COURT OF APPEAL FOR ONTARIO

DATE: 20000228

DOCKET: C32641

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and O'CONNOR JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
(Applicant)

-and -

J. C. (A YOUNG PERSON)
(Respondent)

Randy Schwartz
for the appellant

David Gibson
for the respondent

Heard: January 26, 2000

On appeal from the order of Madam Justice Little dated July 7, 1999.*

DOHERTY J.A.:

I

[1] The respondent is charged with first degree murder. He was

one month short of his eighteenth birthday when the alleged

offence occurred (August 2, 1998). Under the terms of s.

16(1.01) of the Young Offenders Act, R.S.C. 1985, c. Y-1, as

amended, 1992 c.11, s.2; 1995 c. 19, s. 8 (the Act), the

respondent must be tried in ordinary court unless, upon

application to a youth court judge, he is ordered tried in youth

court. He made that application and on July 7, 1999, Justice

Little ordered the respondent tried in youth court. The Crown

seeks a review of that order pursuant to s. 16(9) of the Act.

[2] Pending this review, the matter has proceeded in youth

court. The respondent elected trial by judge and jury and was

committed for trial on the charge of first degree murder after a

preliminary inquiry. No trial date has been set.

[3] This is a difficult case. After anxious consideration, I

would confirm the order made by Little J.

II

[4] The homicide occurred in Big Trout Lake, a remote First

Nations community of approximately 1,200 people located some 400

km. north of Sioux Lookout. Big Trout Lake is accessible only by

air. The respondent had lived in Big Trout Lake most of his

life, although he had been away from the community for a brief

time shortly before the homicide. The victim, Darren Sainnawap,

was eighteen years old. He and the respondent had been longtime

friends, but in the months prior to the homicide their friendship

had soured.

[5] The respondent has acknowledged from the outset that he shot

and killed the victim. He claims that the gun discharged

accidentally. Before this court, his counsel submitted that even

on the respondent’s version of events he was engaged in an

unlawful act when the gun discharged and was, therefore, guilty

of manslaughter.

[6] The Crown contends that the discharge of the gun was no

accident, but rather the end product of a decision made some

hours earlier by the respondent to kill the victim. The Crown

submits that this was a planned and deliberate murder.

[7] The respondent, the victim, and many other young people

attended a “home brew” party that started the night before the

homicide. The party carried on at different locations over

several hours. The respondent and victim were both drinking

“home brew.” During the party, the victim and the respondent

quarreled. It seems that there were two reasons for the

animosity that had developed between them. First, the respondent

had recently found out that the person he believed to be his

father was not his father, and his real father was the victim’s

father. Their father had suggested to the victim that he was

“spoiled rotten” compared to the respondent. Second, the

respondent’s former girlfriend, for whom he had strong feelings,

was, at the time of the homicide, the girlfriend of the victim.

[8] The victim was the aggressor in the arguments with the

respondent at the party. The evidence suggested that the

respondent was not anxious to fight with the victim and went so

far as to suggest that they fight the following Monday when, if

things went according to his plan, the respondent would have left

Big Trout Lake.

[9] The respondent left the party at about 5:00 a.m. He was

seen about two hours later walking along a causeway armed with a

rifle. He fired a shot into the ground in front of him. Shortly

before 8:00 a.m., the respondent encountered the victim walking

along a boardwalk. They quarreled and the respondent shot and

killed the victim. There were three witnesses who were within

several feet of the homicide. Their descriptions of the homicide

varied, although it would appear that the respondent and the

victim were standing about two feet apart arguing when the victim

grabbed the barrel of the gun. The respondent fired the gun,

shooting the victim in the chest. He also hit the victim in the

face with the gun before the victim fell to the ground. There

was evidence from which it could be inferred that the respondent

loaded the rifle immediately before shooting the victim.

[10] The respondent walked away from the scene and threw the

rifle into a bush near the boardwalk. Within moments, he

encountered Fred Sainnawap, a First Nations Constable, driving

his vehicle towards the boardwalk. The Constable was unaware of

the shooting. The respondent flagged down the police car,

entered the vehicle and immediately told Constable Sainnawap that

he had killed the victim. The Constable detected an odour of

“home brew” coming from the respondent, and observed that he was

glassy eyed. The Constable believed, however, that the

respondent was not intoxicated. He was not staggering, had no

difficulty communicating with the Constable, and seemed calm.

[11] The police investigation indicated that after leaving the

party, the respondent had walked to the home of David Hudson,

where he was staying. He had taken one of Hudson’s rifles, sawed

off the butt, obtained some ammunition for the rifle from

Hudson’s home, and walked back toward the location of the party.

He encountered the victim on the boardwalk on his way back to the

party.

[12] There was an indication in the predisposition report that

the respondent had some loose connection to aboriginal youth

gangs in the community. The police were never able to

substantiate any connection between the respondent and these

gangs. There was no allegation that the shooting was gang

related.

[13] The investigating officer agreed during cross-examination

that there was no evidence that the respondent was “hunting” the

victim when he came across him on the boardwalk. The officer

agreed that the respondent would have had no way of knowing that

the victim would be on the boardwalk at that time.

III

[14] Before addressing the principles governing the transfer

application and considering the evidence in some detail, it is

helpful to describe this court’s function on this appeal.

