R. v. R.J.D., 2012 NSSC 286

SUPREME COURT OF NOVA SCOTIA Citation: R. v. R.J.D., 2012 NSSC 286 Date: 20120523 Docket: Hfx No: 370385 Registry: Halifax Between: R.J.D. Appellant v. Her Majesty the Queen Respondent Revised Decision : The text of the original decision has been corrected according to the attached erratum dated September 17, 2012. This decision replaces the previously released decision.

Restriction on publication: Subject to Section 110(1) of the Youth Criminal Justice Act 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. Judge: The Honourable Justice Simon J.

MacDonald Heard: May 23, 2012, at Halifax, Nova Scotia Written Decision: July 17, 2012 Counsel: Chandrashakhar Gosine, for the Appellant Terry Nickerson, for the Respondent By the Court: INTRODUCTION : [ 1 ] The Appellant appeals a sentence imposed upon him by Youth Court Judge, The Honourable Judge Jamie S. Campbell, on November 10, 2011.

[ 2 ] R. J. D. pled guilty to a number of offences contained in five informations, which were consolidated into one Sentence and they were: On the first Information: 137YCJA Breach No driving MV Plead guilty On the second Information: 145(3) Breach 12/May/11 Curfew Plead guilty 137YCJA Breach 12/May/11 Curfew Plead guilty 264.1(1)(

b) Threats Cst. Joncas Plead guilty On the third Information: 137YCJA Breach 15/May/11 Curfew Plead guilty 145(3)Breach 15/May/11 Curfew Plead guilty On the fourth Information: 145(3)Breach 27/May/11 Keep Peace Plead guilty On the fifth Information: 145(3)Breach 23/July/11 Reside Plead guilty A pre-sentence report was considered. BACKGROUND:

[ 3 ] The Youth Court Judge heard the facts, argument and reviewed a pre-sentence report. He then imposed a 30 day deferred custody and supervision order (hereinafter referred to as “ DCSO ” ) and 11 months probation with conditions. [ 4 ] A review of R.J.D. ’ s background revealed the following history before the Court at the time of sentencing. [ 5 ] In July of 2010, R. J. D. Was charged with taking a motor vehicle without consent, contrary to s. 335(1). [ 6 ] On February 22, 2011, R. J. D. committed theft and was in possession of stolen goods valued under $5,000.00. That resulted in charges under s. 355(b), 334(

b) and a further s. 145(3) for failure to comply with a recognizance or undertaking. That would be the undertaking that related to the July, 2010 offence. [ 7 ] On March 21, 2011, he failed to attend court. That resulted in a charge under s. 145(2)(b), to which he has also pleaded guilty. He received an absolute discharge for that offence on March 24, 2011. [ 8 ] On April 14, 2011, he was sentenced to a conditional discharge. That covered the July, 2010 matter and the three charges from February 22, 2011.

At this point he had one order, which covered four offences over two dates, aboaut seven months apart. [ 9 ] R. J. D. then admitted to the commission of a series of offences contained in the five Informations before the Youth Court Judge. They were consolidated into the one Sentence which is the one under Appeal. ISSUE : [ 10 ] Did the Youth Court Judge err inhis

interpretation and application of the sentencing provisions in s. 39(1)(

b) of the Youth Criminal Justice Act (YCJA) ? THE LAW : [ 11 ] Section 39(1)(

b) of the YCJA provides: 39.

(1) A youth justice court shall not commit a young person to custody under

section 42 (youth sentences) unless . . . (

b) the young person has failed to comply with non-custodial sentences; . . . [ 12 ] Also relevant for consideration is s. 3(1) and (2) of the YCJA which states:

POLICY FOR CANADA with respect to young persons 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person ’ s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons ’ perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person ’ s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (

d) special considerations apply in respect of proceedings against young persons and, in particular,

(

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

ACT TO BE LIBERALLY CONSTRUED

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [ 13 ] The purpose and principles of sentencing a youth sentence are also relevant: PURPOSE 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. SENTENCING PRINCIPLES

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. FACTORS TO BE CONSIDERED

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 14 ] Counsel agree the authority for appeals from findings of guilt, and/or sentence under the YCJA is determined by provisions of the Criminal Code of Canada . This is because s. 37(6) of the YCJA provides: APPEALS WHERE OFFENCES ARE TRIED JOINTLY

(6) An appeal in respect of one or more indictable offences and one or more

summary conviction offences that are tried jointly or in respect of which youth sentences are jointly imposed lies under this Act in accordance with

Part XXI (appeals — indictable offences) of the Criminal Code , which Part applies with any modifications that the circumstances require. [ 15 ]

Section 687 of the Criminal Code of Canada governs the powers of an appeal court on sentence and provides as follows:

POWERS OF COURT ON APPEAL AGAINST SENTENCE 687.

