not accept Dr. Stockdale’s assessment that J.K.M. is “working the system”. Rather, she found him to be completely unaware of how he might “use the system” to his advantage. She did not see his release of the autobiography to necessarily have been in his best interests because it is open to

interpretation. She questioned his understanding of the purpose of treatment and the consequences of failing to fully cooperate. She questioned his understanding of the processes pertaining to programs being offered and noted his concern that he will be tricked into saying something that will be used against him. She reminded those working with J.K.M. that he has been socialized, used, betrayed and highly institutionalized, in-between periods of victimization and high risk lifestyle.

She depicted someone with a limited set of life skills and social interaction skills, noting that “When put on the spot to explain concepts and social concepts he often freezes and has little experience to draw on.” He could vacillate between being over-controlled and under- controlled. [ 42 ] Finally, she spoke about relationships, remarking specifically on the current meaningful relationships with Fr. André and cultural mentors. While noting that he struggles to get close to people and trust them, she questioned whether the many workers and

mental health professionals over the years tried hard enough, wondering: “Who really cares about Mr. M.?” [ 43 ] Surprisingly, Dr. Vandergoot remarked at page 3 of her report: Mr. M. has had several previous psychological reports as noted above. To date he has not been given a psychological/psychiatric diagnosis. Thus, he does not as far as I can see have a previous diagnosis of mental disorder. It should be noted that Dr. Quinn provided a report in response to the Court’s request for assessment as to mood disorder and has undertaken to provide a follow-up report. [ 44 ] In any event, Dr.

Vandergoot adopted a very methodical and thorough approach, referring to page 8 of her report. She administered a number of tests. His overall intellectual functioning fell in the low average range. She noted with respect to a verbal comprehension subtest that he “struggled to explain common social issues and demonstrate social judgement. . . For example, he struggled to define the word remorse”.

With respect to Attention, Memory, and Executive Functioning, and a subtest called “Theory of Mind” she found that his overall performance fell in the “borderline range, suggesting mild impairment in understanding other’s perspectives (2 nd to 10 th percentile), particularly when context cues are not provided.” [ 45 ] Dr.

Vandergoot provided the following diagnostic formulation: DSM-5 Mental disorders 312.81 Conduct Disorder, Childhood-Onset Type, with limited prosocial emotions (limited expression of remorse or empathy) 309.81 Posttraumatic Stress Disorder 305.90 Unspecified Substance Use Disorder (in remission, extensive history of use of various substances) [ 46 ] Dr.

Vandergoot, at page 20, explained the significance of conduct disorder and posttraumatic stress disorder insofar as prognosis and treatment amenability: It must be recognized that there is a basic confound between the nature of mental disorders such as PTSD and CD. With PTSD avoidance is a primary threat to treatment motivation, adherence, and prognosis. The anxiety-related and fear based etiology of the disorder means that individuals want to avoid talking, thinking, and feeling related to events, that are similar or related to the trauma.

Motivation for treatment may thus appear low, particularly for younger clients who are more limited in their insight and maturity level. With Conduct Disorder poor insight, distorted thinking, and low capacity for intrinsic motivation are typically core to the disorder itself. By nature, Conduct Disorder, is a kind of a “disorder of treatment amenability”. Individuals with both disorder(

s) are doubly difficult to engage in treatment and to keep in treatment. Treatment is painful and confusing for them. Sessions will be stormy and slow. Persistent, commitment, and tenacity on the part of the therapist will be needed. The lower the level of insight, the more incentives must be provided. Concrete and meaningful incentives will be the only way to reliably engage Mr. M. in the treatment process. [ 47 ] Dr.

Vandergoot continued by recommending a team approach, release to open custody and attendance at a regular high school: Behavioural planning should be done using a team approach as this is the only way to surround the client with an interpretable set of consistent supports and develop a set of concrete goals the client can buy into. In my view, this type of behavioural planning can only begin when Mr. M. gets something he truly wants, which currently are twofold (1) open custody, and (2) attending a regular high school. . .

