R. v. K.I ., 2011 MBCA 11

Citation: R. v. K.I ., 2011 MBCA 11 Date: 20110204 Docket: AY 10-30-07383 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard BETWEEN : HER MAJESTY THE QUEEN ) D. Dzydz ) for the Appellant Respondent ) ) D. J.

Angus ) for the Respondent - and - ) ) Appeal heard: ) December 3, 2010 I. (K.) ) ) Judgment delivered: (Young Person) Appellant ) February 4, 2011 NOTICE OF RESTRICTION ON PUBLICATION: No one may disclose any information likely to identify a person as having been dealt with under the Youth Criminal Justice Act , S.C., 2002, c. 1 (see s. 110(1) ). BEARD J.A. I.

The Issue 1 The young person appeals the finding of the sentencing judge that the offence of robbery, in this case, was a serious violent offence, pursuant to s. 42(9) of the Youth Criminal Justice Act (the YCJA ), arguing that, in making that determination, he erred in the following respects: (

i) by failing to address whether the circumstances of the robbery offence fell within the definition of a serious violent offence as set out in s. 2 of the YCJA ; (ii) by making that determination in circumstances where the Crown did not make an application for a serious violent offence designation as required by s. 42(9) of the YCJA ; and (iii) by making that determination in circumstances where prior notice was not given to the young person. 2 On the first issue, the Crown argued that making a serious violent offence designation is within the discretion of the sentencing judge, and that an evidentiary basis for the serious violent offence designation in this case can be found in the facts that were before the sentencing judge, to which there was no objection taken by the young person at the time of sentencing.

He further argued that the nature of the offence, in and of itself, may cause the court some significant concern. 3 On the second issue, the Crown argued that the Crown did, in fact, make an application for a serious violent offence designation. 4 On the third issue, the Crown conceded that no notice of an application for a serious offence designation was given to the defence, but argued that notice is not required under s. 42(9) of the YCJA where the Crown is seeking the designation for the first time. II.

The Standard of Review 5 Both parties have agreed, as do I, that the standard of review on an appeal from the designation of a serious violent offence under s. 42(9) is the same as that on a sentence appeal, being that, in the absence of an error in principle, failure to consider a relevant factor, or the overemphasis of the appropriate factors, a court of appeal should intervene in the making of a serious violent offence

designation only if it is demonstrably unfit. See R. v. M. (C.A.), (SCC), [1996] 1 S.C.R 500, and R. v. V.J.T., 2007MBCA 45, 214 Man.R. (2d) 94 at paras. 13-17. Stated another way, where an appeal court finds that the sentencing judge made an errorin principle, failed to consider a relevant factor, or overemphasized the appropriate factors, there is no longer room for deference, and theappeal court is required to impose the sentence that it considers appropriate. See R. v. B. (K.G.), 2005 NBCA 96, 202 C.C.C. (3d) 521 atpara. 16.

Similarly, taking into account irrelevant considerations or applying the wrong test would be an error in law and provide thebasis for appellate intervention. See V.J.T., at para. 36. III. The Facts 6 The facts are not at issue. On September 15, 2009, the young person, who was 14 years old at the time, and his brother,who was then 16 years old, robbed the attendant at a Domo gas station on Portage Avenue. On entering, both were wearing Halloweenmasks and neck warmers and were armed with knives. The young person’s brother demanded money and the clerk complied.

Theyoung person was arrested minutes later, a short distance from the gas station, and charged with robbery, wear a disguise with intent tocommit an indictable offence and possession of a weapon, being a knife, for purposes dangerous to the public peace. He pled guilty tothe robbery charge on February 22, 2010, and the other charges were stayed. 7 A pre-sentence report was prepared, following which both the sentence hearing and the sentencing took place on May 13,2010. 8 No one was injured during the robbery and the Crown did not file a victim impact statement. 9 The young person had no record.

He was sentenced to supervised probation with conditions for one year, includingcompleting 100 hours of community service, attending school and observing any curfew as directed by the probation officer. There wasan order that he provide a DNA sample, and he was prohibited from possessing a weapon for two years. In addition, the judge made thedetermination that the robbery was a serious violent offence. It is only this last aspect of the disposition that is under appeal. IV.

