Court of Appeal for Ontario

R. v. F.O. R v. K.G.

Date: 2002-02-13

Richard Litkowski, for accused, Francis O., appellant. Sharon E. Lavine, for accused, Kyle G., appellant. Joan Barrett, for the Crown, respondent.

Court File No. C37347; C37191

The judgment of the court was delivered by

Weiler J.A.:—

I. Introduction

[1] Francis O. and Kyle G. are young persons within the meaning of the Young Offenders Act, R.S.C. 1985, c. Y-l, as amended, 1992, c. 11, s. 2; 1995, c. 19, s. 8 (the "Act"). They are jointly charged with committing manslaughter and robbery on October 27, 2000. Francis O. was 15 years old on the date of the alleged offences. As a young person over the age of 14 but under the age of 16 charged with an indictable offence, he is to be proceeded against in youth court unless the youth court makes an order under s. 16(1) of the Act transferring him to ordinary court. Kyle G. was 16 years old on the date of the alleged offences. As a young person charged with manslaughter who is aged sixteen or seventeen at the time of the alleged offence, he is to be proceeded against in ordinary court unless the youth court makes an order under s. 16(1.01) that he be proceeded against in youth court.

[2] At separate transfer hearings, the youth court ordered both Francis O. and Kyle G. to be tried in ordinary court. Each seeks a review of that order pursuant to s. 16(9).

[3] In deciding whether a young person should be proceeded against in ordinary court, the youth court judge must determine whether the interest of society, including the objective of protection of the public and rehabilitation of the young offender, can be reconciled by proceeding against the young person in youth court. Because the maximum disposition that can be imposed for manslaughter under the Act is a period of three years custody pursuant to s. 20(1)(k), the issue before the youth court was largely whether the appellants could be rehabilitated within three years. In the case of Francis O., the youth court concluded that rehabilitation would take much longer than three years. In the case of Kyle G., the youth court held he could be rehabilitated within three years but nevertheless refused to order that he be tried in youth court.

[4] Section 16(9) of the Act provides that, in reviewing an order that a young person be tried in ordinary court, the appellate court may, in its discretion, confirm or reverse the decision of the youth court. In R. v. C. (J.) (2000), 143 C.C.C. (3d) 59, this court held, at para. 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 [citations omitted].

[5] This is not an easy case. After much anxious consideration, and with the benefit of further information respecting these young persons, I have decided to reverse the decisions of the youth court.

II. The Alleged Offence

[6] The allegations of the Crown are as follows. During the afternoon of October 27, 2000, Francis O. and Kyle G. were drinking liquor at a friend's apartment. Sometime after 6 p.m., they left their friend's apartment and headed to the downtown area of North Bay.

[7] Mr. Robert Morgan, who was 54 years of age, had just left the Parkview Hotel and was walking along the street when Francis O. and Kyle G. began walking behind him. One witness observed a young male punch Mr. Morgan in the head and kick his feet out from under him. Mr. Morgan fell to the ground, hitting his head forcefully on the sidewalk. When Mr. Morgan was on the ground, the same male who punched him kicked him in the ribs. Another witness observed a young male forcefully kick Mr. Morgan on the left side of his face and yell "fag". Both Francis O. and Kyle G. were observed going through Mr. Morgan's pockets before running off, leaving Mr. Morgan on the sidewalk apparently unconscious and with a swollen eye.

[8] Later that night, Francis O. and Kyle G. met up with other friends. One friend said that he met Francis O. and Kyle G. at approximately 8 p.m.. He described their conversation as follows:

Kyle was talking about drinking a 26er and thumping a guy. Kyle said that the guy hit him, Kyle hit the ground. Kyle said that Francis KO'd the guy with one shot. Kyle said they took the money. Francis said he kicked the guy a couple of times.

[9] The appellants took $10.00 from Mr. Morgan and pooled it with the money of other young persons to purchase a 60-oz. bottle of whiskey. The group then proceeded to an area by the railway tracks to consume the alcohol. Kyle G. was arrested later that evening walking along the road, very dishevelled, dirty, missing a shoe, and very intoxicated. Constable Brunette placed him under arrest for being intoxicated in a public place and took him home to his parents.

[10] Meanwhile, Mr. Morgan was transported by ambulance to North Bay General Hospital where he lapsed into a coma. That same night, he was transported by air ambulance to Sudbury where he underwent neurosurgery for injuries caused by trauma to his head. Six days later, on November 2, 2000, he died.

III. Francis O.

A. The Issue

[11] In relation to Francis O., the issue is whether the trial judge placed undue emphasis on Dr. Phillips' opinion that Francis O. could not be rehabilitated within three years. Francis O. submits that, contrary to the opinion of Dr. Phillips, he could be rehabilitated within the maximum three-year custodial disposition a youth court judge could impose.

