R. v. K.M., 2016 ONCJ 541

COURT FILE No.: Toronto DATE: 2014.06.29 CITATION: R. v. K.M. , 2016 ONCJ 541 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — and — K.M. Before Justice Fergus ODonnell Reasons for Judgment Delivered on 29 June, 2016 Mr. D. Wright....................................................................................................... for the Crown Mr. V. Scaramuzza............................................................................ for the defendant, K.M.

Notice Pursuant to s. 111(1) of the Youth Criminal Justice Act, no information from the following reasons that names or has the potential to identify the defendant shall be published, insofar as these reasons divulge that the defendant, while a young person was the victim of an offence allegedly committed by another young person. [1] Fergus ODonnell, J: The Offence 1. A young man tries to end his own life. He fails in the attempt. He is charged with a criminal offence as a result of the attempt. He pleads guilty.

The Crown says that the offence could easily justify a sentence of actual imprisonment and certainly should result in a criminal conviction and a conditional sentence of imprisonment. The defence seeks a conditional discharge. What is the fitting sentence? 2 . It has been almost a century and a quarter, of course, since the act of attempting suicide has been an offence in Canada; as of the writing of these reasons there is not even any legislated framework to govern those who assist in a suicide in Canada.

The young man’s crime was not trying to kill himself, but rather the means he used in the attempt, known in the vernacular as “suicide by cop”. The offence he has pleaded guilty to is the offence of conveying a false message contrary to s. 372 of the Criminal Code . The Crown has proceeded by indictment. The maximum sentence for the offence is thus two years’ imprisonment. 3 .

Section 372 of the Criminal Code makes it an offence to convey false information by means of a telecommunication, with intent to injure or alarm a person. What happened in the present case is that on 18 June, 2015, when he was nineteen years old, the defendant, KM, placed a 911 call. He described a young man at a community centre who had a gun in a gym bag. He gave a detailed description of the young man. The description was of himself. He said that the gun looked extremely real. Most of this

was true. There was a young man at the community centre, KM himself. He matched the description given. He had a gym bag. The falsehood in the message lay in the assertion that the young man had a gun. 4 . That such a call would cause alarm on the part of the responding police officers is beyond gainsaying. It was KM’s intention to cause that alarm and by his conduct thereafter to bring about his own death at the hands of the police officers in whose minds he set about to create the false image of an armed person creating an imminent risk of mortal harm to them and to others in the vicinity. 5 .

The members of the Toronto Police Service who responded to KM’s 911 call are the heroes of this piece. Cases in which police interactions with emotionally disturbed citizens result in fatality understandably result in exacting scrutiny. One suspects that many are the cases such as this in which the police response leads to a much better outcome and to no headlines. The police response time here was as laudable as was their response. They were on scene within a minute. They saw KM, matching his own description of himself. He reached into his bag and pointed it at the officers.

Unsurprisingly, they drew their firearms. They did not, however, fire. KM ran. When he was cornered by a fence he turned, reached in to “the gun” and pointed the bag at the officers again. KM was faced with six armed officers. By this time they were in a park, with no cover to resort to. They did not fire, even though based on the information they had they were in mortal danger. 6 . Instead, the officers sought to de-escalate the situation. They offered to put away their firearms if he put down the bag. Bystanders told him to comply. In time, the officers got KM to put the bag down and surrender.

On his arrest they discovered that there was no gun. Once they were back at the station, the officers called the anonymous person who had called 911 to assist them in dealing with the person with “the gun”. It was KM’s phone in the property bag that rang when they made that call. The Offender 7 . As I have mentioned, KM was nineteen years old at the time of the offence. He is now twenty. He has no previous criminal record. He has pleaded guilty and his intention to plead guilty has been known from a very early stage.

The process has taken a bit of time in light of a change of counsel and in light of the time required to obtain a mental health assessment of KM. I have been provided with a very detailed report by Dr. Michael Colleton, a forensic psychiatrist, along with the foundation documents provided to him for that report. I have also been provided with a pre-sentence report. 8. KM is the second youngest of five children. His parents split when he was a child and contact with his father effectively ceased when KM was eight years old. His relationship with his father was not close.

Neither was his relationship with his mother, although it is clear that she has worked hard to improve her lot in life and to provide for five children on her own and she and KM now have a good and supportive relationship. KM described his childhood as neither uniformly happy nor unhappy, there were good points and low points. He was aware of his mother being on the receiving end of domestic violence at the hands of his father, but there was no suggestion that he was on the receiving end of any physical abuse himself, at least not at the hands of his parents.

