Her Majesty the Queen v. J.S. (A Young Person) [Indexed as: R. v. S. (J.)]

81 O.R. (3d) 511

Court of Appeal for Ontario,

Weiler, Rosenberg and Blair JJ.A.

June 30, 2006

Criminal law -- Young persons -- Sentencing -- Principles -- Violent offences per s. 39(1)(a) of Youth Criminal Justice Act -- Youth being convicted of robbery and using imitation firearm in commission of offence resulting from home invasion -- Accused brandishing machete during offences and must have known co-accused having a real or imitation shotgun -- As crimes amounting to "violence offence" open to trial judge to consider custodial sentence -- Trial judge imposing global sentence of 16 months secure custody and eight months community supervision -- Trial judge erring in principle in ignoring Youth Criminal Justice Act and focusing almost entirely on gravity of crime and need to protect public -- Accused only 16 with no criminal or youth court record and having supportive family -- Accused completing credits for high school while serving sentence -- Custodial sentence being appropriate but presence of mitigating factors warranting shorter sentence than that imposed by trial judge -- Court having power to combine secure and open custody even where young person convicted of single offence -- Sentence being varied to six months secure custody, four months open custody and five months community supervision -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 39(1)(a).

Criminal law -- Young persons -- Sentencing -- Combining open and closed custody for single offence -- Youth being convicted of robbery and using imitation firearm in commission of home invasion -- Accused brandishing machete -- Offences amounting to "violent offence" criteria in s. 39(1)(a) of Youth Criminal Justice Act so open to trial judge to impose custodial sentence -- Trial judge imposing global sentence of 16 months' secure custody and eight months' community supervision -- Trial judge erring in principle in ignoring other factors outlined in Youth Criminal Justice Act and focusing almost entirely on gravity of offence and need to protect the public -- Custodial sentence appropriate but mitigating factors, some outlined by fresh evidence on appeal, warranting shorter sentence -- Court having power to combine secure and open custody even where young person convicted of single offence -- Sentence being varied to six months secure custody, four months open custody and five months community supervision -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 39(1)(a). [page512]

The youth was convicted of robbery and using an imitation firearm in the commission of an offence as a result of his role in a home invasion. He and two other males forced their way into a house in the presence of its four inhabitants. One of the men carried a shotgun and the accused carried a machete. They searched the house for money, and stole a number of items and $30 to $40 in cash. Before leaving, the male with the shotgun pointed it at one of the victims and pulled the trigger, but the weapon did not discharge. The trial judge imposed a global sentence of two years (16 months in secure custody followed by eight months community supervision) in addition to crediting the youth with 44 days of pre-trial custody on a two-for-one basis, for an effective sentence of approximately two years and three months. The youth appealed his conviction and his sentence.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

The primary issue at trial was identification. One of the victims identified the youth, and his fingerprints were lifted from a CD cover found in the bedroom where, according to one of the victims, he had accosted her and her baby. The Crown's case was uncontradicted and it pointed to the youth's guilt beyond a reasonable doubt. The verdict was not unreasonable.

A "violent offence" within the meaning of s. 39(1)(a) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA") is an offence in the commission of which a young person causes, attempts to cause or threatens to cause physical or psychological harm or injury to a person that is more than transient or trifling in nature. The facts of this case fell within the meaning of "violent offence", so it was open to the trial judge to consider, and if appropriate to impose, a custodial sentence on the youth. The trial judge nevertheless erred in principle in his approach to sentencing the youth. He ignored the YCJA and focused almost entirely on the gravity of the crime and the need to protect the public. Under the YCJA, options other than custody are to be given priority, and custody is a last resort. The fact that an offence committed by a young person is a "violent offence" does not mean that the young person must necessarily be given a custodial sentence. This case did call for the imposition of a custodial sentence of incarceration. The home invasion nature of the offence -- including the fact that the youth was armed with a machete and must have known that his co-perpetrator was armed at least with one real or imitation shotgun -- was a significant aggravating factor. At the same time, there were a number of mitigating factors. The youth was only 16 at the time of the offences. His family was under unusual financial pressures and living in the shelter system, and he had been sent to live at friends' houses, where he was unsupervised. He had no criminal or youth record. His family was supportive. He had had no problems while on release. He had been consistently employed and his employer spoke highly of him. He had completed all credits required for graduation from high school while in custody. Taking all those factors into account, a shorter sentence than that imposed by the trial judge was appropriate. The court has the power to impose a combination of open and closed custody even where a young person has only been convicted of a single offence. The sentence was varied to ten months custody (six months secure and four months open) and five months of community supervision.

APPEAL from the convictions and sentence imposed by Kerr J. of the Ontario Court of Justice.

