R. v. G.(J.A.), 2010 ONCJ 584

WARNING The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. COURT FILE No.: Y264221; Y264220; Y263984 DATE: December 01, 2010 Citation: R. v. G.(J.A.) , 2010 ONCJ 584 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — J.G., a young person Before Justice Brian C. Weagant Reasons for Judgment delivered on 1 December 2010 Anna R. Tenhouse......................................................................................... counsel for the Crown W.

Adam Schultz...................................................................................... counsel for the defendant [ 1 ] JUSTICE B.C. WEAGANT:— J. G. has entered pleas of guilt to the following charges:

• One count of break and enter in relation to a dwelling house; • Four counts of robbery with a firearm; • One count of carrying a concealed weapon; and • Two counts of attempt murder. [ 2 ] The break-in involved entering a third floor apartment, while an elderly person was at home. Money and jewellery were taken by J. G. and others. It occurred September 24, 2005. [ 3 ] The robberies involved gun-point demands on four different persons. One person was escorted to a cash machine and money was removed from his account. This occurred on October 7, 2006. [ 4 ] The most serious charges are the attempt murders.

Two days after the gun-point robberies, J. G. carried a concealed handgun to an apartment building in the Flemingdon Park area of Toronto. He got into an argument with a woman at the entrance to the building over something trivial, and shot her. She was shot in the face and survived her injuries. G. then entered the building and held a gun to the security officer’s head demanding property. G. tried twice to shoot the security guard, but fortunately, the gun jammed. It was the security officer’s first day on the job. I am informed by counsel for J.G. that the behaviours were drug induced. [ 5 ] J.

G. comes before the court with a record, having been found guilty of a robbery in 2004 for which he received a community disposition, and then in 2005, he was found guilty of extortion, assault causing bodily harm, assault and fail to comply with recognizance, for which he received 159 days times served and a period of probation. [ 6 ] The Crown served notice that she would be seeking an adult sentence in the present matter and the young person, as part of plea negotiations, gave notice to the court that such an application would not be opposed ( YCJA s. 64(5) ).

A presentence report and a s. 76(4) report were prepared for the purposes of sentencing. The Crown and Defence agreed and jointly submitted that a global sentence of 12 years was the appropriate sentence. I do not disagree. However, two issues were left for the court to decide: where shall J. G. spend all or a part of his adult sentence and how much credit should he be given for his pre-trial detention. [ 7 ] J. G. was born April 14, 1989. He is now 21 years of age and has been in detention in the youth system since his arrest. He is unusual in many respects.

First of all, he has excelled in the youth detention system, taking advantage of all programming, treatment and education. He has consistently been in the top tiers of behavioural programming and is seen by his supervisors as being a ‘valuable’ inmate in that he mentors and provides a degree of protection to younger vulnerable detainees. The system has accommodated this long sentencing process by keeping him in youth facilities, even though legislatively he could have been moved to adult detention when he turned 20 years. This fact is a testament to his success in detention.

He is what is colloquially called a “model prisoner”. He has educated himself, found spirituality, and seems to have responded in a textbook way to the programming provided. [ 8 ] He is not finished high school. He needs at least one more term in order to do so. Generously speaking, he needs until the end of August 2011 to obtain enough credits that would allow him to apply for university entrance (when he is in a position to do so). [ 9 ] From the evidence called at this hearing, it is clear that his best (if not only chance) to finish his high school would be to remain where he is.

Programming in federal institutions exists on paper, but access depends upon availability. As a newcomer, J.G. would have to wait in line for available spots in programs and in all likelihood, would be at a parole hearing before he could get any meaningful access. [ 10 ] Based on the statistics filed by the province, there is little precedent in ordering a person of J.G.’s age to serve any of his time in a youth facility after detention.

In fact, s. 76 (9) of the YCJA presumes he will move to the adult prison system at the age of 20, unless I am satisfied that remaining in the youth custody facility would be in his best interests and would not jeopardize the safety of others. [ 11 ] The value of J.G. completing his high school to both J.G. and society, in my respectful view, is above argument. When J.G. returns to society, an educated J. G. has a much better chance of reintegrating than an uneducated J.G.. Thus, the chances of having to rely on crime to survive are reduced. Everyone wins.

[ 12 ] The Crown in this case virtually conceded the point in argument. Paul Karosec, a representative from Cecil Facer Institution (the secure youth facility currently holding J.G.), came and gave evidence on J.G.’s behalf.

The tenor of this evidence was that J.G. is doing well, should continue to do well, and that the system could well accommodate him to the end of his high school studies without putting the safety of anyone in jeopardy. [ 13 ] I am ordering that J.G. serve his sentence in a youth facility until August 31, 2011. [ 14 ] The second issue for me to decide is how much time to credit J.G. for his ‘dead time’. He has been in custody for 50 months.

