Her Majesty the Queen v. Logan [Indexed as: R. v. Logan]

97 O.R. (3d) 270

Court of Appeal for Ontario,

MacPherson, Cronk and Laforme JJ.A.

May 13, 2009

Criminal law -- Sentencing -- Young person -- Murder -- Young person convicted of second degree murder of elderly neighbour sentenced as an adult to life imprisonment and parole ineligibility for seven years -- Accused appealing arguing that should have been sentenced as a youth and that trial judge overemphasized seriousness of offence and arguing that youth and adult sentence of similar length -- Trial judge not erring in sentencing young person as adult given horrific murder of almost helpless neighbour in vicious beating following planned robbery carried out with accomplice -- Accused almost 18 at time of offence -- Trial judge entitled to find accused having little remorse and accepting expert evidence that accused posing risk of future violence -- Although period of incarceration similar in youth and adult system, judge appropriately finding that nature of crime and risk posed by accused requiring life-long supervision provided by adult sentence and not available if sentenced accused as young person -- Appeal from sentence dismissed.

Criminal law -- Young offenders -- Disposition -- Sentencing young person as adult -- Second degree murder -- Accused convicted of brutal murder of almost helpless elderly neighbour after planned robbery carried out with accomplice -- Youth being almost 18 at time of offence -- Trial judge sentencing accused as adult to life imprisonment without the possibility of parole for seven years -- Accused arguing that judge erring in failing to sentence as youth as length of incarceration under [page271] disposition as young person similar to adult sentence -- Accused arguing judge overemphasizing seriousness of offence to exclusion of other factors including accused's age, difficult background and somewhat positive psychiatric evidence -- Trial judge entitled to give considerable weight to horrific circumstances of crime and to find accused having little remorse -- Trial judge justified in concluding that given nature of offence and expert evidence that accused posing risk for future violence that protection of public required life-long supervision available only in adult system -- Appeal from disposition dismissed -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 72.

The accused was convicted by a jury of the second degree murder of a nearly blind elderly neighbour. The accused, who was almost 18 at the time of the offence, and an accomplice, gave false names to the neighbour, who they intended to rob. The man invited them into his residence and gave them food. The accused hit the neighbour four or five times with an axe while the elderly man was lying on the floor watching television. They tried to remove all evidence from the scene, stole items from the house and fled. The Crown applied to have the accused sentenced as an adult pursuant to s. 64(1) of the Youth Criminal Justice Act. The accused argued that a youth sentence would be sufficient to hold him accountable. The trial judge rejected the accused's argument, held that a less restrictive sentence would not sufficiently promote the accused's accountability, responsibility, rehabilitation, reintegration into the community and protect public safety. The accused appealed, arguing that the judge erred in sentencing him as an adult and relying on the fact that the adult sentence would provide a period of incarceration similar to that available under the youth system. He argued that the trial judge overemphasized the seriousness of offence to the exclusion of other factors, including the accused's difficult background and potential for rehabilitation.

Held, appeal against sentencing the accused as an adult dismissed.

The trial judge properly gave considerable weight to the nature of this offence, as was appropriate given the horrific circumstances of the murder. The accused repaid the deceased's kindness and offer of food with a sneak attack with an axe. Section 72(1)(b) of the YCJA encompasses, as part of the notion of accountability, the seriousness of the offence and the need for retribution, which is served by imposing a just sentence and nothing more. The judge considered the other factors noted in s. 72(1)(b) and, in particular, noted the accused's recent improvement in attitude and behaviour. Further, the accused's submission about the similar length of the adult and youth sentences fails to take into account that the adult sentence, life imprisonment, also entails state supervision for the rest of accused's life after his release from custody. Given the trial judge's acceptance of expert evidence that the accused posed a risk for future violence, this feature of the adult sentence provided much more protection to the public than the youth criminal justice system could offer. Although considerable fresh evidence was received on this appeal about the progress the accused has made since the sentence was imposed, it does not alter the fair balancing of factors done at trial. The judge did not err in imposing an adult sentence.

APPEAL from the sentence imposed by MacKinnon J. of the Superior Court, sitting with a jury, dated November 7, 2006.

Cases referred to R. v. O. (A.) (2007), 84 O.R. (3d) 561, [2007] O.J. No. 800, 2007 ONCA 144, 222 O.A.C. 38, 218 C.C.C. (3d) 409, 72 W.C.B. (2d) 710; R. v. W. (D.), [2008] O.J. No. 1356, 2008 ONCA 268, 79 W.C.B. (2d) 80 [page272] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 42(2)(q)(ii) (A), 64(1), 72(1), (b), (2), 76(9), 89

Timothy Breen, for appellant. John McInnes, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.:-- A. Introduction

[1] The appellant was found guilty of second degree murder following a trial before MacKinnon J. of the Superior Court of Justice and a jury. Pursuant to s. 72(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA"), the trial judge ordered that the appellant be sentenced as an adult and imposed a sentence of life imprisonment with parole ineligibility for seven years. Pursuant to s. 76(9) of the YCJA, the trial judge ordered that the appellant serve the first two years in a youth facility.

