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.— (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.— (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 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138.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.: Y110575, Y111560

Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

P.M., a young person

Before: Justice Peter T. Bishop

Heard: March 21st, 22nd, December 18th and 19th, 2012

Reasons for Judgment released: January 30, 2013

Counsel:

• Peter Keen, for the Crown
• David Gibson, counsel for the accused P.M.

BISHOP J.:

BACKGROUND

[1] P.M. stands charged that on or about the 18th day of March, 2011, in the Municipality of Sioux Lookout, in the Northwest Region, did for a sexual purpose touch C.T.M., a person under the age of sixteen years directly with a part of his body, to wit: his mouth, contrary to Section 151 of the Criminal Code, in conjunction with the Youth Criminal Justice Act; and further that on or about the 18th day of March, 2011, in the Municipality of Sioux Lookout, in the said Region, did commit a sexual assault on C.T.M. contrary to Section 271 of the Criminal Code, in conjunction with the Youth Criminal Justice Act; and further that between the 18th and 19th day of March, 2011, in the Municipality of Sioux Lookout, in the said Region, did by criminal negligence cause death of C.T.M. contrary to Section 220(b) of the Criminal Code.

[2] P.M. elected trial by judge and jury with a Superior Court Judge sitting as a Youth Court Judge and the preliminary hearing proceeded in Sioux Lookout on March 20, 21 and 22, 2012. At the end of the preliminary inquiry, the youth re-elected to be tried by a Youth Court Judge and plead guilty to committing a sexual assault, contrary to S.271 CC and criminal negligence causing death, contrary to S.220 CC.

[3] On August 29, 2012, the Crown filed a Serious Violent Offender application and to have the youth sentenced as an adult.

[4] The matter was adjourned to December 18th and 19th, 2012 for a sentencing hearing and was further adjourned to January 30, 2013 for decision.

FACTS

[5] On March 18th and 19th, 2011, the youth and victim attended a hockey tournament in Sioux Lookout. At the time of the occurrence the youth was fifteen years old and a member of the Sandy Lake First Nation. The victim C.T.M. was also a youth and eleven years of age from Big Trout Lake First Nation.

[6] A group of young people congregated at the Sacred Heart School in Sioux Lookout and consumed a large amount of alcohol. All of the other youths except P.M and C.T.M. left the School to return to the hockey tournament or other activities, and P.M. interacted with C.T.M. by removing at least some of her clothes and committed vaginal and anal sexual assaults upon her. C.T.M. was unable to walk or care for herself. At the time of the sexual assault, C.T.M. was either unconscious or barely conscious due to self-induced alcohol intoxication. After the sexual assault, P.M. left C.T.M. outside in frigid temperatures and she froze to death. P.M. then went partying, consuming drugs and alcohol with friends and spoke of his exploits. When C.T.M. was located she was immediately given first aid treatment and taken to the Meno Ya Win Health Centre where extensive efforts were made to revive her to no avail.

[7] C.T.M.'s blood alcohol was 198 milligrams of alcohol per 100 millilitres of blood.

ISSUES

[8] The principle issue is whether this youth should be sentenced as an adult and receive an adult sentence or sentenced according to the principles in the Youth Criminal Justice Act.

EVIDENCE AT SENTENCING HEARING

[9] Dr. Philip Edwin Klassen is a forensic psychiatrist and was qualified at the sentencing hearing to give opinion evidence with respect to P.M.'S offending behaviour and risk assessment. Dr. Klassen's report was filed as Exhibit One.

[10] Dr. Klassen reviewed the personal and developmental history of P.M., his childhood and family history, his education and employment history, his relationship history and his medical and substance use history. There was no background of mental illness, counselling nor psychotropic medication use.

[11] Dr. Klassen concluded that this youth had social/interpersonal problems as a result of alcohol abuse (physical conflict with his girlfriend while intoxicated). As the offending behaviour was perpetrated while under the influence of alcohol, P.M. met the criteria for alcohol abuse disorder.

[12] With respect to risk assessment, Dr. Klassen reviewed the research and actuarial methods of risk assessment and risk management.

[13] He concluded that P.M. might suffer from alcohol abuse disorder and accordingly might engage in problematic behaviour while under the influence of alcohol. He recommended abstention from alcohol and that abstention should be supported by his family and other members of the community. P.M. should continue on with school or work and needs to remain connected to a pro-social path which would include culturally relevant elements as this is quite important to the youth and his family.