The new “truth in sentencing” provisions do not apply. [ 15 ] Counsel for the defence invited me to grant pre-trial credit at a rate of 2:1, the standard calculation in adult sentencing. Counsel for the Crown invited me to grant something less than this, because of the nature of the programming available in the youth detention system (of which J.G. took full advantage). [ 16 ] The often cited reasons for the practice of granting enhanced credit for presentence detention are twofold.

First, the time for calculation of release dates and parole hearings under the appropriate federal legislation, begins at the date of sentencing, not the date of detention. Second, pre-trial detention is seen as harsher because of the absence of programming see R. v. Wust, 2000 SCC 18 (CanLII) , [2000] 1 S.C.R. 455). [ 17 ] Counsel for the Crown pointed out that J. G. has had access to programming, and used it well, because he has served his detention time in the youth system.

Further, wiretaps taken as part of another investigation and provided to me at this hearing, reveal a G. at the beginning of his detention to be bragging to his street colleagues about what a cakewalk detention was going to be for him. [ 18 ] I must say that my review of the cases leads me to conclude that on the issue of ‘harshness’ and how to give it weight in the sentencing process, very little guidance is given to the sentencing judge about how to assess the impact of detention on a detainee on either an objective or subjective basis.

The harshness is presumed in almost all cases and real evidence of conditions or the impact on the prisoner is absent from the discussion. [ 19 ] See for example, R. v. Branco , 2007 ONCA 344 . There the Court of Appeal allowed an appeal as to sentence, where the sentencing judge only gave 1:1 credit and the reasons for this were not ascertainable.

The Court imposed a sentence on the basis of two for one credit for pretrial custody, citing the lack of reasons “… for departing from the recognized practice of 2:1 custody” as an error in principle. [ 20 ] Evidence of the conditions of pretrial detention seems to be called in those cases where the defence is seeking credit on a ratio higher than 2:1 (see for example, R. v. Brown, 2007 Can LII 60999 (ON S.C) ). [ 21 ] The most recent pronouncement by our Court of Appeal was in the case of R v. Almaktari, 2010 ONCA 802 , released November 24, 2010.

In that case the sentencing judge granted enhanced credit (1.22:1) contrary to “… the general practice of awarding credit of two for one” on the basis that the defendant would not avail himself of programs while in jail. The Court of Appeal found there was no evidence to support this and then went on to refer to the “difficult conditions of the pre-trial detention”. Again, the general rule of 2:1 is based on assumptions about the impact of pre-trial detention. [ 22 ] In spite of the success of J.

G. in detention, and in spite of the wiretaps catching J.G.’s bravado in the early days of detention, I find it difficult to draw any conclusions about the impact of detention on J.G. in the absence of solid psychological assessment. Such assessments are not generally available on sentencing. Thus, the ‘harshness’ of pre-trial detention is presumed for the purposes of sentencing. [ 23 ] J.G.’s success in detention is not the beginning and the end of the reasoning on this point. Other factors contribute to the ‘presumption’ of harshness.

I was informed today, for example, that the reason this sentencing was adjourned on the last date – so that J.G. could be taken to his brother’s funeral – never happened, in spite of the promises made to counsel by the Provincial Director. I view this as direct evidence of ‘harshness’ of detention.

[ 24 ] It is my view that despite this discussion of the harshness of pretrial detention versus ‘real time’, the most important factor in this case is the fact that eligibility for parole does not start running until today, some 50 months after arrest. [ 25 ] If there was ever a candidate for serious consideration of early supervision in the community, it would be a young man who is serving his first long sentence, who will have spent a huge developmental period growing up in an institution. J.G. went into detention an uneducated adolescent and will leave the institution an adult with few social or civil skills.

His period of reintegration will be all- important, as he will have missed the entire socialization process that adolescents and young adults have. He is different than someone who enters an institution at the age of 25 for a lengthy sentence (for whom it is well-known than social reintegration is a difficult process). In my view, society’s interests are best served by careful programming and planning for the day that J. G. will be on his own in the community. In my view, the community supervision (parole) portion of his sentence is central to J.

G. surviving on the street in the future without reliance on crime. [ 26 ] For this reason, I will credit J. G. with 2:1 for his pre-trial detention. This will put him in a position to apply for parole, not as quickly as if he had entered pleas of guilt upon arrest, but much earlier than if I accede to the position of the Crown. [ 27 ] I will take 100 months into consideration when imposing the joint recommendation for sentence, calculating 2:1 for the 50 months already served. [ 28 ] I am sentencing J.

G. to 44 months of incarceration, the first 9 months of which are to be served in a youth facility here in Ontario. [ 29 ] I am including as part of my reasons, the updated Pre-sentence Report, dated November 3, 2009, J. G.’ “Summary of Progress”, dated November 15, 2010, and the s. 76(4) Youth Criminal Justice Act report, dated November 5, 2009. These reasons and the attachments are to be forwarded to the federal corrections service to aid in the classification process. Released: December 1, 2010. .................................... Justice Brian C. Weagant