Her Majesty the Queen v. R.E.W. [Indexed as: R. v. W. (R.E.)]
79 O.R. (3d) 1
[2006] O.J. No. 265
Docket: C44401
Court of Appeal for Ontario,
Rosenberg, Goudge and Simmons JJ.A.
January 26, 2006
Criminal law -- Young offenders -- Sentencing -- Non- custodial sentence -- Exceptional cases -- Section 39(1)(d) of Youth Criminal Justice Act must be interpreted narrowly as expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce over-reliance on custodial sentences -- Exceptional cases those where any order other than custody would undermine purposes and principles of sentencing set out in s. 38 of YCJA -- Youth convicted of accessory after fact to murder after observing adult cut up bodies of two murder victims and then helping him to dispose of bodies -- Trial judge properly concluding that custodial disposition was justified under s. 39(1)(d) of YCJA -- Disposition of six months' secure custody (four months in custody and two months' community supervision) and two years' probation affirmed on appeal -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 39(1)(d).
The youth, aged 14 at the time of the offence and 15 at the time of sentencing, was convicted of being an accessory after the fact to murder. He was a friend of M, a violent criminal in his mid-30s. After the youth stole drugs and money from M, M came to believe that two young men had committed the theft. The youth knew that M would violently retaliate against those he suspected of the theft. M killed those two men. The youth was present when M cut up their bodies with an electric saw. He helped M in placing the body parts in containers, transporting them to another location and burying them. He then helped M clean up and, on his own initiative, disposed of the saw blade. For months after the offences, he lied to the police and hid his involvement. The youth had no criminal record. His risk of general criminal re-offending was at the bottom end of the moderate range while his risk of committing a violent offence was low. The trial judge found that he could impose a custodial disposition on the youth on the basis of s. 39(1)(d) of the Youth Criminal Justice Act ("YCJA"), which permits a custodial sentence to be imposed "in exceptional cases where a young person has committed an indictable offence [and] the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38". The youth was sentenced to six months' secure custody (four months in custody and two months' community supervision) and two years' probation. He appealed.
Held, the appeal should be dismissed.
Section 39(1)(d) of the Youth Criminal Justice Act is to be interpreted narrowly. The YCJA was designed to reduce the over- reliance on custodial sentences that was the experience under the Young Offenders Act, R.S.C. 1985, c. Y-1. An expansive definition of "exceptional cases" would frustrate Parliament's intention to [page2] reduce the over-reliance on custodial sentences. Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender or the offender's history. Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s. 38. Section 39(1)(d) is intended to describe the rare non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the YCJA. Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified. One example of an exceptional case is a case where the circumstances are so shocking as to threaten widely- shared community values.
The trial judge properly concluded that he could impose a custodial disposition on the basis of s. 39(1)(d). The aggravating circumstances of the offence were such as to make this an exceptional case where only a custodial sentence was consistent with the purpose and principles of sentencing set out in s. 38 of the YCJA. The youth's role was substantial; he was not simply an unlucky bystander or an associate whose assistance was enlisted after the crimes were committed. The circumstances of the offence were horrifying. It was a crime that struck at the core of civilized society. This was one of the clearest of cases for which a custodial disposition was the only reasonable offence. No other disposition would be proportional to the seriousness of the offence and the degree of responsibility of the youth. A custodial disposition was also the only sentence that would promote a sense of responsibility in the youth and an acknowledgement of the harm done to the victims and the community.
A deferred custody and supervision order would not be appropriate in the circumstances. The youth systematically breached bail conditions that required him not to use alcohol or drugs. The fact that his family was unable to control his behaviour was cause for concern. While he had no prior convictions, he had been involved for some time in serious criminal behaviour, including theft and trafficking drugs to other young people. He was not responsive to out-of-custody counselling arranged for him prior to trial. A deferred custody order would not be sufficient to promote a sense of responsibility in the youth nor an acknowledgement of the harm done to the victims and the community. Despite the youth's difficult life, learning disabilities and that he came under the influence of M, an evil man, when the youth was only 13, his role in these horrific offences shows something deeply disturbing in his character.
APPEAL from a sentence imposed by Khoorshed J. of the Ontario Court of Justice, dated October 5, 2005, for being an accessory after the fact to murder.