Cases referred to R. v. A. (B.A.), [1991] B.C.J. No. 753 (C.A.); R. v. B. (G.), [1990] O.J. No. 1278 (C.A.); R. v. B.C.D., [2004] A.J. No. 1094, 2004 ABCA 303, 64 W.C.B. (2d) 289 (C.A.); R. v. B.M, [2003] O.J. No. 22, 186 O.A.C. 215, 56 W.C.B. (2d) 362 (C.A.); [page513] R. v. Bernier, [2003] B.C.J. No. 466, 177 C.C.C. (3d) 137, 2003 BCCA 134 (C.A.); R. v. Bradshaw, [1998] O.J. No. 3224 (C.J.); R. v. C. (A.J.), [2004] B.C.J. No. 964, 2004 BCCA 268, 196 B.C.A.C. 257, 186 C.C.C. (3d) 227, 62 W.C.B. (2d) 135 (C.A.); R. v. C. (D.L.), [2003] N.J. No. 94, 13 C.R. (6th) 329 (Prov. Ct.); R. v. C.E., [2004] O.J. No. 5526 (C.J.); R. v. C. (J.J.), [2003] P.E.I.J. No. 99, 2003 PESCAD 26, 230 Nfld. & P.E.I.R. 267, 180 C.C.C. (3d) 137, 59 W.C.B. (2d) 540 (S.C. (A.D.)); R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 261 D.L.R. (4th) 257, 343 N.R. 1, [2006] 5 W.W.R. 195; R. v. D. (T.M.), [2003] N.S.J. No. 488, 2003 NSCA 151, 220 N.S.R. (2d) 109, 181 C.C.C. (3d) 518, 60 W.C.B. (2d) 211; R. v. E.B.C., [2005] A.J. No. 120, 2005 ABCA 61, 363 A.R. 111, 63 W.C.B. (2d) 614 (C.A.); R. v. H. (P.), [2006] O.J. No. 885, 68 W.C.B. (2d) 851, 2006 CarswellOnt 1314 (S.C.J.); R. v. Harris, 2000 NSCA 7, [2000] N.S.J. No. 9, 181 N.S.R. (2d) 211, 142 C.C.C. (3d) 252 (C.A.); R. v. J.W.E., [2003] O.J. No. 5998 (C.J.); R. v. L. (S.), [2003] B.C.J. No. 2397, 179 C.C.C. (3d) 97, 2003 BCCA 563, 15 C.R. (6th) 298 (C.A.); R. v. M.A.J., [2005] O.J. No. 829, 2005 ONCJ 64, 64 W.C.B. (2d) 174 (C.J.); R. v. Matwiy, 1996 ABCA 63, [1996] A.J. No. 134, 105 C.C.C. (3d) 251 (C.A.); R. v. P. (B.W.), [2006] S.C.J. No. 27, 209 C.C.C. (3d) 97, 2006 SCC 27, 58 C.R. (6th) 1, affg [2004] M.J. No. 267, [2006] 5 W.W.R. 676, 122 C.R.R. (2d) 214, 187 C.C.C. (3d) 20, 2004 MBCA 110 (C.A.); R. v. P.R., [1995] O.J. No. 768, 80 O.A.C. 156 (C.A.); R. v. Pakoo, 2004 MBCA 157, [2004] M.J. No. 409, 198 C.C.C. (3d) 122 (C.A.); R. v. S.B., [2003] O.J. No. 2515, 58 W.C.B. (2d) 97 (C.J.); R. v. S.K., [2003] O.J. No. 2690, 58 W.C.B. (2d) 264 (C.A.); R. v. T.B. (2006), 78 O.R. (3d) 721, [2006] O.J. No. 584, 206 C.C.C. (3d) 405 (C.A.); R. v. W. (F.L.), [1986] N.S.J. No. 414, 78 N.S.R. (2d) 225, 193 A.P.R. 225 (S.C.); R. v. Wilmott, [1966] 2 O.R. 654, [1966] O.J. No. 1031, 58 D.L.R. (2d) 33, [1967] 1 C.C.C. 171, 49 C.R. 22 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 348.1, 718 Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 3, 3(1), 38, 39, 39(1), 39(2), (3), 42, 42(2), 88, 165(6) Young Offenders Act, R.S.C. 1985, c. Y-1, ss. 24.1-24.3, 24.1(2) Authorities referred to Platt, Priscilla, Young Offenders Law in Canada, 2nd ed. (Toronto: Butterworths, 1995)

Victor Giourgas and Sarah Egan, for appellant. Joseph Perfetto, for respondent.

The judgment of the court was delivered by

BLAIR J.A.: --

Nature of the Appeal

1The appellant seeks to set aside his convictions and the sentence imposed in respect of them in relation to a home invasion that occurred on January 16, 2003. He was a young person at the time the offences occurred. [page514]

2J.S. was convicted of robbery and of using an imitation firearm in the commission of an indictable offence. He contests his convictions on the basis that the trial judge misapprehended the evidence -- particularly, the fingerprint evidence placing him at the scene of the crime -- and submits, consequently, that the verdicts were unreasonable. With respect to sentence, he contends that the trial judge erred in imposing a custodial sentence and in failing to consider alternatives to closed custody, and that the sentence is harsh and excessive. The trial judge imposed a sentence of two years closed custody (plus 44 days of pre-trial custody).