(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitnessof the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal. EFFECT OF JUDGMENT

(2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were asentence passed by the trial court. R.S., c. C-34, s. 614. [16] In R. v. S.A.C., 2008 SCC 47, Deschamps, J., speaking for the majority said at paras. 30 and 31: 30 ... Where the

interpretation of penal provisions is concerned, courts must generally ensure that any ambiguity is resolved in favourof the liberty of the accused whose liberty is at stake. In Marcotte, at p. 115, Dickson J. (as he then was) stated the principle as follows: Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal ... I would have to find for the appellantin this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake.

No authority is needed forthe proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affectingthe liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to beenforced. 31 This principle of statutory

interpretation was reaffirmed by this Court in R. v. McIntosh, (SCC), [1995] 1 S.C.R.686, per Lamer C.J., at para. 29: It is a principle of statutory

interpretation that where two

interpretations of a provision which affects the liberty of a subject are available,one of which is more favourable to an accused, then the court should adopt this favourable

interpretation. It was again reaffirmed in R. v. C.D. [2005] 35 CR668 at para. 50. [17] In R. v. D.B., 2008 SCC 25, Abella, J., speaking on behalf of the majority, discusses the reasoning and scheme of the YCJA andshe said at paras. 61 to 65 inclusive: 61 Having concluded that a presumption of diminished moral blameworthiness for young persons is a legal principle, the nextquestion is whether there is a consensus that this principle is fundamental to the operation of a fair legal system. In my view there is littledoubt that such general recognition exists. Fish J., for the majority, noted in R. v.

R.C., [2005] 3 S.C.R. 99, 2005 SCC 61, at para. 41,that "[i]n creating a separate criminal justice system for young persons, Parliament has recognized the heightened vulnerability andreduced maturity of young persons".

62 It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Professor Allan Manson notes that "[t]he general principle that applies to youthful offenders ... [is] that a lack of experience with the world warrants leniency and optimism for the future" ( The Law of Sentencing (2001), at pp. 103-4). And Professor Bala describes the YCJA as premised on a recognition that to be a youth is to be in a state of "diminished responsibility" in a moral and intellectual sense. Adolescents, and even more so children, lack a fully developed adult sense of moral judgment.

Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. 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." Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. ...

This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults. ( Youth Criminal Justice Law , at pp. 3-4 (footnotes omitted)) 63 The following observation by Justice Gilles Renaud in Speaking to Sentence: A Practical Guide (2004), at p. 10, is also apt: Stated simply, offenders who act out of immaturity, impulsiveness, or other ill-considered motivation are not to be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as more mature, reflective, or considered individuals.

The less elevated the degree of moral blameworthiness, the greater the reach of leniency. By way of limited example, the relative youth of an offender will be emphasized in those cases in which an individualized disposition is selected ... 64 As Professor Bala explains, "adolescents generally lack the judgment and knowledge to participate effectively in the court process and may be more vulnerable than adults" (Youth Criminal Justice Law, at p. 5).

There is, moreover, evidence suggesting that as a result of this reduced judgment and maturity, young persons respond differently to punishment than adults, and that harsher penalties do not, by themselves, reduce youth crime. See A. N. Doob, V. Marinos, and K. N. Varma, Youth Crime and the Youth Justice System in Canada: A Research Perspective (1995), at pp. 56-71. 65 This helps explain why, in s. 3(1)(b)(

i) of the YCJA, "rehabilitation and reintegration", not general deterrence, are emphasized and why, in s. 3(1) (b) (ii), accountability should be "fair and proportionate ... consistent with the greater dependency of young persons and their reduced level of maturity". [ 18 ]

Section 3 of the Act is a statement of principles which governs the application of the Act . A further series of statements of principle and purpose, in terms of sentencing specifically are set forth in s. 38. As I read these sections I am satisfied that the objects they promote are the non-custodial reformation of young offenders in which custodial sentences are in essence, a last resort.