R. v. C.D., [2005] S.C.J. No. 79, 2005 SCC 78, 261 D.L.R. (4th) 257, 343 N.R. 1, J.E. 2006-64, 376 A.R. 258, 203 C.C.C. (3d) 449, 67 W.C.B. (2d) 867 (sub. nom. R. v. C.D.K.), consd Other cases referred to Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 20 O.R. (3d) 816n, 120 D.L.R. (4th) 12, 175 N.R. 1, 25 C.R.R. (2d) 1, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269; Director of Public Prosecutions v. Humphrys, [1975] 2 All E.R. 1023 (C.A.); R. v. J.E.C., [2004] B.C.J. No. 2244, 2004 BCSC 1341; R. v. L.P., [2004] O.J. No. 1484 (C.J.); R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 117 Nfld. & P.E.I.R. 269, 165 N.R. 241, 365 A.P.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161; R. v. Powley, [2003] 2 S.C.R. 207, [2003] S.C.J. No. 43, 230 D.L.R. (4th) 1, 308 N.R. 201, 110 C.R.R. (2d) 92, 177 C.C.C. (3d) 193, 2003 SCC 43; R. v. Wisdom, [1992] O.J. No. 3110 (Gen. Div.); R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78, 234 D.L.R. (4th) 87, 313 N.R. 201, 113 C.R.R. (2d) 297, 180 C.C.C. (3d) 97, 16 C.R. (6th) 289; Reference Re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 69 B.C.L.R. 145, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, 18 C.R.R. 30, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 36 M.V.R. 240; [page3] United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8, 85 B.C.L.R. (3d) 1, 195 D.L.R. (4th) 1, 265 N.R. 212, [2001] 3 W.W.R. 193, 81 C.R.R. (2d) 1, 151 C.C.C. (3d) 97, 39 C.R. (5th) 205, [2001] SCC 7 (sub nom. United States v. Burns) Statutes referred to Bill C-3, An Act in respect of criminal justice for young persons and to amend and repeal other Acts, 2nd sess., 36th Parl., 1999, cl. 38 Bill C-68, An Act in respect of criminal justice for young persons and to amend and repeal other Acts, 1st sess., 36th Parl., 1999, cl. 38 Canadian Charter of Rights and Freedoms, ss. 1, 7 Criminal Code, R.S.C. 1985, c. C-46, ss. 2 "United Nations operation" [as am.], 269.1(3) [as am.], 475(3) [as am.], 544(3) [as am.], 672.47 [as am.], 742.6(16) [as am.] Young Offenders Act, R.S.C. 1985, c. Y-1 [rep.] Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 3, 38, 39, 42 Authorities referred to Harris, P.J., Youth Criminal Justice Act Manual, looseleaf (Aurora, Ont.: Canada Law Book Inc., 2005) House of Commons Standing Committee on Justice and Human Rights (Testimony of Professor Nicholas Bala, February 16, 2000)
Charles K. Waite, for appellant. Feroza Bhabha, for respondent.
The judgment of the court was delivered by
[1] ROSENBERG J.A.:-- The appellant, a young person, appeals from the sentence imposed by Khoorshed J. following his conviction on two counts of being an accessory after the fact to murder. The trial judge sentenced the appellant to six months' secure custody (four months in custody and two months' community supervision) and two years' probation. Following oral argument this court reserved its decision. On December 7, 2005, we released our decision dismissing the appeal and indicating that we would be delivering reasons at a later time. These are those reasons.
[2] The principal issue raised by this case concerns the interpretation of s. 39(1)(d) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"). Section 39 of the YCJA places strict limits on the power of the sentencing court to impose a custodial disposition on a young person. The appellant's circumstances do not fit within any of ss. 39(1)(a) to (c). The trial judge found that he could impose a custodial disposition on the basis of s. 39(1)(d), [page4] which permits a custodial sentence to be imposed "in exceptional cases where the young person has committed an indictable offence [and] the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38". For the following reasons, I agree with that conclusion.
The Facts
(1) The offences
[3] The facts surrounding the commission of these offences are grisly and horrifying. They involve a complex relationship between the offender, a young boy, and Douglas Moore, a violent criminal. Moore was in his mid-30s. He had a criminal record that included a conviction for a homicide. He associated with dangerous criminals and dealt drugs. Somehow Moore struck up a relationship with the appellant when the appellant was 13 years of age. The appellant had no real relationship with his father and began to look upon Moore as a father figure and a protector of sorts. While Moore had been charged with child molestations relating to another youth, during his relationship with the appellant, he never threatened or abused the appellant. The appellant would sometimes stay with Moore and Moore supplied him with drugs.