3For the reasons that follow, I would dismiss the conviction appeal but grant leave to appeal sentence and vary the sentence imposed to one of 15 months custody and community service.

Facts

4On the evening in question three males forced their way into a townhouse in the presence of its inhabitants. The inhabitants were Joseph Iles; his mother, Debbie Iles; his girlfriend, 17-year old Pearl Abbott; and their one-year old child, Almyna Abbott.

5One of the men carried a shotgun and another (the appellant) a machete; the third man was unarmed. They asked Joseph Iles where the money or valuables were. Two of them went upstairs, while the one with the shotgun stayed in the living room with Joseph.

6The man with the shotgun first made Joseph sit on the couch and then, by pushing him with the barrel of the shotgun, took him into the basement, where the intruder looked around briefly before returning to the living room with his hostage.

7Still bearing his machete and wearing a hood, the appellant went to the upper level of the home. There he first encountered Debbie Iles, and told her to go to the living room. She obeyed. Next, the appellant entered a bedroom where he encountered Pearl Abbott putting her infant to bed. He was not verbally or physically abusive, but asked her where he could find some money. When Ms. Abbott did not answer satisfactorily, he began searching the room, rummaging in the closet and the drawers, still in the presence of the young mother and her baby. Eventually, the appellant instructed Ms. Abbott to take Almyna and go to the living room with the others, which she did.

8Shortly thereafter, the appellant and the unarmed man descended from the upstairs level carrying two pillowcases [page515] containing items taken from the house. The three invaders left through the back door. Joseph Iles went out the front door to follow them. The male with the shotgun turned to face Joseph, aimed and pulled the trigger on the shotgun, but the weapon did not discharge. The same male pointed another gun at Joseph, but again no bullet discharged.

9The items stolen included a Play Station videogame system, CD's, a Discman, and cash in the amount of $30-$40.

The Conviction Appeal

10We did not call on the Crown with respect to the conviction appeal.

11The primary issue at trial was identification. Joseph and Debbie Iles were not able to identify anyone from a photo- line up. Pearl Abbott did pick out the appellant from a photo-line up several months later. Pearl Abbott also testified that she had been in the bedroom with the male carrying the machete for several minutes and that she recognized him from around the neighbourhood. In addition -- and significantly -- however, the police lifted the appellant's fingerprint from a CD cover found in the bedroom where he had accosted Pearl Abbott and her baby.

12Needless to say, the fingerprint evidence provided compelling corroboration for the identification evidence of the witnesses. The only issue on the conviction appeal related to the validity of the fingerprint comparison and whether or not the trial judge had misapprehended the evidence in that regard. We are satisfied he did not.

13A careful reading of the transcript demonstrates that the police officer compared the "found" print from the CD cover to the prints attributed to the appellant through the police computer search, and received on January 29, 2004, and to the prints that were taken from the appellant following his arrest in March 2004. Although the officer who actually took the latter prints was not called as a witness, defence counsel admitted that those fingerprints were those of the appellant.

14The only other issue raised by the appellant in this regard was that there was a possible innocent explanation for how his fingerprints were found on the CD case. There was no basis in the evidence for any other explanation, however.

15Regardless of whether the trial judge misapprehended whether the owner of the CD cover was Joseph Iles or his younger brother, Randy, the fact remains that the appellant's fingerprints were found on that CD cover in the bedroom where Pearl Abbott placed him as the man with the machete. [page516]

16The verdicts were not unreasonable. The Crown's case was uncontradicted and it pointed to the appellant's guilt beyond a reasonable doubt.

17Accordingly, the conviction appeal must be dismissed.

The Sentence Appeal

18The trial judge imposed a global sentence of two years (16 months in secure custody to be followed by eight months community supervision) in addition to crediting the appellant with 44 days of pre-trial custody on a two-for-one basis, for an effective sentence of approximately two years and three months. I would grant leave to appeal and, taking into account the pre-trial custody, vary the sentence to one of 15 months custody and community service plus pre-trial custody, for the following reasons.

19While it was open to the youth court justice to consider, and if appropriate to impose, a custodial sentence on the appellant in the circumstances of this case, he nonetheless erred in principle in his approach to sentencing the appellant. He ignored the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA") and focused almost entirely on the gravity of the crime and the need to protect the public.

20The youth court justice relied upon the decision of this court in R. v. Wilmott, [1966] 2 O.R. 654, [1966] O.J. No. 1031, [1967] 1 C.C.C. 171 (C.A.) for the proposition that the primary purpose of sentencing is the protection of society. Wilmott, however, involved an adult offender, not a young person. Moreover, it predates both the statement of the purposes and principles of sentencing for adults now found in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46 and the new regime for dealing with the sentencing of young persons introduced through the YCJA.