B. Personal History

i) Family History

[12] Francis O. is an Aboriginal person. His parents separated when he was approximately five or six years of age. After the separation, Francis O. lived with his mother in Toronto. His father relocated to North Bay. While growing up, Francis O. had significant exposure to alcohol and drugs through his mother, who provided minimal supervision and direction. Francis O. started drinking at about 9 or 10 years of age. He also started using drugs at an early age. Initially, he used marijuana. However, over the years, his drug use escalated to ecstasy and crystal methamphetamine. In the year prior to leaving Toronto, he was using drugs and drinking on a daily basis. To support his habit, Francis O. stole and started dealing drugs. He also once stole $300.00 from his brother-in-law for drugs and good clothes.

ii) History of Involvement with the Toronto Police

[13] Francis O. was first charged with a criminal offence when he was 12 years old. Between the ages of 12 and 14, Francis O. was charged a total of four times and cautioned three times by the police about his conduct:

Date	Offences	Circumstances	Disposition
Dec. 7/97	Theft under Possession under Possession of Burglary tools	Francis O. and another 12 yr. old were seen joyriding in a stolen car.	Unknown
Dec. 12/97	Mischief under (x2) Assault w. Weapon Assault resist arrest Possession of Burglary tools	Francis O. and another broke into 3 vehicles. The female owner of one car chased Francis O. and when she caught him there was a struggle. Francis O. threatened to spray her with spray paint.	Diverted on Oct 7/98
Oct. 22/98	Not charged	Francis O. and Syle T. lit a large firecracker in the park across from their school in the presence of other students. No damage or injuries resulted.	Caution
Nov. 9/98	Not charged	Francis O. and another set off a stink bomb at his school.	Caution
Nov. 15/98	Theft over (x3) Possession of stolen property	Francis O. and two others were seen joyriding in a stolen motor vehicle.	Withdrawn on Nov. 30/98
Nov. 24/98	Not charged	The Principal informed police that Francis O. had threatened to assault and extort money from another student on two separate occasions.	Matter referred to the Aboriginal Unit
Feb. 27/99	Robbery	Francis O. took $1.85 from another student who was being held by Syle T. Francis O. also allegedly approached another student, twisted his arm and punched him in the chest. Francis O. was not charged with this other incident as the boy's mother refused to provide the police with any information and said that she would deal with it herself.	Conditional Discharge and 12 months probation ordered on Sept. 15/99
Dec. 30/99	Fail to Comply	Francis O. was seen with Syle T. in violation of his probation order.	On Jan. 25/00, Francis O. received 12 mths probation (26 days PT custody)

iii) The Move to North Bay

[14] Due to Francis O.'s problems, his mother felt that a change was necessary. Consequently, when Francis O. was released from custody in January 2000, he moved to North Bay to live with his father. His mother felt that this would not only remove him from the negative peer group that he was associating with in Toronto, but it would also enable him to get reacquainted with his father.

[15] Upon moving to North Bay, Francis O. settled in very well. He attended school on the Nipissing Reserve regularly and did not present any difficulties with respect to the rules of the home. Francis O. was also reporting regularly to his probation officer. While Francis O. did not have any Grade 9 school credits when he arrived at Nbisiing High School, he earned five full credits between February and June 2000 with an overall average of 77%. His principal, Mr. Hansen, described Francis O. as a "very intelligent youth who never showed any indication of aggressive or violent behaviour in and around the school".

[16] A change in Francis O.'s behaviour took place after he returned to school in September, 2000. Despite being subject to two probation orders, one of which prohibited the consumption or possession of alcohol and non-prescription drugs, Francis O.'s father noticed that Francis O. was staying out past his curfew, associating with a negative peer group, and using drugs and alcohol. Also, on at least two occasions, Francis O. did not return home at night.

[17] Mr. Hansen also noticed a change in Francis O. after the first week of school in September 2000. Francis O. started skipping some afternoon classes and he spending more time with two other students who had problems with attendance and work habits. One of these students was the co-accused, Kyle G. On October 12, 2000, Francis O. and another youth stole a VCR and a digital weigh scale from the school. Francis O. sold the VCR to a pawnshop. He later admitted his involvement to the police and was charged with theft and breaching his probation order. He pleaded guilty and received thirty days' secure custody for the theft and thirty days' concurrent for the breach of probation. In addition, Francis O. received a twenty-day suspension from school, the maximum permitted under provincial legislation. When his principal spoke to him about the theft, Francis O. appeared to show some remorse for his actions and was concerned about missing his exams.