She recommended stringent controls while in open custody. [ 48 ] She assessed J.K.M. to be in the High Offender Range on the Risk for Dangerousness scale and assessed him with respect to Treatment Amenability to be in the Middle Offender Range . [ 49 ] She remarked that higher intelligence is correlated with better outcomes insofar as treatment amenability and made a number of treatment suggestions, including advice “that Conduct Disorder can be treated successfully with medication . . . because of the underlying constellation of symptoms related to aggressive behaviours, cognitive distortions, and impulse control issues.”

Dr. Torrens’ Report of August 16, 2013 [ 50 ] Dr. Torrens suspended her work with J.K.M. that had begun in May 24, 2013, while Dr. Vandergoot was completing her assessment. [ 51 ] She concurred with Dr. Vandergoot’s assessment that J.K.M. is at a high risk for future violence without intervention and that he suffers from Conduct Disorder, Posttraumatic Stress Disorder and Unspecified Substance Use Disorder. She agreed that J.K.M. has “major trust issues and a history of being hard to engage in treatment.” [ 52 ] Dr.

Torrens expressed the willingness to continue to work with J.K.M. and confirmed his willingness to work with her. She elaborated upon the difficulty of engaging him in treatment. She pointedly did not agree with Dr. Vandergoot’s suggestion that he be allowed to go to open custody and attend a high school in the community. She believes that he should demonstrate treatment gains before granting his wish. Fr. André Poilievre and STR8 UP [ 53 ] On June 5, 2013, Fr. André and J.K.M. spoke at the optional review hearing.

J.K.M. reported that until last year, he didn’t want to open up about personal matters or participate in programs. While he still finds it very uncomfortable, he said that his work with STR8 UP, which began in October 2012, has given him some of the tools that he needs to trust and talk about difficult subjects. He has been learning from Fr. André and Stan Tu’Inukuafe (Oskayak social worker) how to live in a pro-social way. He told the Court that he has dropped his gang affiliations. [ 54 ] The Crown and the author of the review report were not convinced that J.K.M. has dropped the gang way of life. Fr.

André satisfied the Court when he spoke in June and again in September that J.K.M. has indeed left the gang lifestyle behind. [ 55 ] In June, Fr. André advised the Court that he has known J.K.M.’s family for 25 years. He said that J.K.M. comes from a family that is “really hurting and broken apart”. His decision to join STR8 UP has had a positive influence on an older brother who joined STR8 UP this spring. J.K.M., according to Fr. André has been having a ripple effect on others around him in a positive way. [ 56 ] J.K.M. did not take to STR8 UP right away.

Initially he thought the people in STR8 UP were phonies and sell outs. Over time, he read the STR8 UP book and it helped trigger his request to speak with Fr. André. They have been meeting two to three times each month. Fr. André enjoys being with him and watching him grow to become a very different person. In the time that he has known him their conversations have changed; expanding greatly from the initial two minute talk. He has expressed a desire to learn other languages including Cree and Spanish. Fr. André brings him books and describes him as an avid reader. [ 57 ] When Fr.

André spoke to the Court again on September 5 th , J.K.M. became visibly moved. Fr. André talked about the significance of the autobiography, his commitment to STR8 UP and to leaving the gang way of life. About a month earlier, J.K.M. participated in a STR8 UP presentation, publicly telling his life story. There were about 35 young people present in addition to the staff at the closed custody facility. Fr. André described it as an unbelievable and very powerful moment. [ 58 ] Fr.

André suggested that J.K.M.’s risk level has changed and he no longer regards him as a high risk to reoffend, stating however that life on the street will be the only true measure. [ 59 ] He described J.K.M. as a “born leader” but acknowledged that he lacks the social skills that go with good leadership. He was of the view that he can’t learn those things in Kilburn. [ 60 ] Fr. André agreed that J.K.M. argues with staff; he argues with him, but he spoke with admiration that he is capable of stating his position and believes that he will learn to be more diplomatic.

