R. v. Flett, 2015 MBCA 59

Citation: R. v. Flett, 2015 MBCA 59 Date: 20150618 Docket: AY15-30-08325 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : ) W. Y. Martin White HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) C. R.

Savage ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: SHELDON NELSON FLETT ) June 9, 2015 ) (Young Person) Appellant ) Written reasons: ) June 18, 2015 MAINELLA J.A. (for the Court): Introduction and Issues [ 1 ] The appellant appeals an order of the youth justice court judge (the YJC judge) under s. 76 of the Youth Criminal Justice Act (the YCJA ), placing him in a penitentiary to serve an adult sentence for aggravated assault. Leave to appeal the placement order, as part of the sentence imposed, was previously granted by a judge of this court in chambers.

On the appeal, the appellant also seeks to adduce fresh evidence in the form of a psychological assessment report prepared by Dr. Kent Somers. [ 2 ] Although several issues have been raised by the appellant, only three require comment.

They are the motion for fresh evidence; whether the YJC judge erred in failing to adjourn the placement hearing to allow the appellant to challenge the placement recommendation of the probation officer; and finally, whether the YJC judge erred in principle in his application of s. 76(9) of the YCJA in coming to his decision regarding placement. [ 3 ] At the hearing of the appeal the court announced that the motion to adduce fresh evidence was dismissed and the appeal was allowed with reasons to follow. These are those reasons.

Background [ 4 ] The circumstances of the aggravated assault commenced with the appellant robbing the victim and then later the same day entering the victim’s apartment using a key card obtained from the robbery. A struggle with the victim occurred, ultimately resulting in the appellant pushing the victim to the ground and then repeatedly kicking him in the face. The victim suffered permanent brain damage and is confined to a nursing home. The only saving grace is that the appellant panicked after the savage assault.

His immediate effort to contact staff in the building, who immediately attended to the victim and called 911, saved the victim’s life. [ 5 ] While the attack was vicious, it was also out of character. The appellant was 16 years old at the time and without any prior criminal involvement. He was attending school, volunteering and living with his adopted mother. His ability to function in society, however, is limited as he has partial Fetal Alcohol Syndrome due to his biological mother’s drinking during pregnancy that has resulted in acute cognitive impairment.

Psychological testing has identified that his likely overall IQ is in the extremely low range of between 50 and 61. His reading, verbal and math skills are at an elementary-school level. [ 6 ] The appellant spent just under two years on judicial interim release without incident. Then, after turning 18 years old, he and three other males impulsively robbed a man coming out of a beer vendor so that they could continue drinking. The victim did not suffer a lasting injury. The assailants were immediately caught by police. The appellant served 19 months in adult custody which, for

the most part, was attributed to the robbery charge to which he pled guilty. [7] The period in adult custody was difficult for the appellant. There were incidents where either he was a victim ofbullying or he instigated threatening behaviour at other inmates. After his sentence for the adult robbery was completed, he wastransferred to the Manitoba Youth Centre (MYC) where he spent three months until the time of his placement hearing.

According to theplacement report ordered by the YJC judge as required by the YCJA, during the period the appellant was at the MYC, although theappellant had outbursts of inappropriate behaviour, MYC staff described his overall behaviour as helpful and willing to follow direction. [8] The adult sentence for the aggravated assault was a joint recommendation. The appellant pled guilty to aggravatedassault, consented to be sentenced as an adult pursuant to s. 72 of the YCJA, waived the necessity of a Gladue report (R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688 at para. 93) and agreed with the Crown that he receive a sentence of three years’ imprisonmentcalculated on the basis of credit for pre-sentence custody not already attributed to his adult robbery sentence, with a remaining further903 days to be served. The only contested issue was where the appellant would be placed to serve his sentence. Discussion The Fresh Evidence Motion [9] This court discourages the routine admission of fresh evidence.