Section 16(9) of the Act provides:

An order made in respect of a young person

under this section … shall, on application

of the … Attorney General … made within

thirty days after the decision of the youth

court, be reviewed by the court of appeal,

and that court may, in its discretion, confirm

or reverse the decision of the youth court.

[Emphasis added.]

[15] The appellate court must consider the applicable statutory

principles and make its own evaluation of the merits of the

application. In doing so, the appellate court will accept any

credibility assessments and findings of fact made by the judge

hearing the application unless those findings are unreasonable or

are based on a misapprehension of the evidence or a failure to

consider relevant evidence: R. v. M.(S.H.) (1989), 50 C.C.C.

(3d) 503 at 548-49 (S.C.C.); R. v. C.(D.) (1993), 85 C.C.C. (3d)

547 at 558 (Ont. C.A.), leave to appeal to S.C.C. refused

(1994), 86 C.C.C. (3d) vii.

IV

[16] As indicated earlier in these reasons, a 17 year-old charged

with murder will be tried in ordinary court unless on application

to the youth court, the young person is ordered tried in youth

court. The test to be applied in deciding whether a transfer

order should be made is found in s. 16(1.1) of the Act. It

provides that the youth court:

… shall consider the interest of society, which

includes the objectives of affording protection

to the public and rehabilitation of the young

person, and determine whether those objectives

can be reconciled by the youth being under the

jurisdiction of the youth court …

[17] If the youth court is satisfied that the two objectives

referred to in s. 16(1.1) can be reconciled in youth court

proceedings, the young person must be tried in that court. If

they cannot be reconciled, the protection of the public is

paramount and the youth must be tried in ordinary court (s.

16(1.1)(a),(b)). The onus to establish that the objectives can

be reconciled falls on the party bringing the transfer

application (s. 16(1.11)).

[18] Section 16(1.1) provides a more focused test for the

determination of transfer applications than the predecessor

legislation. It looks exclusively to the objectives of the

protection of the public and the rehabilitation of the youth. As

Osborne J.A. observed in R. v. C.(D.), supra, at p. 557:

Although I agree that the interest of society

includes more than protection of the public and

rehabilitation, the provisions of s. 16(1.1) are

clear in their identification of only two elements

of the interests of society - public protection and

rehabilitation. It is protection of the public, on

the one hand, and rehabilitation, on the other,

which must be assessed with a view to determining

whether those objectives can be reconciled within

the youth court system.

[19] Section 16(2) of the Act sets out the factors which the

youth court must consider in determining whether the objectives

of protection of the public and rehabilitation of the young

person can be reconciled within the youth court system:

16(2) In making the determination referred to in

subsection (1) or (1.03) in respect of a young

person, a youth court shall take into account

(a) the seriousness of the alleged

offence and the circumstances in which it was

allegedly committed;

(b) the age, maturity, character and

background of the young person and any record

or summary of previous findings of

delinquency under the Juvenile Delinquents

Act, chapter J-3 of the Revised Statutes of

Canada, 1970, or previous findings of guilt

under this Act or any other Act of Parliament

or any regulation made thereunder;

(c) the adequacy of this Act, and the

adequacy of the Criminal Code or any other

Act of Parliament that would apply in respect

of the young person if an order were made

under this section, to meet the circumstances

of the case;

(d) the availability of treatment or

correctional resources;

(e) any representations made to the

court by or on behalf of the young person or

by the Attorney General or his agent; and

(f) any other factors that the court

considers relevant.

[20] The factors identified in that section are applied in

conjunction with the broad principles underlying the Act: see R.

v. M.(S.H.), supra, at pp. 541-42. Section 3 of the Act lays

down those principles:

3(1) It is hereby recognized and declared that

(a) crime prevention is essential to

the long-term protection of society and

requires addressing the underlying causes of

crime by young persons and developing multi-

disciplinary approaches to identifying and

effectively responding to children and young

persons at risk of committing offending

behaviour in the future;

(a.1) while young persons should not

in all instances be held accountable in the

same manner or suffer the same consequences

for their behaviour as adults, young persons

who commit offences should nonetheless bear

responsibility for their contraventions;

(b) society must, although it has the

responsibility to take reasonable measures to

prevent criminal conduct by young persons, be

afforded the necessary protection from

illegal behaviour;

(c) young persons who commit offences

require supervision, discipline and control,

but, because of their state of dependency and

level of development and maturity, they also

have special needs and require guidance and

assistance;

(c.1) the protection of society,

which is a primary objective of the criminal

law applicable to youth, is best served by

rehabilitation, wherever possible, of young

persons who commit offences, and

rehabilitation is best achieved by addressing

the needs and circumstances of a young person

that are relevant to the young person’s

offending behaviour;

(d) where it is not inconsistent with

the protection of society, taking no measures

or taking measures other than judicial

proceedings under this Act should be

considered for dealing with young persons who

have committed offences;

(e) young persons have rights and

freedoms in their own right, including those

stated in the Canadian Charter of Rights and

Freedoms or in the Canadian Bill of Rights,

and in particular a right to be heard in the

course of, and to participate in, the

processes that lead to decisions that affect

them, and young persons should have special

guarantees of their rights and freedoms;

(f) in the application of this Act, the

rights and freedoms of young persons include

a right to the least possible interference

with freedom that is consistent with the

protection of society, having regard to the

needs of young persons and the interests of

their families;

(g) young persons have the right, in

every instance where they have rights or

freedoms that may be affected by this Act, to

be informed as to what those rights and

freedoms are; and

(h) parents have responsibility for the

care and supervision of their children, and,

for that reason, young persons should be

removed from parental supervision either

partly or entirely only when measures that

provide for continuing parental supervision

are inappropriate.

