R. v. C.(K.), 2014 ONCJ 445

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; DATE: 2014·08·28 COURT FILE No.: Toronto Y130364 Citation: R. v. C.(K.) , 2014 ONCJ 445 BETWEEN: HER MAJESTY THE QUEEN — AND — K. C., a young person Before Justice Marion Cohen Reasons for Judgment released on August 28, 2014. Ms. Michelle Sherwood .......................................................................... counsel for the Crown Mr. Selwyn Pieters .................................................................... counsel for the defendant K.C.

COHEN, J.: [ 1 ] On February 21, 2014, KC pled guilty to a charge of robbing AO while armed with a handgun. KC pled guilty as both party and perpetrator. Since the guilty plea, his sentencing has been adjourned for a pre-sentence report, victim impact statement,

section 34 assessment and additional evidence from Brampton probation services. I have now received and reviewed the reports. I have also received the submissions of counsel, and heard from KC’s parents and from KC himself. The Crown asks the Court to impose a custody and supervision order of six to nine months. The defence asks the court to impose a period of probation. The following are my reasons for the sentence I intend to impose: [ 2 ] The agreed upon facts are that on September 2, 2013, KC and the complainant were at a party in a Toronto hotel. Both were there by invitation.

The hotel room was crowded with numerous young people who had been invited, or who had heard about the party through friends and social media. At 2:45 a.m. KC and two males entered the washroom where some of the party-goers had gathered. One of the males brandished a gun and demanded that the people in the room turn over their belongings, including watches, purses and i- phones.

The second male blocked the door, preventing the complainant and others from exiting the washroom. [ 3 ] While the first male was holding the young people in the washroom at gunpoint, KC approached a young man, A.O., who was wearing a baseball cap. He knocked the cap off A.O.’s head, and then searched his pockets, taking his wallet and keys, as well as the hat. KC then shoved A.O., taunted him, and repeatedly punched him in the face. KC struck A.O. with such force that his cheek split open under his eye. The injury resulted in a small but permanent scar.

One of the young women in the washroom tried to stop KC during the assault, but he roughly pushed her away. KC and the two other males then fled the scene. Several weeks later KC was arrested, after voluntarily attending at a police division to be investigated on an unrelated matter. [ 4 ] KC is presently 19 years of age. He has no youth court record. His parents never lived together and he was raised by his mother in Toronto. Since the incident he has been living with his father in Brampton. He attends high school in Brampton. KC has a number of older step-siblings and a large extended family.

He has a positive relationship with his parents and step-siblings, although his relationship with his father has been described as strained. According to KC’s counsel, that relationship has now improved. Both parents have attended court regularly, and they are clearly concerned for KC’s well-being. The pre-sentence report indicates KC’s extended family is also supportive. [ 5 ] The pre-sentence report, and the

section 34 assessment have identified some significant issues which may bear on KC’s involvement in criminal activity. KC has experienced important losses in his life, including the absence of communication between his parents, the inconsistent attention from his father for many years, the termination of a close relationship with a family friend who moved away in 2012, and the illness and death of his grandfather in 2013.

KC’s parents reported that after the more recent events, KC became closed off and withdrawn. [ 6 ] KC attended a great many schools over the course of his early years, and according to his Ontario Student Record, has accrued a number of suspensions for oppositional or aggressive behaviour. Nonetheless, at his current high school, KC’s principal describes him as a “pleasurable young man” who “appears to have a wealth of potential.” KC appears capable of performing well academically, but is described as lacking motivation. He is frequently absent or late. The

section 34 academic assessment identified KC as having a “variable cognitive profile”, which suggested to the assessors that KC may suffer from a specific learning disorder in reading and writing. The assessors expressed surprise that the possibility of a learning disorder had not been identified by KC’s teachers. Such a disorder, in the academic context, may explain some of KC’s behavioural, attendance, and motivational difficulties in school. [ 7 ] After reviewing the

section 34 assessment, I requested a follow up report from probation services in Peel setting out a plan which might incorporate or address the recommendations. The Brampton probation officer, who reviewed the

section 34 assessment, with KC’s consent, stated that KC would be a “great candidate” for Youth in Transition Services in Brampton, a program which would provide KC with a one on one Youth worker who would meet him in the community. In addition the probation officer identified other programs available to KC which were consistent with the recommendations in the assessment. [ 8 ] In addition to the issues identified in the reports and by KC’s parents, it is important that the court recognize the social context in which KC has spent most of his life. KC grew up in a difficult neighbourhood, described by his mother in the

section 34 report as a place where she “frequently sees graffiti, vandalism and police; and hears gunshots and stories about drug trafficking and violence.” KC’s mother believes that in this neighbourhood, her son was unduly influenced by negative peer associations and bad influences. Whether KC shares her critical views is unclear. KC presented as generally distrustful of others, not wanting people “to know too much about him.” He was not forthcoming about his peer group to the

section 34 assessors, and tended to minimize or deny any concerns about his neighbourhood. Whatever the origins of this stance, it is common ground that KC has benefitted from living with his father in Brampton, in part because this arrangement has removed him from the negative influences in his life in Toronto. [ 9 ] I have also considered the victim impact statements submitted by A.O. and his mother. In his statement, A.O. described the fear, anxiety, sense of violation, vulnerability and loss of trust he was left with as a result of the robbery.

