WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(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.
CITATION: R. v. K.L., 2009 ONCA 602
DATE: 20090731
DOCKET: C50009
COURT OF APPEAL FOR ONTARIO
Simmons, Rouleau and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Appellant
And
K. L. (A Young Person)
Respondent
Brad Greenshields, for the appellant
Jason Gilbert, for the respondent
Heard and released orally: July 24, 2009
On appeal from sentence imposed by Justice Ann Alder of the Ontario Court of Justice, sitting as a Youth Court Justice, at Ottawa, Ontario, on January 12, 2009.
ENDORSEMENT
[1] The Attorney General seeks leave to appeal and if leave be granted, appeals the sentence of two years probation imposed on K.L., a young person convicted of assault causing bodily harm, a crime that the sentencing Youth Court Judge designated a serious violent offence. Crown counsel seeks the imposition of a sentence that consists of a custody and supervision order for six months, including four months of open custody and two months of community supervision, and thereafter a period of probation on terms similar to those imposed by the sentencing judge.
[2] The circumstances of the respondent’s offence may be shortly stated. The respondent, then 15 ½ years old, was one of a group of youths who went to a commercial plaza to confront other youths who worked there. There had been some prior dispute between the groups that originated in a racially-motivated incident at a local high school.
[3] The complainant, an 18 year-old, was lured from his place of employment by a telephone call and challenged to a fight. The complainant knew none of the respondent’s group and had no connection to the earlier dispute, whatever it may have been. The complainant intervened when one of K.L.’s group began to physically abuse a female who had accompanied the complainant outside.
[4] K.L. and two others jumped the complainant. K.L. knocked the complainant unconscious with a blow to the jaw. He then continued to punch and kick the unconscious and prone complainant in the head and stomach. The complainant suffered a broken jaw and concussion, missed two months of work and continued to exhibit several physical and psychological symptoms months after the attack.
[5] K.L. is a first offender, now 17 years-old. He has a close relationship with his mother and enjoys substantial support from his immediate and extended family. He has abused alcohol, smoked marijuana and has apparently experimented with other drugs. His educational achievements are modest, though improving, and reflected, at least in the past, frequent absences and several suspensions.
[6] Before the sentencing judge the prosecutor sought a custodial sentence of six months open or four months closed custody followed by a lengthy period of probation. Counsel for K.L. sought a period of probation with strict conditions.
[7] Crown counsel takes the position that the sentence imposed is at once reflective of errors in principle and demonstrably unfit. The errors alleged include a misapplication of the proportionality principle in s. 38(2) of the Youth Criminal Justice Act (YCJA), and a failure to consider the intention underlying s. 42(5) of the YCJA that young persons who commit serious violent offences are to receive custodial sentences.
[8] It is common ground that the sentence imposed, a probationary term, was a legally available sentencing option open to the sentencing judge. That said, we are of the view that a probationary term, in the circumstances of this case, fails to pay heed to the proportionality principle expressed in s. 38(2)(c) of the YCJA. At bottom, this sentence must be proportionate to the seriousness of the offence and the degree of K.L.’s responsibility.
[9] The respondent was the principal, the person who took and maintained the initiative. He administered a severe and protracted assault on the complainant who, rendered unconscious, was for all practical purposes defenceless. The injuries caused were significant both in their immediate and extended consequences. The conduct involved pre-concerted activity.
[10] In our view, the circumstances of this offence and this offender require a custodial sentence. A fit disposition is a sentence that includes open custody, supervision in the community and a term of probation. The respondent has already satisfactorily completed more than 7 months of probationary supervision.
[11] In the result, leave to appeal is granted, the appeal is allowed and the sentence below set aside. In its place is substituted a sentence that is comprised as follows:
(1) four months in open custody; followed by
(2) two months of community supervision; followed by
(3) probation for six months on the terms imposed by the sentencing judge.
Signed: “Janet Simmons J.A.”
“Paul Rouleau J.A.”
“David Watt J.A.”