(2) This Act shall be liberally

construed to the end that young persons will

be dealt with in accordance with the

principles set out in subsection (1).

[21] The statutory framework to be addressed on a transfer

application is complex and refers to broad principles, some of

which seem almost irreconcilable. Stripped to its essentials,

however, the scheme directs that the judge hearing the

application accept that the primary concern is the protection of

the public, and that he or she consider whether the

rehabilitation of the young person can be achieved without

compromising the protection of the public. As long as the young

person poses a danger to the public, removal from the community

affords the only adequate protection for the public. The long-

term protection of the public is, however, best served by the

rehabilitation of the young person so that he ceases to pose a

danger to the public. It is, therefore, necessary to contemplate

a sentence or disposition which promotes the rehabilitation of

the young person, while at the same time protecting society as

long as the young person remains a danger. The crucial questions

on transfer applications become:

• Is the young person presently a danger to the public?

• Can the young person be rehabilitated so that he or she

• ceases to pose a danger to the public?

• Can the rehabilitation be achieved within the disposition

• scheme established under the Act?

• Can the public be adequately protected through the

• disposition scheme established under the Act during the

• rehabilitative process?

[22] If the answer to the first question is “no”, the young

person will be tried in youth court. If, however, the court is

not satisfied that the young person is not a present danger, the

young person will be tried in ordinary court unless, where the

young person has the onus, as is the case here, he or she can

satisfy the youth court that the answer to the last three

questions is “yes.”

[23] Answers to these three questions require that the court look

well into the future and measure concerns and prospects that are

inherently difficult to gauge with any certainty. The young

person cannot be expected to convince the court to a certainty

that each question can be answered in the affirmative. A young

person seeking transfer to youth court must demonstrate that it

is likely that he or she can be rehabilitated; that it is also

likely that, by the termination of any disposition imposed under

the Act, the young person will be sufficiently rehabilitated so

as to no longer pose a danger to the public; and that it is

likely that the public can be adequately protected under the

disposition scheme established under the Act during the

rehabilitative process: R. v. W.(B.) (1997), 1997 1543 (ON CA), 121 C.C.C. (3d) 419

at 423 (Ont. C.A.).

[24] Until recently, the duration of dispositions available under

the Act was not sufficiently long to protect the public during

the lengthy rehabilitative process needed in most cases where

young persons were charged with the offence of murder. A trial

in youth court was, therefore, often not a viable option. Recent

amendments have significantly extended the potential duration of

dispositions imposed under the Act. Under s. 20(1)(k.1) and s.

26.1 of the Act, a young person convicted of first degree murder

in youth court may be subject to a disposition which extends for

10 years. The young person may be required to serve the entire

10 years in a secure setting.1 Although the dispositions

available under the Act can stretch forward 10 years from the

date of disposition, there can be no restriction on the young

person’s liberty when the disposition is complete. The young

person must be released upon completion of the disposition,

regardless of the danger he may present to the public.

[25] While the dispositions now available under the Act are more

suitable to young persons convicted of murder than those

previously available under the Act, there are still significant

differences between potential dispositions under the Act and the

sentence imposed on a young person convicted of first degree

murder in ordinary court. A 17 year-old young person convicted

of first degree murder in ordinary court is sentenced to life

imprisonment. He is eligible for parole after 10 years.2 He

may, however, remain incarcerated beyond that time and perhaps

for the rest of his life. Even if released on parole, the young

person remains subject to the restrictions imposed by the parole

conditions for the rest of his life: Criminal Code, s. 745.1.

[26] In addition to the potential duration of any disposition

imposed on the young person if he is tried in youth court, the

availability of treatment to assist in the rehabilitation of the

young person must be considered. Here, too, recent amendments to

the Act and the Criminal Code have eliminated many of the

distinctions which formerly existed between young persons

processed through the youth court and those dealt with in

ordinary court. If the respondent is convicted either in youth

court or in ordinary court, the court may, under s. 16.2 of the

Act, direct that the sentence or disposition be served in the

youth facility or in an adult facility. Furthermore, since the

respondent will be 20 years old in September, he will serve his

disposition or sentence in an adult facility from that point

forward: Young Offenders Act, s. 24.5; Criminal Code, s. 743.4.

If the respondent is convicted of murder, the placement options

available to the court are not significantly different whether

the respondent is proceeded against in ordinary court or in youth

court. The same can be said for the treatment services which may

be available to assist in the rehabilitation of the respondent.

As Crown counsel put it in his factum:

… regardless of whether a young person is tried

in ordinary court or youth court, similar

placement options are available to the court to

meet the young person’s needs and the circumstances

of the case.

[27] Given the disposition options available under the Act,

Little J. had to decide whether she was satisfied that the

respondent would likely not pose a danger to the public upon his

release if held in a secure setting for up to 10 years (but not a

day longer), where he could receive the benefit of services and

programs intended to further his rehabilitation. To make this

decision, Little J. had to consider the circumstances of the

alleged offence and the respondent’s background and character.