[2] The appellant appeals from the order of the trial judge directing the imposition of an adult sentence. If successful, the appellant seeks an order declaring that s. 89 of the YCJA, which requires a young person who is 20 years old or older at the time a youth sentence is imposed to serve the sentence in a provincial correctional facility for adults, is unconstitutional. If s. 89 of the YCJA is declared unconstitutional, the appellant seeks an order directing that he be placed in a youth facility. B. Facts (1) The crime

[3] Roughly 14 weeks before his 18th birthday, the appellant, with his friend Dean Ireland, went to the house of James Giles, the appellant's 69-year-old nearly blind neighbour. The appellant and Ireland wanted to steal money from Mr. Giles. They provided false names to Mr. Giles, who invited them into his home and served them food. While Mr. Giles was lying on the floor watching television, the appellant struck him on the head at least four or five times with an axe. The attack was unprovoked. The appellant and Ireland then worked together to sanitize the house. They stole cigarettes, a wallet and cash before fleeing the [page273] house. Mr. Giles' body was later found in a grisly state by a volunteer from Meals on Wheels who had come to deliver food to him. (2) The trial

[4] At trial, the appellant testified that he hit Mr. Giles on the head with the axe only in an attempt to knock him out. He said that he did not intend to kill him or to cause him serious bodily harm. According to the appellant, as he swung the axe it inadvertently twisted in his hand and the sharp blade struck Mr. Giles' head. The appellant pleaded not guilty to first degree murder and argued that he was guilty only of manslaughter. The jury convicted him of second degree murder. (3) The sentence

[5] The Crown applied pursuant to s. 64(1) of the YCJA for an order that the appellant be sentenced as an adult. The defence submitted that the Crown had not discharged its onus of demonstrating the need for the appellant to be sentenced as an adult. According to the defence, a youth sentence was appropriate both to hold the appellant accountable for his crime and to provide for his rehabilitation and eventual reintegration into the community.

[6] The trial judge accepted that the appellant poses a high- medium risk for further violent behaviour. He concluded that a youth sentence would not be of sufficient length to hold the appellant accountable for his crime. According to the trial judge, a youth sentence would be inadequate to reflect the seriousness of the offence and the appellant's role in its commission. Moreover, it would be inadequate to provide reasonable assurance of his rehabilitation to the point where he could be safely reintegrated into society. An adult sentence, on the other hand, would ensure that the appellant would be subject to state control for life. In the words of the trial judge, "[a]ny less restrictive sanction or sentence would not sufficiently promote this offender's responsibility, accountability, rehabilitation, reintegration to society, and sufficiently contribute to the long-term protection of the public".

[7] The trial judge sentenced the appellant to life imprisonment with no eligibility for parole for seven years. He ordered that the appellant serve the first two years of his sentence in a youth facility, after which time he would be transferred to a penitentiary.

[8] The appellant appeals the trial judge's imposition of an adult sentence. [page274] C. Issues

[9] There are two issues on the appeal: (1) Did the trial judge err by imposing an adult sentence on the appellant? (2) If the answer to (1) is "yes", then is s. 89 of the YCJA unconstitutional, thus permitting the appellant to serve his entire custodial sentence in a youth correctional facility? D. Analysis (1) Adult sentence

[10] Section 72(1) of the YCJA sets out both the factors that a youth justice court must consider and the test it must apply when determining whether to impose an adult sentence on a young person convicted of committing a criminal offence:

72(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and . . . . . (b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. (Emphasis added)

[11] Pursuant to s. 72(2) of the YCJA, the onus of satisfying the youth justice court as to the matters referred to in s. 72(1) rests with the Crown.

[12] In the present case, the trial judge considered the factors set out in s. 72(1) and concluded as follows:

I conclude beyond doubt that the Crown has fully discharged its burden of establishing that a youth sentence would be of insufficient length to hold Mr. Logan accountable for his crime. A youth sentence is inadequate to reflect the seriousness of this shocking offence and his role in it. It is also inadequate to provide reasonable assurance of his rehabilitation to the point where he can be safely integrated into society. He accordingly must be sentenced as an adult. With an adult sentence, when he is released into the community he will be subject to state control for life. This control is necessary to protect the public. Any less restrictive sanction or sentence would not sufficiently promote this offender's responsibility, accountability, rehabilitation, reintegration to society, and sufficiently contribute to the long-term protection of the public. [page275]

[13] The appellant submits that the trial judge erred in concluding that a youth sentence was of insufficient length to hold the appellant accountable for his offence. In support of this position, the appellant contends that the trial judge's reasons reflect two legal errors: first, he erroneously fixated almost exclusively on the seriousness of the offence; and second, he failed to recognize that the potential duration of the appellant's sentence under both the YCJA and the Criminal Code, R.S.C. 1985, c. C-46 was essentially the same and, therefore, an adult sentence was not required in this case.

