WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s.38 OF THE ACT WHICH PROVIDES:

(i) 38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1), …

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: 20021122

DOCKET: C35379

C35275

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) and M.(M.) and C.(W.A.) (Young Persons) (Appellants)

BEFORE: MCMURTRY C.J.O., CARTHY AND SIMMONS J.J.A.

COUNSEL: Alan D. Gold

For the appellant M.(M.)

Mara B. Greene and Irina Ceric

For the appellant C.(W.A.)

Thomas D. Galligan

For the respondent

HEARD: October 17 and 18, 2002

On appeal from the order of Justice Charles H. Vaillancourt of the Ontario Court of Justice dated October 30, 2000

E N D O R S E M E N T

[1] The appellants appeal against the decision of Vaillancourt J. dismissing their respective applications for an order that the charges against them proceed in youth court.

[2] The appellants are charged with second-degree murder in connection with the death of Dmitri Baranovski who was killed on November 14, 1999. Both appellants were sixteen years old as of November 14, 1999. Where the young person against whom an information is laid was sixteen or seventeen years of age at the time of the alleged offence, s. 16(1.01) of the Young Offenders Act, R.S.C. 1985, c.Y-1, requires that a charge of second-degree murder proceed “in ordinary court in accordance with the law ordinarily applicable to an adult … unless the youth court … makes an order” that the charges proceed in youth court.

[3] For the purpose of the transfer applications, the youth court judge accepted that both of the appellants were part of a group of young people who attended at G. Ross Lord Park in North York on the evening of November 14, 1999 to carry out a retaliatory attack on a group of Russian youths who threatened a friend of the appellants on November 12, 1999. When they were unable to locate the Russian youths at the park, the appellants’ group decided to rob the deceased and his friends. The deceased was tripped and then viciously kicked as he lay on the ground, after he refused to comply with a demand to turn over his cigarettes and money. It is undisputed that the victim died as a result of the injuries he sustained during this attack.

[4] The youth court judge found that neither appellant had met the onus of demonstrating that the charge against him should proceed in youth court, and dismissed both applications. With respect to M.(M.), the youth court judge concluded at p.35-36:

M.(M.), the Applicant herein, has the onus on him to demonstrate that he should be transferred to the youth system for his trial. I find that he has not met that onus.

M.(M.) was a main player in the events of November 14, 1999. He was a primary mover in organizing the planned revenge attack. He readily became involved in the robbery scenario. He was the person who threw the victim to the ground. He participated in kicking the victim in the head.

M.(M.) has a long history of aggression and intimidation. M.(M.) uses his physical size and aggressive manner to achieve his goals. Because of these attributes, he has not found it unnecessary (sic) to actually use physical force. The one time M.(M.) was guilty of an assault, the circumstances were such that they mirrored his normal approach to life situations.

M.(M.) has developed an independent lifestyle that features drug use, unemployment, and a negative peer group.

There is no indication that a custodial setting places him in a position of vulnerability. In fact, M.(M.) seems to have settled into the prison culture remarkably well.

M.(M.) can presently be characterized as a danger to society. I accept Dr. Brunet’s assessment as to M.(M.)’s future risk of recidivism. In so doing, I am mindful of the direction of the Supreme Court in Winko v. B.C. (Forensic Psychiatric Institute) (1999), 1999 694 (SCC), 135 C.C.C. (3d) 129 at 162-2 (S.C.C.) wherein the Court noted that:

It may be extremely difficult for experts to predict whether a person will offend in the future. The documented tendency to over-estimate dangerousness must be acknowledged and resisted.

Dr. Brunet advised the court that there is nothing written as to the length of time that is required to treat a Conduct Disorder. I am not satisfied that there is convincing evidence that such treatment can be completed within the time frame of the Young Offenders Act.

I am not satisfied that the public can be adequately protected under the disposition scheme of the Young Offenders Act.