In this vein, the Court received a clipping from the Star Phoenix newspaper, dated in March 2013; an opinion letter written by J.K.M. [ 61 ] Fr. André described the process of going from being an active gang member to becoming a responsible citizen, as 10,000 little steps and phases. J.K.M. has left the gang and is currently feeling like he’s in a vacuum. He has left friends and broken relationships behind and he needs to re-establish relationships; hence the desire to go to school in the community. He will go through the process of

rebuilding which includes maintaining sobriety and getting a job. He will need supports and he has minimal healthy supports but he does have STR8 UP and that includes him and Stan Tu’Inukuafe, a counselor at Oskayak High School and volunteer for STR8 UP. [ 62 ] Fr. André did identify positive family supports in his aunt and uncle with whom he lived for four years. The Young Person’s Perspective [ 63 ] J.K.M. shared the autobiography that he prepared as a condition of participating in STR8 UP and leaving the gang way of life. He spoke eloquently and from the heart.

He expressed disappointment that the facility workers do not want to believe that he has left the gang and is trying to change. He endeavoured to explain, much as he did in his autobiography, how he came to become involved in crime and the gang way of life. He told the Court that it started when he was 6 or 7 years of age after he saw his mother overdose. It must be remembered that he witnessed his father overdose and die when he was 4 years old. After his mother’s overdose, he ran to the only place he knew to go; to a gang member.

He had no Dad, no Mom to rely upon and didn’t live with his brothers and sisters. [ 64 ] He responded to the concern expressed by Kilburn staff that he is influencing other youth in the facility behind the scenes. He said that he has stopped things from happening so that they wouldn’t miss out on cultural events; he has been using his influence in a positive, not a negative way, as was implied. [ 65 ] He tried to explain his relationships with people who are family and friends who are seen as a “bad influence” because of their criminal lifestyle and gang involvement.

He has seen family and friends die fighting for people they cared about. These people will always be family. He does wish to have pro-social friends but despairs of suggestions that he do so from closed custody. When asked, he said that all of the people on his unit have been or are in a gang; but he is proud to say that he is not in a gang. [ 66 ] J.K.M. spoke of his regrets. He expressed remorse. While he says that the gang mentality led him to commit crime, he doesn’t blame the gang. He said he has hurt people physically and psychologically.

He knows that he should have done things differently; he can’t justify it and he is sorry for it all, not just the victims that he hurt but their families too. [ 67 ] He acknowledged the feeling of isolation that Fr. André spoke about. He can’t hold a conversation with his mother and sister over the phone; he has difficulty thinking of things to say. He is feeling isolated from everything he has known. [ 68 ] J.K.M. committed to continue to work on his self improvement whether in open or closed custody.

While he does not have faith in psychologists, he is trying to put forth an effort and hopes to see, “what we see in it”. He is prepared to work with anyone who will take the time. He commented upon the lack of consistency with workers during his sentence: four youth workers, three family service workers and five or six facility workers as well as a number of psychologists.

He acknowledged his difficulty in opening up to strangers but insisted that he is trying. [ 69 ] He expressed surprise that he has been said to be lacking in pro-social supports and named John from Saskatoon Tribal Council and Stan Tu’Inukuafe from Oskayak and STR8 UP but hopes to be in open custody to develop pro-social peers. Discussion of the Law Jurisdiction: The Youth Criminal Justice Act and the Young Offenders Act [ 70 ] Reviews of sentence are brought pursuant to s. 94 of the YCJA , the most pertinent portions of which are set out below: Annual review -- s. 94(2)

(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. . . . Grounds for review -- s. 94(6)

(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. . . . Decision of the youth justice court after review -- s. 94(19)

(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. [ 71 ] This Court has the jurisdiction to adjust the level of custody by virtue of Order in Council #203 of 2003 and incorporation of provisions of the former Young Offenders Act, as set out in s. 88 of the YCJA , which provides: Functions to be exercised by youth justice court -- s. 88 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. [ 72 ] Pertinent provisions of the YOA , referred to in s. 88 of the YCJA are discussed below.

