R. v. I.R.N., 2011 MBCA 31

Citation: R. v. I.R.N., 2011 MBCA 31 Date: 20110411 Docket: AY 10-30-07388 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Holly C. Beard BETWEEN : HER MAJESTY THE QUEEN ) E. J. Roitenberg and ) L. C. Robinson Respondent ) for the Appellant ) ) A. Y. Kotler - and - ) for the Respondent ) ) Appeal heard: N. (I.

R.) ) March 15, 2011 ) (Young Person, Accused) Appellant ) Judgment delivered: ) April 11, 2011 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act , S.C. 2002, c. 1 (see s. 110(1) ). MONNIN J.A. 1 This is an appeal of a sentence under the Youth Criminal Justice Act (the YCJA ) for criminal negligence cause death and cause bodily harm.

The sentence imposed was one of three years, of which two years were to be served in secure custody and one year under supervision in the community. 2 The young person appeals the sentence alleging that the sentencing judge failed to take into account the entirety of the time he spent in detention prior to sentencing, and that the judge erred in not allowing his counsel to address the issue of open custody as opposed to secure custody, and eventually not ordering that part of the sentence be served in open custody. 3 The young person was the driver of a stolen vehicle, who, while being chased by police and doing approximately 140 kilometres per hour on a major Winnipeg street, collided with a taxi, killing the driver and injuring the passenger.

At the time, the young person was 14 years of age and was bound by two probation orders, the most recent having been imposed on February 8, 2008, which required that he attend, participate in, and complete the Intensive Support and Supervision Program, amongst other conditions. As part of the Intensive Support and Supervision Program, he was bound by a curfew of 10:00 p.m. daily.

The incident occurred on March 29, 2008, at approximately 3:25 a.m. 4 The evidence called at the sentencing hearing disclosed numerous breaches of the two probation orders and that Probation Services had intentionally taken no steps to initiate breach proceedings. 5 The young person was originally arrested on April 7, 2008, and has been in custody since that date. He was also re- arrested on the same offences on May 4, 2009, on the basis of a direct indictment. 6 I have glossed over the full details of the incident, but to say the least, they are egregious and shook the community.

Complete details are to be found in the reasons of the sentencing judge. Those details are not in dispute. 7 Because of the facts of the case and the young person’s background, which included gang membership, repeated drug offences, auto thefts and breaches of probation, the Crown sought an adult sentence of six years. Counsel for the young person argued that a youth sentence of a further eight months in custody and four months under community supervision would be fit. 8 The judge also heard evidence from a police officer with respect to statistics kept by members of the Winnipeg Police

Service Stolen Auto Unit and of the Auto Theft Project. They relate to reported attempts and actual auto thefts in Winnipeg during theperiod from January 1, 2006, to March 29, 2008, and to both youth and adult arrests during this period by the Winnipeg Police ServiceStolen Auto Unit. She also heard evidence from the young person’s probation officer, who had also prepared the pre-sentence reportfiled as part of the sentencing process.

The Crown was granted leave to cross-examine this witness. 9 It is fair to say that the crux of the submissions made by counsel for the Crown and the young person before the judge hadto do with whether the young person should be sentenced as an adult, as requested by the Crown, or as a youth.

The issue of the level ofcustody, if sentenced as a youth, was never addressed. 10 In concluding that an adult sentence was not called for in this case, and in imposing instead the three-year sentence that isappealed, the judge said (at paras. 57-58): The case authorities provided by the Crown relate to older young offenders with more entrenched attitudes and longer prior offencerecords.

I have given weight to the age of I.R.N. at the time of the commission of these offences and his consequent lack of maturity,and I have considered the failure of responsible adults in his life to impose immediate consequences for his misbehavior, includingbreaches of probation orders.

Noting his remorse and the very positive improvements in I.R.N.’s maturity and behaviour while detainedin a youth facility, I have concluded that a youth sentence imposed in accordance with the purpose and principles set out in s. 3(1)(b)(ii)and s. 38 of the YCJA would have sufficient length to hold I.R.N. accountable for his offending behaviour. However, a custodialsentence is required, recognizing the significant aggravating circumstances surrounding the commission of these offences and theconduct of I.R.N. at the time, as well as the loss of Mr.