He stated that when the firearm was pointed at his head, he thought he was going to die. The theft of his wallet was particularly concerning to the victim and his family, because A.O.’s wallet contained his identification and address. The family remains fearful of further acts of violence as retaliation. [ 10 ] I now turn to the purposes and principles of sentencing which govern this proceeding. I begin with the proposition that the youth criminal justice system is based on the principle of diminished moral blameworthiness, both as a principle of fundamental justice under

section 7 of the Charter, and pursuant to section 3 (1) (

b) of the Youth Criminal justice Act . In R. v. D. B. [2008] SCC 25, Justice Abella states that the sentencing regime for young people is based on the recognition that, …because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This

entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment. (par. 41) [ 11 ] In her words, there is a “statutory preoccupation” with ensuring that sentencing reflects the reduced maturity and moral sophistication of young persons. A youth’s maturity is not directly related to his chronological age. The

section 34 assessment describes some cognitive limitations which may have contributed to KC’s lack of understanding and maturity.

The sentencing of young persons is “animated by the principle that there is a presumption of diminished moral culpability to which they are entitled.” I find the presumption of diminished moral blameworthiness has not been rebutted in this case. [ 12 ] The Youth Criminal Justice Act defines the means by which the youth criminal justice system is intended to protect the public: The young person must be held accountable through measures that are proportionate to the seriousness of the offence and his or her degree of responsibility.

The youth criminal justice system must promote the rehabilitation and reintegration of young persons who have committed offences.

The prevention of crime must be supported by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour. ( section 3(1) (a)). [ 13 ] The Act further provides that within the bounds of proportionality, the sentence imposed on a young person must be the least restrictive one that is most capable of achieving rehabilitation, the promotion of a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

All available sanctions other than custody that are reasonable in the circumstances should be considered. [ 14 ] In this case the Crown seeks a custody and supervision order. The defence seeks a non-custodial order. [ 15 ] The strongest factor weighing in favour of a custodial sentence is the gravity of the offence. A firearm was used, and whether or not it was an imitation weapon, the victim believed it to be very real. Although KC did not possess or brandish the weapon, he was not only a party to its use, he was an active participant in the robbery.

His actions resulted in physical and psychological harm to the victim. KC’s use of physical violence was gratuitous. The fact that he repeatedly punched and taunted the victim, while the victim was at gunpoint, is particularly disturbing. The psychological impact on the victim and his family was significant and is on-going. [ 16 ] Although the

section 34 assessment is favourable, KC has significant and long-standing issues that have been identified, but not addressed. While the assessment concludes KC is open to a change in his behaviour, any conclusion as to his ability and willingness to pursue his own rehabilitation remains speculative [ 17 ] Notwithstanding the seriousness of the offence, the court is obliged to consider the factors which favour a non-custodial sentence. In my view, there are strong reasons to consider a non-custodial sentence in this case. [ 18 ] KC pled guilty to the offence at a relatively early opportunity.

This is the first time he has been found guilty of a criminal offence. He spent 16 days in pre-trial detention at the Roy McMurtry Youth Centre, without incident. He has been under conditions of house arrest since his release from custody on November 4, 2013, a period of roughly 10 months. Although the Court had ordered a variation of the house arrest to a curfew, KC’s father, as surety, did not agree. He required KC to remain on house arrest.

It is an error in law for a court to fail to take into account a period of house arrest in sentencing. (Although I was advised on the sentencing hearing that KC has been arrested on a minor charge in connection with his bail, this fact does not affect the basis for the sentence I intend to impose.) [ 19 ] KC has moved out of Toronto, and away from his former neighbourhood and friends. Considering his attachment to his mother, this was a significant step. KC has strong family support. He has established a good relationship with his father and will be attending school.