[14] Since the occurrence, P.M. has been at home with his grandparents and his behaviour has been good.

[15] Dr. Klassen recommended educational support, access to traditional recreational activities and treatment for a substance abuse disorder. Monitoring of his substance abuse will be important. The youth has used cannabis from time to time and Dr. Klassen implies that the use of cannabis might indirectly influence the outcome of his rehabilitative success.

[16] Dr. Klassen reviewed the sentencing criteria and was live to the issue of adult verses youth disposition. In that regard, the seriousness of the circumstances of the offence, the age, maturity, character, background and previous record of the youth along with any other factors that the court considers relevant must be taken into consideration. While not expressly articulated in the Y.C.J.A., the risk of violent and sexual recidivism has been considered relevant to sentencing. He further stated that the court must consider whether a youth sentence has sufficient length to hold the youth accountable for his or her offending.

[17] Dr. Klassen concluded that from a psychiatric perspective, this youth's maturity is consistent with his age; he presents as neither notably immature, compromised or vulnerable, nor as notably hardened or anti-social. His background has been in the main, quite positive, and noted that he had no criminal record. Dr. Klassen did not find that P.M. presented with significant anti-social (e.g. duplicity, manipulativeness, lack of remorse or empathy, callousness, marked impulsivity, rejection or conventional goals, emotional disengagements from others, egocentrism, failure to take responsibility for his behaviour or poor behavioural controls). Further, from a purely psychiatric perspective, it was not Dr. Klassen's opinion that P.M. presented with psychiatric or psychological difficulties of such an entrenched or multifarious nature that a youth sentence could not manage this individual, or hold him accountable for his behaviour. He largely requires treatment for and monitoring of his substance abuse disorder.

[18] Dr. Klassen continued and stated that accordingly, from a purely psychiatric perspective, there is support for this individual being sentenced as a youth; he is likely to be responsive to the programming available in this stream. His risk factors and risks appear to be manageable under the provisions of the Youth Criminal Justice Act.

PRE-SENTENCE REPORT

[19] The court also reviewed a very complete and comprehensive Pre-Sentence Report by Ms. Jessica Standeven, a probation officer located in Sioux Lookout. Ms. Standeven reviewed the aboriginal circumstances and alternative approaches in her report, the personal and family history, his education/employment, the youth's plans and available community programs and services. Ms. Standeven concludes that the youth is before the court with two serious charges with no record. She addresses the Gladue factors and was cognizant of P.M.'s Ojibway heritage and traditional lifestyle.

[20] P.M. was fortunate to be raised in a stable home environment by his grandparents, H.M. and S. M. They have taken and encouraged the youth to attend school and other pro-social activities in the community. He has been encouraged to maintain a very traditional lifestyle and continued to do so to the date of sentencing. He has been taken out on the land to camp, hunt and fish. He killed his first moose at age thirteen. Each winter he goes into the bush by himself to snare rabbits and small game. He also partakes in caribou and bird hunting.

[21] The youth's biological parents have maintained a steady presence in their son's life.

[22] Both the parents and grandparents have struggled with alcohol abuse although the youth reportedly did not witness his parents' alcohol abuse. At the age of thirteen the youth began drinking alcohol and producing homebrew in the bush surrounding Sandy Lake with friends. He self-reported drinking on one occasion since the occurrence when the community was evacuated in July, 2012 due to forest fires. He also has been a user of marijuana since the age of fourteen.

[23] Ms. Standeven recommends that this youth would benefit from a program which would focus on specific treatment for sexual offending. He would be able to upgrade his education in a custodial facility. He does not qualify for intensive rehabilitative custody and supervision sentence due to the nature of his charges and the lack of previous criminal history.

EVIDENCE OF THE GRANDPARENTS H.M. & S.M.

[24] Attached to the pre-sentence report are the thoughts and comments of P.M.'s grandparents, H.M. and S.M. The grandparents spoke very eloquently and from the heart at the sentencing hearing and stated:

"The event of the last year and the tragedy that has resulted in the end of one life in compromised many others is the subject of deep regret for our family and in particular, my grandson who will live with the memory of his role in causing the tragedy and trauma affecting so many. The parents of the victim and the family of the convicted live with the pain of a life lost and the memories of the past and to understand the need to address the consequence of a careless and unthinkable act of neglect.