V

[28] A young person charged with murder who makes an application

to be tried in youth court has, of course, not been found guilty

of any offence and is still protected by the constitutionally

entrenched presumption of innocence. The concepts of the

protection of the public and the rehabilitation of a young person

referred to in s. 16(1.1) of the Act, however, have meaning only

if the young person has committed the alleged crime. A transfer

application with its relaxed rules of evidence is no place to

engage in a full blown trial or to make determinations of

culpability. In my view, the judge hearing the transfer

application can only properly address the issues raised by s.

16(1.1) if he or she assumes that the Crown will prove the

allegation made against the young person. Section 16(2)(a) of

the Act, which requires a judge to consider the seriousness of

the “alleged” offence and the circumstances in which it was

“allegedly committed”, supports the view that the judge must

proceed on the basis that the offence was committed by the young

person.

[29] In this case, Little J. was required to accept that the

Crown would establish that the respondent committed a planned and

deliberate murder. She did so when she said:

For the purpose of this application, I believe

I must accept the theory offered by the Crown.

[30] I do not, however, agree that the judge must accept all of

the evidence offered by the Crown touching on the circumstances

of the alleged offence or the young person’s culpability for that

offence. The judge has a fact finding responsibility and cannot

abdicate that function by simply accepting as fact all of the

evidence tendered by the Crown. If the Crown leads evidence that

it claims supports factual findings relevant to the circumstances

of the alleged offence or the young person’s conduct in relation

to the offence, the judge must weigh the credibility and

reliability of that evidence before accepting it. In performing

this task, I do not suggest that the judge must test the evidence

in the way he or she would on a trial. The judge should accept

as fact evidence tendered by the Crown if that evidence is

reasonably capable of belief and also reasonably capable of

supporting the finding of fact urged by the Crown.

[31] Authorities from this court are consistent with the position

outlined above. In R. v. S.(G.) (1991), 1991 7079 (ON CA), 5 O.R. (3d) 97 (C.A.),

leave to appeal to S.C.C. refused (1992), 6 O.R. (3d) xiii, two

competing versions of the homicide were advanced. On the Crown’s

version, the homicide was committed in the course of a vicious

robbery. On the young person’s version (advanced through a

psychiatric report admitted as fresh evidence on the appeal), the

young person killed the victim in a panicked response to a

homosexual advance made by the victim.

[32] Carthy J.A., in dissent, at p. 102, opined that the decision

on the transfer application “must be made without presuming which

version might be accepted by a judge or jury.”

[33] Goodman J.A., for the majority, took a different view. He

observed that the circumstances surrounding the alleged offence

were an important consideration in determining where the young

person should be tried. Consequently, the judge hearing the

application had to make findings with respect to the relevant

circumstances. In describing the approach to be taken to that

fact-finding function, Goodman J.A. said, at p. 112:

… where there is conflicting evidence placed

before the court considering an application

under s. 16 of the Act, with respect to the

manner in which the alleged offence was committed,

such court is entitled to proceed on the basis of

the evidence most damaging to the alleged offender,

assuming that it is evidence capable of belief

and not merely trifling in nature or amounting

to no more than mere conjecture.

[34] Goodman J.A. considered the competing versions of events

placed before the Court of Appeal and concluded that the more

inculpatory version of events provided by the young person in his

initial statement should be preferred over the exculpatory

version given to the psychiatrist many months later.

[35] The approach favoured by Goodman J.A. is consistent with

that followed in R. v. R.(S.) (1991), 1991 7051 (ON CA), 1 O.R. (3d) 785 at 789

(C.A.) where this court said:

… even though there were inconsistencies in the

evidence presented at the hearing with respect

to the nature of the participation of the applicant

in the murder, the youth court judge was entitled

to take into account under s. 16(2)(a) of the

Act, as proven for the purposes of the application,

not only that the applicant had committed first

degree murder as alleged but also the circumstances

as alleged, that is to say, the manner in which

it was committed.

[36] Other provincial courts have taken the same view of the fact

finding role of a judge on a transfer application: see R. v.

B.(R.V.) (1994), 1994 ABCA 28, 145 A.R. 384 at 387 (C.A.); R. v. G.(W.P.)

(1999), 1999 BCCA 74, 119 B.C.A.C. 145 at 152 (C.A.).

[37] The distinction between assuming that the Crown will prove

the allegation and accepting as fact all of the evidence led by

the Crown is of some significance in this case. In addition to

evidence from which it could be inferred that the respondent

murdered the victim and that the murder was planned and

deliberate, the Crown led evidence of an alleged threat made by

the respondent against Priscilla McKay some six months after his

arrest. Ms. McKay was the victim’s girlfriend when he was killed

and had previously been the respondent’s girlfriend. The threat

was allegedly made while the respondent was in jail and was

passed on to Ms. McKay by a cell mate. If accepted as fact, this

threat may be evidence on the charge and, more importantly on the

s. 16 application is significant evidence that the respondent was

an ongoing danger to the public as of January 1999.

[38] The evidence of the threat came through the investigating

police officer. He testified that he spoke to Ms. McKay who said

she had spoken to the cell mate of the respondent who told her

that the respondent intended to kill her when he was released

from jail. The police officer then spoke to the cell mate and

was advised:

… Jeffrey Winter [the cell mate] had contacted

Priscilla McKay [the girlfriend] and put J.C.

