R. v. M. J., 2011 NLCA 20

Date: 20110221 Docket: 10/0112 Citation: R. v. M. J. , 2011 NLCA 20 Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : M. J. APPELLANT AND : HER MAJESTY THE QUEEN as represented by the Director of Child, Youth and Family Services RESPONDENT Coram: Green, C.J.N.L., Rowe and White, JJ.A.

Court Appealed From: Youth Justice Court Judicial Centre at Grand Bank 0810PY-00006 Application Heard: October 20, 2010 Judgment Rendered: October 20, 2010 Memorandum of Disposition Filed: February 21, 2011 Memorandum of Disposition by Green, C.J.N.L. The Appellant appearing on his own behalf Counsel for the Respondent: Brian Furey, Q.C.

MEMORANDUM OF DISPOSITION Green, C.J.N.L.: [1] The appellant, M.J., a young person, sought a review by this Court, pursuant to s. 101 of the Youth Criminal Justice Act, S.C.2002, c. 1(the “Act”) of an order of a provincial Court Judge, sitting as a youth justice court judge requiring the appellant to remain incustody for the duration of a previously-imposed sentence that had consisted partially of community supervision. [2] Following the hearing, the panel announced that it was not prepared to exercise its discretion under s. 101(1) to reverse theyouth justice court judge’s decision.

The following constitutes the panel’s reasons for its decision. [3] In December 2009, the appellant, had pleaded guilty to charges of break and entry, contrary to s. 348(1)(

b) of the CriminalCode and failure to comply with a previous disposition, contrary to s. 137 of the Act. In February 2010, he was sentenced to six months’secure custody followed by three months’ community supervision. [4] Prior to completion of the secure custody portion of the sentence, the Director of Corrections & Community Services applied,pursuant to s. 98 of the Act, for an order continuing the appellant’s secure custody for the remainder of his sentence. [5] The application was heard on August 3, 2010.

M.J. elected not to retain counsel but his mother was heard on his behalf.Following the hearing, the youth justice court judge reserved judgment and delivered his decision on August 5, 2010. The judgeconcluded that there should be a continuation of closed custody for the remainder of his sentence. (See 2010 CarswellNfld 225.) [6] M.J. filed his own “notice of appeal” without the help of counsel but apparently with the assistance of his social worker. In ithe stated that he wished to “appeal” both his conviction and sentence. The only ground of appeal listed was “unfairly convicted”.

Prior tohearing the appeal, the Court sought to clarify whether M.J. was seeking to appeal his original conviction consequent on his guilty plea(in which case he would have to apply for an extension of time to file such an appeal) or whether he was just challenging the decisioncontinuing his secure custody for the remainder of his sentence. [7] The Deputy Registrar of the Court contacted M.J.’s social worker at the institution where he was in custody on September 8,2010 and received the clarification that M.J. was only seeking to challenge the decision of the youth justice court judge respecting thecontinuation of continuous custody.

The appellant confirmed this at the appeal hearing. Accordingly, the case was brought squarelywithin s. 101 of the Act, which provides in pertinent part: 101.

(1) An order made under subsection 98(3) (decision for continued custody) in respect of a young person … shall, on application ofthe young person, … made within thirty days after the decision of the youth justice court, be reviewed by the court of appeal, and thatcourt may, in its discretion, confirm or reverse the decision of the youth justice court. [8] It is to be noted that s. 101 provides for a “review” of, rather than an appeal from, the previous decision.

While the scope ofappellate “review” appears to be broader than that which normally exists on “appeals” and, within certain limits, may allow thereviewing court to substitute its own views for those of the judge below (See, R. v. M.(S.H.), (SCC), [1989] 2 S.C.R.446, which dealt with the distinction between review and appeal under the former Young Offenders Act), there is no need to explore theparameters of these differences in depth at this time.

For the purposes of this decision, it is sufficient to record that, on any analysis of therecord in this case, there is no basis for interfering with the youth justice court judge’s decision and, on the existing record, we wouldhave come to the same conclusion as the judge below. [9] The youth justice court judge reached the following conclusions: [25] In the context of the written materials and the viva voce evidence …, I have concluded that [M.J.] is likely to commit a seriousviolent offence before the expiry of the sentence he is now serving. [26] In similar vein, given [M.J.’s] history of breaching community based sentences in the past, it is unrealistic to expect that he is nowready, willing or even able to abide with conditions of community supervision.

Therefore, conditions which would otherwise be imposedupon [M.J.] if he were to serve the remainder of his sentence in the community would not be adequate to prevent the commission of theoffence. [10] As a result of reaching those conclusions, the judge determined that the conditions precedent to the operation of s. 98(3) of theAct had been established and that the appellant should remain in custody for the remainer of his sentence. [11] The judge had in front of him substantial material documenting M.

J.’s troubled background as well as the opinions of apsychiatrist, a psychologist and other professionals who have been working with him during his incarceration who expressed the strongview that there was a substantial risk of M. J. committing further violent offences if he were released into the community before theconclusion of his sentence.

Amongst other things, references were made to his failure to control violent outbursts over the years and tohis expressed plans to harm certain individuals in the community, as well as family members. [12] While some of the documentation was not introduced into evidence through witnesses but was simply submitted as part of theapplication made by the Director of Corrections and Community Services, the key assessments of the psychiatrist and the psychologist,as contained in their written reports were supplemented by their viva voce evidence and their availability for cross-examination.