[18] One of the students at the school Francis O. attended had an infant child, and Francis O. became attached to the baby. The baby died of meningitis in the fall of 2000. At the request of Francis O., his father arranged grief counselling from a local social worker known to Francis' probation officer. The first session had been scheduled for the day after Francis O's arrest for these offences.

iv) Behaviour while in Custody

[19] Since his arrest on October 31, 2000, Francis O. has been in secure detention at the Near North Centre in North Bay. Francis O.'s primary worker at Near North Centre indicated that he did not have difficulty controlling violent impulses and did not get angry or aggressive when playing sports. Despite this, Francis O. has participated in programs for anger management and is also involved in programs for victim awareness, life skills, and thinking errors. During these programs, Francis O. shares information, contributes ideas, and helps others around him. In fact, within three months of his arrival, Francis O. attained the second highest level for behaviour and attitude. Francis O. is also taking Grade 10 courses.

[20] The updated behavioural report of December 20, 2001 states that Francis O. has not exhibited any behavioural problems, is on the highest level of behaviour, is very polite, and enjoys an excellent rapport with youths as well as staff.

C. The Psychiatric and Psychological Evidence

i) Dr. Doyle

[21] Dr. Doyle, the Program Medical Director of the Forensic Program at North Bay Psychiatric Hospital, examined Francis O. and found no mental illness. Dr. Doyle's report did not address the question of whether Francis O. could be rehabilitated within three years.

ii) Dr. Phillips

[22] Dr. Phillips, a psychologist with considerable experience in psychiatric work, children's mental health, and young offender assessments relating to dispositions, also evaluated Francis O.

[23] In order to prepare his psychological assessment, Dr. Phillips met with Francis O. for approximately one hour. He also interviewed Francis O.'s father and his primary worker at the Near North Centre, Mary Penasse. In addition, his psychometrist conducted psychological testing on Francis O., including an intellectual assessment, an academic skills development assessment, and a personality assessment. For the purposes of his report, Dr. Phillips interpreted these test results.

[24] The Minnesota Multiphasic Personality Inventory-Adolescent ("MMPI-A") showed a profile that was fairly common amongst adolescents in the normal population and in criminal settings. Francis O.'s profile is not as extreme in showing any clinical psychopathology as is generally found in correctional settings. Dr. Phillips testified that, when you get high elevations that are distinct on certain sub-scales"you can pretty well tell that that person's probably been that way for quite awhile and probably going to stay that way." Francis O. did not have severe elevations on the sub-scales. The Jesness Inventory Test, which is particularly geared to adolescents who have had trouble with the law, indicated "some anti-social attitudes and maladjustment problems".

[25] Not surprisingly, the MMPI-A indicated problems with alcohol and drugs. Dr. Phillips' report stated that the MMPI-A pointed to a very high potential for difficulties with alcohol and drugs and that these difficulties required therapeutic intervention if life changes were to be made.

[26] The intelligence test administered to Francis O. indicated that he was in the top 2% of the population with respect to abstract reasoning ability. His visual learning ability was significantly higher than his verbal learning ability although the latter was still in the average range. His vocabulary was very weak. Dr. Phillips stated in his report:

Academic pursuit may be much more difficult for Mr. O. than the average person, given his relative verbal learning weaknesses. He is seen to suffer a Verbal Learning Disability and would require significant support, resources and accommodation to optimize progress. Without progress academically his ability to pursue a constructive and prosocial lifestyle would be compromised.

[27] In cross-examination, Dr. Phillips acknowledged, however, that the disparity between Francis O.'s verbal and non-verbal scores could be due to his environment. He also acknowledged that this test did not take into account the ethnic background of the individual and stated"verbal learning deficits … can be traditionally seen within native populations".

[28] Extracts from the concluding portion of Dr. Phillips' report are as follows:

On the positive side, MMPI-A data do not necessarily reflect an entrenched mode of functioning, and [Francis O.] reports being positively touched by others, such as the little girl who died and others' efforts [at Near North Centre] to help him.

In short Mr. O.'s functioning reflects a relatively chronic history of anti-social tendencies that have led to the jeopardization of public safety, with evidence of his behaviour being characterized by violence, and concern for self overriding concern for others habitually … Again, he is seen to be changeable to the extent that he has been touched by others and does not necessarily demonstrate engrained functioning on personality assessment procedures, but the habit strength of old anti-social behaviours is strong, and likely to be difficult to change, given emotional deprivation and verbal learning deficits.

[29] At the transfer hearing, Dr. Phillips was asked in examination-in-chief by the Crown how long rehabilitation was likely to take so that the safety of the public would not be compromised. He replied:

I can't — I don't think I can tell you specific timeline, but I can say from I guess my opinion would be that if I'm going to err in terms of speculation I would err on the side of giving him more time rather than less [Emphasis added.]

[30] Assuming that Francis O. was convicted and received the maximum sentence available in youth court, namely three years, Dr. Phillips stated"I'm not satisfied that would be sufficient."