Lanzellotti’s life and the terrible and continuing impact of this tragic event on hisspouse and the injuries sustained by a second victim, Mr. Heller. I, therefore, conclude that the appropriate sentence is one of three years, consisting of two years to be served in custody and one year tobe served under supervision in the community, subject to conditions, taking into consideration the time spent in pre-sentence detention,for which I have exercised my discretion not to grant a credit. That disposition will be registered in respect of the offence of criminalnegligence causing death.

A concurrent sentence of two years to be served in custody and under supervision in the community,apportioned pursuant to s. 42(1)(

n) of the YCJA, is imposed in respect of the charge of criminal negligence causing bodily harm. I.R.N.has had the benefit of programming, as well as the support and assistance of staff at the Manitoba Youth Centre, and the opportunity, ofwhich he has availed himself, to pursue his education. A period of two years’ detention and one year of community supervision, inaddition to the time already spent in pre-sentence detention, is necessary to reflect the gravity of the offences and to effect I.R.N.’srehabilitation, before and during the time he is returned to the community.

I also impose a 10-year driving prohibition, i.e., I order thatI.R.N. is prohibited from driving a motor vehicle or vessel in Canada for a period of 10 years. The Crown’s application for theimposition of an adult sentence is dismissed. 11 In her extensive written reasons, the judge three times made reference to the fact that the young person had been in detentionsince May 4, 2009, and/or that he had been in detention for a period of 13 months prior to sentencing.

That is factually wrong as theyoung person had been detained since April 7, 2008, the date of his initial arrest, and therefore had been in detention for a period of 26months at the time of sentencing.

As stated earlier, the date of May 4, 2009, is the date the young person was re-arrested while still incustody on the basis of a direct indictment having been laid. 12 The young person argues, based on those errors, that the judge misapprehended the evidence as to the amount of time hespent in pre-sentence detention and therefore committed an error in law. 13 Counsel for the Crown argues that the references to detention commencing in May of 2009, as opposed to April of 2008,were drafting errors and that the judge was more than well aware of the actual length of the pre-sentence detention.

The Crown refersthe court to numerous passages in the pre-sentence report and in the transcript of the sentencing hearing that clearly demonstrate that thejudge was more than well aware of the totality of pre-sentence detention served by the young person. 14 There is merit to the Crown’s argument, but out of an abundance of caution and in giving the young person the benefit of thedoubt, I am prepared to accede to the young person’s submissions and find that on a narrow

interpretation of the judge’s written reasons,she committed an error in law. 15 Having so found, the result is that the sentence imposed by the judge is owed no deference and this court can look at thematter afresh. 16 Notwithstanding that an error in law occurred, the judge’s reasons provided a considered and comprehensive review of thecircumstances surrounding the offence and a thorough and thoughtful analysis of the young person’s behaviour and potential forrehabilitation.

In addition, she conducted a review of the requirements of the YCJA with respect to the sentencing of the young person. 17 The young person argues before us that he should receive credit for the pre-sentence detention and that he should not besentenced to the maximum amount of time under the YCJA. He argues that a more lenient sentence should be imposed because he hasmatured since the incident and has made positive steps towards his rehabilitation since his initial detention. He relies on the OntarioCourt of Appeal decision in R. v.

Rezaie (1996), (ON CA), 31 O.R. (3d) 713, in support of his argument that he shouldreceive some credit for the time spent in pre-sentence detention. 18 Although pre-sentence detention must be considered when imposing sentence on a young person, this court has recentlystated that such consideration need not translate into a credit. In R. v. N.W.P., 2008 MBCA 101, 231 Man.R. (2d) 61, writing for thecourt, I said (at para. 23):

On the basis of the cases to which I have referred, I am unable to conclude that the sentencing judge erred when he declined to grant the accused any credit for the time he served in pre-sentence detention.

Those cases lead to the inescapable conclusion that a sentencing judge must consider the time spent in detention in determining an appropriate sentence – which he did – but that he is not bound to, especially in cases where the maximum sentence or near maximum sentence is imposed, give any credit to an accused for that time spent in detention – which is what the judge did in this case. 19 I see no reason to resile from that statement in this case.