Section 24.1(4) sets out the factors for determining whether open or closed custody is appropriate: Factors

(4) In deciding whether a young person shall be placed in open custody or secure custody, the youth court or the provincial director shall take into account the following factors: (

a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to (

i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed, (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services, (iii) the safety of other young persons in custody, and (iv) the interests of society; (

b) that the level of custody should allow for the best possible match of programs to the young person's needs and behaviour, having regard to the findings of any assessment in respect of the young person; (

c) the likelihood of escape if the young person is placed in open custody; and (

d) the recommendations, if any, of the youth court or the provincial director, as the case may be.

These factors are almost identical to the factors for determining the level of custody under s. 85 of the YCJA and are applicable had the provincial director been given the jurisdiction to determine the level of custody. [ 73 ]

Section 28 of the YOA addresses review of disposition involving custody in much the same way as s. 94 addresses a review of a sentence involving custody under the YCJA. The obvious distinction is that s. 28(17) addresses the level of custody as well: Decision of the youth court after review

(17) 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. See R. v. R.K.M ., infra and R. v. W.J.C., infra, concerning this jurisdiction. Principles and Purpose [ 74 ]

Section 3 of the YCJA has general application over all decisions under the YCJA. The Act specifically requires reference to s. 3 principles when making a decision of this nature. See s. 83(2), infra and R. v. T.V., infra at paragraph

Section 3 is set out below: 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [ 75 ] It would seem that

section 83 of the YCJA, which addresses the purpose of custody and supervision sentences has application: 83.

(1) The purpose of the youth custody and supervision system is to contribute to the protection of society by (

a) carrying out sentences imposed by courts through the safe, fair and humane custody and supervision of young persons; and (

b) assisting young persons to be rehabilitated and reintegrated into the community as law- abiding citizens, by providing effective programs to young persons in custody and while under supervision in the community.

(2) In addition to the principles set out in

section 3, the following principles are to be used in achieving that purpose: (

a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used; (

b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as a consequence of a sentence under this Act or another Act of Parliament; (

c) that the youth custody and supervision system facilitate the involvement of the families of young persons and members of the public; (

d) that custody and supervision decisions be made in a forthright, fair and timely manner, and that young persons have access to an effective review procedure; and (

e) that placements of young persons where they are treated as adults not disadvantage them with respect to their eligibility for and conditions of release. [ 76 ] The young person bears the burden of proof on a balance of probabilities in an application for review. See R. v. R.K.M., supra , at paragraph 10. [ 77 ] In addition to R. v. R.K.M., supra , I reviewed: R. v. D.B. , 2008 SCC 25 R. v. W.J.C. , 2008 MBCA 11 R. v. J.P ., 2013 SKPC 110 R. v. M.T ., [1995] Y.J. No. 6 R. v. T.V ., [2010] N.J. No. 316

[ 78 ] R. v. D.B. , supra, provides the context in which the provisions of the YCJA are to be interpreted. This decision of the Supreme Court of Canada, which was directly concerned with the constitutionality of the presumptive provisions of the YCJA , addressed the fundamental principle and presumption of diminished moral blameworthiness or culpability of young persons. At pages 3 and 4 the Court wrote: . . .

The principle of fundamental justice at issue here is that young people are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment. That is why there is a separate legal and sentencing regime for them . . .

The legislative history of the youth criminal justice system in Canada confirms that the presumption of diminished moral culpability for young persons is a long-standing legal principle that has consistently been acknowledged in all of the YCJA ’s statutory predecessors. This principle also finds expression in Canada’s international commitments, in particular the UN Convention on the Rights of the Child . Secondly, there is consensus that the principle is fundamental to the operation of a fair legal system. It is widely acknowledged that age plays a role in the development of judgment and moral sophistication.