[31] Dr. Phillips was not shaken in his opinion in cross-examination. He stated that he would like to be "proven" wrong about his opinion. He gave three reasons why he was not satisfied that three years would be sufficient to rehabilitate Francis O.: 1) his early start in terms of drug and alcohol abuse; 2) the extent of the negative influence in terms of family issues over the years; and 3) lack of spontaneity on the part of Francis O. in seeking rehabilitation procedures prior to being charged. Although Dr. Phillips acknowledged that, after moving to North Bay, Francis O. had gone a number of months where he at least reduced his drug and alcohol intake and that Francis' resumption of alcohol coincided with the illness of the baby, he maintained his opinion.

D. The Reasons of the Youth Court Judge

[32] In ordering Francis O. to be transferred to ordinary court, the youth court judge stated:

[T]he court is satisfied the evidence supports that the public are in need of protection from Francis O. and that, if he is not properly rehabilitated, his criminal behaviour could very well escalate. He has the prospects for rehabilitation, but this will be a long process and the only chance of success for Francis is for him to be kept in a protected environment.

Dr. Phillips would not estimate how long it might take to rehabilitate Francis to a point where he would no longer be a danger to the public, but he was emphatic that it would take longer than three years.

[33] The youth court judge then held using the criteria in s. 16(2) that the protection of the public and the rehabilitation of the young offender could not be accomplished in youth court, and ordered that Francis O. be transferred to ordinary court.

E. Analysis

[34] Francis O. submits that the youth court judge placed undue emphasis on Dr. Phillips' opinion and did not give sufficient weight to other contradictory evidence. I agree.

[35] First of all, it should be recognized that Dr. Phillips' written opinion did not express any time frame for rehabilitation. Initially, in his examination-in-chief, Dr. Phillips indicated he was speculating. When challenged with respect to his opinion in cross-examination, as often happens, Dr. Phillips became more firm in his opinion and expressed it as one of probability. Speculation is not a basis on which a court can act. If Dr. Phillips was unable to express an opinion with respect to the time needed for rehabilitation, he should have said so.

[36] Dr. Phillips linked Francis O.'s lower verbal learning scores to his rehabilitation prospects stating that, unless he progressed academically, he was unlikely to pursue a constructive lifestyle. Francis O.'s verbal score as a whole was still within the normal range. More importantly, Dr. Phillips appears to have ignored Francis O.'s ability to attain a 77% average in five subjects after being in school only for really the last five months of the academic year.

[37] Francis O. appears to have been given only three or four tests, whereas Kyle G. was given some twenty-one standardized tests. Further testing by Dr. Phillips may have been of assistance in formulating his opinion. Indeed, psychologists called to offer an opinion should, perhaps, conduct the same battery of tests in each case. It would also be appropriate for the psychologist conducting an assessment for a transfer hearing to be advised of the test in s. 16(1.1). It appears that this test was not conveyed to Dr. Phillips. Dr. Phillips equated the length of time that treatment would benefit Francis O. with the length of time he would require for rehabilitation. As will be seen with respect to Kyle G., benefiting from treatment and rehabilitation are not necessarily synonymous.

[38] Under s. 20(1)(k.1) of the Act, a young offender who is found guilty of first degree murder may serve a total disposition not exceeding ten years. This may consist of closed custody not exceeding six years followed by up to four years conditional supervision in the community. In the case of second degree murder, a disposition not exceeding seven years may be imposed. The period of committal may not exceed four years followed by placement in the community under conditional supervision for up to three years.

[39] No similar provision exists in respect of an offender who is found guilty of manslaughter, such as three years closed custody followed by placement in the community for up to two years. Even though Francis O. was on probation when he allegedly committed the offences with which he is charged, the total combined duration of dispositions cannot exceed three years unless the offence is one of first degree or second degree murder: s. 20(4).

[40] From the above, it would appear that Parliament intended that persons under the age of 16 who have committed manslaughter be dealt with in youth court, and considered that a three-year sentence would be sufficient time in which to rehabilitate the young offender and protect the public. Having said this, the question then is whether the particular offender requires treatment for a period of time that necessitates transfer to ordinary court in order to protect the public. Dr. Phillips did not approach his assessment from this perspective.

[41] The reasons given by Dr. Phillips for his opinion that Francis O. could not be rehabilitated in three years are troubling. The first reason was that Francis O. disclosed he had begun using alcohol at an early age, which is indicative of a substance abuse problem. The implication is that it would, therefore, take a long time to deal with the substance abuse problem of Francis O. Dr. Phillips testified that it was likely Francis O. had a different personality when he was drinking. Accepting this, no empirical data was offered for Dr. Phillips' conclusion that it would take longer than three years for Francis O. to deal with his main problem, which was substance abuse. The second reason was the fact that Francis O.'s mother was an alcoholic who could offer him little support to change his ways. It is difficult to understand why this would be a reason for transferring him to adult court because he would not be going back to this environment. The suggestion that Francis O.'s anti-social behaviour was ingrained as a result of his background and the length of time he had been drinking was contradicted by the MMPI-A. Both Mr. Hansen and Mary Penasse supported these test results. The third reason given by Dr. Phillips for his conclusion was Francis O.'s lack of spontaneity in rehabilitating himself. If Francis O. had demonstrated a history of successfully dealing with his drug and alcohol problem, he would likely not have been in custody in the first place.