As a child, family members including his mother mocked him for being overweight. 9 . KM has a history of being employed in the summers since grade nine. He has also worked as a mentor and support worker at a youth shelter, work that he described as fulfilling. He has not typically worked during the school year as his mother wanted him to focus on his academics, feeling that marks below an A or A+ meant there was room for improvement. He did not disappoint, achieving a grade 12 average of 89%, which earned him two university scholarships.

He started the academic year that ended with this offence in a concurrent B.A. and B.Ed. programme and was doing reasonably well in that programme until the spring of 2015, which was towards the end of his first year. He dropped out of that programme a couple of months before this offence. 10 . I have referred to KM not being the object of physical abuse at the hands of his parents.

It is important to note, however, that when he was in grade one there was a period of about two months when he was allegedly the object of a number of occasions of sexual abuse at the hands of his elder brother, who is about ten years his senior. KM was unwilling to discuss the particulars of this incident with Dr. Colleton (KM appears to be a fairly private person in general). That incident, however, appears to have been the trigger for the present offence. In late 2014, KM went out drinking. When he returned home he raised the sexual abuse issue with his brother, apparently for the first time.

His brother acknowledged it happened and said they could work past it, but for KM this seemed to be the onset of depression. Dr. Colleton described KM’s symptoms over the next several months as typical of “clinically significant depression”. While KM continued to perform well academically for the first semester, his emotional state by the start of the spring of 2015 was such that he had difficulty even attending class as a result of anxiety and self-doubt. By April, 2015 he was having trouble getting out of bed. He withdrew from first year in April, 2015 as a result. [2] 11 .

His brother found KM a therapist, but seemed concerned about the sexual abuse coming to light; at that time nobody else in the family knew what had happened in grade one. KM attended with the therapist for a handful of sessions and disclosed suicidal thinking. When KM discontinued his sessions, in April, the therapist notified the family, for fear that the termination of therapy was a prelude to KM acting on his suicidal thoughts. Unaware of his whereabouts the day they were notified, the family called the police, who located him and spoke to him. He attended hospital but was not admitted.

Between then and the offence, KM’s emotional state declined further. This decline included what I would call opportunistic contemplation of suicide, such as while taking the subway or while spending time on a friend’s rooftop patio. Those thoughts increased in frequency in the late spring of 2015. He had not acted on those thoughts out of concern for his family’s feelings. 1 2. On the day of the offence, KM returned home to find both immediate and extended family members in attendance for an intervention, based on their view that he was using street drugs.

In the course of the intervention KM disclosed his brother’s sexual abuse about ten years earlier. The family dismissed that suggestion and KM’s despair heightened, just as his concern for his family’s reaction to his suicide diminished. That is when he went to the community centre, thinking only briefly before making the 911 call to police in the hope of having them end his life for him. 13. After his arrest, KM was released into the custody of his family, but surrendered back into custody soon after when his family reneged on a promise that his brother would not be at the family home.

He then spent a week in custody before being released to a youth shelter and the bail programme. He lived at the shelter for six months, distanced from his family. He described the experience as character changing. He met several times with a psychiatrist at the shelter, but his attendance was not consistent. He attributed that to the psychiatrist’s irregular schedule; there is an alternate view that the psychiatrist’s

schedule was as regular as a Swiss timepiece and that KM may not have been at fault for the missed appointments. He moved back in with his family near the end of 2015; his brother was no longer living there. His mood has improved gradually. KM says he has not had any suicidal ideation since he was in custody at

Maplehurst shortly after his arrest. While the incidents with his brother caused him nightmares during middle school and triggered his emotional decline in late 2014-2015, KM says that he now is troubled by the events, but does not obsess over them. He has not discussed the events with his family, other than briefly with his mother. He avoids his brother whenever possible. The Principles of Sentencing 14.

The Criminal Code says that a sentence should use “just sanctions” to enhance “respect for the law and the maintenance of a just, peaceful and safe society.” Those sanctions should seek to denounce the offensive conduct, to deter the defendant and other members of society from breaking the law, to help rehabilitate offenders, and to allow them to pay back society for the harm they have done, a process that should improve the offender’s sense of responsibility and manifest their own awareness of the harm they have done.

Where it is necessary to separate offenders from society, imprisonment should be used only where necessary and to the extent necessary. 15. It is obvious that some of these objectives fit poorly with others. Depending on the nature of the crime and the background of the offender, more or less emphasis will typically be given to some considerations at the expense of other considerations. Sentencing is not a place for “one size fits all”; to the contrary, every sentence has to be tailor-made.