As grandparents, whose expectations for our grandson who means so much to us, we reflect on both the past and the future in the memory of a young life sacrificed, the victim and the potential sacrifice of another, my grandson.

In this time of trial and difficulty I have had the opportunity to speak candidly with P.M. of his great-grandfather, my father, and his commitment to and belief in the justice system that serves our collective society. My father served as an associate judge (if I may use that term) representing Sandy Lake First Nation to the system by sitting with those who are charged with the administration of justice to speak to the need for an understanding of our collective responsibility for our actions.

My father's commitment was to help our people understand that all people walk the same path that some falter and fail, some pick themselves up and successfully carry on while others may live with the unfortunate consequence of unfortunate circumstances. My father believed that the faith of our inherent capacity to learn the lessons of life could be our redemption and success in the future.

I share my father's belief that all of us has responsibility for our actions and the spirit of right and wrong lives the lifetime of benefits or consequences, the choice is ours.

I have walked down both sides of the justice issue. Eleven years ago my brother was murdered and my family experienced a trauma of the loss of a member and the subsequent guilty plea of the accused. My sympathy for the victim's family is deeply rooted in these memories. It is my hope that, while we cannot change what happened yesterday, we can try to insure that my grandson will show more respect for his relationships with others and respect for his commitment to the future. He owes this much to the memory of the victim and her family.

I am committed to support my grandson in meeting his obligation to the future in any way that I can. In the past few years, I have purchased a business in Sandy Lake and subject to my grandson's plan for his future, I hope to insure that he will have an option for employment in an environment with limited employment opportunities. My family and I are prepared to commit our efforts in support of P.M. in achieving a life dedicated to the betterment of our people and taking his place as a law abiding member of our country. I hope that these comments reflect my families and particularly P.M.'s commitment to understand our need to move on with tomorrow and learn from our mistakes."

VICTIM IMPACT STATEMENTS

[25] Victim Impact Statements were read into the court by C.T.M.'s mother, the maternal grandmother, the maternal grandfather, great-aunt and great-uncle. These statements were heart breaking and reflected the depth of emotions as their collective souls sang the pain that they were in. More than fifty individuals attended in Sioux Lookout from Big Trout Lake and Sandy Lake. There was crying in the courtroom. Lawyers' voices broke and one court staff was overcome with emotion.

DECISION

[26] Both the Crown and Defence submit that no precedent fits these circumstances. The Crown relied upon R. v. D.B., 2008 SCC 25. The Crown submitted that pursuant to S.72(1)(a) of the Youth Criminal Justice Act, the presumption of diminished and moral responsibility is a legal and not a factual distinction and the onus is on the Crown to prove that. It is a burden of persuasion and not a burden of proof. The Crown submits that P.M. should be sentenced as an adult and receive a disposition of five to seven years incarceration. In order for accountability, the sentence must be of a significant length and meet not only the accused circumstances but that of the offence. The Crown submitted that the sexual assault was a separate overt act, unlike the in the cited Arson cases where the offence of arson was the overt act. Here the overt act is the sexual assault followed then by the criminal negligence by allowing C.T.M. to freeze to death. It is the Crown's position that a disposition of three years under the Youth Criminal Justice Act is not sufficient for the offending behaviour. The Crown also submitted that because of P.M.'s incredible lack of judgment, that accountability should be translated into retribution as stated in R. v. A.O., 2007 ONCA 144.

[27] The Defence reviewed S.72 of the Y.C.J.A. The Defence submits that the changes made to the Y.C.J.A. in October of 2002, have not been codified in D.B. The Defence referred the court to Section 3(1) of the Youth Criminal Justice Act dealing with declaration of principle, which is as follows:

The Criminal Justice system for young persons must be separate from that of adults and emphasize the following:

(i) Rehabilitation and re-integration

(ii) Fair and proportionate accountability that is consistent with the greater dependency of young persons and a reduced level of maturity

(iii) Enhanced procedural protection to ensure that young persons are treated fairly and their rights including their right to privacy are protected

(iv) Timing intervention that reinforces the length between the offending behaviour and its' consequences, and the promptness and speed to which the persons responsible for enforcing this act must act given the young person's perception of time.

