WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(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.

111. Identity of victim or witness not to be published. — (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.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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.

Court Information

Court File No.: Not provided

Date: May 1, 2013

Location: St. Thomas, ON

Court: Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

-and-

J.C.

Counsel

For J.C.: A. Walker

For Crown: D. Walker

Before: George J.

Reasons for Sentence

Background

[1] Seventeen year old J.C. was found guilty of attempting to murder his 8 year old foster-sibling. He pleaded guilty and has accepted responsibility.

[2] At 10:54pm on November 17, 2012 J.C. called 911 to advise he had "just tried to kill his brother" and that he was on his way to the St. Thomas Police station to turn himself in. Officers were dispatched, some to find J.C. and others to the home. When J.C. was found he was upset, crying and had some blood on his clothing. He made a further utterance to the police, indicating he "slit his brother's throat while he was sleeping". He acknowledged that his intention was to fatally harm the boy.

[3] With no provocation or apparent motive, and while the child was sleeping, J.C. entered the child's bedroom with a knife and proceeded to take it across the child's throat. The cut was several centimetres long and by only a matter of millimetres was the jugular vein missed. When the parents found the boy, he was covered in blood. They held a towel to his neck while awaiting help.

[4] It was only through luck, or the intervention of a higher-being, that the child survived. Those who responded, including the officers, found it incredible this act didn't take the child's life, given the nature of the injury and the loss of blood.

[5] By all accounts there was no animosity in the home, and certainly none as between J.C. and the victim. In fact, I was told that they got along famously.

[6] J.C. was arrested on the offence date and has remained in custody since.

Positions of Parties

[7] Rehabilitation is always a key factor when sentencing a youthful offender. Despite this objective, it is agreed a period of custody and community supervision is warranted and that the only question is as to quantum. It should be noted that although it was open for the Crown to seek to have J.C. sentenced as an adult, they chose not to. That was surely a tough decision given the brutality of this offence, the troubling circumstances surrounding its commission, and the innocence and vulnerability of the victim. However, given J.C.'s troubled background, his mental health issues, and prospects for rehabilitation, I believe the correct decision was made.

[8] The Crown seeks the maximum penalty allowable - a three year custody and community supervision order. It asks that it be broken down so that one year is served in secure custody; to be followed by one year in open custody; and finally one year under community supervision. It further argues that the three year period commence on the date I impose sentence and that I decline to grant credit for pre-sentence custody, urging me to draw a distinction between granting one credit for time in detention, and taking it into account. That is, even though the statute directs me to take pre-sentence custody "into account", that does not mean I necessarily have to grant credit for it in the sense of deducting it from what I determine is a fit sentence. The argument, which is fairly persuasive, is this is the best way to address J.C.'s rehabilitation and to ensure a smooth and safe introduction back into the community.

[9] Defence counsel advocates for an eighteen month sentence minus the pre-sentence custody. They further argue that credit beyond the actual days spent in custody ought to be granted as that would be consistent with the YCJA principle that custodial dispositions be broken down into a two-thirds custody / one-third community supervision ratio. Better put perhaps would be to say J.C.'s time served to date represents only two-thirds of the sentence that would had to have been imposed in order to attract this length of time in a detention facility.

[10] Both counsel agree there is very little guidance from courts before on the issues that present itself here.

J.C. Personal Circumstances / Pre-Sentence Report

[11] I had the benefit of a psychological assessment prepared by the London Family Court Clinic. It was thorough and most helpful. It provided me with a good understanding of J.C.'s background, challenges, family history and other relevant antecedents. The clinic's consulting psychiatrist, Dr. Mejia, also examined J.C.

[12] There is no doubt that psychological and emotional issues have contributed to J.C.'s offending behaviour. His is a sad story rife with trauma and marked by instability. It's shameful that a young person has had to endure what J.C. has, and it can be fairly said he has not been dealt a fair hand, and in many ways never had a chance to succeed.