[the respondent] on the phone at one point, had

no idea what in fact J.C. had said and he had –

Jeffrey Winter also indicated that Priscilla had

better be careful, I believe, something might

happen to her from J.C.

[39] The police officer’s evidence considered in its totality

could not reasonably support the inference that the respondent

had threatened Ms. McKay. It went no further than to indicate

that the cell mate believed Ms. McKay should be concerned about

her safety, told her so, and that Ms. McKay took this to be a

threat from the respondent. Little J. did not refer to this

evidence in her reasons. I take this to mean that she did not

give it any weight. If I am correct that Little J. gave this

evidence no weight, I accept her assessment. If her silence

indicates that she failed to consider the evidence, I do so now

and would not give it any weight.

[40] Although I would not give any weight to the alleged threat

made by the respondent against Ms. McKay, the nature of the

charge and the circumstances surrounding the alleged murder raise

very serious concerns that the respondent poses a significant

risk to the community. Indeed, accepting the Crown’s theory,

there can be no doubt but that he was a danger to the public as

of August 1998. The respondent’s age (17 years 11 months) also

tells against a transfer to youth court: R. v. S.(G.), supra, at

VI

[41] The respondent attempted to counter the inference of

dangerousness raised by the allegation and the circumstances of

the alleged offence with evidence that he was not a violent

person and did not suffer from any psychiatric illness which

would render him an ongoing danger to the public for some

indefinite time. Counsel for the respondent acknowledged that

the respondent had significant social and psychological problems,

but contended that those could be addressed and rectified within

the youth court system and within the 10-year time period during

which he could be held in a secure setting. Counsel relied on

the predisposition report and the report and testimony of Dr.

Sheppard, a psychiatrist.

[42] The respondent was born on September 7, 1980. He is the

eldest of four brothers. He was raised by his mother and father

and his material needs were met during his childhood. His

childhood was, however, marred by physical and verbal abuse

within the family. Both parents drank too much and the

respondent’s father physically abused the children. The

respondent’s mother stopped drinking when he was about 11 years

old and his father learned to control his substance abuse over

time. As of the date of the transfer application, the

respondent’s parents were divorced but both were very concerned

about the respondent’s well-being and offered whatever support

they could for him.

[43] The respondent began to use alcohol and other drugs when he

was 13 years old. He associated with a peer group in the

community that regularly took drugs, drank too much and engaged

in anti-social conduct while under the influence of alcohol and

drugs. The respondent’s substance abuse worsened so that by the

time he was 17 years old he had a very serious problem with

alcohol and drug abuse. That abuse had a negative effect on his

school work, employment history and his relationship with his

parents.

[44] The respondent also manifested signs of depression and

developed a suicidal ideation. His depression was exacerbated by

the suicide of a girlfriend. The respondent reportedly attempted

suicide on one occasion.

[45] The respondent’s teachers and employers described him as a

quiet worker, polite and respectful. He appears to have been an

average student, although as his drug abuse worsened, his

performance at school and in various jobs deteriorated

significantly.

[46] The respondent was found guilty of impaired driving in April

1998 and was on probation at the time of the alleged murder. He

had completed a portion of the community service order made as a

part of the probation order.

[47] By August 1998, the respondent was very much a part of the

“partying scene” in Big Trout Lake. He was reportedly part of a

group of young people who were involved in fighting, stealing and

other reckless behaviour. The local police did not, however,

regard the respondent as violent or overly aggressive. He had

not been charged with any criminal offence other than the

impaired driving conviction in April 1998.

[48] The four or five months leading up to the homicide was a

very difficult time for the respondent. He revealed for the

first time that he had been sexually abused as a child; he was

trying to come to grips with the realization that the man he had

always thought of as his father was not his father; his lifelong

friendship with the victim had ended; his relationship with Ms.

McKay had ended and she was now seeing the victim; his substance

abuse continued to escalate; and his relationship with his family

continued to deteriorate.

[49] In June 1998, the respondent took part in a one-week family

counselling session aimed in part at helping him overcome his

substance abuse. He was not motivated to continue that

counselling. The respondent also left Big Trout Lake and went to

live with his grandmother in an effort to get away from the

negative influences in that community. He returned to Big Trout

Lake shortly before the alleged murder and rejoined the “partying

scene.” He moved out of his parents’ home and into the home of a

friend.

[50] The respondent became involved in the educational,

recreational and counselling programs available to him in the

institutions after his arrest in August 1998. He was

cooperative, compliant and had not been involved in any

inappropriate conduct or received any reprimands. He tended to

isolate himself from other residents who had a tendency to incite

questionable or challenging behaviour. Although transfers to

various correctional institutions had interfered somewhat with

the respondent’s programs, he was able to attend school and was

working at a grade 9 level. He had strong writing abilities and

was capable of working at or above a grade 9 level. His teacher

described him as polite, cooperative, and appropriately

assertive. The respondent has expressed a desire to continue his

education.