Courts too have acknowledged the reality of reduced moral culpability on the part of young people. [ 79 ] R. v. W.J.C. , supra , addresses the jurisdiction of the youth justice court to review the level of custody and points out that s. 37(11) provides that there is no right of appeal: No appeal from youth sentence on review

(11) No appeal lies from a youth sentence under

section 59 or any of sections 94 to 96. [ 80 ] R. v. M.T., supra, a decision of Stuart J., referred to in R. v. R.K.M., supra, was written before the proclamation of the YCJA. While it continues to be persuasive, it has somewhat limited application as it does not contemplate the principles applicable to all decisions under the YCJA which are set out in

section 3, supra . It is a decision based strictly upon the provisions of the YOA , some of which the YCJA incorporates by reference in the review of custodial sentences. R. v. M.T. was referred to by Justice Mills in R. v. R.K.M., supra, specifically with respect to the discussion as to the type of evidence which might be presented in custody reviews under the YOA : 38 . . . To give proper consideration to the needs of the young offender and the interests of society, a full presentation of all circumstances encompassing both will be required. In the very least, evidence must include: (

i) the input of persons with requisite expertise, to provide a proper evaluation about the motivation and ability of the young offender to be rehabilitated; (ii) all measures should be taken to encourage and prepare the young offender to speak directly to the court of their own intentions, objectives and observations of the crime and of the victim; (iii) whenever possible, the victim should be encouraged to directly participate, and if not directly, the victim’s interests should be made known in another manner; (iv) the suitability and availability of services or programs providing alternatives to custody; (

v) evidence of risks to the victim or public arising from a change in the sentence; (vi) the basis, nature and kind of community and family support; (vii) details of a proposed plan to change the existing sentence. [ 81 ] R. v. M.T., supra, underscored that the purpose of a sentence review is distinct from an appeal or crafting the original sentence which must be taken to have been appropriate, at paragraph 13: 13 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 moulding 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. [ 82 ] In R. v.

T.V., supra , Gorman J. weighed the risk of escape against other factors and found that other factors supported a review to open custody. [ 83 ] In R. v. J.P ., supra, Tomkins J. reviewed a youth sentence from closed to open custody. She discussed the balance that must be struck between the needs of the young person and that of society, beginning at paragraph 62:

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.

Discussion and Decision The Purpose and Principles of the YCJA [ 84 ] One must first look to the overarching principles of the YCJA expressed in s. 3, which is to be liberally construed. There are several themes that emerge which are most pertinent to J.K.M.’s request that he be moved from closed to open custody for the balance of his sentence. [ 85 ] The YCJA is intended to prevent crime by addressing the underlying circumstances of the offending behaviour, rehabilitate, reintegrate, and ensure meaningful consequences, in order to promote the long term protection of the public.

The goals of rehabilitation and reintegration are paired; suggesting that one may not be achieved without the other; indeed that would appear to be the primary goal of the custodial sentencing scheme, combining as it does, custody with supervision.

Very soon J.K.M. will join the general public, at first on community supervision while he continues to serve out his sentence, and provided he is successful, later as a member of society without anything but the ordinary restrictions to which we all must adhere. [ 86 ] The Court was advised that J.K.M. has been in a form of custody, apart from two months in 2011 when the aggravated assault incidents occurred, since June 2009 when he was 12 years old. Prior to that he lived in a number of institutional settings while in the care of the Ministry of Social Services, including Ranch Ehrlo and the Red Willow Centre.

He is 16 now and will be 18 when his sentences conclude in September 2015. [ 87 ] According to Dr. Vandergoot, J.K.M. is under-socialized. She wrote at page 22 of her report: . . . I thought his psychosocial maturity was at an early teen level, despite capabilities intellectually and academically. I also noted that his social interaction skills, conversational skills, and pragmatic abilities were very immature for his age.