[4] After the appellant's mother moved further away from the appellant's school in the spring of 2003, the appellant stayed with Moore more frequently because Moore lived closer to the school. In the fall of 2003, while he was staying with Moore, the appellant stole some of Moore's money and drugs. The appellant then told Moore that he thought he had heard someone in the house. This set in motion a tragic chain of events. Moore investigated and found that his money and drugs were missing. Moore came to suspect that two men, Robert Grewal and Guiseppe Manchisi, had committed the theft. On November 12, 2003, Moore killed these two young men. There is no suggestion that the appellant knew of Moore's plan to kill the deceased or that he assisted Moore in the killings. However, the trial judge did find as a fact that the appellant was aware that Moore intended to deal harshly and violently with the deceased.
[5] Later, Moore told the appellant that he had taken care of things and asked the appellant to help him carry some containers out of a friend's house into a truck. When the appellant asked what was in the containers, Moore told him that they contained dead bodies. The appellant went into the house with Moore and watched while Moore cut up the bodies with an electric saw. He [page5] then assisted Moore in placing the body parts in the containers and transporting them to another location. The appellant travelled with Moore to the Montreal area where he assisted him in burying the body parts in different locations. He then helped Moore clean up the truck and the containers and, on his own initiative, disposed of the saw blade. He told no one of the murders and made full use of the stolen drugs and money, using some himself and giving some to his friends.
[6] In November 2003, some of the remains of Robert Grewal were discovered in Québec. Meanwhile, Peel Regional Police were investigating the disappearance of Grewal and Manchisi and began to suspect that Moore was involved. In December 2003, the police questioned the appellant but he denied knowing anything about the disappearance of the two deceased young men. By this time, Moore had been arrested on the unrelated child molestation charges. On April 2, 2004, Moore committed suicide in jail.
[7] After Moore's death, a police agent and an undercover police officer approached the appellant and suggested that they return to Montreal to ensure the proper disposal of the bodies. The appellant apparently did attempt to locate the disposal sites but was unable to do so. The Québec police eventually found some of Manchisi's remains. The heads and hands of both victims have still not been recovered.
[8] The appellant gave a series of statements to the police. He lied to the police in the first statements. He lied about his involvement in the disposal of the bodies and about the theft. He only disclosed his involvement in the theft of the drugs and money when the police told him that he would not be charged with theft because Moore was dead. The appellant was arrested in April 2004 and released on bail on a form of house arrest. The appellant was 14 years of age at the time of the offences.
[9] At trial, the appellant pleaded not guilty. The Crown's case was put in by way of an agreed statement of facts. The appellant testified and relied upon the defence of duress. The trial judge rejected the duress defence because he found that Moore had not threatened the appellant, the appellant continued to associate with Moore after the killings and the appellant showed no signs of being fearful of him.
(2) The appellant's circumstances
[10] The appellant was 15 years of age at the time of trial. He had no prior youth record. The appellant's father had a drug and alcohol problem and was emotionally abusive to the appellant and his mother. The appellant's mother left his father when the [page6] appellant was six years of age and the appellant has only had sporadic contact with his father since then. The appellant lived with his mother and his aunt and her son. When he was in Grade 6, the appellant was diagnosed with Attention Deficit Hyperactivity Disorder and takes medication for that condition. In October 2003, school officials found the appellant in possession of a quantity of marihuana and suspended him from school for a period of time. There were also other discipline problems at school.
[11] The appellant's aunt testified at the sentence hearing. She noticed a significant change in the appellant's behaviour in the fall of 2003, around the time of the offences. He was agitated and nervous. His schoolwork deteriorated and he skipped school. Since being released on house arrest in April of 2004, his behaviour, including his performance at school, greatly improved. On the other hand, the appellant admitted to the probation officer who prepared the pre-sentence report that he was continuing to regularly use drugs and drink alcohol in violation of his bail conditions.
[12] An Integrated Court Clinic Assessment, that included reports by a psychologist and a social worker, was prepared for the trial judge. In the assessment, the appellant is described as outgoing but having a strong need for attention and security. He "desires harmony, even at the expense of his own values and beliefs" and this leads him to be overly compliant. He was also described as being genuinely remorseful for the thefts and the ensuing events and expressed empathy for the victims' families.
[13] The assessment mentions that the appellant admitted to previous acts of theft, use of drugs and sale of drugs to classmates. From December 2004 to March 2005, the appellant participated in some counselling arranged by his mother. The therapist terminated the counselling because the appellant was not making any progress. According to the assessment, the appellant is of average intelligence. His risk of general, criminal re-offending is at the bottom end of the moderate range while his risk of committing a violent offence is low. There is some suggestion in the material that the appellant may be displaying some symptoms of post-traumatic stress disorder but this concern was not well developed.