21Under the YCJA, alternatives to custody are to be given first consideration. A youth court justice is not permitted to sentence a young person to custody unless the circumstances fall within one of the four exceptions set out in s. 39. In this case, the exception for consideration is found in s. 39(1) (a): where "the young person has committed a violent offence". Before a custodial sentence could be imposed on the appellant, then, the question whether a home invasion is a violent offence for purposes of the YCJA had to be considered and thereafter, if so, whether a custodial sentence was appropriate in the circumstances. [page517]

Violent offence

22There has been some debate in the authorities on the meaning of the term "violent offence" as used in s. 39(1)(a) of the YCJA. However, that debate has recently been resolved by the Supreme Court of Canada: see R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79. A violent offence is "an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm": paras. 17, 53 and 87. [See Note 1 below] "Bodily harm" incorporates the definition of bodily harm in s. 2 of the Criminal Code, namely "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature". That hurt or injury may be physical or psychological. See R. v. C.D.; R. v. C.D.K., para. 20.

23In short, a violent offence is an offence in the commission of which a young person causes, attempts to cause or threatens to cause physical or psychological harm or injury to a person that is more than transient or trifling in nature.

24The facts of this case fall within the YCJA meaning of violent offence, in my opinion. Counsel did not seriously contend to the contrary.

25The appellant and his companion intruders aggressively broke into the victims' home, brandishing a machete and a shotgun. They forced its occupants, who where dispersed around the house, to gather in the living room. There the occupants were confined by one intruder bearing a shotgun, which he pointed at, at least one of them, while the other two -- including the appellant, who was openly carrying the machete -- ransacked the rest of the house for goods to be stolen. Pearl Abbott was accosted by the appellant in the bedroom where she was putting her infant to sleep. The ransacking of that room took place in their presence before she was required to go downstairs to the living room. She said she was thinking of many things while this was happening. "I didn't know if they were going to hurt us. I just wanted it to be over," she testified. As noted above, when the invaders left, one of [page518] them pointed the shotgun at the elder son and pulled the trigger. Fortunately, the weapon did not discharge. Defence counsel at trial acknowledged that the situation "would have been terror for the family". The record indicates the victims were sufficiently traumatized by the event that they have moved from the jurisdiction and are unwilling even to talk to police for the purpose of providing impact statements.

26I note as well, of course, that one of the offences of which the appellant was convicted was robbery, a crime that will almost always encompass violence as one of its constituent elements.

27Because what happened constituted a violent offence, therefore, the youth court justice was entitled to consider a custodial offence. Before turning to the sentencing itself, however, I would like to comment briefly on the concept of "home invasion", because it is in that context that the sentencing of the appellant occurred.

Home invasion

28"Home invasion" is not a specific crime provided for in the Criminal Code or any other statute. However, as the trial judge observed, a phenomenon that society has come to label "home invasion" is becoming more and more prevalent. The label evokes considerable emotion on the part of those reacting to it. Generally, it refers to an offence relating to a home, or -- in the jargon of the law -- a dwelling-place. But what is it about the offence that characterizes it as a "home invasion"?

29Although the term "home invasion" is not defined in the Criminal Code or the YCJA, s. 348.1 of the Code provides an instructive reference point. Under the heading "Aggravating circumstances -- home invasion", s. 348.1 directs a court sentencing an adult person convicted of unlawful confinement, robbery, extortion, or break and enter in relation to a dwelling house to consider as an aggravating circumstance,

the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and

(b) used violence or threats of violence to a person or property.

30Section 348.1 has no application to sentencing under the YCJA, of course. However, the factors it lists -- the types of offences mentioned, committed in the context of an occupied home and accompanied by the use or threat of violence -- are [page519] common to the notion of home invasion articulated in a number of authorities that have considered the issue, and to which I will refer in a moment. In my view, it is the presence of the occupants of the home, with the violation of their sense of sanctity and security in that place and the attendant exposure to the threat (express or implied) of physical or psychological harm, that sets the home invasion apart from break and enter, robbery, and other offences committed in relation to a home. Such a crime is a "violent offence" within the meaning of s. 39(1)(a) of the YCJA because it is an offence in which the young person "causes, attempts to cause or threatens to cause bodily harm" -- physical or psychological.

31This court has not yet engaged in the debate about the definition of home invasion. As mentioned, though, other appellate courts, and some trial courts, across the country have attempted to describe its key elements. See, for example, R. v. Matwiy, 1996 ABCA 63, [1996] A.J. No. 134, 105 C.C.C. (3d) 251 (C.A.); R. v. Harris, 2000 NSCA 7, [2000] N.S.J. No. 9, 142 C.C.C. (3d) 252 (C.A.), at para. 70; R. v. Pakoo, 2004 MBCA 157, [2004] M.J. No. 409, 198 C.C.C. (3d) 122 (C.A.); R. v. Bernier, 2003 BCCA 134, [2003] B.C.J. No. 466, 177 C.C.C. (3d) 137 (C.A.); R. v. C. (J.J.), supra; R. v. H. (P.), [2006] O.J. No. 885, 2006 CarswellOnt 1314 (S.C.J.); R. v. Bradshaw, [1998] O.J. No. 3224 (C.J.).