The psychosocial immaturity is often seen in youth with Conduct Disorder, Substance Use Disorder, and PTSD. . . [ 88 ] J.K.M. wishes to go to school in the community from open custody so that he may meet pro-social peers. Both he and Fr. André made the observation that pro-social relationships cannot be formed in closed custody.

This is significant to two of the eight risk/need factors which are fundamental to the LSI-SK and enumerated in the review report: leisure/recreation and companions. [ 89 ] Young persons are to be kept separate from adults, emphasizing rehabilitation and reintegration, and fair and proportionate accountability, consistent with their greater dependency. This principle serves to underscore the importance of recognizing J.K.M.’s level of dependency and lack of maturity.

Indeed while he has been described as socially immature, much of the information about his functioning in the closed custody setting suggests that he is developing more maturity especially with respect to the significant reduction in incident reports and his participation in school, sports and cultural activities. His participation in STR8 UP is also evidence of this. [ 90 ] Within the limits of fair and proportionate accountability, measures taken against young offenders must be meaningful and where appropriate involve parents, family, persons and community in his rehabilitation and reintegration.

Measures should also respond to the needs of aboriginal young persons. This is most appropriate to the discussion about amenability to treatment and the role of STR8 UP and his relationship with Fr. André. STR8 UP is a community based organization that helps young people leave the gang lifestyle. For a young person like J.K.M. who became entrenched in the gang life at a very early age, something more powerful is needed to replace what has been family. STR8 UP offers acceptance, understanding and pro-social modeling. Fr. André is a pro-social adult in whom J.K.M. has placed his trust. His work with Fr.

André has been key to his willingness to work with the psychologists. J.K.M. has demonstrated the importance of culture to his personal development, witnessed by his faithful participation in cultural activities while in custody. Participation in STR8 UP is analogous to cultural activity as it represents positive activity in a setting with which he strongly identifies. Grounds for Review [ 91 ] Pursuant to s. 94(6) of the YCJA , a court may review the sentence provided it finds that one of the enumerated grounds is present. Two grounds are present: (

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

d) the opportunities for rehabilitation are now greater in the community. While there are valid concerns about the failure to embrace formal

programs offered with respect to the risk of violence, J.K.M. has, nonetheless made phenomenal progress through his participation in STR8 UP and departure from the gang lifestyle. This must be considered in the context of the very early age at which he became part of a gang and his entrenchment in the gang life which included leadership of a gang which he founded. [ 92 ] While there had been very significant progress, it is limited in part by a need for greater socialization among pro-social peers in a community high school setting.

It must be remembered that he has been living in a very unnatural setting in open or closed custody almost continuously since he was 12 years of age. J.K.M. has demonstrated considerable drive and interest in achieving his grade 12. He has been participating in sporting and cultural activities within the institution. These are very pro-social activities but the best training ground would be in the community.

He has expressed a desire to go to Oskayak High School and has the support of Stan Tu’Inukuafe, an Oskayak social worker and role model in STR8 UP, who wrote to the Court: Because of J.’s commitment to the goals and objectives of STR8 UP and the various supports we offer at Oskayak (i.e. sharing circles, A.A./N.A. meetings, cultural programs etc. . .), I am confident that J. can be successful at Oskayak.

Factors for Determining Open or Closed Custody [ 93 ] The factors for consideration of the appropriate level of custody, set out above, will be discussed with a view to the balance that this Court endeavoured to strike. With reference to s. 24.1 of the YOA , the appropriate level of custody may be arrived at having regard to the following: (

a) placed in a custody level with the least degree of containment, having regard to: (

i) the seriousness of the offences and the circumstances of the offences [ 94 ] The number and circumstances of the offences are very grave. This young person shot three people and shot at and struck another with a firearm. He pointed a firearm and threatened to use it. (ii) the needs and circumstances of the young person [ 95 ] J.K.M. has many needs, having experienced a very difficult upbringing which drew him into gang life at a very early age. His needs are being met only in

part in closed custody. It has been suggested by one of the psychologists who examined and diagnosed him with PTSD and CD that his needs would be served if he were allowed to serve the balance of his sentence in open custody. (iii) the safety of other young persons in custody [ 96 ] This factor is not applicable. (iv) the interests of society [ 97 ] The Crown argued that the risk to reoffend violently has not been satisfactorily addressed by the young person and he therefore presents as an unacceptable risk to society.