[14] It was the recommendation of the assessment team that the appellant be placed on probation with conditions requiring him to attend treatment, to attend school and not to associate with peers with criminal records. The assessors felt he should also be required to undertake some community service. It was recommended that the appellant participate in cognitive- behavioural treatment to address his social dependency, tendency to be overly tolerant in relationships and his substance abuse. It should be noted, that the assessors seem to have accepted the [page7] appellant's version of events that he assisted Moore out of fear, a position rejected by the trial judge.
The Positions of the Parties Before the Trial Judge
[15] At the sentence hearing, Crown counsel argued that this was an exceptional case and that a custodial sentence could and should be imposed in accordance with s. 39(1)(d) of the YCJA. Crown counsel sought a term of six months' secure custody to be followed by two years' probation. Defence counsel argued that the case did not fall within s. 39(1)(d) and that a non- custodial disposition should be imposed. Alternatively, he asked that a deferred custody and supervision order under s. 42 of the Act be made.
The Reasons for Sentence
[16] The trial judge reviewed at length the background to and the circumstances of the offences. While not saying so explicitly, the trial judge obviously found that the circumstances were so exceptional as to fall within s. 39(1)(d) of the YCJA. He expressed his finding in these words:
When the act is so monstrous, when the consequences are so horrid, how can defence counsel request me not to give this young man a sentence, a stricter sentence, a jail sentence?
I have therefore not the slightest hesitation. The monstrosity of this act, the horror, in spite of the fact that this accused was a young person, can not be negatived by the fact that he was young and that he was under the influence of somebody else. A very strong influence. I therefore agree with the suggestion made by the Crown.
[17] The trial judge imposed a sentence of six months' secure custody with two-thirds to be served in custody and one third in community supervision, to be followed by two years' probation on the terms recommended in the Integrated Court Clinic Assessment.
Analysis
(1) The meaning of [s. 39(1)](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)(d) of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
(i) Introduction
[18] When I consider the interpretation of s. 39(1)(d) I will set out other relevant parts of the YCJA. For the time being, it suffices to set out s. 39(1) which provides as follows:
39(1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless
(a) the young person has committed a violent offence;
(b) the young person has failed to comply with non- custodial sentences; [page8]
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or
(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.
(Emphasis added)
[19] Despite the appalling nature of the appellant's crimes, Crown counsel did not suggest that the appellant's case fit within para. (a) as a violent offence. Neither of paras. (b) or (c) apply as the appellant had not failed to comply with non-custodial dispositions and he did not have a history indicating a pattern of findings of guilt. Therefore, this case squarely raises the application and interpretation of para. (d).
[20] In the recent decision of R. v. C.D.; R. v. C.D.K., [2005] S.C.J. No. 79, 2005 SCC 78, the Supreme Court of Canada was required to interpret s. 39(1)(a) of the YCJA. Writing for the majority, Bastarache J. described the modern rule of interpretation, which he applied to interpreting para. (a) [at para. 27]:
In order to determine the meaning of an undefined term in a statute, it is now well established that a court is to read the words making up the term "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament".
(Citations omitted)
[21] I will consider the interpretation of s. 39(1)(d) in light of that principle or approach.
(ii) Grammatical and ordinary meaning
[22] The wording of s. 39(1)(d) provides some obvious assistance to its interpretation. The most important phrase in para. (d) is "in exceptional cases". The ordinary dictionary meaning of "exceptional" is "out of the ordinary course, unusual, special" (The Oxford English Dictionary, 2nd ed., s.v. "exceptional").
[23] Legislators and courts use the term in that sense, as requiring special circumstances that must be satisfied or circumstances that will rarely arise. For example, in the context of issue estoppel, according to Lord Widgery C.J. in Director of Public Prosecutions v. Humphrys, [1975] 2 All E.R. 1023 (C.A.), at p. 1026 All E.R.,
... it is only in quite exceptional cases that an argument based on issue estoppel is likely to succeed because it is only in the clearest cases, where it is [page9] obvious that the court before which the earlier proceedings were held must have applied its mind and decided the issue on which estoppel is claimed, that the matter can be recognised as having any virtue or effect on the subsequent proceedings.
(Emphasis added)
[24] Similarly, the power of a court to stay proceedings for abuse of process in a criminal matter has been described as "exceptional" and to be exercised only "in the clearest of cases". L'Heureux-Dubé J. described such cases in these terms in R. v. Power, [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 89 C.C.C. (3d) 1, at pp. 616-17 S.C.R., p. 10 C.C.C.:
I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.