[51] The author of the predisposition report identified the

respondent’s substance abuse as a key negative feature of his

background and a considerable impediment to his psychological and

social development. He summarized his interaction with the

respondent as follows:

… the subject presented himself in a cooperative,

relatively articulate and polite fashion, offering

unsolicited insights into his behaviour and an

acceptance of responsibility for the circumstances

in which he now finds himself. …

[52] In addition to the information provided in the

predisposition report, Little J. had an assessment prepared under

s. 13 of the Act by a psychiatrist, Dr. Sheppard. Dr. Sheppard

interviewed the respondent on two occasions, reviewed his medical

records, clinical records from a brief counselling session in

1998, a previous psychiatric report, information relating to the

circumstances of the crime, witness statements, and the results

of certain psychological testing performed after the respondent

was incarcerated on this charge.3

[53] In his report, Dr. Sheppard indicated that the respondent

did not suffer from any identifiable psychiatric illness. There

was nothing to suggest that he suffered from any mental disorder

that would affect his criminal responsibility. Dr. Sheppard also

wrote that the respondent had significant psychological and

social problems. Most prominent amongst these was his alcohol

and drug abuse which were ongoing since the age of 13. Dr.

Sheppard indicated that the respondent had experienced

difficulties with mood instability. There were indications of

previous bouts of depression and problems with anger control.

Neither were, however, in the forefront when the respondent was

interviewed and evaluated by Dr. Sheppard. The respondent did

not require treatment for depression and difficulties with anger

control had not manifested themselves since his incarceration.

[54] Dr. Sheppard also observed that the respondent’s overall

I.Q. level was in the normal range. There was, however, a large

discrepancy between his verbal and performance skills. The

former was low whereas the latter was in the high average or

superior range. Dr. Sheppard explained that the difference was

possibly attributable to a head injury the respondent had

suffered as a 13 year old. Dr. Sheppard could not, however, find

any evidence of any ongoing effect from that injury and could not

come to any conclusion as to what impact, if any, the injury had

on the respondent’s intellectual and psychological functioning.

[55] Dr. Sheppard referred to a number of destabilizing events in

the respondent’s life: his parents were divorced; he had been

physically and sexually abused as a child; a girlfriend had

committed suicide about two years before the alleged offence; and

his relationship with a subsequent girlfriend (Ms. McKay) was a

difficult one. The respondent also found himself part of a peer

group in which substance abuse and physical altercations were

more the norm than the exception. These events contributed to

his mood instability and substance abuse.

[56] Dr. Sheppard summarized his findings and opinions in these

terms:

To summarize briefly, [the Respondent] does not

suffer from an identifiable psychiatric illness.

He has however been prone to significant problems

with substance abuse and he will require

professional assistance in this area. He has

also been traumatized to some extent in his

childhood, and counselling in this area may be

of benefit to him as well. He has been prone to

a certain amount of psychological and behavioural

instability, presumably on account of

characterological vulnerabilities which may stem

from his unstable childhood. He has had problems

with both depression and anger control in the past,

although these are not prominent at present.

Finally, the possibility that [the Respondent] has

suffered from an acquired brain injury in the

past could be further investigated in the future.

The prognosis is difficult to estimate

with certainty at this time. There are

however some favourable prognostic signs.

[The Respondent] has responded positively to

institutional residence over these past few

months. His mood has appeared to be stable

and his attitude has been generally

constructive. He has been willing to accept

some responsibility for his problems, he has

verbalized some insight into his problems

with alcohol and drug abuse, and he has

expressed a willingness to attend a

residential treatment program. Despite his

history of antisocial behaviour in the past

similar behavioural patterns have not

surfaced in the institutional setting which,

again, might be regarded as a favourable

prognostic sign in that it tends to confirm

the absence of entrenched characterological

pathology. [The Respondent] has shown the

ability to benefit from involvement in a

therapeutic institutional milieu, and this is

a favourable sign.

On the other hand, [the Respondent’s]

psychological and behavioural problems have

been quite longstanding and persistent.

Although he has been in a therapeutic

environment he has not been involved in

treatment, and his actual ability to benefit

from treatment interventions remains unknown.

In the past he has been unwilling to follow

treatment recommendations although, as

indicated, his attitude appears to be more

constructive at this time. [The

Respondent’s] actual prognosis will depend

partly on his consistent willingness to apply

himself during the course of his treatment

and rehabilitation which will no doubt be a

reasonably long-term proposition.

[57] Dr. Sheppard also testified on the transfer application. He

had considerable experience with aboriginal clients and was

familiar with the Big Trout Lake community.

[58] He described the respondent as having a level of maturity

which was consistent with his age. He said that the respondent

was cooperative, volunteered information and did not appear

overly defensive or resistant to the assessment. Dr. Sheppard

believed that the respondent demonstrated various psychological

vulnerabilities as manifested by his depression, anger and poor

self-esteem. These vulnerabilities had a negative effect on his

ability to cope with the many problems he had encountered in his

life. His substance abuse was a manifestation of his inability

to cope in an appropriate manner with problems that he

encountered. The one effort to counsel the respondent with

respect to substance abuse had proved ineffective because the

respondent was not prepared to cooperate. He felt that he was

being forced to participate in the counselling and preferred to

handle things his own way. Dr. Sheppard, however, perceived that

the respondent’s attitude toward obtaining help for his problems

had changed since his incarceration.