[42] Dr. Phillips further opined that Francis O.'s anti-social behaviour could challenge youth-oriented facilities. This has not been the case over the past year.

[43] Dr. Phillips indicated that he would like to be "proved" wrong in his opinion. His comments appear to shift the onus to Francis O. to show that rehabilitation can be accomplished within three years. In fact, because of the age of Francis O. at the time of commission of the offence, the Act requires that the starting point be that the young person is to be tried in youth court.

[44] The youth court judge simply accepted Dr. Phillips' opinion without analyzing it.

[45] With respect to time and the offence of manslaughter that is charged, I would also add the following comments:

• A year has elapsed since the transfer hearing. If convicted and sentenced to the maximum sentence of three years for this offence in youth court, Francis O. will, in effect, have had four years within which to rehabilitate himself.
• If convicted in ordinary court, Francis O. might well receive a sentence for manslaughter of six years. While it is inappropriate to speculate what might happen on a parole hearing, the fact remains that Francis O. could potentially serve two years and, therefore, less time in closed custody, receiving intensive treatment than if he remained in the youth court system.

[46] For the above reasons, I would reverse the decision of the youth court judge.

IV. Kyle G.

A. The Reasons of the Trial Judge

[47] The trial judge stated:

I accept the opinion of both expert witnesses that rehabilitation can be brought about in the youth system. I note, however, that neither witness was cognizant of the full magnitude of the case alleged against the young person. Each had a very sanitized account devoid of any aggravating features. One wonders how accurate any prognosis for rehabilitation can be when the prognosticator is not fully aware of the magnitude of the alleged wrong doing. Nevertheless, I defer to the expertise of the eminently qualified witnesses on this issue.

[G]iven the seriousness of the alleged offences, given the seriousness of the circumstances in which the offences were allegedly committed, the three year maximum disposition, in my view, is woefully inadequate in this case in affording protection to the public through denunciation and general deterrence.

[48] Accordingly, the trial judge refused to make an order that Kyle G. be proceeded against in youth court and ordered the manslaughter charge to proceed in ordinary court.

B. The Issue

[49] Despite accepting the experts' opinion that Kyle G. could be rehabilitated within three years, the trial judge refused to order that Kyle G. be tried in youth court. Section 16(1.1) requires the youth court to consider the interest of society"which includes the objectives of affording protection to the public and rehabilitation of the young person". If these objectives can be reconciled, the court "shall" order that the young person be proceeded against in youth court. Factors listed in s. 16(2), such as the gravity of the offence, can only be considered within the parameters of the two broad objectives of protection of the public and rehabilitation: R. v. B. (C.) (1993), 86 C.C.C. (3d) 214 (Ont. C.A.). In R. v. C. (J.), supra, at para. 18, Doherty J.A. stated:

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, (1993), 85 C.C.C. (3d) 547 (Ont. C.A.), leave to appeal to the S.C.C. refused (1994), 86 C.C.C. (3d) vii] 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."

[50] The Crown concedes that the gravity of the offence and general deterrence cannot, in themselves, provide the basis for proceeding against a young offender in ordinary court and that the trial judge misapplied the test under the Act to this extent. The Crown submits, however, that exercising its broad powers of review, this court should come to the independent conclusion that Kyle G. should be tried in ordinary court.

C. Personal History

i) Family Background

[51] Kyle G. is the youngest of three children of Robert and Susan G. who, at the time of the report, had been married for 22 years. Both Robert and Susan were employed, Robert in his own transport business and Susan as a secretarial clerk in the Social Services Department at Nipissing First Nation. The family resided on the Nipissing First Nation Reserve near North Bay. The family environment was a stable one in which traditional native values were practiced. Kyle G. reported no major conflicts with his parents and described his present relationship with them as good. Kyle G.'s mother also described the family as close, reporting that the appellant was very close to her and his father.

[52] While growing up, Kyle G. had been involved in various cultural and sporting activities at the Native Friendship Centre. He had also been involved in athletics, including league hockey, and continued to play baseball, basketball and hockey informally with friends.