32Consistent with the theme outlined in para. 30 above, there appears to be general agreement in these authorities that the main features of home invasion include breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.

33For the offence to qualify as a home invasion, I would add to the foregoing that the entry to the dwelling need not be only for the purposes of robbery or theft -- or result in those offences being committed. The crimes committed within the dwelling may include other offences involving violence against the person, as, for example, assault, sexual assault or unlawful confinement. [See Note 2 below]

34There is also widespread agreement in the authorities that such offences are very serious because they represent a violation [page520] of the sanctity of the home and of the sense of security people feel when in their homes -- highly cherished values in our society -- and because they are frequently perpetrated against vulnerable individuals. As Nordheimer J. observed, in R. v. H. (P.), supra, at para. 72:

Home invasions are particularly threatening to individuals, because such robberies strike at the fundamental and natural desire and expectation that every person has, that is, to feel safe and secure in their own homes. Whatever may happen in the outside world, people have an innate feeling that their homes are their one inviolate sanctuary.

See also R. v. Matwiy, supra, at p. 263 C.C.C.

35In relation to sentencing, however, a word of caution is in order.

36The label "home invasion" is elastic and can cover a broad range of offences. Judges have warned against generalizing across all home invasions when determining an appropriate sentence. One size does not fit all. See, for example, R. v. Pakoo, supra, Kroft J.A. at paras. 55-56; R. v. Bernier, supra, Southin J.A. at paras. 37-38; R. v. C. (A.J.), 2004 BCCA 268, [2004] B.C.J. No. 964, 186 C.C.C. (3d) 227 (C.A.), Finch C.J.B.C. at para. 1.

37In Pakoo, Justice Kroft advised [at para. 56]:

The use of the general description ["home invasion"] alone is of no concern. The problem arises because once the label has been affixed, there is an assumption on the part of judges and others, that conviction will usually be followed by a sentence confined to [a certain range].

He concluded by expressing (at para. 65) his

desire to assure that the sentence which we have imposed be seen as one based on cases with similar facts and the sentencing guidelines set forth in the Code, not simply on the "home invasion" label or the constraints that often come with it.

38I agree with the cautionary sentiments expressed in the forgoing authorities, particularly in the context of a young person being sentenced under the sentencing principles and guidelines set out in the YCJA. Affixing the label "home invasion" to a particular set of circumstances does not necessarily lead to any particular sentencing disposition. In my opinion, however, it does open the gateway to consideration of a custodial sentence because the type of crime that invokes the tag "home invasion" will have embedded in it a "violent offence" within the meaning of s. 39(1)(a) of that Act.

The Sentence Here

39Turning to the facts of this case, I repeat that a home invasion, [page521] committed in the presence of the home's inhabitants, by intruders (whether adults or young persons) brandishing weapons (whether real or imitation), is a violent crime. The visible use of weapons carries with it at least implicit intimidation and an implicit threat to cause bodily harm and, by itself, commands the compliance and non-resistance of victims. The youth court justice was completely justified in characterizing the home invasion here as "an horrendous crime" and in underscoring its gravity. As mentioned above, however, he erred in principle, in my view, in arriving at the sentence he imposed. Given this error, it is therefore open to us to reconsider what a fit sentence is in the circumstances.

40The Crown argues that the youth court justice was fully informed of the pertinent principles respecting youth sentencing through the submissions of defence counsel and, indeed, engaged in a dialogue with defence counsel throughout those submissions in relation to them. We cannot assume that he quickly ignored them, the Crown contends. Respectfully, however, a reading of the youth court judge's reasons does not bear out that he gave effect to any of the appropriate considerations under the YCJA.

Sentencing under the YCJA

41Effective April 1, 2003, the YCJA introduced a new statutory regime for dealing with young persons who break the law. In s. 3 it proclaims Parliament's policy for Canada with respect to young persons. Section 3 reads in part as follows:

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 . . . [page522]

42Part 4 of the Act deals with sentencing. Its provisions are lengthy and complex, in keeping with the general purposes and principles of sentencing, and the factors to be considered, which are set out in s. 38. For a thorough and helpful analysis of the YCJA sentencing regime, see the reasons of Hamilton J.A. in R. v. P. (B.W.) [See Note 3 below] and the reasons of Levine J.A. in R. v. L. (S.). [See Note 4 below] See also R. v. C.D.; R. v. C.D.K., supra. These decisions underline the fact that the YCJA creates a new regime for sentencing young persons, as well as panoply of new sentencing options, and that the emphasis is to be on non-custodial sentences.