Section 718.1 of the Criminal Code stresses that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. 16. In this case the positions of the Crown and defence are quite far removed from one another. The Crown does not seek a sentence of real jail, although it says that such a sentence could justly be imposed here. The Crown says that a nine-month conditional sentence of imprisonment, colloquially “house arrest”, is called for in this case, followed by the maximum term of probation, three years.

The defence says that whatever term of probation the court deems fit is appropriate, and that KM agrees to be subject to treatment rather than just counselling as part of that probation, but says that the appropriate framework for the probation order is a conditional discharge. 17. The imposition of a conditional discharge would require, in addition to satisfying the general principles of sentencing, that the discharge be in KM’s best interests and that it not be contrary to the public interest. The Offence, The Offender and The Principles of Sentencing 18.

An offence under s. 372 of the Criminal Code could be committed in a variety of ways, with a variety of motivations. The objective seriousness Parliament ascribes to the offence is reflected in the fact that the maximum sentence, even where the Crown proceeds by indictment, is two years’ imprisonment. An offence under s. 372 could be committed as part of a well thought out plan, motivated by personal malice, to inflict physical or emotional harm on another person by the conveying of false information and any consequential actions that follow from such information.

It could, as I believe it to be here, be a hastily contrived improvisation in response to a sudden stimulus, namely KM’s sense of terminal hopelessness arising from his family’s rejection of his disclosure of childhood sexual abuse, motivated not by malice but by despair, with the ultimate objective of self-harm and without mature reflection on the emotional or physical harms that might unintentionally be inflicted on police officers or bystanders beyond the “alarm” inherent in the making of the false report. 19. There is no denying that the offence here is a serious one.

The police must take calls such as this seriously, as they did in the present case. A scenario like this one does raise the spectre of police discharging their firearms in what they reasonably believe to be self-defence in an urban area where civilians might be in the line of fire. The officers’ willingness and ability to defuse the situation rather than resorting to what would on these facts have been entirely reasonable self-defence is a tribute to their maturity, professionalism and humanity.

Had things gone otherwise, however, an outcome for which the officers could not be faulted on these facts, KM would not only have devastated his family, he would have left the responding officers to deal with the intense psychological consequences that often follow the taking of a human life, however lawful or reasonable it was. To the mind of any rational person, including KM himself in his comments to the probation officer for the pre-sentence report, the risk that he could have “ruined a police officer’s life” is self- evident. 2 0.

Moving on from the seriousness of the offence, consideration of the degree of responsibility of the offender leads to a split analysis. Obviously, KM was the sole actor here, there is no other offender who was there that evening with whom responsibility can be shared. Legal responsibility for the false alarm falls entirely on KM’s shoulders. At the same time, his degree of responsibility cannot reasonably be equated to that of a person who acted with either deliberation or malice. His objective was to end his life,

an act that would not have been an offence if he had sought to do that by his own hand. It was a legally culpable act performed by an intensely emotionally disturbed person who felt he had run out of options. 21. An offender’s process of rehabilitation can be as varied as is the number of offenders. I am satisfied that KM’s rehabilitation began as he was confronted by the officers. Even at that early point, he started to appreciate that what had earlier seemed like a clever exit option was not so smart at all. Even at that point, he came to realize the potential impact of his plan on others.

At the station he told Constable D’Sena that he came to realize that the responding officers were real people and he ultimately did not want to do anything that would force them to shoot him. 22. On the basis of the information before me, including the officers’ notes from 18 June, the pre-sentence report and Dr. Colleton’s material, I am satisfied that KM is genuinely remorseful for what he did on 18 June, 2015 and that that sense of remorse came into play even as his orchestrated confrontation with the police was playing itself out.

I am satisfied that the offence was a spontaneous act triggered by his sense from the family intervention that the people whose feelings he was trying to protect by not committing suicide were themselves unsupportive and disbelieving of him. His call to 911 was not the product of long planning or deliberation. The driving force behind the offence was despair rather than malice. KM is clearly an intelligent and disciplined young man.

His involvement with the shelter’s peer mentorship programme, his career ambitions and some of his comments to the shelter psychiatrist are reflective of a strong pro-social character. His prospects for rehabilitation and for living a productive, healthy and happy life are strong. Dr. Colleton describes his risk of causing “serious physical harm to another person” as low. 23. That being said, however, one would have to be either naive or disingenuous to suggest that KM has, at this relatively early stage, been fully refurbished. A comprehensive review of the materials precludes any such conclusion.