In fact, the YCJA Act , when read as a whole the message conveyed from Parliament is to reduce an over-reliance on custody for young offenders. [ 19 ] This view can be found in comments made by the Minister of Justice and Attorney General of Canada, at the time of its enactment, Anne McLellan, when the YCJA was introduced for second reading in Parliament. Specifically, the Minister stated: “ The proposed Youth Criminal Justice Act is intended to reduce the unacceptably high level of youth incarceration that has occurred under the Young Offenders Act. The

preamble to the new legislation states clearly that the Youth Justice System should reserve its most serious interventions for the most serious crimes and thereby reduce its over-reliance on incarceration. ” (House of Commons debates, February 14, 2001, at p. 704) See also R. v . C.D. Supra, at paras. 44 -52. DISCUSSION AND CONCLUSION :

[20] In his decision, the learned Youth Court Judge explained proceedings in Youth Court at para. 23: 23) Many young people who appear in Youth Justice Court are involved in multiple matters, arising from multiple incident dates, withmultiple charges on each, often involving multiple accused people. As a result, a young person may appear in court on an arraignmentday with 6 or 7 files, crossing over with 6 or 7 other people and involving many, many charges.

That seems to happen much morefrequently than it does in adult court. [21] And at para. 26 and 27: 26) When a consolidation sentencing is done it can cover a lengthy period of time. Because young people vary often are releasedpending resolution of matters, guilty pleas may be tendered later in the process than in adult court. Young people may also start to gothrough the restorative justice process, have matters set over for months, then, if that process breaks down, return for sentencing. 27) That means that a person who has been sentenced to a probation order may have been involved in a number of matters.

Thosematters may have nothing to do with each other. The sentence reflects the seriousness and circumstances of each of those matters. Itcould deal with a pattern of behavior that took place over a period of months. That single probation order or sentence order may containprovisions that relate to the circumstances of one of more of the incidents or charges.

For example, the single order will contain non-association clauses with the co-accused on a variety of matters, and no contact provisions with regard to victims in each. [22] He discussed the ramifications of doing up separate probation orders for separate offences from the point of the young personat paras. 28 and 29, concluding, it was confusing and rather unfair to the young person: [23] In the decision under review, the Youth Court Judge discussed such topics in the sentencing process as “making sense” notbeing enough or the right thing to do at para. 20.

Numerous probation Orders causing confusion and rather unfair (see paras. 28 - 29). Itbeing time consuming and wasteful to prepare numerous probation orders from an administrative point of view (para. 30). [24] In his reasoning, the learned YCJA Judge discusses the method of consolidating numerous Probation Orders for numerousoffences into one Probation Order v. numerous Probation Orders for all the offences committed by a young person. He concludes thatthe way in which the paper work was done would decide what options would be open for a Sentencing Judge.

He argues that it wouldappear “privileged form over substance and throw principle to the wind.” [25] Throughout the decision under review, there are references made to the potential for absurd results, for example, when thereare breaches of more than one Court Order and all the sentencing is consolidated in one non-custodial sentence, and yet not be able toimpose a custodial sentence. [26] The YCJA Judge expresses the opinion that although there is concern for avoiding custody, as an important principle under theAct, it should not entirely negate the others.

I suggest that it doesn’t. [27] I appreciate the YCJA Judges’ frustration with the circumstances in which he finds himself, e.g. a busy court with possibleabsurd results and difficulties. Other Judges expressed similar concerns across the country when sentencing young persons. However,of concern at the time of sentencing, those sentencing Judges felt compelled to adhere to the law as passed by Parliament. Theyconcluded the YCJA should be interpreted in a way that custody is available as a sentence under s. 39(1)(

b) only when there are breachesof more than one non-custodial Sentence Order, in the plural. See: R. v. D.A.I, 2003 BCPC 317 , [2003] B.C.J. 1065 (P.C.); R.v. J.E.C., 2004 BCSC 1341; R. v. E.S.A., 2003 ABPC 86, G.M.S. 2004 NLSCTD 141, 242 Nfld. & P.E.I.R. 220, R. v. W.S.C. 2003SKPC 183, 240 Sask, R. 117) R. v. J.H. 2004 ONCJ 330 , [2004] O.J. No. 5151; R.V.C.P. [2005] N.J. No. 120; R. v. S.T.[2009] BCCA 274; R. v. G.M.S. 2004 NLSCTD 141. [28] Fichaud, J.A. in the case of R. v. TMD, 2003, NSCA, 151, refers to a more restricted

interpretation under the YCJA beingconsistent with the context and purposes of the YCJA and he said at para. 31 31. These principles and sentencing directions signal that the YCJA prioritizes prevention, rehabilitation and accountable reparation