[53] Kyle G. has a girlfriend, who is 19 years old. She gave birth to their son, Darien, on February 5, 2001.

ii) Substance Abuse

[54] Kyle G. began using alcohol and drugs at a young age. When he was 15, he would typically drink 12 ounces of hard liquor once or twice per month at weekend parties and use one gram of marijuana each day. By the summer of 2000, when he was 16, Kyle G. was drinking 20 ounces of hard liquor every two weeks at weekend parties and using two grams of marijuana each day. During September and October 2000, Kyle G. reduced his alcohol consumption. He acknowledged that he had a problem with alcohol and drugs.

iii) Education

[55] Kyle G.'s academic problems began to manifest themselves by the time he reached Grade 5 or 6. Prior to this, Kyle G. did not have any social issues and was functioning close to his ability. By Grade 5 or 6, Kyle G.'s behaviour slowly started to deteriorate, and the deterioration continued through high school.

[56] At the time of the hearing, Kyle G. was a high school student at Nbisiing Educational Centre on Nipissing First Nation. He had attended Nbisiing since February 1999, having transferred to Nbisiing from St. Joseph Scollard Hall in North Bay.

[57] Kyle G.'s principal, Mr. Hansen, testified that Kyle G. started out each semester well but then had difficulty applying himself. Between February and June 1999, Kyle G. earned three out of four possible credits. When he returned to school in September 1999, his attendance during the first semester was good. However, with respect to his effort and performance, Mr. Hansen testified as follows:

It was necessary to keep on Kyle constantly to get him to do his work. He would do as little as he could get away with. He would skip assignments, he would, you know, pretend that he'd forgot his work. He would not complete assignments. As a result of that, his marks started to decrease throughout that semester. All right? By the end of that semester when we transferred over into our new school in January of 2000, he received two out of four credits.

[58] Mr. Hansen described Kyle G. as having angry outbursts and attitudinal issues. His angry outbursts were always verbal and never physical, and Mr. Hansen reported that Kyle G. always settled down after his outbursts, although not as quickly with some of the female staff. During January 2000, Kyle G. had a conflict with his female physical education teacher and was removed from the class. He would participate and do work only when he felt like it and attend class only when it was convenient for him to do so. In June 2000, Kyle G. failed to show up to write his final exams and made no attempt to reschedule them. Accordingly, Kyle G. received no credits. During the three semesters that Kyle G. attended Mr. Hansen's school, he acquired five out of a possible twelve credits.

[59] While Kyle G. was never suspended from school, Mr. Hansen explained that he deliberately did not suspend him because he wanted him to work through his problems. Instead, Mr. Hansen had a number of private discussions with Kyle G. and with Kyle G.'s mother. Mr. Hansen testified that Kyle G., knowing that he could talk things out with Mr. Hansen, often went to Mr. Hansen's office on his own, when he felt like he was starting to get out of hand, so he could "blow up in the privacy of the office as opposed to publicly". Kyle G. was never belligerent or defiant towards Mr. Hansen.

iv) Prior Conduct

[60] While Kyle G. told Dr. Lapalme, the psychologist who assessed him, that his first crime was for breaking and entering, his youth court record consisted of one entry for assault with a weapon. On August 6, 1996, when Kyle G. was 12 years old, he threw a rock and hit a 7 year-old boy in the back causing swelling and bruising. Subsequently, on October 9, 1996, Kyle G. was found guilty and placed on probation for a period of 12 months. This was his only prior criminal offence. He was, however, involved with the police on a number of occasions.

[61] On October 6, 1996, three days prior to the assault conviction, the police received a report that numerous eggs had been thrown at the rear of the Ojibway Family Resource Centre. Kyle G. and another young person admitted to doing this for fun. No damage was caused to the building and no charges were laid.

[62] Kyle G.'s next involvement with the police occurred on July 16, 1997. The police were called to Beaucage Park, and were advised that Kyle G. was at the dock area of the park attempting to pick a fight with unknown campers. When the campers did not respond to Kyle G., he kicked their fishing tackle boxes into the water. No charges were laid, but Kyle G. and his mother were warned about future complaints.

[63] On February 10, 1999, the police received a complaint from a mother who was concerned about the safety of her ten-year-old son. She complained that Kyle G. tripped her son, who was playing hockey at an outdoor rink. No charges were laid, but Kyle G. and his father were spoken to about the incident.

[64] On April 28, 1999, the police were notified by Mr. Hansen, the school principal, of an incident involving a student who refused to go to school because he was told that, if he did not return a $10.00 drug debt, he would have some problems. Kyle G. and two others were involved in this incident. No charges were laid.

[65] On April 10, 2000, Sergeant Couchie responded to a call from the school bus driver who reported that Kyle G. was on the bus when his riding privileges had been suspended the previous week. Kyle G. was told he could not ride the school bus as he had burned holes in the back of the seats. When Sergeant Couchie arrived, Kyle G. initially said that he was not going to get off. However, Kyle G. agreed to get off when Sgt. Couchie walked to the back of the bus.