[13] J.C. has been a Crown Ward for the past eleven years. He has no prior criminal record. Since his arrest on November 17, 2012 he has been in custody placed primarily at the Sprucedale Youth Center. He, for a period of time, was on a one-to-one suicide watch but those concerns have subsided. Otherwise he is described by the folks at Sprucedale as a pleasant, likeable and polite young man. He has expressed remorse for what he has done and is said to be "shocked" by his conduct.

[14] Treating psychologist Dr. Diane Sander describes J.C. as having poor recall of some past events, appearing to have cognitive deficits and a limited ability to reason.

[15] J.C. is the second of three children. His two siblings are both in foster care in different cities. When J.C. was four years old his parents reunited after some time apart. This family reunification was short lived and J.C.'s mother was hospitalized as a result of injuries sustained in a domestic dispute. At the age of six, J.C. was admitted to hospital due to what was described as a 'failure to thrive' after which several other child protection concerns became apparent.

[16] As a young boy J.C. was identified as having serious behavioural problems, including inappropriate sexual interactions with his siblings, impulsivity, opposition to authority figures and non-compliance. At six, shortly after being placed in his first foster home, he was observed to cut the eyes out of pictures because he felt they were looking at him, and he was believed to have had a fascination with death. J.C.'s behaviours did improve somewhat. It was, however, later learned that J.C.'s early years were worse than initially feared. He was physically abused by his father, who exposed him to pornographic images and touched him inappropriately.

[17] In 2002 J.C. was diagnosed as having post-traumatic stress disorder (PTSD). It was in 2002 that J.C. was made a Crown Ward without access.

[18] It was only after moving through several different foster homes that he found the stability of his most recent placement, where he has been since 2008. It has been for the most part a good home, although not without difficulty. J.C. is reported to have been involved in inappropriate sexual behaviours with a foster sister and of being physically aggressive with her.

[19] J.C. has a history of suicidal behaviour and homicidal ideation. He presents as younger than his chronological age and has extremely poor social skills. While at Sprucedale J.C. has been attending school, with a primary focus on life and social skills. School officials describe him as being cooperative and compliant yet socially isolated, quiet and fearful.

[20] It is clear J.C. will require long-term clinical intervention and treatment. What is concerning is J.C.'s motivation to both participate in and take much from counselling. At page 12 of the report, it states the following:

Based on recent conversations, (J.C.) appears to have limited faith in the ability of counselling to assist him. He has expressed the view that, during past counselling experiences, he 'just talked' and that the purpose of this talk remained unclear to him, as he experienced little benefit. With ourselves, (J.C.) noted hesitation over the idea of participating in a counselling relationship saying that he did not get to know the counsellor as much as they did him - and again, noted his sense that this was not a sufficient form of immediate relief.

[21] The psychiatric examination reveals that J.C. suffers from several afflictions. Dr. Mejia, at page 2 of his report states that:

….the current incident is transcendental in (J.C.'s) life due to its severe nature, the planning involved, and the absence of obvious acute triggers precipitating it. (J.C.) has never had any form of attachment to anybody and his personality has been amorphous and unstructured because of the circumstances of his earlier years. In his fantasy of erasing everything and being reborn, he imagines that there is hope for him, and in some way, he has achieved that in that now he has severed his ties with his foster family and most probably will restart in what is recommended as the best possible, structured and secured environment, perhaps a custodial setting.

[22] Dr. Mejia goes on to describe how for J.C. his life and personality, being so poorly structured, oft times merges with fantasy and how he has "an almost psychotic set of signs and symptoms…..which often leaves the doubt of a psychotic episode at the basis of his most recent actions". Upon reading this, I had concerns as to whether J.C. was criminally responsible. During submissions, both counsel assured me that they had no such concerns and were confident that J.C. understood what he was doing and that he appreciated the nature and consequences of his conduct. Notwithstanding my concern, I will accept counsel's assertion, in large part because of Dr. Mejia's indication that in no way are his comments meant to question criminal responsibility (see Dr. Mejia's report page 2, second last paragraph).

Issues

[23] 1. On these facts, in these circumstances, having regard to J.C.'s particular background, what is a fit and proper sentence?