In this case, there is adequate evidence in the record toaddress the issues on appeal, such that the new evidence is not necessary (see paras. 21-23 herein). Therefore, in our view, theappellant’s motion to adduce fresh evidence from Dr. Somers on appeal does not meet the test for admission and we are not satisfied thatit is in the interests of justice to admit the fresh evidence (Palmer et al. v. The Queen, (SCC), [1980] 1 S.C.R. 759; R. v.Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; and R. v. R.C.H., 2013 MBCA 108 at para. 84, 303 Man.R. (2d) 39).

The Adjournment Request [10] The appellant’s counsel received the placement report one week prior to the hearing. It contained a recommendationfrom the probation officer that the appellant should “serve his sentence in an Adult Federal Correctional Centre.” [11] Once the placement report was received, counsel for the appellant requested a short adjournment of the placementhearing to allow for an opportunity to challenge the probation officer’s placement recommendation. The YJC judge refused theadjournment request.

He stated, “I don’t see any provision in the [YCJA] that allows you to challenge a report” and then later said, “Youmay not like the contents of the report, but it’s the report and on that basis … I’m not prepared to allow the adjournment.” [12] Discretionary decisions are owed great deference on appeal. Absent a misdirection or a decision that is so clearly wrongas to amount to an injustice, an appellate court will not interfere with an adjournment decision (see R. v. Le (T.D.), 2011 MBCA 83 atparas. 35-39, 270 Man.R. (2d) 82, leave to appeal to S.C.C. ref’d, [2011] S.C.C.A.

No. 526 (QL)). [13] In our view, in refusing the adjournment request, the YJC judge misdirected himself on the law. Section 76(3) of theYCJA provides: Opportunity to be heard 76(3) Before making an order under subsection (1), the youth justice court shall give the young person, a parent of the young person,the Attorney General, the provincial director and representatives of the provincial and federal correctional systems an opportunity to beheard. [14] In our view, as is the case in any matter relating to sentencing, viva voce evidence may be called at a placement hearingunder the YCJA (see R. v.

A.O. et al. (2007), 2007 ONCA 144 , 222 O.A.C. 38 at para. 90). The statutory right under the YCJAto be “heard” includes, at a minimum, the right of a young person to know the case against them, to present relevant evidence and tochallenge any evidence before the court, including the placement report. The comments of McLachlin C.J.C. about the “case to meet”principle in Charkaoui v.

Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, apply equally to a placement hearingunder the YCJA) “a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respondto that case” (at para. 53). [15] While the youth justice court ultimately makes the placement decision, placement recommendations of correctionalofficials are “important and highly relevant evidence” (A.O. at para. 110).

Granting the appellant leave to challenge the placement reportwas necessary for a fair hearing because there was a material contradiction in the report between the probation officer’s placementrecommendation and the conflicting evidence from the MYC that the appellant was doing well there and could be managed in a youthcustody facility. [16] The YJC judge’s error to refuse a short delay of the placement hearing cannot be said to be harmless.

While this legalerror of the YJC judge normally would require us to remit the issue of placement back to the youth justice court given our conclusion onthe YJC judge’s application of s. 76(9) of the YCJA, a rehearing will not be necessary. YJC Judge’s Application of s. 76(9) of the YCJA [17] A placement decision, like the decision to sentence a young person as an adult, is an exercise of judicial discretionrequiring balancing the principles set out in ss. 3 and 76 of the YCJA as well as those principles applicable to an adult sentence in PartXXIII of the Criminal Code such as s. 718.2(e).

Accordingly, “[d]eference will be shown on the exercise of such discretion absent an

error in principle or consideration of an extraneous matter” ( R. v. B.D.T.W. , 2015 MBCA 24 at para. 73 , 315 Man.R. (2d) 237). [ 18 ] Because the appellant was 20 years old at the time of the placement hearing, there was a statutory presumption that he be placed in an adult facility to serve his sentence. Section 76(9) of the YCJA provides: Limit — age twenty 76(9) No young person shall remain in a youth custody facility under this

section after the young person attains the age of twenty years, unless the youth justice court that makes the order under subsection (1) or reviews the placement under subsection (6) is satisfied that remaining in the youth custody facility would be in the best interests of the young person and would not jeopardize the safety of others. [ 19 ] In deciding to place the appellant in the penitentiary, the YJC judge stated, in part: The issue before me is not just what is in the best interests of [the appellant], but also the societal interest in keeping others safe. [The appellant] is capable of extreme violence and has a demonstrated history of failing to keep his emotions in check.