Eventhough the procedure followed on applications such as these has been described as allowing the court to “proceed in a

summary fashion”(See: R. v. T. (S.T.), 2003 SKPC 139, per Whelan P.C.J. at paragraph 53), the key evidence must, in the absence of consent by theparties, nevertheless be properly proven and received by the court in order to constitute a proper record. We make no comment on the

fact that some of the evidence in this case was submitted as attachments to affidavits where the affiants were not subject to cross- examination, because there was ample other properly-submitted evidence here to justify the conclusions that were reached. The youth justice court judge appears to have been alert to these issues because he specifically asked M.J. which persons he wanted available for examination at the hearing and made arrangements accordingly. [ 13 ] Considerable portions of the material relied on by the youth justice court judge dealt with M.J.’s previous troubled background.

This was information that was available at the time of the original sentencing hearing and which led to the imposition of an order for six months’ secure custody followed by three months’ community supervision.

While this information should not be relied on again in a s. 98 hearing simply to challenge the correctness of the original sentencing decision, it can be used as a background informational platform against which to judge the offender’s subsequent progress while in secure custody to enable a prediction to be made as to the likelihood of the offender committing a serious violent offence before the community supervision portion of his sentence expires and whether the conditions of that supervision would be adequate to prevent the commission of such an offence. [ 14 ] While the youth justice court judge made reference to M.J.’s troubled history in reaching his conclusions, he also paid attention to M.J.’s recent history while in custody, including his violent ideations.

We see no error in the way in which the judge dealt with this information, and we would have reached the same conclusion ourselves. [ 15 ] M.J. argued at the review hearing that the youth court justice judge failed to draw a distinction between statements by him that he “would like” to commit violent crimes and actually having the intent to do so. M.J. argued at the original hearing and in front of us that he in fact had no intent to carry out the things he said he would do.

He suggested that the judge jumped too quickly from the fact of his making the statements to the conclusion that he would in fact carry them out. [ 16 ] Future behavior can only be predicted by reference to past behavior and the actor’s statements of intention and expressions of attitudes. In the context of this case, the reiteration of violent thoughts viewed against M.J.’s past history leads to the conclusion that there is a significant risk that they would be carried out.

The youth justice court judge recognized the distinction M.J. was trying to make (paragraph 23 of his reasons for judgment) but was not persuaded by it. Nor are we. [ 17 ] On the issue of procedural fairness, we note that M.J. was not represented by counsel at the s. 98 hearing even though he was entitled pursuant to s. 25(1) of the Act to retain and instruct counsel.

The youth justice court judge, however, raised the issue of legal counsel at M.J.’s first appearance in court and when M.J. appeared unsure as to whether he wished to have counsel, the judge gave him an opportunity to consider the matter further between the time of the initial scheduling appearance and the actual hearing date. When M.J appeared without counsel on the date set for the hearing the judge again inquired as to M.J.’s intentions about engaging counsel and stated that he would “recommend” it. M.J. nevertheless chose to proceed without counsel.

In the circumstances, we are satisfied that the youth justice court judge complied with his obligations under s. 25(3) (

d) of the Act . [ 18 ] The youth justice court judge was nevertheless required to conduct the hearing in a manner that would ensure that M.J.’s right to a fair trial was respected. He ensured that M.J. was made aware that he had a right to cross-examine witnesses and, as already noted, specifically ensured that the authors of the reports of M.J.’s progress while in custody were in fact made available for cross-examination. He also indicated that he would be prepared to have other witnesses give oral evidence if M.J. so requested.

When M.J. failed to cross- examine one of the report authors, the judge stressed the importance of the report and the likelihood that the court would place reliance on it, and gave him a further opportunity to reconsider whether he wished to ask any questions in relation to it. [ 19 ] In compliance with s. 98(3) of the Act , the judge also gave M.J.’s mother an opportunity to be heard and did, in fact, hear from her. [ 20 ] Having reviewed the transcript of the hearing in its entirety, we are satisfied that, notwithstanding the fact that the judge indicated that the matter should proceed in an “expedited manner”, M.J.’s right to a fair hearing was not compromised. [ 21 ] We therefore concluded that there was ample admissible evidence before the youth justice court judge to justify his conclusion that there should be a continuation of closed custody until the end of M.J.’s sentence.

Specifically, the judge had a sufficient basis for concluding that M.J. was likely to commit a serious violent offence before the expiry of his existing sentence and that the conditions that would be imposed on him if he were to serve the last three months of his sentence in the community would not be adequate to prevent the commission of the offence. [ 22 ] Accordingly, following our review of the matter pursuant to s. 101 of the YCJA , we concluded that we ought not to exercise our discretion to reverse the decision of the youth justice court. [ 23 ] Before concluding our comments on this matter, we wish to make one further observation.

It is obvious to us from the psychiatric and psychological evidence that even with the balance of M.J.’s sentence being served in secure custody, he will require additional therapeutic services in a structured environment on an ongoing basis after conclusion of his full sentence.

Although therapeutic services are available to M.J. while he is in custody, he will, following service of his sentence, be released without restrictions or imposed supervision of any kind. [ 24 ] While it is hoped that the additional time in closed custody will allow the planned therapeutic efforts to have significant effect, the nature and magnitude of M.J.’s issues are such that without intensive supervision and access to medical and social work support, the likelihood of M.J. harming others or himself remains high. [ 25 ] This Court has no power to impose any conditions on M.J. after the expiry of his sentence.

The circumstances, however, cry out for best efforts by all professionals currently involved to guide M.J. towards continued medical and social work intervention and to assist him and his family to the full extent they are prepared to accept.

J. D. Green, C.J.N.L.