[66] Kyle G.'s last involvement with the police, prior to the current charges, was on August 26, 2000. Kyle G. and another youth, James U., were observed chasing a man in downtown North Bay. It appeared as if they were trying to initiate a fight with the male as they were trying to strike him. However, as Kyle G. and James U. got closer to the male, the male turned around and hit them one time each. At this point, the police intervened and arrested the two youths for being intoxicated in a public place; Kyle G. and James U. had slurred speech, glassy eyes, and were unsteady on their feet.

v) Behaviour while Incarcerated

[67] Since October 31, 2000, Kyle G. has been incarcerated at Cecil Facer Youth Centre. While Kyle G. has responded very well with the routine and discipline at Cecil Facer, the author of the Pre-Disposition report noted the following:

In Music, Dan Vaillancourt states Kyle is inconsistent in terms of his effort. He is also sarcastic and confrontational when asked to do work in this class. In Mathematics Fred Carson states Kyle should have completed 30 hours of work by now (hours completed 20). He is operating at 66% of the total capacity of his class time. He is weak in math and needs help, which he does not always readily accept from the teacher. In Introduction to Information Technology Rhonda Hicks relates Kyle is generally a hard working student who is putting forth a genuine effort on his studies. He is a polite and well mannered student. In English Andrea Kaukolin relates when Kyle decides to work, the work he hands in is well done and acceptable. However, he is often off task and has to be prodded along to doing his work. His attitude is mostly positive, although on a few occasions he is disrespectful.

[68] The updated report of January 16, 2002, filed on consent as fresh evidence in this appeal, indicates that, despite some negative behaviour reports, Kyle G.'s overall behaviour in custody and in school are satisfactory. He is not considered to be physically aggressive in custody, is polite and generally co-operative, and has strong leadership qualities. His family and girlfriend continue to be supportive of him.

D. The Psychological and Psychiatric Evidence

i) Dr. Denis Lapalme

[69] Dr. Lapalme, a registered psychologist engaged in private practice in Sudbury, prepared a psychological assessment for the court. Based on his interview with Kyle G., the results of 21 standardized tests, interviews with the appellant's family and girlfriend, and a review of the appellant's records, Dr. Lapalme concluded that there was no evidence of conduct disorder, Oppositional Defiant Disorder, or psychopathy. However, he found there was some evidence of "mild delinquency" that was at an early stage of development. According to Dr. Lapalme, while Kyle G. had the propensity to develop some delinquency, he was not yet a juvenile delinquent. Dr. Lapalme explained that this delinquency was probably quite amenable to treatment.

[70] Dr. Lapalme testified that the "Defining Issues Test" measured Kyle G.'s moral reasoning and showed that he does not have any problems with his capacity to understand right from wrong. Also, the Hare Psychopathy Checklist-Revised showed that Kyle G.'s score for anti-social traits was in the 41st percentile: an average, but not elevated, score. Kyle G.'s overall score on the Hare test placed him at the 21st percentile. Based on this result, Dr. Lapalme reported that there was no evidence of psychopathy.

[71] From a treatment perspective, Dr. Lapalme testified that Kyle G.'s first priority had to be his substance abuse problem. However, Kyle G. also needed to deal with conflict resolution, schooling, and existential issues. The existential treatment would help Kyle G. deal with his involvement in another individual's death. While this existential treatment could go on for an extremely long period of time, incarceration was not essential. Accordingly, as the substance abuse program would "probably" require one or two years and Kyle G. would require two to three years to finish his schooling and decide on some type of orientation, Dr. Lapalme "suspected" that the Act would be adequate for Kyle G.'s rehabilitation. Further, Dr. Lapalme, testified that "chances are" the Act would provide an adequate structure for Kyle G.'s rehabilitation.

[72] However, Dr. Lapalme noted that his opinion regarding Kyle G.'s rehabilitation was based, in part, on the fact that Kyle G. had neither a conduct disorder nor an anti-social personality disorder. Indeed, if Kyle G. suffered from such a disorder, the prospects for his rehabilitation would be very different. For instance, if Kyle G. had scored high for psychopathy, the prognosis would be extremely poor. Similarly, if Kyle G. had a conduct disorder or an anti-social personality disorder, depending on the severity of it, the treatment would be much longer.

[73] During cross-examination, Dr. Lapalme acknowledged that his opinion that Kyle G. did not suffer from a conduct disorder or an anti-social personality disorder was made without knowing the nature of the allegations or all of the appellant's prior conduct. In fact, his knowledge of the allegations was based on what Kyle G. and his mother told him, namely: Kyle G. was charged with manslaughter and robbery; Kyle G. had been drinking before and after the incident; there was an altercation in which Kyle G. acted in self-defence; Kyle G. walked away; the other gentleman died sometime afterwards; and Kyle G. arrived home late that evening quite intoxicated with dirty and torn clothes. The only past behaviour Dr. Lapalme knew of was that Kyle G. was charged and found guilty of assault with a weapon as a result of throwing a rock at a young boy.