Failure to Address the Criteria for a Serious Violent Offence 10 On this first issue, the young person argued that the sentencing judge made two errors. He argued that the sentencing judgemade an error in the facts that he found supported his finding and also that he erred by failing to address his mind to the definition of aserious violent offence or to consider the criteria which must be present in order to make a serious violent offence designation. If eitherof those arguments is correct, deference would not be owed and it would be open to this court to impose the sentence that itconsidered appropriate.

The Decision of the Sentencing Judge 11 On the serious violent offence designation, the sentencing judge stated as follows in his oral reasons delivered May 13, 2010: It is a serious, violent offence. There is no question that holding a knife to somebody’s face is a serious violent offence. I am going todesignate it as such, which means the door will be open next time to custody, if you’re reinvolved. So now you have to be very careful with how you live. Analysis (

i) Failure to Address the Criteria 12

Section 2 of the YCJA defines “serious violent offence” as follows: “serious violent offence” means an offence in the commission of which a young person causes or attempts to cause serious bodily harm. 13 In V.J.T., this court adopted the comments of Professor Nicholas Bala, Youth Criminal Justice Law (Toronto: Irwin LawInc., 2002) at 491, that this definition is intended to be relatively narrow, with the serious violent offence distinguished from the ordinaryviolent offence, and that the discretion to make this determination should be exercised with caution (at para. 19). 14 As set out in s. 2, the Crown must prove, beyond a reasonable doubt, that the offence in question was one “in the commissionof which the young person causes or attempts to cause serious bodily harm.” 15 The definition of “serious bodily harm” is set out in V.J.T., applying R. v.

McCraw, (SCC), [1991] 3 S.C.R.72 at 81, which held that, while the harm need not be permanent, the degree of physical or psychological harm must be sufficientlyserious that it interferes in a substantial way with the integrity, health, or well-being of the victim. An intention to intimidate or frightencannot be substituted for the required intention/attempt to cause serious bodily harm. See also, R. v. C.D.; R. v. C.D.K., 2005 SCC 78,[2005] 3 S.C.R. 668, and R. v. Moquin (T.D.), 2010 MBCA 22, 251 Man.R. (2d) 160 at paras. 22-28. 16 The Alberta Court of Appeal held, in R. v.

D.N., 2007 ABCA 370, 425 A.R. 323 at para. 12, that an armed robbery with aknife to the throat was not serious bodily harm, where there were no injuries and the victims said that the only effect was that, for a fewdays after the attack, they were apprehensive and frightened. 17 The Crown in this case referred to R. v. R.L., 2009 MBQB 137, 241 Man.R. (2d) 84, in support of its position that thisoffence was a serious violent offence. In R.L., the young person was involved in four robberies, each with a firearm.

While the courtdesignated the offences as serious violent offences, that designation was on the agreement of both counsel, and there was no

consideration by the court of the principles related to that designation or whether it was appropriate on the facts of that case. The issue under consideration was whether there should be a youth or adult sentence imposed, and that was the entire focus of the decision. Thus, having not considered the necessary criteria, that case and its particular facts are not a precedent for the determination of a serious violent offence designation. 18 In this case, there was no evidence of any physical injuries to the victim.

Further, the victim neither testified nor provided a victim impact statement, so there was no evidence that the offence caused him any psychological harm. While, in some cases, it might be open to the court to infer serious bodily harm, and particularly psychological harm, from the nature of the offence, the offence in this case does not necessarily lead to that type of inference, as is demonstrated by the D.N . case. 19 The sentencing judge in this case failed to consider both the principles related to a determination of a serious violent offence designation and the relevant factors related thereto.

Had he done so, he would have concluded that, while the offence was both a serious and violent offence, it did not meet the requirements for a “serious violent offence” as that phrase is defined in s. 2 of the YCJA and used in s. 42(9) . (ii) Error in the Facts 20 The sentencing judge stated that “[t]here is no question that holding a knife to someone’s face is a serious violent offence”; however, the Crown agreed that there was no evidence, in this case, that the young person held the knife to the victim’s face.

He explained that he made that statement in the course of his sentencing submissions as part of a hypothetical fact situation that he was using to illustrate a point that he was making, and he acknowledged, in argument, that he was relying on the inference of psychological harm from the threat with the knife to support a finding that this was a serious violent offence.

The Crown argued that the sentencing judge correctly summarized the facts on two occasions during the sentence hearing, in the course of a lengthy discussion with the young person, showing that he understood the facts and had not been misled by the Crown’s hypothetical example. 21 Given that this was the only fact to which the sentencing judge specifically referred in support of his finding that the offence was a serious violent offence, it was clearly very significant for him.