There are various areas that KM

needs to work on in order to ensure that he is optimally prepared to cope with what life has thrown his way to date and with what life may throw his way in the future. I have observed that KM appears to be an intelligent young man, but I suspect that he suffers from one of the cardinal weaknesses of intelligent young men (and not so young, both men and women), in that he is neither fully aware of, nor fully honest with himself, about his limitations. 24. Four hundred years ago, John Donne, a man more intelligent than most, observed that, “no man is an island, entire of itself”.

The materials suggest to me that KM to some extent thinks that he is an island. While he is working on friendships, they continue to be superficial. He, the young, recent would-be suicide, for whom the final indignity was his family’s disbelief, has missed appointments with his psychiatrist as he continues to deal with a family that is some distant short of accepting the childhood sexual abuse he has told them of. He continues to be more insular than would probably be good for him, more private than might be healthy.

He demonstrates an intellectual awareness of his culture’s tendency to deny the existence of mental illness or emotional disturbance, but seemingly lacks the capacity or willingness to continue to embrace the resources that could help him weather his challenges. He may think that he can cope with all of this on his own, but that belief strikes me as unsound and, ultimately, immature. That immaturity, it seems to me, is reflected in his reaction to the charges of breach of recognizance; he was reportedly “angry and resentful about having to report”. 25.

Some of the chronology of KM’s behaviour might reflect not only emotional turmoil but also some level of self-centredness, deception and immaturity. One of his siblings observed that KM does not like to be told “no”. It will be essential for his optimal recuperation, for his successful rehabilitation and completion of his sentence and for his success in life generally for KM to understand that all of us, at any stage of our lives, need to be open to being told “no”.

It is very much in KM’s interests that he learn quickly the importance of abiding by the terms of his probation and of being attentive to his own emotional and social risks and needs in order to address the issues and minimize the risks identified at page 42 of Dr. Colleton’s report. 26. If I ask myself what role general deterrence should serve in defining a sentence for this offence, I must start by asking whom it is that I want generally to deter.

Is it the body of potential offenders who would in a calculated way manipulate the system in a way to violate s. 372 of the Criminal Code , motivated by personal gain, vindictiveness or malice or the body of offenders who in a relatively brief window of particularly acute despair see the option of “suicide by cop” as a sound option? The former group of offenders would need to appreciate that their type of offence is one that would most likely result in a debate about precisely how close to two years’ imprisonment ought to be imposed upon them.

The sentence imposed on the latter category of offenders has as much to do with general deterrence of willful, hateful offenders as chalk has in common with cheese. Accordingly, I am of the view that for offences of this specific nature, general deterrence plays a fairly limited role. 27. On all the evidence, I am of the view that there is relatively little need for specific deterrence of KM. That is not to say there is no need for specific deterrence. The contents of Dr. Colleton’s report make it clear that there is still some element of risk here.

That report also makes it clear that what is involved here is much more in the nature of a mental health issue than of hard-core criminality. I think the record is also clear that KM enjoys a significantly greater degree of insight into the potential consequences of his actions on 18 June, 2015 than he did at 6 o’clock that evening. 28.

Whatever the motivation underlying an offence of this nature, it is clear that any sentence should proclaim the courts’ denunciation of the misuse of resources that are created, trained and dedicated to serving and protecting into forces that would unwittingly be used to do harm. 29. This is, in its largest part, a case about the intersection between mental health crisis and the criminal law. I am strongly of the view that the focus of my sentence should be on rehabilitation and reparation. That is the focus that will, in each of its components, best serve KM and best serve society at large.

KM strikes me as very much redeemable. He strikes me as having real potential to overcome the events of the past year (and the events of more than a decade ago) and to make a difference in society. As I adverted to above, I fear that he may think that he already has things sorted out, that he does not need external help, that all the necessary lessons have been learned. That, of course, is not at all true; these are still early days.

To borrow from the words of another person more intelligent than KM or myself, what has been done to date is not the end of KM’s rehabilitation, nor is it the beginning of the end of that process, but it is perhaps the end of the beginning. [3] 3 0. KM’s rehabilitation calls for a long period of court supervision, for ongoing counselling, for the treatment that he has consented to beyond mere counselling and for a process of further awareness, maturation and personal insight that such supervision and, to some extent, the mere passage of time can bring.