43Most recently, Justice Charron has very succinctly summarized the thrust of the new YCJA regime in R. v. P. (B.W.); R. v. N. (B.V.), supra, at para. 19:

The YCJA came into force on April 1, 2003. Notably, Parliament did not simply amend its predecessor, the YOA, it repealed it. The YCJA is a complex piece of legislation that has substantially changed the Canadian youth justice system at various stages of the process including: at the front end, by encouraging greater use of the diversionary programs; at bail hearings, by substantially limiting pre-trial detention; and in the adult sentencing process, by the presumptive application of adult sentences for some of the most serious offences. Most of all, the YCJA brought about substantial changes in the general youth sentencing process. The statute provides more specific guidance to judges. Detailed sentencing principles are expressly set out. Sentencing options are more regulated. Factors to be taken into account are spelled out. Mandatory restrictions are placed on the use of custodial sentences. The new sentencing provisions have been characterized as "the most systematic attempt in Canadian history to structure judicial discretion regarding the sentencing of juveniles": J.V. Roberts and N. Bala, "Understanding Sentencing Under the Youth Criminal Justice Act" (2003), 41 Alta. L. Rev. 395, at p. 396.

44The purpose and principles of sentencing under the Act are set out in s. 38:

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.

(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; [page523]

(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.

(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.

45The thrust of the sentencing regime under the Act is that options other than custody are to be given priority and that custody is a last resort. As noted above, s. 38(2)(d) specifically provides that "all available sanctions other than custody that are reasonable in the circumstances" are to be considered. Section 39 reinforces this concept by prohibiting a youth court justice from committing a young person to custody under the youth sentences provisions of s. 42 unless one of the four gateway exceptions set out therein applies. All of this is consistent with the new Act's emphasis on accountability, rehabilitation and the reintegration into society of young persons who commit offences.

46Section 42 provides the youth justice court with a wide variety of youth sentence options -- 17 in total. Not until one [page524] reaches subsection 42(2)(n) does a custodial option emerge. [See Note 5 below] Subsection 42(2)(n) empowers the youth justice court to:

[M]ake a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period -- which is one half as long as the first -- be served . . . under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order.

47Here, the appellant could have been subjected to a maximum of three years custody and supervision, since he was convicted of robbery, an offence punishable by up to life imprisonment. However, the fact that the offence committed by a young person is a "violent offence" does not mean that the young person must necessarily be given a custodial sentence. Such a sentence is open for the youth court justice to consider in those circumstances. But subsections 39(2) and (3) stipulate that the youth justice court must first consider all other alternatives to custody and set out the factors to be taken into account. They state:

(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

48In this case the defence at trial did not put forward any alternatives to a custodial sentence. Defence counsel sought a sentence of three months open custody, followed by community supervision, followed by an appropriate probation order. The [page525] Crown asked for a 24 months custody and supervision order (12 months for robbery plus 12 months for the imitation firearm offence, consecutive) with 16 months custody and eight months community supervision. The youth court justice made it clear from the very beginning of sentencing submissions that he was only considering closed custody, and he adopted the Crown's submission.

49I agree with the youth court justice that this case calls for the imposition of a custodial sentence of incarceration. I am not satisfied that alternatives to custody are reasonable and adequate in the circumstances to hold the appellant accountable for these particular offences or that they would have meaningful consequences for him in the context of the crime committed. I am also not satisfied that a non- custodial sentence would be consistent with the principle of proportionality as expressed in s. 3(1)(b) and (c) and s. 38(2) (c). Even taking into account "the greater dependency of young persons and their reduced level of maturity" (s. 3(1)(b) (ii)), this offence was so serious that nothing less than a custodial sentence would suffice.

50I note that deterrence (general or specific) is not a factor in considering the appropriate sentence for the appellant. While a sentence may have the effect of deterring a young person and others from committing crimes, "Parliament has not included deterrence as a basis for imposing a sanction under the YCJA": R. v. P. (B.W.); R. v. N. (B.V.), supra, per Charron J. at para. 4. As Charron J. also noted, however, at para. 38:

Of course, this does [sic -- does not?] mean that sentencing under the YCJA cannot have a deterrent effect. The detection, arrest, conviction and consequences to the young person may well have a deterrent effect on others inclined to commit crime. It also does not mean that the court must ignore the impact that the crime may have had on the community, as was suggested in argument. A consideration of all relevant factors about the offence and the offender forms part of the sentencing process. What the YCJA does not permit, however, is the use of general deterrence to justify a harsher sanction than that necessary to rehabilitate, reintegrate and hold accountable the specific young person before the court.

(Emphasis in original)

51No doubt a non-custodial sentence would aid in promoting the appellant's rehabilitation and reintegration into society and be less restrictive of the appellant's liberty, and it is with those considerations in mind that I have decided that a shorter period of custody than that imposed by the youth court justice is appropriate. However, accountability and meaningful consequences for the appellant, as well as his rehabilitation and reintegration, inform the principles and the crafting of a disposition [page526] that will contribute to the long-term protection of society. Moreover, the sentencing principles articulated in s. 38(2) direct that the sentence must be proportionate to the seriousness of the crime and the degree and responsibility of the offender (38(2)(c)) -- important considerations in this case -- and that the youth justice court is to take into account, amongst other things, (a) the degree of participation by the young person in the commission of the offence, (b) the harm done to the victims, and (c) 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 the section (38(3)).