[59] Dr. Sheppard was of the view that the psychological

vulnerabilities demonstrated by the respondent were the product

of instability in his upbringing, peer group pressures, and the

physical and sexual abuse he suffered as a child.

[60] Dr. Sheppard testified that he saw no evidence of a

sustained pattern of behaviour which he would describe as anti-

social in nature. He would not diagnose the respondent as having

a personality disorder or its adolescent equivalent, a conduct

disorder. He said:

… I don’t think I would have diagnosed a conduct

disorder based on the information I had with

respect to his, his behaviour as a child and

adolescent. I think that there were some areas

where his behaviour was certainly unhealthy and

I’ve described it as maladaptive in some ways,

but it didn’t seem to be extreme or outside what

you might expect considering the sort of

psychosocial environment in which he was living.

That is, it’s, he was involved with a peer group,

for example, that was, I think, demonstrating

many of the same sorts of behaviours that he

was and you know, measured against that sort of

a, a standard, I don’t think his behaviour

would’ve been seen as that unusual so I would

not have diagnosed a conduct disorder in his case.

[61] Dr. Sheppard testified that the respondent needed treatment

for his substance abuse and psychological counselling. He

indicated that both should occur initially in an institutional

setting and continue after the respondent was returned to the

community. Dr. Sheppard indicated that the time needed to treat

the respondent’s substance abuse in an institutional setting

could range from four months to two years. He also testified

that the psychological counselling should be directed at

assisting the respondent in coming to grips with unresolved

problems and helping him to develop mature and socially

acceptable coping mechanisms. Dr. Sheppard was of the view that

this counselling could be a “fairly long term proposition” and

should begin with intensive treatment in an institutional setting

followed by long term out-patient counselling.

[62] Dr. Sheppard was careful to indicate that it was very

difficult to predict how anyone would respond to the treatments

he suggested. He indicated that the effectiveness of any

treatment depended in large measure on the person’s willingness

to apply himself to the treatment. This variable could not be

measured until after the treatment was well underway.

[63] It became apparent during Dr. Sheppard’s evidence that he

had based his opinions in part on the version of the relevant

events given to him by the respondent. According to that

version, the respondent had obtained the rifle to intimidate

those people who had been threatening him during the evening. He

felt he had to show them that they could not “mess with him.”

The victim was not one of these people. The respondent said

that he encountered the victim on the boardwalk and that the

victim challenged him. They struggled over the gun and it went

off by accident when the respondent slipped.

[64] Counsel for the respondent, no doubt anticipating that

Little J. would accept the Crown’s allegation that the respondent

had committed a planned and deliberate murder, asked Dr. Sheppard

whether his opinion and prognosis would be different if the

Crown’s version of events was accepted. Dr. Sheppard was unable

to give a definitive answer. He said that the Crown’s version of

events was inconsistent with the profile he had developed of the

respondent’s character and that he would have to “talk to him

again and find out what really happened.”

[65] Dr. Sheppard testified that the allegations of the Crown

were indicative of a seriously anti-social act. He suggested

that the Crown’s version of events could indicate that, contrary

to his present opinion, the respondent did fit the anti-social

personality profile. That version could also indicate that the

respondent had suffered a “temporary overwhelming of his coping

abilities” as a result of the numerous difficulties he had

encountered in the months prior to, and on the evening of the

homicide. Dr. Sheppard expressed the opinion that if the

homicide was the product of a “temporary overwhelming of coping

abilities” the treatments he had described earlier in his

evidence would be appropriate. He said:

He would still have these, these psychological

issues that should be looked at. I guess what

it would do is indicate a greater precariousness,

if you like, or sort of a more extreme fragility

in the sense that one, you’d be forced to accept

that his behaviour under certain circumstances

could become extremely abhorrent and dangerous

indeed so, but as to whether or not that would

be, indicate a different issue that needed

treatment, not necessarily. I mean, likely

not, in fact.

[66] Dr. Sheppard agreed with the Crown in cross-examination that

if the respondent had lied to him about the circumstances of the

offence, those lies suggested a deviousness and a refusal to

accept responsibility which do not augur well for effective

treatment of the respondent.

[67] Crown counsel also pressed Dr. Sheppard on his view that the

appellant did not demonstrate an anti-social personality disorder

or a conduct disorder. Dr. Sheppard agreed that the respondent

had engaged in anti-social behaviour, but opined that it had not

reached the degree or the repetitiveness necessary to permit the

diagnosis of a conduct disorder. Dr. Sheppard referred to the

numerous reports from various sources ranging over a number of

years that described the respondent as pleasant, easygoing,

polite and cooperative. He said these characteristics were

inconsistent with a person suffering from a conduct disorder.

VII

[68] The determination of whether the respondent could likely be

rehabilitated in the youth court system during the tenure of a

disposition available under that system turned in large measure

on the nature of his psychological and social problems. If those

problems were rooted in a conduct disorder, the respondent’s

rehabilitative prospects were significantly reduced as were the

chances that his rehabilitation could be affected within a fixed

period of time. Little J. concluded that the respondent did not

suffer from a conduct disorder.

[69] Mr. Schwartz, for the Crown, in his able and even handed

submissions, argues that this conclusion was not open on the

evidence. He submits that Dr. Sheppard’s opinion that the

respondent did not have a conduct disorder was based on Dr.

Sheppard’s acceptance of the respondent’s version of events. Dr.