Furthermore, I see no reason to impose a sentence different than the one originally imposed by the judge for the reasons she expressed in the passage from her reasons which I have quoted earlier. A sentence of three years in custody is a fit and proper sentence for this young person.

It complies with the sentencing requirements of the YCJA , and it is one that provides the young person the best chance of succeeding in his quest for rehabilitation. 20 The young person also alleges that the judge erred in not providing his counsel an opportunity to address the court on the issue of open custody as opposed to closed custody, and in not ordering that part of the sentence imposed be served in open custody. 21 As stated earlier, the level of custody to be imposed if a youth sentence was ordered instead of an adult sentence was never addressed in submissions before the judge.

The matter appeared to come up as an afterthought after the judge provided her reasons for refusing to sentence the young person as an adult. The transcript reveals the following exchange: [THE COURT:] And unless there is anything further that I have omitted to address? MR. DAVIDSON: It may be in here, I don’t know, because I haven’t, obviously, had a chance to review it, but when this court imposes a youth sentence upon an individual and orders him to serve custody and supervision, you must designate the level of custody.

There are two options, one of closed custody and, ultimately, the other option is open custody. THE COURT: And do counsel have any submissions about that? My understanding was based on your submission, obviously you were seeking an adult sentence. So you were looking at a sentence, a closed custody sentence, I take it, from the Crown’s perspective. MR. DAVIDSON: I am. THE COURT: And open custody would entail what? MR. DAVIDSON: Open -- well, I don’t know if this court wants to hear evidence in that respect. I can tell you my understanding, if my friend has any concerns, he can obviously stand to address those.

It may well be that you’ll require evidence, however. Open custody allows a person sentenced under the Youth Criminal Justice Act to obtain leaves from the institution. Those leaves can be either escorted or unescorted, meaning that [the young person] could be placed back into the community at the discretion of Probation Services. Probation Services would not advise the court as to when those leaves occur.

They would not advise the court as to how long those leaves occur, nor would they advise any other member of the public because of the fact that they are not able to disclose [the young person’s] criminal involvement, by virtue of the non-disclosure provisions of the Youth Criminal Justice Act. Essentially, he could be, and this is in theory, although I can’t speak for Probation Services, he could be allowed into the community as early as tomorrow. THE COURT: All right. And Mr. Roitenberg, is that a correct synopsis of the difference between the closed and open custody? MR.

ROITENBERG: It is a correct synopsis of the difference between open and closed custody, save and except for much consideration goes into whether or not an individual is given those leaves. Much consideration is, goes into whether or not those leaves are supervised or unsupervised. It’s not simply a matter of, as my friend paints the picture, that tomorrow [the young person] would be allowed to roam free. It’s not merely an issue of that.

. . . . . THE COURT: Thank you. Let me just say that my, in, in -- MR. ROITENBERG: Am I entitled to make a submission though as to the merits of one or the other? THE COURT: Or the other? Let me just say, counsel, that when I imposed sentence for a custodial period, my understanding was it would be closed custody and I had not considered the option of open custody and I do not think that that is valid in the circumstances. 22 Counsel for the young person should have been allowed an opportunity to address the court on the issue of level of custody.

More problematic, however, is the fact that the judge failed to address in any fashion, or refer to, the factors that the YCJA states should be considered when addressing the level of custody to be imposed. The factors to be considered, as required by s. 88 (

c) of the YCJA and Manitoba Order in Council No. 164/2003, are as set out in s. 24.1(4) of the Young Offenders Act , R.S.C. 1985, c. Y-1: Factors 24.1(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 the 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. 23 Counsel for the Crown conceded that the judge did not explicitly refer to those factors in her decision, but argued that she impliedly considered them. That may well be so, but an accused young person is entitled to know that, in fact, the factors have been addressed. Failure to have done so is an error in law and opens the door for this court to revisit the issue. 24 An open custody designation would have left the young person’s release date to the unilateral discretion of Probation Services.