52Here, the circumstances of the offences were very troubling. I consider the home invasion nature of this offence -- including the fact that the appellant was armed with a machete and must have known that his co-perpetrator was armed at least with one real or imitation shotgun -- to be a significant aggravating factor that is relevant for the purposes and principles of s. 38.

53At the same time, there are a number of positive mitigating factors in the appellant's favour. He was only 16 at the time of the offences. His family was under unusual financial pressures and living in the shelter system. In an attempt to avoid a negative impact on the appellant they had sent him to live at friends' homes. Unfortunately this left him unsupervised, and he committed this offence.

54The appellant has no criminal or youth record. His family is supportive, and he has apparently taken some encouraging steps in turning himself around. He has had no problems while on release, both prior to trial and pending his appeal. He has been consistently employed and his employer speaks highly of him. And he has completed all credits required for graduation from high school while in custody at Brookside Youth Facility. I commend the appellant for his progress, which demonstrates his potential for rehabilitation and reintegration into society. I have taken all of these factors into account in deciding to impose a shorter sentence than that ordered by the trial judge.

55The appellant relies upon a number of lower court decisions where young persons have received custodial sentences, for what counsel submits are comparable crimes, ranging from three or four months open or closed custody plus community supervision to 16 months open custody plus community supervision: see R. v. M.A.J., 2005 ONCJ 64, [2005] O.J. No. 829, 64 W.C.B. (2d) 174 (C.J.) (16 months open custody and eight months community service for robbery (x2) and disguise with intent); R. v. C. (E.), [2004] O.J. No. 5526 (C.J.) (60 days secure custody plus 30 days [page527] community supervision on a plea of guilty for robbery (x2) and use of a firearm in commission of an offence); R. v. S.B., [2003] O.J. No. 2515, 58 W.C.B. (2d) 97 (C.J.) (12 months probation, 60 hours community service, and an $80 restitution order); R. v. J.W.E., [2003] O.J. No. 5998 (C.J.) (four months closed custody followed by four months open custody and six months probation); R. v. B.C.D., 2004 ABCA 303, [2004] A.J. No. 1094, 64 W.C.B. (2d) 289 (C.A.) (sentence for a residential break and enter, theft and mischief reduced on appeal from 12 months custody and six months supervision to six months closed custody and three months supervision); R. v. E.B.C., 2005 ABCA 61, [2005] A.J. No. 120, 363 A.R. 111 (C.A.) (sentence of eight months in custody followed by four months supervision and restitution after guilty plea for residential break and enter and assault, upheld on appeal). These cases involved crimes of violence, including robbery, but none was in the home invasion context.

56The Crown, on the other hand, relies upon R. v. T.B. (2006), [2006] O.J. No. 584, 206 C.C.C. (3d) 405 (C.A.) where a young person was sentenced to 30 months imprisonment plus six months of pre-trial custody for the robbery of a Tim Horton's outlet.

57Each case involving a young person must be decided on an individual basis. In my view, a sentence of 15 months custody and community supervision is appropriate in the circumstances of this case. This is in addition to three months credit for time served in pre-trial custody, for a total sentence of 18 months. The 15 months sentence is to consist of ten months custody (six months secure and four months open) plus five months community supervision.

Combination of open and closed custody

58There is some debate about whether a youth justice court has the authority, when imposing a custodial sentence, to make an order that the sentence be served partly in secure custody and partly in open custody. In R. v. W. (F.L.), [1986] N.S.J. No. 414, 78 N.S.R. (2d) 225 (S.C.), the Nova Scotia Supreme Court, Appeal Division, held that a trial judge was in error in combining secure and open custody under the Young Offenders Act, R.S.C. 1985, c. Y-1. See Priscilla Platt, Young Offenders Law in Canada, 2nd ed. (Toronto: Butterworths, 1995) at 460 for a similar view. This court has imposed or upheld such combination custodial sentences in the past without comment on their propriety, however: see R. v. P.R., [1995] O.J. No. 768, 80 O.A.C. 156 (C.A.); R. v. S.K., [2003] O.J. No. 2690, 58 W.C.B. (2d) 264 (C.A.); R. v. B.M, [2003] O.J. No. 22, 186 O.A.C. 215 (C.A.). [page528] On the other hand, in R. v. B. (G.), [1990] O.J. No. 1278 (C.A.), the argument was raised that the combination of both open and secure custody was not authorized, but the court did not find it necessary to address the issue. Similarly, the argument was made before the British Columbia Court of Appeal in R. v. A. (B.A.), [1991] B.C.J. No. 753 (C.A.), but the court decided the appeal on other ground and thus declined to discuss the issue.

