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

83 O.R. (3d) 473

Court of Appeal for Ontario,

Rosenberg, MacPherson and Gillese JJ.A.

September 27, 2006

Criminal law -- Young persons -- Sentence -- Serious violent offence -- Seventeen-year-old pleading guilty to aggravated assault -- On consent matter treated as serious violent offence -- Accused youth ringleader of "swarming" by several people -- Accused stabbing and slashing victim while victim restrained by accused's friends -- Victim suffering serious physical injuries and devastating psychological damage -- Accused violating terms of bail order pending trial -- Trial judge reviewing relevant factors and imposing sentence of two years' probation -- Crown appeal allowed -- Sentence demonstrably unfit -- Sentence not proportionate to seriousness of offence and youth's degree of responsibility -- Sentence varied to six months' open custody, three months' community supervision and six months' probation. [page474]

The 17-year-old youth and three of his friends pursued the young victim through the streets and when they caught him, the youth's friends pinned the victim to the ground while the youth slashed and stabbed him repeatedly with a box cutter. This was a "swarming". The victim suffered serious physical injuries and devastating psychological trauma. The youth pleaded guilty to aggravated assault. At the sentence hearing, the matter was designated, on consent, as a serious violent offence. The sentencing judge carefully reviewed the aggravating and mitigating factors and determined that the appropriate sentence was two years' probation. The Crown appealed.

Held, the appeal should be allowed.

A sentence can be overturned only if it is clearly unreasonable or demonstrably unfit. That high bar was raised even higher in this case because the sentencing judge delivered comprehensive reasons dealing with the offence, the offender and his circumstances, the victim, the key provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 and some case law. However, the sentence imposed was not proportionate to the seriousness of the offence and the youth's degree of responsibility for the offence. The youth was the ringleader of a cowardly "swarming", and the effects of the attack on the victim were devastating. The youth violated his recognizance while awaiting sentencing by consuming alcohol and damaging property. The sentence should be varied to a custody and supervision order of nine months, consisting of six months in open custody and three months under community supervision, followed by six months' probation.

APPEAL by the Crown from a youth sentence for aggravated assault.

Cases referred to R. v. D. (C.), [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 376 A.R. 258, 261 D.L.R. (4th) 257, 360 W.A.C. 258, [2006] 5 W.W.R. 195, 203 C.C.C. (3d) 449, 2005 SCC 78, 34 C.R. (6th) 323; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 2002 SCC 26, [2002] S.C.J. No. 30; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269; R. v. W. (R.E.) (2006), 2006 1761 (ON CA), 79 O.R. (3d) 1, [2006] O.J. No. 265, 205 C.C.C. (3d) 183, 36 C.R. (6th) 134 (C.A.) Statutes referred to Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 38, 39, 42

Charmaine Wong, for appellant. Stuart W. Konyer, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] A young person, C.N., and three of his friends stalked another young person, M.F., through the streets of Ottawa. They [page475] caught him. While his friends pinned M.F. to the ground, C.N. took out a box cutter and repeatedly slashed and stabbed M.F.

[2] C.N. pleaded guilty to the offence of aggravated assault. The youth court judge imposed a sentence of two years probation. The Crown appeals. The sole question on appeal is whether the sentence is demonstrably unfit and should be replaced by a custodial sentence.

B. Facts

(1) The parties and the events

[3] On April 23, 2005, C.N. was 17 years old. He lived in Ottawa and came from a good family. Neither he nor anyone in his family had a criminal record.

[4] In the early morning hours, C.N. was the driver of a van. He was accompanied by three friends. They spotted two young men, M.F. and J.T., on the street. One of the passengers taunted the pedestrians. The van made a U-turn and as it passed the young men a second time C.N. accused M.F. of being a racist skinhead. Almost simultaneously, C.N. recognized M.F. as the person who had been involved in a fight with his younger brother approximately a year and a half earlier. C.N. and M.F. apparently knew each other in any event since they had previously lived on the same street in Ottawa.

[5] M.F. and his friend took refuge in a residential backyard. C.N. and his friends got out of the van and stood just outside the fence to the backyard. They continued to taunt M.F. and J.T., accusing them of being racist skinheads.

[6] C.N. and his group returned to the van and drove away. However, they parked the van at a nearby plaza and hid in the bushes on the street where M.F. and J.T. were walking.

