Court Information

Ontario Court of Justice

Date: December 14, 2018

Court File No.: 1911-998-18 1223

Between:

Her Majesty the Queen

— and —

B.S.

Before: Justice A. Wheeler

Heard: November 2, 2018

Reasons for Judgment Released: December 14, 2018

Counsel:

• Jacqueline Masse, for the Crown
• Sarah Starkie, for the defendant

Publication Ban

Pursuant to s. 110(1) of the Youth Criminal Justice Act, no person shall publish the name of B.S., or any other information related to B.S., if it would identify B.S. as a young person who was dealt with under that Act.

Judgment

WHEELER, J.:

Overview

[1] On November 2, 2018 B.S. pleaded guilty to mischief by wilfully interfering with the lawful use, operation and enjoyment of a residential property, and to failure to comply with a youth probation order that required him to keep the peace and be of good behaviour. The offences occurred on July 22, 2018.

[2] B.S. recently turned 19 years old. He was 18 years old at the time of these offences.

[3] This is the first time B.S. has been found guilty of a criminal offence as an adult. He has a significant youth record.

The Positions of the Parties

[4] Defence counsel asks that I impose a conditional discharge for the new offences, and emphasizes B.S.'s youthfulness and his mental health diagnoses. Defence counsel points to B.S.'s engagement with measures intended to assist in his rehabilitation, and argues that B.S. should not be saddled with an adult criminal record for these first offences committed as an adult.

[5] The Crown asks that I suspend the passing of sentence and place B.S. on probation for 12 months. While recognizing that there are significant mitigating factors here, the Crown argues that a conditional discharge is inappropriate because it would not send a strong enough message to B.S. that he must obey the law. The Crown points to the seriousness of the conduct here, and the fact that B.S. has a youth record for serious offences.

The Offences

[6] B.S. sent a bomb threat to the family that lived next door to his grandmother's house by way of a digitized voice message left on their answering machine that said: "There is a bomb in the house and you all are going to die." The complainant who received this message was at home with her grandson at the time. The grandson immediately told her that B.S. was a possible suspect, because he had repeatedly tried to communicate with him by text and FaceTime.

[7] As part of the facts read in, it was agreed that B.S. sent a similar message to a group home in Pembroke. The group home had to be evacuated.

[8] B.S. was on probation at the time, with a condition that he keep the peace and be of good behaviour.

[9] The police obtained a search warrant for B.S.'s cell phone. When they executed the warrant, they asked B.S. if he knew why they were there. B.S. immediately confessed.

[10] Defence counsel provided some further context for B.S.'s conduct. B.S. used to visit his grandmother, who lives next door to the complainant family. He would interact with the grandson, and had been trying to contact that young man by Facebook, without success. Essentially, he made the threat because he felt rejected by someone he was hoping to develop a friendship with. The threat to the group home occurred in a similar context, in that someone had blocked B.S. on Facebook. B.S. suffers from a number of developmental and mental health conditions. As a result, B.S. tends to get fixated on things, acts impulsively, and has poor social judgment and insight.

B.S.'s Background

[11] B.S. was 18 years old at the time of these incidents.

[12] B.S. has been diagnosed with autism spectrum disorder, intellectual disability, motor tic disorder, ADHD, regulatory-sensory processing disorder with tactile hypersensitivity and dysgraphia, and disruptive behaviour disorder (not otherwise specified).

[13] B.S.'s parents split up before he was born. He has lived with his mother, his father and with a great grandmother for various time periods. The descriptions of B.S.'s behaviour in a report prepared in relation to youth court proceedings, and filed as an exhibit on these proceedings, indicate that he was a difficult child to raise – capable of being extremely loving, but also volatile and explosive.

[14] B.S. has been in the care of Child and Family Services since 2015. He has been housed in a variety of different living situations. Since the fall of 2017 he has been living at the Partners in Parenting home, where on all accounts he has been doing well. He completed a successful work placement at a Montana's restaurant, and also hosted a dinner for the managers at Partners in Parenting. A letter from Jessica Lamarche indicates that it was a large lasagna dinner, that B.S. planned the menu, made the food and served the guests, "all with a smile on his face."

[15] Paul Ste-Marie has been supervising B.S. on a probation order imposed in youth court. Mr. Ste-Marie indicates that B.S. has responded extremely well to supervision, apart from the current charges. Based on Mr. Ste-Marie's report, it appears that B.S. has been doing everything that is expected of him pursuant to earlier court orders, and as part of his structured living arrangements. He states that B.S. "has been overall a pleasure to deal with." Given how well B.S. was doing, Mr. Ste-Marie was, prior to these charges being laid, considering bringing an application to end B.S.'s youth probation order early.