59The problem arises from the language of s. 24.1 of the Young Offenders Act, now repealed, but which remains relevant for purposes of determining the level of custody for young persons in Ontario. The YCJA does not distinguish between "secure custody" and "open custody" facilities. Those designations were used under the Young Offenders Act. However, any place formerly designated as a place of "open custody" or "secure custody" under the former Act is deemed to have been designated a "youth court facility" for purposes of the YCJA (YCJA, s. 165(6)). Ontario has elected by Order-in-Council, [See Note 6 below] pursuant to s. 88 of the YCJA, to have the power to make determinations of the level of custody for young persons exercised by youth court justices in accordance with s. 24.1 to s. 24.3 of the Young Offenders Act. Hence the relevance of s. 24.1(2) of that Act, which states:

Subject to subsection (3), where the youth court commits a young person to custody . . . it shall specify in the order whether the custody is to be open custody or secure custody.

(Emphasis added)

60The argument that it is not permissible for a youth court justice, when determining the level of custody of a young person, to order a set portion to be served in secure custody and a set portion to be served in open custody, is founded on the view that the word "or" in s. 24.1(2) must be interpreted as strictly disjunctive. I do not agree.

61Counsel did not address this problem either in their facta or in their oral arguments. After reserving our decision, however, the court requested written submissions on the issue. Mr. Giourgas and Mr. Perfetto have filed a joint submission in which they agree that the court has the jurisdiction to direct that one portion of the sentence is to be served in secure custody while another portion is to be served in open custody. Their joint submission seems to be confined to circumstances where a [page529] young person has been found guilty of two separate offences -- in this case, for example, robbery and use of an imitation firearm -- in which case the court may sentence the youth to secure custody on one offence and open custody on the other. In support of this position, counsel refer to s. 24.3 of the Young Offenders Act, which states:

24.3(1) Where a young person is committed to open custody and secure custody pursuant to subsection 24.1(2), any portions of which dispositions are to be served consecutively, the disposition of secure custody shall be served first without regard to the order in which the dispositions were imposed.

(2) Where a young person is committed to open custody and secure custody pursuant to subsection 24.1(2), any portions of which dispositions are to be served concurrently, the concurrent portions of the dispositions shall be served in secure custody.

62Although this is sufficient to dispose of this appeal, I would not interpret the ability to order open or secure custody so narrowly. The provisions of s. 24.3 are necessary to deal with situations where a young person is sentenced on more than one offence and to clarify that custodial sentences are to be kept to a minimum in such circumstances. It does not follow that open and secure custody may not be divided in relation to a single offence. In my opinion, the power to order whether custody is to be open or secure implies the power to order, where appropriate, that the custodial sentence be served in some form of combination of the two. The operative language of the statute must now be interpreted in the context of the YCJA, its purpose, and the principles of sentencing that underlie its new sentencing regime -- all as alluded to above. This interpretation is consistent with those considerations.

Disposition

63Accordingly, the appeal as to conviction is dismissed. Leave to appeal sentence is granted and the sentence is varied to provide for a sentence of 15 months custody and community service. The sentence is to be served in the form of ten months custody (six months secure and four months open) plus five months of community supervision. I note that the appellant has already served four months of the custodial sentence. I would not vary the other terms of the sentence imposed by the trial judge.

Appeal from conviction dismissed; sentence appeal allowed. [page530]

Notes

Note 1: As fleshed out by Bastarache J. on behalf of the court, this is a harm-based definition, as opposed to a force-based one, and is not developed by simply taking the definition of "serious violent offence" in the YCJA and subtracting the word "serious". Some authorities had taken the approach of deducing the meaning of "violent offence" from the definition of "serious violent offence": see, for example R. v. C. (J.J.), 2003 PESCAD 26, [2003] P.E.I.J. No. 99, 180 C.C.C. (3d) 137 (S.C. (A.D.)) and R. v. D. (T.M.), 2003 NSCA 151, [2003] N.S.J. No. 488, 181 C.C.C. (3d) 518 (C.A.); contra, R. v C. (D.L.), [2003] N.J. No. 94, 13 C.R. (6th) 329 (Prov. Ct.).

Note 2: For purposes of the YCJA, the commission of an offence against property is not, in itself, sufficient to constitute a "violent offence": see R. v. C.D.; R. v. C.D.K., supra, at para. 51.

Note 3: 2004 MBCA 110, [2004] M.J. No. 267, 187 C.C.C. (3d) 20 (C.A.), affd [2006] S.C.J. No. 27, 2006 SCC 27.

Note 4: 2003 BCCA 563, [2003] B.C.J. No. 2397, 179 C.C.C. (3d) 97 (C.A.).

Note 5: Subsequent provisions in the same section impose a stricter regime in the case of "presumptive offences" (murder, attempted murder, manslaughter, aggravated sexual assault and other "serious violent offences" committed by young persons of 14 years of age or older).

Note 6: Order-in-Council 498/2004.