[7] M.F. and J.T. came down the street. C.N. and his group jumped out and confronted them. The group surrounded M.F. and told him that they were going to kill him. M.F. produced a can of pepper spray and sprayed C.N. in the face. The other members of C.N.'s group immediately attacked M.F., punching and kicking him in the upper body and face.

[8] As M.F. lay on the ground, being beaten and held by the others, C.N. tore open M.F.'s clothing and repeatedly stabbed and slashed him with a box cutter.

[9] M.F. was seriously hurt in the attack. His injuries included two horizontal stab wounds requiring a total of 21 stitches in the area of his left hip, a 14 centimeter slash requiring 12 stitches under the buttock of his right leg, a 5.5 centimeter cut on the outside of his right thigh, a broken nose, a bruise on the left elbow, [page476] extensive bruising and cuts to the top and back of his head and areas above both ears and purple bruises around both eyes.

[10] C.N. was arrested the same night. He pleaded guilty to the offence of aggravated assault.

(2) The sentence

[11] At the sentence hearing, the matter was designated, on consent, as a serious violent offence. This opened the door to the possibility of a custodial sentence being imposed on C.N., and removed the possibility of a deferred custody and supervision order.

[12] The Crown position at the hearing was that C.N. should be sentenced to 9-12 months secure custody followed by 12 months probation or, alternatively, to nine months open custody plus two years probation. The defence sought a sentence of two years probation, the maximum probation permitted under the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA").

[13] The youth court judge wrote comprehensive reasons for sentence. He reviewed C.N.'s personal circumstances, including his supportive family. There were many letters written in support of C.N., including from his parents, brother, sister, two cousins, two uncles, former and present employers, and former high school vice-principal and guidance counsellor. The youth court judge gleaned from these letters that C.N. "is generally described in these documents as a polite, courteous and respectful young man who has strong family support". However, the judge also noted that since the incident C.N. had "admitted to violating his recognizance by consuming alcohol and damaging property".

[14] The youth court judge briefly reviewed three cases, two from Manitoba and one from British Columbia. He then carefully considered the relevant provisions of the YCJA. He recognized, correctly, that s. 39(1)(a) made a custodial sentence a possibility because C.N. had committed a violent offence, but that, pursuant to s. 39(2), he should impose such a sentence only if there were no reasonable alternatives to custody in order to fulfil the purpose and principles of sentencing in s. 38.

[15] The youth court judge then set out what he considered to be aggravating and mitigating circumstances [at paras. 28 and 29]:

AGGRAVATING CIRCUMSTANCES

In terms of application of those principles to the case before, I will deal firstly with the aggravating circumstances. The first aggravating circumstance the court finds is the element of pursuit by C.N. and his accomplices towards M.F.; secondly, there is the physical and psychological harm done to the victim; there is also the use of a weapon; there were the two breaches of his release conditions by youth; and also, the negative peer association that preceded and accompanied the event. [page477]

MITIGATING CIRCUMSTANCES

In terms of the mitigating circumstances, there is the plea of guilty. C.N. appears to very remorseful; he read a letter of apology in open court to the victim, which the court found to be very sincere. He comes from a very supportive family and his legal jeopardy was not hidden from his extended family. C.N. has been attending counselling even prior to today's sentencing. He has realistic career goals which he is pursuing at Community College. He has a strong work ethic. He has gained insight into his behaviour and he is motivated to change his behaviour.

[16] The youth court judge then reached his conclusion [at para. 31]:

After carefully considering the extensive sentencing material before me, I am satisfied that, notwithstanding the serious and violent nature of this offence, there is a reasonable alternative to custody in the case before me.

Accordingly, the youth court judge sentenced C.N. to probation for two years, the maximum permitted under the YCJA. He imposed 14 conditions, including the requirements that C.N. live with his parents, abstain from the consumption of alcohol and intoxicants and comply with a curfew of 11:00 p.m. û 7:00 a.m. unless accompanied by a parent or other adult family member or unless approval has been obtained from his youth worker.

[17] C.N. was 18 years old when this sentence was imposed on February 13, 2006.

[18] The Crown appeals the sentence.

C. Issue

[19] The sole issue is whether the sentence of two years probation is demonstrably unfit.