[5] With respect to C.(W.A.), the youth court judge concluded:

C.(W.A.), the Applicant herein, has the onus on him to demonstrate that he should be transferred to the youth court system for his trial. I find that he has not met that onus.

C.(W.A.) was a main player in the events of November 14, 1999. He was a primary mover in organizing the planned revenge attack. He readily became involved in the robbery scenario. He participated in kicking the victim in the head.

C.(W.A.) did not exhibit signs of difficulty until he entered grade seven. From that time on, his scholastic efforts went into serious decline, he began using drugs, he began to associate with a negative peer group and parental control slipped away.

C.(W.A.) also became involved in two recent events that bear a remarkably similar pattern as the index offence in question. The scenarios start with aggression towards C.(W.A.) and dangerous and extremely vicious retaliation on the part of C.(W.A.). An assault caused him to arm himself with a knife for protection. A serious assault on C.(W.A.) resulted in a planned ambush wherein his attackers were attacked with a baseball bat resulting in a broken leg. A confrontation at a school resulted in a well-planned attack on the alleged perpetrators. This event, in turn lead to the index offence before the court.

There is nothing to suggest that C.(W.A.) would be particularly vulnerable in the adult system due to his maturity.

I adopt the same position in my conclusion for M.(M.) as to C.(W.A.)’s risk of recidivism.

I am not satisfied that the public can be adequately protected under the disposition scheme of the Young Offenders Act.

I am not persuaded by Dr. Meen’s evidence that C.(W.A.) can be treated within the time allowed by the Young Offenders Act.

M.(M.)’s Appeal

[6] We reject M.(M.)’s submission that the youth court judge’s finding that M.(M.) is presently a danger to the public is unreasonable. Assuming that the youth court judge placed undue reliance on that portion of Dr. Brunet’s evidence that was based on her use of actuarial risk assessment instruments[^1], the balance of the record amply supports the youth court judge’s finding in this respect.

[7] Although Dr. Chamberlain testified that, in his opinion, M.(M.) did not presently pose a significant risk of committing further offences against the public, in our view, the youth court judge was justified in rejecting Dr. Chamberlain’s opinion for three reasons.

[8] First, counsel for the appellants instructed their respective psychiatrists not to ask the appellants any questions concerning the circumstances of the alleged offences. In addition, the appellants were instructed by counsel not to speak to Dr. Brunet or anyone else retained by the Crown to conduct assessments ordered under s. 13 of the Young Offenders Act at the request of the Crown. The youth court judge found that “the limitations placed on all the psychiatrists in the case at bar had an impact on their opinion” and stated that this conclusion was supported by the evidence “from the experts themselves”. The youth court judge also noted specifically that Dr. Chamberlain added a caveat to his opinion concerning M.(M.)’s risk of committing further offences that he did not have the opportunity of inquiring into the details and the nature of the behaviour for which M.(M.) was charged.

[9] We specifically reject M.(M.)’s submission that the youth court judge erred by considering M.(M.)’s decision to exercise his right to remain silent when weighing the psychiatric evidence. In our view, the youth court judge’s conclusions concerning the weight to be afforded to the expert’s opinions were findings of fact derived from the evidence adduced on the transfer hearing; they did not amount to an adverse inference. In addition, we note that M.(M.) did not challenge the constitutional validity of s. 16(1.11) of the Young Offenders Act, which placed the onus on him of demonstrating that this matter should proceed in youth court. Finally, it does not appear that M.(M.) requested an assessment order under s. 13 of the Young Offenders Act in order to obtain protected status[^2] for statements that he made to his own psychiatrist. In these circumstances, we can see no basis for M.(M.)’s submission that the youth court judge erred, and we agree with the youth court judge’s conclusion.