To conclude that the situation "is tainted to such a degree" and that it amounts to one of the "clearest of cases", as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice.
(Emphasis added)
[25] In Reference Re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 23 C.C.C. (3d) 289, at p. 518 S.C.R., p. 313 C.C.C., Lamer J. suggested that s. 1 of the Canadian Charter of Rights and Freedoms could be used to limit the fundamental justice guarantee in s. 7 only in exceptional circumstances, which he described in these terms:
But when administrative law chooses to call in aid imprisonment through penal law, indeed sometimes criminal law and the added stigma attached to a conviction, exceptional, in my view, will be the case where the liberty or even the security of the person guaranteed under s. 7 should be sacrificed to administrative expediency. Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like.
(Emphasis added)
[26] In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 94 C.C.C. (3d) 289, at p. 920 S.C.R., p. 349 C.C.C., Gonthier J., dissenting in part, described the circumstances in which a ban on publication would be appropriate:
At common law, the exceptional nature of publication bans has been assured by requiring that those seeking a ban demonstrate a real and substantial risk of interference with the right to a fair trial.
(Emphasis added) [page10]
[27] In United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8, 151 C.C.C. (3d) 97, at para. 67, the Supreme Court described the "exceptional circumstances" that would warrant limiting the Minister of Justice's decision in extradition cases:
[T]he phrase "shocks the conscience" and equivalent expressions are not to be taken out of context or equated to opinion polls. The words were intended to underline the very exceptional nature of circumstances that would constitutionally limit the Minister's decision in extradition cases.
(Emphasis added)
[28] In R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, [2003] S.C.J. No. 43, 177 C.C.C. (3d) 193, at para. 51, the Supreme Court described the power of a court to stay its decision in constitutional cases in these terms:
This power should continue to be used only in exceptional situations in which a court of general jurisdiction deems that giving immediate effect to an order will undermine the very purpose of that order or otherwise threaten the rule of law.
(Emphasis added)
[29] In R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, [2003] S.C.J. No. 78, 180 C.C.C. (3d) 97, at para. 32, the court described the circumstances when a court would be justified in refusing to give an offender time to pay a fine under the Criminal Code, R.S.C. 1985, c. C-46:
The Code provides that "[w]here no time has been allowed for payment of a fine and a warrant committing the offender to prison for default of payment of the fine is issued, the court shall state in the warrant the reason for immediate committal" (s. 734.7(2)). This language suggests that only in exceptional circumstances that call for judicial explanation should an immediate committal order be made.
(Emphasis added)
[30] Parliament rarely uses the term "exceptional" in criminal legislation. I have found the term used only six times in the Criminal Code [See Note 1 at the end of the document]. The term "exceptional" is used only twice in the YCJA: first, it appears in s. 39(1)(d) and second, it appears in s. 39(9) which requires the judge to explain in the reasons why the case is an exceptional case under para. (d). [page11]
[31] The theme that runs through use of the term "exceptional" in both criminal case law and legislation, is that it is intended to describe the clearest of cases. Such cases include those where applying the normal rules would undermine the purpose of the legislation, where the exercise of the unusual power is necessary or required and where the exercise of the unusual jurisdiction is capable of explanation. The wording of s. 39(1)(d) is consistent with this approach. The exceptional power to commit a young person to custody is reserved for those circumstances where, in effect, any other order would undermine the purpose and principles of sentencing set out in s. 38. The analysis of s. 39(1)(d) must be set against the background of s. 38, which stresses the importance of interfering with a young person's liberty as little as possible. For example, s. 38(2)(d) states that youth justice courts should consider "all available sanctions other than custody that are reasonable in the circumstances". Section 38(2)(e) further directs that youth court justices should apply the "least restrictive sentence" and "the [sentence] most likely to rehabilitate the young person".
[32] Finally, s. 39(9) requires a court imposing a custodial disposition to "state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1) (d)". This is consistent with the concept of "exceptional" as being a clear case calling for and manifestly capable of a judicial explanation.
(iii)Object of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
[33] In R. v. C.D.; R. v. C.D.K., supra, Bastarache J. examined the object of the YCJA. According to s. 3(1) of the Act [at para. 34],
(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[.]
[34] However, Bastarache J. notes that this general concern for protection of the public is tempered by "some specific goals, including restricting the use of custody for young offenders" (para. 34). After examining the provisions of the YCJA that justify this view, he concludes [at para. 38] with an observation concerning s. 39(1)(a) that could apply equally to s. 39(1)(d): [page12]
Accepting that the Act is aimed at restricting the use of custody for young offenders, it follows that a narrow interpretation of "violent offence" is to be preferred, because the classification of an offender's conduct as a "violent offence" opens the gate to custody.