D. Analysis

[20] The case law is clear. Sentences imposed by trial judges are entitled to great deference from appeal courts. A sentence can be overturned only if it is "clearly unreasonable" or "demonstrably unfit": see R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 102 C.C.C. (3d) 193, at para. 46 and R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327, at para. 90. The high bar created by these formulations of the standard of review is raised even higher in this appeal because the youth court judge delivered comprehensive reasons dealing with the offence, the offender and his circumstances, the victim, the key provisions of the relatively new YCJA and some case law. The youth court judge's reasons are far removed from any Sheppard concern relating to the sufficiency reasons: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30. [page478] Finally, it must always be borne in mind that a principal purpose giving rise to the enactment of the YCJA was to reduce over-reliance on custodial sentences for young offenders: see R. v. D. (C.); R. v. K. (C.D.), 2005 SCC 78, [2005] 3 S.C.R. 668, [2005] S.C.J. No. 79, 203 C.C.C. (3d) 449, at para. 49.

[21] In spite of this jurisprudential context, which I take very seriously, I have reached the reluctant conclusion that the sentence of two years probation imposed on C.N. by the youth court judge in this case was clearly unreasonable or demonstrably unfit.

[22] Section 38 of the YCJA provides:

38(1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection(1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence; [page479]

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[23] In my view, the sentence of two years probation was not, per s. 38(2)(c), proportionate to the seriousness of the offence and the degree of responsibility of C.N. for the offence. I reach this conclusion for several reasons.

[24] First, and most importantly, C.N. committed a particularly serious and violent crime. The charge was aggravated assault, the designation of the crime was a serious violent crime. In this case, the words aggravated, serious and violent are an entirely accurate descriptor of C.N.'s conduct.

[25] C.N. was 17 years old on the night in question. He used a weapon -- a box cutter -- to slash and stab a young man. His violent conduct was sustained and cowardly. C.N. stabbed and slashed his victim several times and he did so while M.F. was utterly defenceless, pinned to the ground by three of C.N.'s friends.

[26] Second, C.N. committed the crime with a group of friends. The incident was a "swarming" type incident that is of great concern to the community. The hallmarks of swarming incidents are sudden, unprovoked and violent attacks by large numbers of people on one or a small number of victims. It is appropriate to use the word "cowardly" a second time to describe C.N.'s conduct.

[27] Third, although C.N. apologized to M.F. and told the court that he had made poor choices of friends, it is important to note that on the night in question C.N. was the ringleader. He drove the van, he engaged in the taunting, he hid in the bushes and jumped out at M.F. and J.T. and he -- alone -- used a weapon in the vicious attack on M.F.

[28] Fourth, the effects of the attack on M.F. were devastating. He was seriously injured, especially as a result of the wounds inflicted by C.N.'s box cutter. He also suffered acute psychological trauma. In his victim impact statement he described "re-occurring nightmares" and "fears of being murdered".

[29] Fifth, the youth court judge noted that C.N. admitted to violating his recognizance while awaiting the sentence hearing by consuming alcohol and damaging property. [page480]

[30] In a recent decision, R. v. W. (R.E.) (2006), 2006 1761 (ON CA), 79 O.R. (3d) 1, [2006] O.J. No. 265 (C.A.), this court upheld a sentence of six months secure custody and two years probation for a young person convicted of two counts of being an accessory after the fact to murder. Near the end of his judgment, Rosenberg J.A. summarized his conclusion in this fashion, at paras. 50 and 52:

In my view, this is one of the clearest of cases for which a custodial disposition is the only reasonable response. I can see no other disposition that would be proportional to the seriousness of the offence and the degree of responsibility of the appellant for that offence. A custodial disposition is also the only sentence that would promote a sense of responsibility in the appellant and an acknowledgment of the harm done to the victims and the community. A custodial disposition is also consistent with the relevant factors set out in s. 38(3) (i.e. those factors that focus on the circumstances of the offence). . . . . .

Notwithstanding the importance placed on rehabilitation and the need to consider alternatives to custody, I am satisfied that nothing other than a custodial disposition is consistent with the purpose and principles set out in s. 38 and s. 3 of the YCJA in this case. Any other disposition would undermine public confidence in the youth criminal justice system.

[31] In my view, this analysis and conclusion are a precise fit in this appeal.

E. Disposition

[32] I would grant leave to appeal and allow the appeal. Pursuant to s. 42(2)(n) of the YCJA, I would make a custody and supervision order of nine months consisting of six months to be served in open custody and three months to be served under supervision in the community. Pursuant to s. 42(2)(k) of the YCJA, I would further order that, following completion of this period of open custody and supervision, C.N. be placed on probation for a period of six months on the same terms as those ordered by the youth court judge.

Appeal allowed.