[10] Second, for the purposes of the transfer hearing, the youth court judge found that M.(M.) was “a main player” in the events of November 14, 1999 and that his actions included helping to organize the revenge attack, becoming involved in a planned robbery, participating in the confrontation of the first victim, throwing the deceased to the ground, and kicking him in the head. We reject M.(M.)’s contention that the youth court judge erred in making these findings because of inherent frailties in the evidence. For the limited purpose of the transfer hearing, the youth court judge was entitled to accept “evidence tendered by the Crown if that evidence [was] reasonably capable of belief and also supporting the finding of fact urged by the Crown”[^3]. In making these findings, the youth court judge recognized that the evidence implicating M.(M.) as a major participant in the events of November 14, 1999 is subject to various frailties. However, he found that it was “corroborated in many ways [by] that of other witnesses”. In our view, he was entitled to make that finding, and to accept the impugned evidence as a result.

[11] Third, based on evidence concerning the appellant’s background, Dr. Chamberlain opined that M.(M.) falls into the category of mild adolescent onset conduct disorder, excluding consideration of the index offence, “or severe if one includes it”. Dr. Brunet shared the opinion that, taking account of the allegations underlying the second-degree murder charge, M.(M.) suffers from severe adolescent onset conduct disorder.

[12] In our view, the youth court judge’s findings concerning the level of M.(M.)’s participation in the alleged offence, the evidence that M.(M.) suffers from severe adolescent-onset conduct disorder, and the evidence concerning M.(M.)’s background are sufficient to support a finding that M.(M.) is presently a danger to the public. Particularly when combined with the limitations imposed on all of the psychiatrists, and with the caveat expressed by Dr. Chamberlain concerning his opinion, they also justify the trial judge’s decision to reject Dr. Chamberlain’s opinion.

[13] Finally, we reject M.(M.)’s submission that the youth court judge’s finding that he had not met the onus of proving that he could be rehabilitated within the youth court disposition period was unreasonable. M.(M.) relies in particular on Dr. Chamberlain’s testimony that there is a significant difference in outcome between adolescent-onset and childhood-onset conduct disorder, and that, in his opinion, the time frame for custody and community supervision provided for in the Young Offenders Act would be “more than adequate to achieve the rehabilitative purpose”.

[14] The youth court judge clearly found that the whole of Dr. Chamberlain’s opinion was undermined by his failure to discuss the circumstances of the offence with M.(M.). In addition to rejecting Dr. Chamberlain’s opinion concerning dangerousness, the youth court judge also said at 34:

Dr. Chamberlain expressed the view that M.(M.) can learn from his experience. Without speaking to M.(M.) about the index offence, it is difficult to understand how Dr. Chamberlain can arrive at such a conclusion.

[15] The youth court judge’s findings concerning M.(M.)’s participation in the alleged offence are a significant factor in the finding of dangerousness. We share the youth court judge’s reservations about how Dr. Chamberlain could express a helpful opinion concerning whether M.(M.) is presently a danger to the public or concerning his prospects of rehabilitation without exploring all of the factors that impact on those issues. In our view, the youth court judge was entitled to reject Dr. Chamberlain’s evidence concerning the prospects and timing of rehabilitation because Dr. Chamberlain’s opinion was undermined by his failure to discuss the circumstances of the alleged offence with M.(M.). Once the youth court judge rejected Dr. Chamberlain’s opinion, the challenge facing the appellant in satisfying the onus upon him increased significantly.

[16] Leaving aside that portion of Dr. Brunet’s evidence that was based on her use of actuarial risk assessment instruments, we agree with the youth court judge’s finding that M.(M.) is presently a danger to the public. As M.(M.) failed to lead evidence demonstrating that he can be rehabilitated and that his rehabilitation can be achieved within the youth court disposition period, M.(M.)’ s appeal against the order of the youth court judge is dismissed.

C.(W.A.)’s Appeal

[17] C.(W.A.) does not contest the youth court judge’s finding that he is presently a danger to the public. However, he contends that the youth court judge placed undue reliance on the actuarial risk assessment evidence of Dr. Brunet and also erred in rejecting Dr. Meen’s evidence that he can be rehabilitated with the Young Offenders Act disposition period.