[14] In my view, the trial judge properly considered the factors set out in s. 72(1) of the YCJA in a comprehensive and balanced fashion. He did, of course, emphasize the seriousness of the crime. That is not surprising; it was a serious crime, murder, and the circumstances of its commission, put bluntly, were horrific. As expressed by the trial judge:

[The appellant] was significantly engaged in a horrific sneak attack on a vulnerable, defenceless, nearly blind senior citizen who had offered him food and kindness. In doing so he exhibited extraordinary cruelty and inhumanity.

[15] It is essential that the trial judge address the nature of the crime in considering the notion of accountability set out in s. 72(1)(b) of the YCJA. As explained by this court in R. v. O. (A.) (2007), 2007 ONCA 144, 84 O.R. (3d) 561, [2007] O.J. No. 800 (C.A.), at paras. 46-47:

In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C. in R. v. M. (C.A.) (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.), at paras. 80 and 81:

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothing more. . . . . .

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [page276]

In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct". We see no other rational way for measuring accountability. (Emphasis in original)

[16] In any event, the trial judge did not ignore or minimize the other factors set out in s. 72(1) of the YCJA. He considered the appellant's age (almost 18), maturity, character, background and previous record (none). He acknowledged the difficult circumstances of the appellant's family background and his problems in school. He discussed the evidence of both Dr. Hucker and Dr. Gojer and recognized not only that "there is evidence of a recent improvement in [the appellant's] attitude, behaviour and focus", but also that the appellant "has made major strides in upgrading his education".

[17] In summary, read as a whole, the trial judge's reasons for imposing an adult sentence reflect a full and balanced assessment of all the factors set out in s. 72(1) of the YCJA.

[18] The appellant also submits that the trial judge failed to recognize, or take proper account of, the potential similarity between an adult sentence (life with eligibility for parole after seven years) and a youth sentence (six years and ten months, consisting of 34 months of pre-trial custody and four years in custody after sentence pursuant to s. 42(2)(q) (ii)(A) of the YCJA). According to the appellant, this small divergence in the potential sentences did not justify foregoing the greater rehabilitative potential available through a youth sentence.

[19] I agree with the appellant's description of the relative length of the two potential sentences. Specifically, a youth custodial sentence of six years and ten months was a possibility because a trial judge is not required to subtract pre-trial custody from the four-year maximum custodial sentence set out in s. 42(2)(q)(ii)(A) of the YCJA: see R. v. W. (D.), [2008] O.J. No. 1356, 2008 ONCA 268, at para. 3. Parenthetically, I observe that the trial judge properly understood this point; his comment that "[t]ime spent in pre- sentence detention (34 months) could also be deducted" indicates that he recognized that this type of reduction was a discretionary matter.

[20] However, I disagree with the appellant's submission that the trial judge failed to recognize, or take proper account of, the potential similarity between an adult sentence and a youth sentence. This submission fails to acknowledge a significant, indeed crucial, difference between the potential youth and adult sentences in this case, namely, that under an adult sentence, after [page277] he is released from custody the appellant will be subject to state supervision for the rest of his life. Given the seriousness of the crime committed by the appellant (murder), the horrific circumstances surrounding its commission, the trial judge's finding that the appellant "has shown little evidence of remorse for his crime or empathy for the continuing grievous loss suffered by the Giles family", and the trial judge's acceptance of Dr. Hucker's opinion that the appellant is "at risk for further violent behaviour", I see no problem with state supervision of the appellant for the rest of his life. Such supervision is entirely consistent with the overarching sentencing goal of protecting the public from violent criminal conduct.

[21] Finally, I note that the court received and accepted considerable fresh evidence about the appellant's rehabilitative achievements in custody. Although these achievements are admirable, they do not alter the fair balancing of factors done by the trial judge.

[22] For these reasons, I conclude that the trial judge did not err by imposing an adult sentence on the appellant in this case. (2) The constitutionality of s. 89 of the YCJA

[23] In light of my proposed disposition of the first issue, the constitutionality of s. 89 of the YCJA does not arise. E. Disposition

[24] For the foregoing reasons, I would dismiss the appeal.

Appeal dismissed.