[16] Although not all of the reports and letters filed as exhibits are entirely current, they do paint a picture of B.S. as being surrounded by competent and caring professionals who are committed to seeing him transition to a stable adult life, with as much independence as he can safely manage. The people who work with B.S. are well aware of his diagnoses and background.

B.S.'s Youth Record

[17] B.S. has a youth record as follows:

Date	Offences	Disposition
2015-11-10	Assault with a weapon; Mischief under $5000	2 years probation
2017-02-15	Assault; Failure to comply with undertaking; Uttering threats x 2	2 years probation
2017-02-15	Sexual assault; Forcible confinement; Failure to comply with undertaking	2 years probation (5 months pre-disposition custody)
2017-02-15	Assault with a weapon; Uttering threats; Failure to comply with undertaking	2 years probation
2017-03-09	Uttering threats; Fail to comply with conditions of undertaking	2 years probation

Mitigating Factors

[18] I find that there are the following mitigating factors:

1. B.S. pleaded guilty and did so quite early in the court process.

2. B.S. was cooperative with the police. He immediately confessed when they came to execute a search warrant for his phone.

3. B.S. is genuinely remorseful. He wrote notes of apology to the neighbours of his grandmother, and to the group home.

4. B.S.'s conduct was related to his mental health diagnoses, an issue that I discuss in further detail below.

Aggravating Factors

[19] I find that there were the following aggravating factors:

1. The threats were taken seriously and would have been genuinely alarming to the recipients. The group home had to be evacuated. Although there was no evidence that spoke directly to the next door neighbour's reaction, I find that she would have been fearful, particularly given the anonymous digitized voice in the message.

2. B.S. has a significant youth record for serious offences and was on probation at the time.

Sentencing Objectives and Principles

[20] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, through the imposition of a sentence that has one or more of the objectives set out in that section. They are: denunciation, specific and general deterrence, separation of offenders from society where that is necessary, rehabilitation, reparation to victims, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to the victim and to the community.

Discharges Under Section 730 of the Criminal Code

[21] Section 730(1) of the Criminal Code allows a court to impose an absolute or conditional discharge as an alternative to a formal conviction, where the court "considers it to be in the best interests of the accused and not contrary to the public interest":

730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[22] Section 730(3) states that when a court directs that an offender be discharged, "the offender shall be deemed not to have been convicted of the offence," and s. 730(4) sets out the circumstances in which an offender can lose that benefit, as follows:

(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

Would a Discharge Be in B.S.'s Best Interest?

[23] In R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (Ont. C.A.), the court held that in determining whether a discharge is in the defendant's best interests, a court should consider whether a conviction is necessary for the defendant's specific deterrence or rehabilitation. Arnup J.A. held:

The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions.

[24] The British Columbia Court of Appeal's decision in R. v. Fallofield, [1973] B.C.J. No. 559 (C.A) is also often cited with respect to the principles applicable to the imposition of a discharge. With respect to the best interests of the accused, that court held:

Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.

[25] The Crown opposed a discharge for B.S. on the basis that it was contrary to the public interest because of the need to deter him from further criminal conduct given the seriousness of this incident and his prior youth record. In view of the case law, I see this as an issue that is properly addressed in relation to whether a discharge is in B.S.'s best interests, although obviously the public interest coincides with B.S.'s best interests on this point.

[26] B.S. does not meet the Fallofield description of being a person of otherwise good character, without previous conviction. Nevertheless, I find that a conditional discharge is in B.S.'s best interests, for the following reasons:

1. A conviction would have a significant collateral consequence for B.S., of causing his youth record to "be dealt with as a record of an adult" pursuant to s. 119(9)(b) of the Youth Criminal Justice Act. This could be a significant impediment for B.S. as he continues his efforts to gain a measure of independence and to find his place in society. See R. v. Pham, 2013 SCC 15 on the appropriateness of considering collateral consequences in the imposition of sentence. A discharge would not have the effect of bringing B.S.'s youth record into existence to "be dealt with as the record of an adult." Of course, that is only the case if B.S. complies with the terms of probation.

2. Compared to a conviction and suspended sentence, a conditional discharge is a better way to tell B.S. that he must behave properly, and must find socially acceptable ways to deal with frustration and disappointment. If B.S. is convicted of breaching the terms of his probation order, or of any other criminal offence during the time when he is on probation as part of a conditional discharge, the Crown has the right to ask that the discharge be revoked. The prospect that the conditional discharge could be revoked is, in my view, a big incentive for B.S. not to commit further crimes. Because of that, it is my view that the imposition of a conditional discharge would have a much better individual deterrent effect than would the entry of a conviction and probation imposed as part of a suspended sentence.