(iv) Intention of Parliament and legislative history
[35] With respect to the intention of Parliament, Bastarache J. noted in R. v. C.D.; R. v. C.D.K., supra, that there was an explosion in the use of custodial dispositions following enactment of the Young Offenders Act, R.S.C. 1985, c. Y-1, as rep. by Youth Criminal Justice Act, S.C. 2002, c. 1 ("YOA"). Successive amendments to the YOA failed to curb the use of custody because the Act "continued to give significant discretion to youth court judges and, therefore, had little effect on sentencing patterns" (para. 48). As he explained, s. 39 departs from the discretionary approach and "instead provides for clear conditions that must be satisfied before a custodial disposition can even be considered as an option" (para. 48). The section "was designed, in part, to send a clearer message to those involved in the youth criminal justice system about restricting the use of custody for young offenders" (para. 48). Bastarche J. referred at para. 48 to the statement by Minister of Justice Anne McLellan in introducing the YCJA for its second reading:
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.
In contrast to the YOA, the new legislation provides that custody is to be reserved primarily for violent offenders and serious repeat offenders. The new youth justice legislation recognizes that non-custodial sentences can often provide more meaningful consequences and be more effective in rehabilitating young persons.
(Emphasis added)
[36] Keeping in mind the general comments about Parliament's intention, it is important to note that s. 39(1)(d) has a special legislative history. Earlier versions of what is now s. 39(1)(d) in Bills C-68, An Act in respect of criminal justice for young persons and to amend and repeal other Acts, lst sess., 36th Parl., 1999, cl. 38 and C-3, An Act in respect of criminal justice for young persons and to amend and repeal other Acts, 2nd sess., 36th Parl., 1999, cl. 38, the precursors to the YCJA, provided that a judge shall not commit a young person to custody unless "the circumstances of the offence make the imposition of a non-custodial sentence inconsistent with the purpose and principles set out in s. 37 [page13] [now s. 38]". Parliament was obviously concerned that the earlier versions did not sufficiently narrow the scope of judicial discretion. This concern was perhaps in response to the testimony of Professor Nicholas Bala before the House of Commons Standing Committee on Justice and Human Rights, February 16, 2000 at 1545, who drew the committee's attention to s. 38(1)(d) (now s. 39(1)(d)), stating,
... paragraphs (a), (b), and (c) are fine, but paragraph (d) looks extremely broad. It says that "the circumstances of the offence make the imposition of a non-custodial sentence inconsistent" with the purposes set out here. It looks like it's just opening it all up again. I would submit to you that provision (d) should be eliminated or should at least be rewritten to be much narrower, to just focus on some kind of exceptional circumstances.
(Emphasis added)
[37] Thus, the intention of Parliament and the legislative history strongly support a narrow interpretation of s. 39(1)(d) as the section is one of the gateways to imposing a custodial disposition. A broad interpretation of s. 39(1)(d) would undermine Parliament's intention to move away from the broad discretionary regime of the YOA to the more structured approach of the YCJA, which requires that conditions be met before custody can be considered.
(v) The scheme of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
[38] In R. v. C.D.; R. v. C.D.K., supra, Bastarache J. examined the scheme of the YCJA and in particular the scheme for custody in the interrelated provisions of ss. 38, 39 and 42. He concluded that "violent offence" in s. 39(1)(a) must be given a narrow meaning so as not to overlap with the other parts of s. 39(1), otherwise "ss. 39(1)(c) and 39(1)(d) will lose their importance as gateways to custody" (para. 42).
[39] There are two primary reasons why para. (d) of s. 39(1) should similarly be given a narrow interpretation. First, paras. (a)û(c) of s. 39(1) already encompass the overwhelming majority of cases where custody would be expected as a reasonable outcome. Paragraph (a) applies where the young person has committed a "violent offence" now interpreted in R. v. C.D.; R. v. C.D.K, supra, as "an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm" (para. 17). Paragraphs (b) and (c) focus on the young person's prior history. Paragraph (b) applies to the young person who has failed to comply with non-custodial sentences. Paragraph (c) applies to the offender with a serious criminal history, indicating "a pattern of findings of guilt". Section 39(1)(d) acts as something of a residual category and should not be interpreted so as to render the limits implicit in the other parts of subsection (1) ineffectual. [page14]
[40] Second, s. 39(1)(d) is focused solely on the circumstances of the offence and not the character or history of the offender. See R. v. J.E.C., [2004] B.C.J. No. 2244, 2004 BCSC 1341, at para. 63. The circumstances of the offence must be so aggravating that nothing less than custody will vindicate the purpose and principles set out in s. 38. The YCJA is generally focused on the best interests of the young person and s. 38, in particular, encompasses the least restrictive measure and last resort principles. Section 38 also requires the court to take into account the principles set out in s. 3 which have rehabilitation as a prime focus.