Further the Crown argued that J.K.M. has demonstrated a propensity to escape and therefore open custody is not sufficiently secure to protect society’s interests. Escape was not found to be a valid concern. The author of the review report attributed the running behaviour to the desire of a child to be reunited with family. J.K.M. is considerably older then he was at the time of his last escape for which he was sentenced in November 2010 when he was 13 years old and his family circumstances have changed dramatically.

His mother is currently hospitalized and is seriously ill. [ 98 ] Addiction has been raised as a concern but the advice to the Court was that he has had no access to alcohol and has not taken any drugs while he has been in custody. Most of the offences for which he was sentenced were committed in the absence of any influences from drugs or alcohol. The addictions counsellor who worked with him did not believe addictions to be a primary factor.

[ 99 ] The most compelling concern has been the risk to reoffend violently. This is a valid concern, particularly when J.K.M. has not actively engaged in the targeted programming offered to him within the institution. Having said that, there has not been sufficient recognition by the service providers of the tremendous steps that J.K.M. has taken and like Fr. André, the Court places considerable weight on the growth that he has achieved working with STR8 UP and the initiatives taken in the areas of education and cultural activities.

He enjoys art, having painted a mural for all to enjoy in his unit, he has shown an interest in reading and acquiring other languages, and he has been active in sporting activities.

Significantly, he has shown leadership in influencing others in a positive way, away from gangs and toward more cooperative approaches on the unit. [ 100 ] Acknowledging the concerns for public protection, knowing that he will be released into the community, open custody is a more effective and controlled transition, rather than a move straight from closed custody into the community under supervision. [ 101 ] One of the most significant protective factors is the degree of supervision and control available to the provincial director in the open custody setting.

Sections 24.2(9) and (11) of the YOA , incorporated into the YCJA pursuant to s. 88 of the Act give the provincial director considerable discretion to return a young person to a closed custody setting, set out below: Exception - transfer to secure custody - youth court

(9) Where a young person is placed in open custody pursuant to subsection 24.1(2), the provincial director may transfer the young person from a place or facility of open custody to a place or facility of secure custody for a period not exceeding fifteen days if (

a) the young person escapes or attempts to escape lawful custody; or (

b) the transfer is, in the opinion of the provincial director, necessary for the safety of the young person or the safety of others in the place or facility of open custody. Transfer to secure custody - provincial director

(11) The provincial director may transfer a young person from a place or facility of open custody to a place or facility of secure custody when the provincial director is satisfied that the needs of the young person and the interests of society would be better served thereby (

a) having considered the factors set out in subsection 24.1(4); and (

b) having determined that there has been a material change in circumstances since the young person was placed in open custody. These provisions, together with in custody Level System Guidelines , filed with the Court provide the provincial director with considerable latitude of the kind envisaged by Dr. Vandergoot when she recommended strictly supervised open custody. (

b) that the custody level allow for the best possible match of programs to the young person's needs and behaviour, having regard to any assessment of the young person [ 102 ] The programming with respect to the risk of violence may be offered in either the closed or open custody setting. Open custody is a better match for reintegration as envisaged by J.K.M. such that he may attend high school in the community and meet pro-social peers. (

c) the likelihood of escape if placed in open custody [ 103 ] This has been addressed above and is not considered to be a significant concern.

(

d) the recommendations of the provincial director [ 104 ] The Court gave a great deal of thought and consideration to the recommendations of the provincial director before making the decision to review the sentence to open custody. [ 105 ] Based on the foregoing, the Court ruled that J.K.M.’s closed custody sentence be converted to open custody. ___________________________ S.P. Whelan, J