Access to those resources for a prolonged period of time under the watchful eye of trained professionals has great potential to make this first interaction with the criminal justice system KM’s last such interaction. Given the seriousness of what KM did and the risks it engaged, it is also appropriate that KM make substantial reparations to society in the form of community service. Given his mentorship work at the shelter, I am confident that he is well suited to that sort of contribution. 31. The question then arises of what form the sentence should take: conditional sentence or conditional discharge?

Clearly the discharge would be in KM’s best interest. Would it be contrary to the public interest? 32. Undoubtedly, one of the central concerns in the analysis of the public interest branch of the test for granting a discharge is whether or not the granting of a discharge would tend to undermine the general principles of sentencing, for example by appearing to dilute the objective seriousness of the offence in the mind of the public. Any such analysis must necessarily presume an informed and rational public, rather than one motivated by ignorance or shortsightedness.

Whether or not a discharge would be contrary to the public interest will necessarily be determined in many cases by the precise details of the offence, the background and character of the offender and the components of the discharge itself. For example, in some cases an absolute discharge might be clearly contrary to the public interest whereas a fairly rigorous conditional discharge for precisely the same offence might well pass the public interest test. 33.

I am satisfied that a conditional discharge with appropriate conditions would satisfy the objectives of sentencing, would be in KM’s interest and would not in any way be contrary to the public interest. In reaching that conclusion, I take into account the following factors:

• KM is a first offender; • KM is a youthful first offender; • KM committed his offence while at the nadir of a long period of clinically significant depression rooted in childhood sexual abuse. • KM committed his offence while sufficiently emotionally disturbed that his immediate objective was to end his life. • KM has pleaded guilty.

His intention to plead guilty has been apparent for a long time. • KM has served about eight days in pre-trial custody, the equivalent of 12 days of post-sentence custody. • KM’s awareness of the seriousness of his action began to develop even as he was facing down the police officers he had summoned to kill him and that awareness continues to this day. • KM has a strong pro-social track record, manifested in his academic performance, his work history and his interest in mentorship and teaching. • The infliction of a criminal conviction on KM would not only be contrary to his best interests as it would almost certainly impair and perhaps entirely derail his teaching career, that same outcome in the circumstances of this case would equally be contrary to the public interest. 34 .

Accordingly, the sentence imposed on KM will be a conditional discharge with probation for three years. I am of the view that the maximum period of probation is essential to ensure that the weaknesses and concerns I have addressed in these reasons, while not disentitling KM to a discharge, do call for the full three years of supervision. 35 .

As part of the probation order, KM shall: • report to probation today and thereafter as required by probation • live at an address approved of by probation • make reasonable efforts to pursue appropriate education or skills upgrading and/or maintain appropriate employment • attend for counseling and treatment as directed by your probation officer, doctor, psychiatrist, including in relation to childhood trauma, mental health issues, cognitive behavioural/interpersonal therapy, stress management, problem-solving, intra-family relationships, life skills, substance abuse.

This order includes medication and other forms of treatment where deemed necessary by a doctor or psychiatrist • notify your probation officer of all scheduled medical, counseling and psychiatric appointments.

Notify your probation officer in writing within seven days of any such appointments that you miss or cancel, including the reason for missing or cancelling the appointments. • sign releases to allow for the sharing of information among all those involved in your supervision and care and, subject to the review of your probation officer, with your family members • provide a single letter of apology directed to the responding officers, approved of by your probation officer, within sixty days • perform 200 hours of community service approved of by your probation officer at a rate of not less than eight hours per month starting no later than thirty days from today and provide satisfactory proof of compliance to your probation officer.

All of the community service must be completed within eighteen months of today. 36. A copy of Dr. Colleton’s report and of the underlying material is to be provided to his probation officer 37. The Crown having proceeded by way of indictment, a victim surcharge of $200 is payable within sixty days. If more time is

required, counsel may make submissions now rather than waiting until the expiry of the sixty days. 38 . I invite counsel to raise any suggestions they may have with respect to any of the terms of probation or any other issues. Delivered: 29 June, 2016 [1] I have used the defendant’s initials throughout in order to obviate the potential for these reasons to fall afoul of s. 111. [3] The Right Honourable Sir Winston Churchill, in an address to the Lord Mayor’s Luncheon, 10 November, 1942, remarking upon the recent Allied victory at El Alamein: “Now this is not the end. It is not even the beginning of the end.

But it is, perhaps, the end of the beginning.” Retrieved from: http://www.winstonchurchill.org/resources/speeches/1941-1945-war-leader/987-the-end-of-the-beginning