Sheppard could not exclude the possibility of a conduct disorder

if the Crown’s version of the relevant events was true. Mr.

Schwartz argues that since Little J. accepted the Crown’s version

of events for the purposes of the transfer application, Dr.

Sheppard’s evidence could not support a finding that the

appellant did not suffer from a conduct disorder. It is Mr.

Schwartz’s position that on the evidence there is no explanation

for the respondent’s conduct and no informed assessment of his

rehabilitative potential can be made at this time. Consequently,

he argues that the respondent failed to discharge the onus on him

and Little J. should have refused to make the transfer order.

[70] Little J. referred to this submission in her reasons. She

clearly did not accept it. Even though Dr. Sheppard’s opinion

that the respondent did not suffer from a conduct disorder had to

be qualified, given the acceptance of the Crown’s version of

events, I think it was open to Little J. to find that the

respondent did not suffer from a conduct disorder. Dr. Sheppard

made it clear that the diagnosis of a conduct disorder must be

based on a course of conduct and not on a single event. On the

record before Little J., there was little, if anything, in the

respondent’s history prior to the homicide or in his conduct

subsequent to the homicide, that could support a finding that he

suffered from a conduct disorder. In fact, as Dr. Sheppard

pointed out, the numerous descriptions of the respondent’s

personality drawn from various sources over many years were

inconsistent with the diagnosis of a conduct disorder.

[71] Dr. Sheppard’s suggestion that the respondent’s conduct as

described in the Crown’s version of events could be explained by

“a temporary overwhelming of coping abilities” had great force

when considered in the context of the events leading up to the

killing. The respondent, who was psychologically very vulnerable

to begin with, was operating in a very negative environment and

had been beset by a series of psychological blows in the months

prior to the killing. He had also been subjected to physical and

verbal abuse from his peer group on the night of the killing. He

was under the influence of alcohol. In my view, these events

offer strong support for a finding that the respondent’s conduct

was the product of “a temporary overwhelming of his coping

abilities.” Dr. Sheppard had testified that if the murder was

planned and deliberate but was the product of situational stress

which overwhelmed the respondent’s coping mechanisms, then in all

likelihood the treatment of the respondent would be the same as

that outlined by Dr. Sheppard in his initial opinion.

[72] The respondent’s behaviour in the year and a half since his

incarceration also offers good reason to conclude that he can be

successfully rehabilitated within the time periods allowed for

under dispositions imposed under the Act. His removal from the

negative influence of the peer group he associated with, combined

with access to educational and counselling programs within the

institutions, have already benefited the respondent considerably.

The record indicates that the respondent is now motivated to

improve his lot in life and that he has gained some insight into

his problems, including his substance abuse problem. His

positive interaction with teachers and others, his desire to

further his education, and his intelligence all suggest that the

respondent has the means and the inclination needed to turn his

life around over the next 10 years. The respondent’s failure to

take advantage of an earlier counselling opportunity is cause for

concern, but the circumstances are now so different that the

respondent’s prior rejection of counselling is of little

assistance in gauging his potential reaction to more intensive

future efforts to assist him within an institutional setting. I

think his conduct since his incarceration in August 1998 is a

much better predictor of his rehabilitative potential.

VIII

[73] There is an understandable tendency to rely heavily on

psychiatric opinions when assessing rehabilitative potential and

potential dangerousness. A more definitive opinion from Dr.

Sheppard based on an acceptance of the Crown’s allegations would

have assisted Little J. Unfortunately, Dr. Sheppard could not

provide a more definitive opinion. Little J. was still required

to assess the totality of the evidence and make the determination

required under the Act. Even if Dr. Sheppard could not put a

specific medical label on the respondent’s problem, state with

certainty what caused the problem, or predict with certainty the

outcome of the course of treatment, Little J. had to decide

whether the rehabilitation of the respondent and the protection

of the public could be reconciled if the respondent was tried in

youth court. She decided that those objectives could be

reconciled. When I address the questions posed above in

paragraph 21 in the context of this record, I come to the same

conclusion.

[74] I would dismiss the appeal.

Released: February 28, 2000 “DD”

“Doherty J.A.”

“I agree K. Feldman J.A.”

“I agree Dennis O’Connor J.A.”

• A publication ban under s. 38 of the Young Offenders Act was

made by Little J. and remains in effect.

1 The 10-year duration runs from the date of disposition and does

not take into account pre-trial custody. In this case where the

respondent has been in custody since his arrest, and it is likely

that his trial will not take place until almost two years after

his arrest, he could be subject to a period of confinement of

almost 12 years.

2 The period of parole ineligibility runs from the time of

confinement. Consequently, this respondent, if convicted of

first degree murder, would be eligible for full parole 10 years

after his arrest (August 2008). He would also be eligible for

some form of partial release 8 years after his arrest.

3 In his factum, Crown counsel suggested that because most of

this information was not before the court, the factual foundation

of Dr. Sheppard’s opinion had not been proven. Whatever the

merits, if any, of this contention in a trial setting, I am

satisfied that it had no effect on Dr. Sheppard’s opinion for the

purposes of the s. 16 application. The strict rules of evidence

do not apply. There is also no suggestion that the Crown did not

have this information available to it and could not have, had it

seen any benefit in doing so, placed this material before the

court.