[74] Dr. Lapalme agreed that, if Kyle G. kicked Mr. Morgan in the head and rifled through his pockets, removing money and cigarettes, while Mr. Morgan was defenceless on the ground, this would be callous and cruel, and would show a great degree of indifference. These allegations would also make the issues that Kyle G. has to deal with more complex and would have some "severe implications as to how he's going to behave long-term". However, Dr. Lapalme did not think that more time would be required for Kyle G.'s rehabilitation. According to Dr. Lapalme, Kyle G. has a "long way to come" but would not have to remain incarcerated for the duration of his treatment. In summary, Kyle G. could be rehabilitated within three years. Treatment, which would be a benefit to him, could continue in the community without a court-imposed sanction.

ii) Dr. Jean-Guy Gagnon

[75] Dr. Gagnon, the staff psychiatrist at the Sudbury General Hospital and the Sudbury Algoma Hospital, also assessed Kyle G. According to Dr. Gagnon, whatever motivated Kyle G. to behave as he did, it was not a mental illness or a personality disorder. Further, the absence of such an illness or disorder meant that Kyle G. chose, in his inebriated state, to behave as he did. Dr. Gagnon testified that, while Kyle G. suffered from a very mild form of Oppositional Defiant Disorder, there was no direct link between this disorder and the alleged incident. Dr. Gagnon explained that people with oppositional disorders"are not people who assault or commit crimes or anything like that". Rather, if such a disorder evolves into adulthood, the individual generally becomes passive/aggressive and, if in treatment"they tend to sabotage treatments".

[76] Accordingly, as Kyle G.'s behaviour related mainly to alcohol and drugs, Dr. Gagnon testified that the primary issue for his rehabilitation was substance abuse treatment. In fact, Dr. Gagnon agreed that, if the public is to be afforded some measure of protection from similar acts in the future, something would have to be done about Kyle G.'s alcohol and drug consumption. If Kyle G. is not sober, then the fact that one incident has occurred increases the probability of it happening again. However, provided Kyle G. remains off drugs and alcohol, continues with his education, and makes decisions to move on, the prognosis that similar behaviour will not be repeated is very good. In addition to drug and alcohol rehabilitation, Dr. Gagnon recommended anger management, individual counselling with regard to Kyle G.'s new role as a father, and culturally sensitive family therapy. Overall, Dr. Gagnon reported that there was a high likelihood that Kyle G.'s Oppositional-Defiant Disorder would be quite under control, if not completely resolved within three years. In addition, Dr. Gagnon testified that the Act provided more than adequate time for Kyle G.'s rehabilitation.

[77] When asked of his knowledge of the allegations, Dr. Gagnon testified that he understood the incident occurred as follows: the victim followed Kyle G. and his co-accused out of the hotel and swung at Kyle G.; the co-accused jumped in and punched the victim causing him to fall and hit his head; and, because he was unconscious, Kyle G. "nudged" or kicked the victim with his foot saying "hey buddy". According to Dr. Gagnon, had there been more aggravating factors, they would not have had any bearing on his ultimate opinion, as an isolated act of aggression in a youth's life does not predict a lifelong pattern and is not indicative of a personality disorder. During his testimony, Dr. Gagnon explained that personality disorders are only diagnosed after a person is 18 years of age, when the way in which the person relates to the world is more solidified. Dr. Gagnon also testified that, if Kyle G. had a lot of isolated psychopathic types of behaviours on his own, with no groups, then the prognosis would be very poor. In Kyle G.'s case, while there may have been some delinquent behaviours in the past, Dr. Gagnon was unaware of any consistent pattern.

E. Analysis

[78] Both Dr. Lapalme and Dr. Gagnon agreed that it was likely that Kyle G. could be successfully rehabilitated within a three-year period in the youth court facilities. The updated report from the Cecil Facer facility supports this conclusion. There is no basis on which to depart from the experts' conclusions in the case of Kyle G.

[79] One of the reasons animating the Crown's position that Kyle G. be tried in ordinary court was the public interest in the efficient administration of justice by avoiding the necessity of conducting two trials arising out of the same occurrence, the possibility of inconsistent verdicts, and uneven sentencing: See R. v. M. (D.) (1990), 61 C.C.C. (3d) 129 (Ont. C.A.). This would be a relevant factor pursuant to s. 16(2)(f) of the Act but, again, within the application of s. 16(1.1). To the extent that it is a consideration, therefore, and having regard to the fact that I would order Francis O. to be tried in youth court, it is a factor that favours the trial of Kyle G. in youth court.

[80] I would conclude that the rehabilitation of Kyle G. and the protection of the public can be reconciled if he is tried in youth court.

IV. Conclusion

[81] I would allow both appeals. For the reasons I have given, I would reverse the decisions of the youth court judges and order Francis O. and Kyle G. to be tried in youth court.

Appeals allowed.