In fact, aside from stating that this was an armed robbery, the only fact to which the sentencing judge made reference in support of his finding was the incorrect fact that the young person held a knife to someone’s face. Thus, it is clear that he was relying on this erroneous fact in coming to his decision.

Conclusion 22 Given that the sentencing judge erred in failing to consider the principles related to the determination of a serious violent offence designation or to consider the factors relevant thereto and that he based his decision on an incorrect fact, his decision is not entitled to deference, and this court is entitled to substitute its own decision for that of the trial judge. 23 Based on the principles set out in this court’s decision in V.J.T. and the decision of the Alberta Court of Appeal in D.N. , it is clear that the sentencing judge erred in designating this offence as a serious violent offence in the absence of any evidence of either serious bodily harm or an attempt to cause serious bodily harm.

While the offence was both serious and violent, it did not meet the criteria for a serious violent offence within s. 42(9) of the YCJA . Thus, I would allow the defence appeal and overturn the sentencing judge’s designation of this offence as a serious violent offence. V.

Notice of an Application for a Serious Violent Offence Designation 24 Given the decision on the first issue, it is not necessary to determine the remaining two issues raised by the young person, being whether the Crown made an application pursuant to s. 42(9) of the YCJA for a serious violent offence designation and whether prior notice of such an application is required. However, I think that it is important to comment briefly on these issues. 25 Section 42(9) states as follows: Determination by the court

(9) On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse the information or indictment accordingly. 26 There is no requirement that the application be in writing or in any particular form, so an oral application may suffice.

That said, in this case, the Crown’s oral application, made for the first time during the Crown’s submissions on sentence, consisted of the following words: The offences, in my view, are serious in this particular case. And I’ll leave it to the court as to whether or not you want to consider the serious violent offence designation. 27 Without deciding the issue, it is highly unlikely that this tenuous language is sufficient to constitute an application.

The Crown should make it clear that an application is being made, and it should not be left up to the judge and defence counsel to guess whether or not that is the case. It is clear that this matter was not well-considered by the Crown, as he went on to submit that deferred custody was a possible sentence. However, it would, in fact, have been precluded as a possible sentence under s. 42(5) of the YCJA , if the court had made a finding that the offence was a serious violent offence. This was not clarified in the course of his submissions on

sentence. 28 On the issue of the timing of the notice, while s. 42(9) does not refer to prior notice of an application being required, at leastwhere the Crown is asking for first or second serious violent offence designation (see s. 64(4) of the YCJA regarding an application for athird serious violent offence designation), many courts have discussed the unfairness to the accused where the matter is not raised at theearliest possible opportunity, and at least before a plea is entered. See, for example, V.J.T. and R. v. A.E.B., 2003 BCPC 446 at para. 22.

In some cases, courts have refused to grant the Crown’s application where prior notice was not given. See, for example, R. v. A.A., 2004ONCJ 101 at para. 3; R. v. C.G. (2004), (MB PC), 188 Man.R. (2d) 161 at para. 20 (Prov. Ct.); and R. v. M.W.G.,2005 SKPC 5, 258 Sask.R. 63 at para. 36. 29 Even if s. 42(9) does not require that notice be given to the accused prior to a finding of guilt, it does state that both partiesare entitled to be heard on the application.

Giving notice at the earliest opportunity will enable the Crown to give consideration to howthis affects the final sentence being proposed and it will enable the defence to effectively address the issue, giving the judge thenecessary information to properly consider the principles and relevant factors in the case and to come to a reasoned decision. 30 Further, while springing the matter on defence counsel at the last moment could be addressed by permitting an adjournmentfor defence to prepare its argument, adding another adjournment is generally inappropriate as it results in a waste of court resources andis unfair to the accused and his or her family, who come to court prepared to have their matter resolved on that date, not to face yetanother adjournment.

The giving of notice in a timely manner is a matter of concern that should be addressed by the Crown, to avoidthis problem in the future. VI. Decision 31 For the reasons noted above, I am of the view that the finding of the sentencing judge that the offence was a serious violentoffence is not supported by the evidence and that he erred in ordering the serious violent offence designation in this matter. That beingthe case, his decision is not entitled to deference and it is open to this court to impose the sentence that it considers appropriate.

In theresult, I would allow the defence appeal and set aside the designation of this offence as a serious violent offence within s. 42(9) of theYCJA. J.A. I agree: J.A. I agree: J.A.