[18] We reject these submissions. Once again, assuming that the youth court judge placed undue reliance on that portion of Dr. Brunet’s evidence that was based on her use of actuarial risk assessment instruments, in our view, the youth court judge was justified in rejecting Dr. Meen’s opinion based on the doctor’s own testimony.

[19] The youth court judge noted that a significant area of disagreement between Dr. Brunet and Dr. Meen “was with respect to whether [C.(W.A.)] suffers from cannabis abuse and conduct disorder”. Before rejecting Dr. Meen’s evidence that C.(W.A.) can be treated within the youth court disposition period, the youth court judge said this about Dr. Meen’s approach to whether C.(W.A.) suffers from childhood onset conduct disorder:

I have serious reservations regarding Dr. Meen’s approach to the whole issue as to whether C.(W.A.) has a conduct disorder. The following exchange in cross-examination highlights my concern:

Q. And with respect to the diagnosis with respect to conduct disorder, if there weren’t these time frames of the twelve months and six months, would you have diagnosed Mr. C. as conduct disordered?

A. I would have, I wouldn’t have made a diagnosis, that was not my task. I would, and I noticed, I went back and checked, none of the other psychiatrists that presented material here today gave an axis diagnosis as required by DSM-IV. If I was going to do that I would have put in things like, rule out conduct disorder, rule out dysthymia. What the task I was asked for was to see whether he could be served well within the young offender system and that’s not a, a diagnosis is not required to do that.

Q. So you deliberately didn’t turn your mind to whether to diagnose him or not as anything in particular?

A. No, as a physician, a psychiatrist, my task is to serve the client well. The client in a forensic case such as this is the individual, the family, and the community, and that was my task.

Q. So your task was not to see if there was a particular diagnosis that was…

A. If there was one that jumped out at me then as a responsible physician then I would have had to identify it. In my experience here I did not have one jump out at me that I could comfortably diagnose.

Q. And your position is, is that your mandate was not to delve into this, is that correct?

A. That’s right.

Dr. Meen may not have been inclined to delve into the possibility of conduct disorder when he himself has written that there is no quick [fix] for conduct disorder available. Dr. Meen stood by a position that he had expressed in the past wherein he noted that conduct disorder in is much more than a disorder, but rather a disability. A disability with major incapacitating and devastating consequences for the individual, the family, and the community. The most malignant variety of the disorder begins in childhood and must not be confused with the more benign adolescent-onset type.

[20] Once again the evidence concerning the circumstances of the offence and concerning C.(W.A.)’s background justified a finding of dangerousness and raised obvious concerns about rehabilitation. It is apparent that the youth court judge rejected Dr. Meen’s opinion because he was not satisfied that Dr. Meen had adequately addressed the presenting issues. Again, without the benefit of Dr. Meen’s opinion, the youth court judge was entirely justified in finding that the appellant had not met the onus upon him.

[21] C.(W.A.)’s appeal against the order of the youth court judge is also dismissed.

Procedural Issue

[22] Given the conclusions we have reached concerning the merits of these appeals it is unnecessary that we deal with the request that they be denied based on procedural grounds.

Disposition

[23] For the reasons given, these appeals are therefore dismissed.

“R.R. McMurtry C.J.O.”

“J.J. Carthy J.A.”

_ “Janet Simmons J.A.”

[^1]: The Violent Recidivism Assessment Guide (VRAG) and the Psychopathy Checklist Revised (PCL-R).

[^2]: Section 13.1(1) of the Young Offenders Act provides:

Subject to subsection (2) … no statement made by the young person … to the person who conducts the assessment … is admissible in evidence…

Section 13(2) provides that a statement referred to in s. 13(1) is admissible for certain purposes, including: a) considering a s. 16 application, and f) challenging the credibility of the young person if his testimony is inconsistent in a material particular with the statement. 

[^3]: R. v. C.(J.) (2000), 2000 5657 (ON CA), 143 C.C.C. (3d) 59 (Ont. C.A.) at pp. 71-72.