Workers cannot be at his side around the clock, to harness his energy in a positive way and stop him from acting violently against other residents of the MYC, who would, with few exceptions, be younger than [the appellant]. Defence counsel has failed to demonstrate that [the appellant] would not pose a risk to other young people at the MYC. I am also concerned that I may be sending a message to [the appellant] that he will wind up at the MYC again if he reoffends after his release. His limited cognitive skills may give him the wrong impression regarding consequences of further criminal behaviour .

It is not in the best interests of [the appellant], in my view, that a wrong impression be made on him by placing him in the MYC. …. [ 20 ] In our view, the YJC judge committed errors in principle that necessitate appellate intervention. [ 21 ] While it was appropriate for the YJC judge to consider the violent circumstances of the offence in making his placement calculus, the YJC judge failed to give any weight to several relevant factors: the appellant’s relatively positive track record of behaviour once at the MYC, the fact that he did not have to go to a penitentiary to receive adequate programming to assist his rehabilitation and the lack of concern from staff at MYC that the appellant could not be reasonably supervised in a youth custody facility without endangering the safety of others. [ 22 ] In reaching his decision, the YJC judge also erred by overemphasizing the inability of the appellant to keep “his emotions in check” based on his track record in adult custody.

When the circumstances of the 15 incidents in adult custody identified in the placement report are examined, in five cases the appellant was a victim, not the perpetrator of violence, several incidents are unremarkable or irrelevant and only three situations involve occasions when the appellant threatened, but did not use, violence towards another inmate. [ 23 ] We also fail to see how, on the evidence that was before the YJC judge, he could have come to the conclusion that the appellant would have the “wrong impression” about future criminal behaviour if he served his sentence at a youth custody facility.

While the appellant’s reasoning abilities are modest, according to the placement report, when he was interviewed by the probation officer, he understood the difference between the placement options for him and was also able to articulate his preference in an intelligible way. Also relevant is the fact he had just finished serving a lengthy period in adult custody and, thus, was not unfamiliar with what an adult placement might entail. [ 24 ] In our view, the appellant has met his onus to be placed in a youth custody facility.

Such a placement is in his best interests given his vulnerable personal circumstances, the Gladue factors in this case relating to the alcohol use of his biological mother during pregnancy and the requirement to consider the principle of restraint in terms of the nature of the appellant’s custody (see Gladue at para. 79 ).

Further, there are resources available for him at a youth custody facility such as the MYC to address his intellectual disability and the practical advantage such a placement achieves by keeping him away from sophisticated adult criminals who would no doubt prey on his intellectual limitations, which was a problem that limited his ability to progress while he was previously in adult custody, and on one occasion made him contemplate suicide. [ 25 ] In terms of whether such a placement would jeopardize the safety of others, a contextual analysis of the circumstances of the offence, the appellant, the information in the placement report and the fact that, in the almost five months since the placement decision there have been no serious behaviourial incidents involving the appellant at the MYC which would jeopardize the safety of others, satisfies us that any risk the appellant presents to others can reasonably be managed in a youth custody facility. [ 26 ] In reaching our decision regarding the safety of others, we are cognizant of the fact that, if the appellant commits a criminal offence at the youth custody facility where he is placed, that will, due to his age, automatically require him to be moved to an adult facility, subject to being granted judicial interim release on any new charge.

Furthermore, placement under the YCJA is not a one- time decision. If the appellant’s behaviour deteriorates such that there is a material change in circumstances in terms of him posing a risk

to the safety of others, an application can be brought under s. 76(6) of the YCJA to revisit his placement (see R. v. B.T. (1997), (MB CA), 118 Man.R. (2d) 256 at para. 8 (C.A.)). Conclusion [27] In the result, the motion to adduce fresh evidence is dismissed, the appeal is allowed and the sentence is varied for theappellant to serve his adult sentence for aggravated assault in such youth custody facility as is directed by the provincial director inaccordance with the law. J.A. J.A. J.A.