His father says he has seen “a great turn around”. [ 20 ] According to the CAMH assessment, KC indicates “little endorsement of pride in relation to delinquency compared to other youth seen in the clinic.” The assessors concluded he is “likely ready to make changes in his life or engage in programming around his needs”. KC is regarded as being at moderate risk of reoffending. He indicated he is willing to attend counselling. The assessment suggests that with specific, targeted interventions, rehabilitation may be possible. [ 21 ] KC expressed remorse for the robbery, and characterized it to the

section 34 assessors as pointless, uncalled for, and immature. In a letter to the court, KC apologized for his behaviour in more emotive terms, expressing regret, embarrassment and shame. However the

section 34 assessor found that KC had difficulty empathizing with the victim of his crime, and I am urged to find the absence of empathy a factor militating in favour of a custodial sentence. [ 22 ] I have two responses to this submission. The first is that the apparent lack of empathy may be traceable to KC’s identified difficulties in expressing his feelings verbally. Hence, the conclusion may be unreliable.

Secondly, assuming the conclusion is reliable, on the issue of weight, I find persuasive the remarks of the Quebec Court of Appeal, which propose that a youth’s lack of empathy should be interpreted in light of the principle of diminished moral blameworthiness. In the case of LSPJA – 1113 : X v. Her Majesty the Queen, [2011] Q.J. No. 3779 , Justice Gagnon of the Quebec Court of Appeal states First and foremost, I consider that the judge did not allow the appellant to benefit from the presumption of diminished moral culpability by attributing excessive weight to his lack of empathy for the victim.

This factor, in the case of a young person, must be qualified for the reasons made explicit by authors: In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts . Youths who are apprehended and asked why they committed a crime most frequently respond: "I don't know." …. 13 [Emphasis added.] ** Unofficial 13 N. Bala, supra note 10, at 3 and 4.Translation ** R. v.

D.B. , supra note 7, para 62; Nicholas Bala, Youth Criminal Justice Law , (Toronto: Irwin Law, 2003) at 3 and 4; Gilles Renaud, Speaking to Sentence: A Practical Guide , (Toronto: Carswell, 2004) at 10. [ 23 ] As KC’s counsel submits, the impact of a custodial sentence could be regressive. The evidence before the Court suggests that KC is easily influenced by negative peers. The imposition of incarceration, which would inevitably expose KC to negative influences,

must be approached cautiously.

As the Quebec Court of Appeal stated in LSPJA – 1113 , “The appellant's actions are serious, but so are the consequences of sending a youth to prison.” There are good reasons for the legislative restrictions on the imposition of custodial sentences. [ 24 ] Accountability requires that KC experience meaningful consequences through measures that are proportionate to the seriousness of the offence and the degree of his responsibility, that promote his rehabilitation, and that direct him to programs or agencies in the community to address the circumstances underlying his offending behaviour.

Alternatives to custody that are reasonable in the circumstances must be considered. [ 25 ] In the result, I intend to impose a sentence which is a mix of custodial and non-custodial measures. Section 42 (12) of the Youth Criminal Justice Act provides that a youth sentence or any part of it comes into force on the date in which is imposed or on any later date the youth justice court specifies. In this case, the non-custodial portion of the sentence will be served first, and the custodial sentence thereafter.

A review will be scheduled simultaneously with the date for the commencement of the custody and supervision portion of the sentence. Provided the circumstances are appropriate, and KC has demonstrated his ability and willingness to pursue the opportunities available to him through the probation order, the custodial portion of the sentence will be converted to a probation order. [ 26 ] I am sentencing KC as follows: a. KC will be placed on probation for a period of five months; b.

Commencing on January 21, 2015, he will serve a period of four months in open custody followed by 2 months of supervision in the community; c. KC will return to this Court on January 21, 2015, and the court will review his progress under his probation order; d. If the circumstances are appropriate to do so, the period of custody and supervision (par. c.) will be converted to a period of six months probation. [ 27 ] The terms of KC’s probation are as follows; 1. Keep the peace and be of good behaviour; 2. Report to the Court as required; 3. Report to a probation officer forthwith and thereafter as required; 4.

You will have no contact or communication directly or indirectly with the named complainants nor with your named co-accused; 5. You will attend for such assessments, and participate in such programs as are recommended by your probation officer including the Youth in Transition Services in Brampton and other programs as recommended in the

Section 34 assessment and directed by your probation officer; 6. You will provide consents to the release of information to your probation officer so your probation officer can monitor your attendance and progress; 7. You will attend school regularly and provide necessary consents so your probation officer can monitor your attendance and progress; 8. Or you will seek and maintain employment; 9. You will continue to reside with your father in Brampton unless your probation officer approves a change of residence to permit you to reside with your mother, whether in Toronto or otherwise; 10.

You will not be in possession of any weapon as defined in the criminal code. 11. You will write a letter of apology to the complainant within 30 days and deliver it to your probation officer who will forward the letter to the complainant with a copy to me [ 28 ] In addition, there will be a firearms prohibition order for 10 years, and a DNA order . Released: August 28, 2014. _____________________ “Justice Marion Cohen”