3. Saddling B.S. with a criminal record could be counterproductive to his efforts at rehabilitation. Despite all of B.S.'s challenges, and despite his history, there are reasons to be optimistic for his future. B.S. has actively participated in programming intended to assist in his rehabilitation, and he has been compliant with the structures and supports that are intended to assist him in living a pro-social life. B.S. has less choices in life because of the mental health challenges he faces. Those choices should not at this point be further restricted by causing his youth record to be dealt with as an adult criminal record, particularly when it is unclear how doing so would meaningfully contribute either to his rehabilitation or to public safety.

Would a Discharge Be Contrary to the Public Interest?

[27] In Sanchez-Pino, Arnup J.A. held:

It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence – a standard part of the criteria for sentencing.

[28] When dealing with youthful adult offenders, the most important sentencing objectives are usually individual deterrence and rehabilitation. See: R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) at 294; R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.) at para. 36; R. v. Denault (1981), 20 C.R (3d) 154 (Ont. C.A.). There is nothing in the circumstances of this case that would make this principle inapplicable. The fact that B.S. was so young at the time of the offences means that general deterrence and denunciation are of limited importance in determining whether a discharge would be contrary to the public interest.

[29] B.S.'s complex mental and developmental conditions further diminish the importance of general deterrence and denunciation. Although not spelled out in the reports filed, I find that it is a reasonable conclusion that his conditions played a central role in the commission of these offences. This also diminishes the importance of general deterrence and denunciation, for two reasons. First, the courts have recognized that persons suffering from mental illness are less likely to be deterred by sentences imposed on others. Second, the fact that B.S.'s offences were in large measure the product of his mental health conditions significantly reduces his moral blameworthiness. See: R. v. Batisse, 2009 ONCA 114 at para. 38; R. v. Ellis, 2013 ONCA 739 para. 116-121; R. v. Dedeckere, 2017 ONCA 799.

[30] In R. v. M.(M.), 2018 ONCJ 515 I granted a conditional discharge to an 18 year old who pleaded guilty to theft while on probation for offences committed in youth. The "not contrary to the public interest" criteria was, in my view, more clearly met in that case than it is here, precisely because of the concerns raised by the Crown. B.S. has a youth record for serious offences, and his conduct in making the bomb threats is also serious. There is cause for concern that it could be in the public interest that his youth record "be dealt with as a record of an adult." This is a close call, but in all the circumstances, I find that B.S. has established that a conditional discharge would not be contrary to the public interest.

[31] In my view, the long term public interest favours a conditional discharge over a conviction and suspended sentence, because a discharge will better support B.S. in making a successful transition to living as independently as possible without reoffending. As already mentioned, B.S. faces substantial challenges if he is going to find and hold employment and achieve some measure of independence in adult life. B.S. has worked hard and has benefitted from structured support. Essentially for the same reasons that I have found that a discharge would be in B.S.'s best interests, I also find that it would be contrary to the public interest to add the burden of a criminal record at this stage.

[32] I acknowledge that the threats would have caused the recipients to be fearful and genuinely upset, particularly the grandmother's next door neighbours. I also acknowledge that despite everyone's hopes, it is foreseeable that B.S. might commit further offences. However, it is important that everyone understand that on both the Crown's proposed sentence, and the discharge sought by the defence, the immediate level of protection to the public, including the victims of the current offences, is exactly the same: a term of probation. Furthermore, allowing B.S. to retain the protections on access to youth records set out in the Youth Criminal Justice Act will not, at least at this point, appreciably affect public safety given that B.S. lives in a structured environment where the people supervising him are aware of his history.

Should B.S. Be Prohibited from Attending at His Grandmother's Home?

[33] The primary point of contention between Crown and defence as to the terms of probation is whether B.S. should be prohibited from attending at his grandmother's house. B.S. has a good bond with his grandmother, who attended court with him, and the terms of his bail have prohibited from going there. I am not prepared to ban B.S. outright from attending at his grandmother's house. In my view, B.S.'s relationship with his grandmother can only benefit his continued rehabilitation. However, I am placing restrictions on his ability to be at her home. B.S. should be allowed to visit his grandmother, but only in a structured way, as follows:

Restrictions on visits to grandmother's home:

• B.S. may not: (a) reside at his grandmother's house, (b) stay overnight at her house or (c) be at her house between the hours of 10 p.m. and 8 a.m.

• B.S. is permitted to visit his grandmother at her house, but only (a) when she is home; (b) for the first 6 months of the probation order, those visits are not to exceed four hours per week; and (c) all visits are to be arranged in advance with his probation officer, and the probation officer is authorized to provide the schedule of B.S.'s visits in advance to the complainant or her family members if they wish to have that information.

Additional Terms of Probation

[34] In addition to the statutory terms, the parties substantially agree on the terms of probation. They will include a term requiring B.S. to attend for assessment, counselling and rehabilitative programs as directed by his probation officer, and a term that he do 20 hours of community service.

Released: December 14, 2018

Signed: Justice Alison Wheeler