[41] It seems to me that the notion of exceptional cases will be justified on the basis of the accountability purpose in s. 38(1) and the proportionality principles in s. 3(1)(b)(ii) and s. 38(2)(c), which provide respectively as follows:
3(1)(b)(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity [.]
38(2)(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence [.]
[42] The application of the proportionality principles must also be read in light of s. 3(1)(c) and, in particular, the following clauses:
(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 [.]
Thus, the circumstances of the offence must be aggravating indeed that would justify a court putting aside those objects and principles in favour of a disposition driven solely by the circumstances of the offence.
[43] The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where the circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values. It seems to me that one example of an exceptional case is when the circumstances of the offence are shocking to the community.
(vi) Conclusion on the interpretation of s. 39(1)(d)
[44] I draw the following conclusions respecting the interpretation of s. 39(1)(d): [page15]
-- The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the over-reliance on custodial sentences that was the experience under the YOA. See R. v. C.D.; R. v. C.D.K, supra, at para. 50.
-- An expansive definition of "exceptional cases" would frustrate Parliament's intention to reduce the over- reliance on custodial sentences.
-- Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or the offender's history.
-- Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s. 38. Put another way, s. 39(1)(d) is intended to describe the rare non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the YCJA.
-- Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.
-- One example of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.
[45] In general, I agree with Harris J.'s commentary in the Youth Criminal Justice Act Manual, looseleaf (Aurora, Ont.: Canada Law Book Inc., 2005) at 4-17:
Presumably the offence that would trigger the use of custody under this subsection would be so exceptionally aggravated that custody was the only proportionate consequence that would hold the youth accountable through the imposition of just sanctions, thereby contributing to the long-term protection of the public.
I would also endorse the comments of Taylor J. in R. v. J.E.C., supra, at para. 64, describing the function of s. 39(1)(d):
Subsection (d) seeks to introduce a sense of proportionality in exceptional cases where the circumstances of the offence are so aggravating that they outweigh what otherwise would be relevant considerations, such as the offender's background or other forms of disposition.
(2) Application to this case
[46] For the following reasons, the aggravating circumstances of the offence committed are such as to make this an exceptional [page16] case where only a custodial sentence is consistent with the purpose and principles set out in s. 38 of the YCJA. First, the objective gravity of the offence is very high. Accessory after the fact to murder is one of the most serious offences in the Criminal Code that would not be caught by the violent offence provision in s. 39(1)(a). An adult convicted of accessory after the fact to murder is liable to imprisonment for life. As Watt J. observed in R. v. Wisdom, [1992] O.J. No. 3110 (Gen. Div.), at para. 27, "accessoryship after the fact to a crime is an offence which constitutes an interference with the administration of justice". Its purpose is to assist the principal offender in escaping detection or punishment [at para. 27]:
[T]he accessory interferes with the investigation of crime and the detection of offenders. The resourceful accessory stifles the investigation and deflects attention from the true principal, as much as the suborned witness' perjury seeks to avoid successful prosecution.
[47] Second, the appellant's role in this case was substantial. He did not simply provide some minor assistance. He was present as the bodies of the deceased were mutilated and dismembered. He assisted Moore in the packaging, disposal of the remains and later cleaning up the vehicle. On his own initiative, the appellant disposed of the saw blade used to cut up the bodies.
[48] Third, the appellant was involved in Moore's activities from the earliest time. It was his act of dishonesty in stealing the drugs and money and then lying to Moore about the theft that precipitated the killings. I do not refer to these facts to hold the appellant guilty of the murders. Rather, these facts are part of the factual matrix that renders this case so exceptional. The appellant was not simply an unlucky bystander or an associate whose assistance was enlisted after the crimes were committed. The appellant was aware from the beginning that some form of violent retribution would be meted out to the persons Moore suspected of stealing his drugs and money. He did nothing to prevent the unfolding of these events and then, on the trial judge's findings, was a willing participant in the aftermath.