Based on the evidence that was adduced before her with respect to the manner in which Probation Services had managed the young person when he was previously under its supervision, it is understandable that the judge would have serious concerns as to how open custody would be managed in the future and how that management, or lack thereof, could impact the young person’s risk of re- involvement. 25 That lack of faith in Probation Services, coupled with the seriousness of the crime committed by the young person, along with the interests of society, lead me to conclude that, notwithstanding an error in law, the judge was still correct in imposing a sentence that did not provide for open custody.

I would accordingly impose the same level of custody as she originally did.

26 In conclusion, I would therefore grant leave to appeal the sentence imposed, but dismiss the appeal. J.A. I agree: J.A. STEEL J.A. (dissenting in part) 27 I have read the reasons for decision of Justice Monnin and I agree with them except in one respect: the level of custody. 28 I agree that the judge’s failure to consider the factors listed in s. 24.1(4) of the Young Offenders Act , R.S.C. 1985, c. Y-1, concerning level of custody is an error in principle. The relevant factors should have been considered in relation to the level of custody, as well as the length of sentence.

Consequently, her decision requires no deference from this court and we are free to consider the matter afresh. See R. v. V.J.T. , 2007 MBCA 45 , 214 Man.R. (2d) 94 at paras. 15-16 . 29 However, with all due respect to the reasons of Justice Monnin, I believe that gradual integration into the community is preferable to jumping from secure custody to community supervision and is more in keeping with the principles of the Youth Criminal Justice Act , S.C. 2002, c. 1.

I would have imposed the same length of sentence, but ordered that 18 months be served in secure custody, six months in open custody and one year under supervision in the community. I come to this decision for the following reasons. 30 Under s. 85 of the YCJA , when a young person is committed to custody under s. 42(2) (n), a determination must be made as to the level of custody. The legislation sets out that the decision is to be determined by the provincial director unless s. 88 is invoked. In Manitoba, the Province has opted to allow courts to set the level of custody.

Upon imposing a youth custodial sentence the sentencing judge must determine the appropriate level of custody taking into account the factors set out in s. 24.1(4) of the YOA , which are fundamentally the same as those set out in section 85(5) of the YCJA . 31 I agree with the majority that the maximum sentence of three years in custody is necessary and proportionate in this case given the gravity of the offence and in order to hold the young person accountable for his actions. However, as the YCJA mandates, one- third of that sentence will be spent under supervision by Probation Services in the community.

Given that inevitability, a blended sentence of secure and open custody is most appropriate as it would provide the young person with a gradual integration into society, including the necessary planning, programs and attendant resources. 32 The young person was 14 years old at the time of the offence. He is now 17 years old and has spent more than two years in pre-sentence detention. There was evidence that the young person has productively used those years to upgrade his education and to engage in programming. He has become a positive role model and reached the highest trust level in his cabin.

The pre-sentence report outlined the skills that the young person has acquired while in custody that would better equip him to deal with negative influences in the community and it spoke positively of the supports that would be available if an open custody sentence was imposed. 33 Justice Monnin’s reasons refer to the judge’s lack of faith in Probation Services. It is true that this young man completely failed to comply with the conditions of his probation at the time of the offence, and that Probation Services, for whatever reason, was not successful in its supervision of him.

Supervision of troubled youths is not an easy task, nor are the decisions always black and white. Moreover, there are no guarantees when predicting future behaviour. The only certainty is that he will be released into the community fairly soon, whether or not there is any period of open custody, and that Probation Services will again be given the responsibility of supervising him. 34 His conduct in secure custody these last two years indicates there is reason for cautious optimism. Open custody can be used as an effective tool of sentence management.

A controlled release with proper supports in place would seem to offer a better chance at successful rehabilitation than release straight into the community from secure custody. This is especially the case here, where at the time the young person is released into the community, taking into account his pre-sentence detention, he will have spent over four years in secure custody. 35 In my opinion, providing that controlled release will give the professionals dealing with the young person at that point in time an opportunity to gradually prepare him for release into the community.

That is more likely than not to aid in his rehabilitation. For someone as young as this offender, it is successful rehabilitation that will result in the long-term protection of the public. I would allow the appeal only to the extent of varying the level of custody to include a period of six months of open custody following the period of 18 months of secure custody. J.A.