[28] I have reviewed the relevant paragraphs in D.B. (par 44) wherein the Supreme Court of Canada clearly stated that the statutory preoccupation with ensuring that sentencing reflects the reduced maturity and moral sophistication of young persons guided this Court in R. v. C.D., 2005 SCC 78, and Bastarache J concluded "the object and scheme of the YCJA, as well as Parliament's intention in enacting it, was that the YCJA was designed, in part, to reduce over-reliance on custodial sentences for young offenders" (par. 50).

As well paragraph seventy-six and seventy-seven of D.B. stressed that the Crown bears the onus of the proving the seriousness of the offence and the circumstances of the offence to have the youth tried as an adult.

Section 72 of the Youth Criminal Justice Act reflects the principles referred to in D.B. wherein 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……. the young person must justify treatment as an adult. In this case, the Crown has presented no evidence to re-butt the presumption as the only evidence is that of Dr. Klassen who stated that P.M. would benefit or fit in or respond to a youth sentence.

[29] The Defence also submits that the second prong of the test as found in A.O. has not been rebutted. In A.O., both the Crown and Defence agreed that "accountability translates into retribution", but retribution is defined as a just and appropriate punishment and nothing more. There is no reference to diminished moral responsibility in A.O.

I reject the Crown's submission that the onus to be tried as an adult is one of persuasion and not a burden of proof. There must be evidence to support the Crown's position and that is absent herein.

[30] The Crown relied upon the following cases to justify an adult sentence including; R. v. M.J.R.L., [2005] M.J. No. 486 (MB.C.A.); R. v. Pauchay, [2009] F.J. No. 128 (Sask. P.C.); R. v. K.G.B., 2005 NBCA 96; R. v. J.P.W., [2010] B.C.J. No. 625 (B.C. Prov. Ct.); R. v. N.P., [2005] N.J. No. 395 (Nfld. & Lab. P.C.); R. v. K.P., [2004] O.J. No. 945 (Ont. C.J.). All of these cases can be distinguished by the facts and the majority of these sentences were youth disposition.

[31] Since this tragic occurrence, P.M. has basically put himself into self-exile. He has been isolated with his life and with his grandparents. He has been withdrawn and has been scared. The court had an opportunity to view him at the sentencing hearing and throughout the preliminary inquiry and he held his head down on occasion and cried with quiet sobs and at one point was on the verge of being physically ill. He was comforted by his grandparents. It is clear that he lacked insight into the seriousness of the alcohol abuse and the consequences of his actions. He has made little rehabilitative efforts. At sentencing today he offered a sincere apology and was extremely remorseful.

[32] The Crown has not rebutted the presumption of diminished moral blame worthiness when the court considers P.M.'s age, his inability to manage his life, the Gladue factors and that this occurrence was the perfect storm of circumstances: excessive alcohol abuse, youth drinking to the point of extreme self-intoxication, a festive mood with a hockey tournament, far from home and no parental control. Dr Klassen's unchallenged evidence is that this youth suffers from an alcohol abuse disorder (currently in remission) [a diagnosis that unfortunately would apply to the majority of adults and youths that appear in this circuit] and would benefit from a youth sentence and concluded at page seventeen of his report "accordingly, and from a purely psychiatric perspective, there is support for this gentleman being sentenced as a youth. In my opinion, he is likely to be responsive to the programming available in this stream. His risk factors, and risk, appear to be manageable in this stream."

[33] In these circumstances I find that a youth sentence is appropriate and of sufficient length to meet the requirement of retribution as delineated in A.O. being a just and appropriate punishment. Three years is a significant penalty for anyone, particularly an unsophisticated Aboriginal youth who is tied to his culture, the land and the supports that have been there for his youthful life.

I impose the following sentence; one year secure custody, one year open custody and one year supervision. I am cognisant that this will enable P.M. to come back to the court on a review and perhaps reintegrate himself into his traditional lifestyle with his grandparents there to assist in his reintegration into society.

[34] I am certain that if P.M. could turn back the clock, he would relive the days of March 18th and 19th, 2011 in perhaps a different trajectory could have been taken. There is absolutely nothing that can relieve the pain suffered by C.T.M.'s family and time may bring both families together as they move forward. P.M.'s grandfather put it quite succinctly, "I hope that my comments reflect my families in particular, P.M.'s commitment to understand our need to move on with tomorrow and learn from our mistakes".

Released: January 30, 2013

Signed: Justice Peter T. Bishop