[24] 2. To what extent, if at all, should credit be granted for pre-sentence custody?

Law

[25] Under the provisions of the Youth Criminal Justice Act (YCJA) the maximum period of custody and community supervision that can be imposed for this offence is three years. It is agreed by everyone, and obvious on the facts, that the custody gate is open as J.C. has committed a serious violent offence. I would say as well that these facts and this offence fall within the ambit of section 39(1)(d) and is an exceptional case whereby the imposition of a non-custodial sentence would be inconsistent with the purpose and principles of sentence.

[26] The purpose and principles of sentence which govern a youth justice court are as set out in section 38(1) and (3) of the YCJA.

[27] Section 38(1) indicates that – the purpose of sentencing under section 42 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.

[28] Section 38(3) states that – in determining a youth sentence, the youth justice court shall take into account:

• The degree of participation by the young person in the commission of the offence;
• The harm done to victims and whether it was intentional or reasonably foreseeable;
• Any reparation made by the young person to the victim or the community;
• The time spent in detention by the young person; and
• The previous findings of guilt of the young person; and
• 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.

[29] Section 42(2) provides that – when a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r) (ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:

subsection (n), in addition to other options, allows the court to - make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period – which is one half as long as the first – be served, subject to sections 97 and 98, under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order.

Assessment / Conclusions / Orders

Issue #1 - Length of Sentence

[30] When sentencing a youthful offender, the considerations are far different than when sentencing an adult. Were J.C. an adult he would be facing a lengthy period of incarceration in a federal penitentiary. As it stands, he is lucky not to be before the court charged with a homicide, which would have, on the facts known to me, been done so deliberately and with a specific intent. Only luck saved J.C. from that fate which would have, not only within the context of the YCJA meant a longer period of incarceration, but in all likelihood would have led the Crown to seek an adult sentence.

[31] The YCJA has as its focus rehabilitation and reintegration. The goal is not to be punitive, but rather to separate J.C. from society for a period of time as he presently poses a threat to public safety. He must at the same time be prepared for his eventual return to the community.

[32] The plan going forward for J.C., as it's set out in the report and in Dr. Mejia's comments, is consistent with the Crown's position. The maximum penalty allowable, or something close to it, makes sense and is appropriate.

Issue #2 - Credit for Pre-Plea Custody

[33] The idea that I should do all that I can to ensure this sentence is as long as possible, given the facts, J.C.'s circumstances, and the clear need for him to be in a structured setting, is tempting. The Crown suggests that in doing so I can essentially ignore the pre-plea custody. I appreciate that is not what the Crown is proposing, at least not in those stark terms, but I conclude that would be the net effect of accepting its argument.

[34] I believe it is statutorily permissible to make a three year order which begins today. However, having regard to section 38(3) of the YCJA, taking pre-trial detention into account means I must grant credit for it. To do otherwise makes little sense. How would I then be taking it into account? Could it really be that Parliament intended a young person who was able to gain release was to be treated differently and better than one who couldn't? Consider the ramifications of that and how it would impact minorities, the disadvantaged, and anyone who lives on the margins of our society, including J.C.

[35] In granting credit for J.C.'s pre-trial custody, I must also do so in a way that recognizes the manner in which custodial dispositions are to be calculated and imposed under the YCJA. With that, J.C. will be given credit for the 165 days he has spent in custody. He will be given credit for an additional 82 days. This ensures, insofar as pre-plea custody is concerned, he is treated no differently than an adult. Adding the 82 days also reflects the sentence that would had to have been imposed to attract 165 actual days in custody. The total credit is 247 days, which is a little more than eight months.

Disposition

[36] Taking everything into account, and having regard to all the relevant sentencing principles and factors, I will make a twenty-seven month custody and supervision order. It will be broken down as follows - there will be nine months in a secure custody facility; followed by nine months in an open custody facility; and finally nine months subject to community supervision.

[37] At this point I'll hear from the Crown respecting any other orders sought.

May 1, 2013

Justice Jonathon C. George