[49] Fourth, the circumstances of the offence are horrifying. It is a crime that strikes at the core of a civilized society. To assist in the disposal of the dismembered bodies of two young men, knowing that they were innocent of any crime and then to say nothing for months, lie to the police, and continue to spend the money and use the drugs that started the entire tragedy, would shock any community. In fact, this offence has had a profound impact on the community in which it occurred and, especially, on the families of the victims who are still deprived of the little comfort that might [page17] be gained by finally being able to provide a decent burial for their loved ones' remains.
[50] In my view, this is one of the clearest of cases for which a custodial disposition is the only reasonable response. I can see no other disposition that would be proportional to the seriousness of the offence and the degree of responsibility of the appellant for that offence. A custodial disposition is also the only sentence that would promote a sense of responsibility in the appellant and an acknowledgment of the harm done to the victims and the community. A custodial disposition is also consistent with the relevant factors set out in s. 38(3) (i.e., those factors that focus on the circumstances of the offence). Among the factors s. 38(3) requires the court to take into account are the following:
(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[.]
[51] When I consider these factors in the context of this case, I conclude that the appellant's participation in these offences was significant, the harm done to the victims (meaning the families of the deceased) is incalculable and the appellant has done nothing in the way of reparations. To the contrary, for months he hid his involvement and lied to the police so that now it seems impossible for the families to ever recover the deceased's remains.
[52] Notwithstanding the importance placed on rehabilitation and the need to consider alternatives to custody, I am satisfied that nothing other than a custodial disposition is consistent with the purpose and principles set out in s. 38 and s. 3 of the YCJA in this case. Any other disposition would undermine public confidence in the youth criminal justice system.
(3) The deferred custody option
[53] Even where the court finds that the case is exceptional and falls within s. 39(1)(d), the court must still consider the deferred custody and supervision order option under s. 42(5). Section 42(5) provides as follows:
42(5) The court may make a deferred custody and supervision order under paragraph (2)(p) if
(a) the young person is found guilty of an offence that is not a serious violent offence; and
(b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39. [page18]
[54] While s. 39(1)(d) necessarily focuses on the circumstances of the offence, when considering the deferred custody option it is appropriate to look at the circumstances of the particular offender. An example is provided in R. v. L.P., [2004] O.J. No. 1484 (C.J.) where Wilkie J. found that a case of importing of 3 kilos of cocaine worth $460,000 fell within the exceptional case category in s. 39(1)(d). He went on, however, to make a deferred custody and supervision order, holding that the objective of general deterrence had to give way to "considerations relating to the offender and her best interests" (para. 27). As he said at para. 27, there was "no utility in plucking this young woman from her environment where she is functioning adequately if a reasonable alternative is available".
[55] Unfortunately, I cannot come to the same conclusion about this appellant. First, while he is behaving and performing better now that he is removed from the influence of Moore, I find it troubling that the appellant systematically breached bail conditions that required him not to use alcohol or drugs. Despite his mother and aunt's obvious deep commitment to the appellant's well being, the fact that they were unable to control this behaviour is cause for concern. I acknowledge that the appellant spent a significant amount of time under house arrest. But, the fact that he nevertheless violated his bail while under house arrest raises questions as to whether imposing the same type of sanction through a deferred custody order would be meaningful to this appellant. It appears that the appellant requires a stricter regime to come to grips with his accountability for these crimes.
[56] Second, while the appellant has no prior convictions, he has been involved for some time in serious criminal behaviour, including theft and trafficking drugs to other young people. He has been assessed as a moderate risk to re-offend.
[57] Third, the appellant was not responsive to out-of- custody counselling arranged for him prior to trial.
[58] Finally, a deferred custody order would not be sufficient to promote a sense of responsibility in the appellant or an acknowledgement of the harm done to the victims and the community. I accept that the appellant has not had an easy life. He is estranged from an abusive father. He has a learning disability. He came under the influence of an evil man when he was only 13 years of age. Even given those circumstances, the fact that the appellant allowed these events to unfold without taking any action to alert the victims, continued to lie to the police despite the seriousness of the crimes and continued to spend the money and use the drugs that were the trigger for these horrifying series of events, says something deeply disturbing about the appellant's character. [page19]
[59] This is not a case for a deferred custody and supervision order.
Disposition
[60] For these reasons while leave to appeal is granted, I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: Section 2, definition of "United Nations operation"; s. 269.1(3) obedience to orders no defence to torture even in allegedly exceptional circumstances; s. 475(3); s. 544(3) (right of an absconding accused to reopen the trial or preliminary inquiry); s. 672.47, which allows a court in "exceptional circumstances" to extend the time for a disposition hearing after an accused has been found not criminally responsible on account of mental disorder; s. 742.6(16), the court's power to credit time while accused's conditional sentence is suspended.