over custodial deterrence. This differs from the approach of the Criminal Code . The principles of “ denunciation ” and “ deterrence ” in paragraph 718 (

a) and (

b) of the Criminal Code are not expressed with any priority in the YCJA. No doubt Parliament intended that the YCJA denounce and deter offences. But custodial deterrence clearly has a lower priority than in the Criminal Code. It is understandable that the violence which triggers custodial options is narrower in the YCJA than with the Criminal Code offences of robbery and intimidation. [ 29 ] I conclude that when one applies the modern approach to a Statutory

interpretation, even if there is ambiguity that the word “ sentences ” in section 39(1)(

b) to include the plural form only. [ 30 ] With respect I cannot accept the Youth Court Judge ’ s reasoning for his not interpreting s.39(1)(

b) in the plural when he said: “ the practical implication of adopting that

interpretation, in the Youth Justice Court in Halifax, would be so unfortunate that I cannot impose them, in good conscience, upon the system. ” [ 31 ] I accept the argument put forth by Crown Counsel and as discussed by the YCJA Judge in this matter that Halifax Youth Court is a busy court. Further, the practical concerns expressed by the YCJA Judge are not unreasonable.

However, I cannot accept that the workload on administrative staff and the amount of time that would be consumed in carrying out the duties and obligations of the court can provide a valid foundation to not follow the legal requirements of the YCJA. [ 32 ] During the course of the appeal this court was advised by counsel that around the Province of Nova Scotia various Youth Court Judges, including Chief Judge Curran, may issue two or more Probation Orders or Discharge and a Probation Order on the first sentence of an individual, where there are multiple files.

This then makes the individual custodial eligible the next time he/she appears for sentencing. At that time the YCJA Judge can decide on the facts and law if the individual should receive a custodial sentence. [ 33 ] I find that the correct procedure is when there are multiple files to be dealt with is to dispose of them as done by those other Youth Court Judges in the previous paragraphs. [ 34 ] Given the weight of judicial consideration on the point and the

interpretation of the YCJA, I conclude and find it was not open to the Sentencing Judge to impose a custodial sentence by virture of s.39(1)(b). The word “ sentences ” requires plurality and there must be a breach of at least two sentence orders and that was not the case here. [ 35 ] Custody was not authorized in this case. The Custody is set aside. I agree with the disposition in R. v. G.M.S. supra, that it is unnecessary to remit the matter back to the Youth Court Judge for sentencing.

I agree with the Youth Court Judge in this matter, the appellant needs a sentence which would serve to provide a meaningful consequence while also providing some positive direction. In this case it could be achieved by lengthening his term of Probation. [ 36 ] In the result, I order that: 1) The Appeal is allowed. 2) The Deferred Custody and Supervision Order (DCSO) is set aside; 3) The Probation Order with the same conditions herein is imposed but increased from 11 months to 20 months. SUPREME COURT OF NOVA SCOTIA Citation: R. v. R.J.D., 2012 NSSC 286 Date: 20120523 Docket: Hfx No: 370385 Registry: Halifax

Between: R.J.D. Appellant v. Her Majesty the Queen Respondent Restriction on publication: Subject to Section 110(1) of the Youth Criminal Justice Act 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. Revised Decision: The text of the original decision has been corrected according to the erratum below. Judge: The Honourable Justice Simon J.

MacDonald Heard: May 23, 2012, at Halifax, Nova Scotia Written Decision: July 17, 2012 Counsel: Chandrashakhar Gosine, for the Appellant Terry Nickerson, for the Respondent ERRATUM Paragraph 28 has been corrected and replaced as follows: Fichaud, J.A. in the case of R. v. TMD , 2003, NSCA, 151 , refers to a more restricted

interpretation under the YCJA being consistent with the context and purposes of the YCJA and he said at para. 31 31. These principles and sentencing directions signal that the YCJA prioritizes prevention, rehabilitation and accountable reparation

over custodial deterrence. This differs from the approach of the Criminal Code . The principles of “ denunciation ” and “ deterrence ” in paragraph 718 (

a) and (

b) of the Criminal Code are not expressed with any priority in the YCJA. No doubt Parliament intended that the YCJA denounce and deter offences. But custodial deterrence clearly has a lower priority than in the Criminal Code. It is understandable that the violence which triggers custodial options is narrower in the YCJA than with the Criminal Code offences of robbery and intimidation. J.