Court File and Parties

Location: St. Thomas, Ontario

Date: November 26, 2014

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

J.C.

Reasons for Decision on Application

Counsel:

• Elizabeth Wilson for Crown
• Arnold Walker for J.C.

Before: George J.

Background

[1] J.C. accepted responsibility for committing a brutal attack on his 8-year-old foster sibling, stabbing him in the neck with a knife. The court found him guilty of attempted murder. It was a random act of violence not precipitated by any conflict with the young child or any other member of the foster family. J.C. was 17 at the time of the offence. He is now 19.

[2] On May 1, 2013, a sentence of twenty-seven months custody was imposed, broken down as 9 months secure custody, 9 months open custody, and 9 months under community supervision. This was in addition to the time J.C. had spent in pre-plea custody. This sentence approached the maximum penalty permitted under the Youth Criminal Justice Act (YCJA). At the time of sentence, the Crown carefully set out its reasons for not seeking to have J.C. sentenced as an adult.

[3] The custodial portion of the sentence expired on October 30, 2014. J.C. has since then been in the community living independently. He is bound by the terms of a community supervision order and will continue to be until late July, 2015.

[4] Prior to its expiration, J.C.'s probation officer, on behalf of the provincial director, applied for a continuation of the custody order pursuant to section 98 of the YCJA. On November 17, 2014, evidence was called and submissions were made on the application and all accompanying issues, including a challenge to the court's authority to make the order. The matter was reserved for decision.

Jurisdictional Issue

[5] This application is brought under section 98(1) of the YCJA, which provides that:

Within a reasonable time before the expiry of the custodial portion of a young person's youth sentence, the Attorney General or the provincial director may apply to the youth justice court for an order that the young person remain in custody for a period not exceeding the remainder of the youth sentence.

[6] Subsection 4 provides that:

For the purpose of determining an application under subsection (1), the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including

(a) Evidence of a pattern of persistent violent behavior and, in particular

(i) The number of offences committed by the young person that caused physical or psychological harm to any other person,

(ii) The young person's difficulties in controlling violent impulses to the point of endangering the safety of any other person,

(iii) The use of weapons in the commission of any offence,

(iv) Explicit threats of violence,

(v) Behavior of a brutal nature associated with the commission of any offence, and

(vi) A substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences to other persons, of the young person's behavior;

(b) Psychiatric or psychological evidence that a physical or mental illness or disorder of the young person is of such a nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, a serious violent offence;

(c) Reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, a serious violent offence;

(d) The availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving;

(e) Whether the young person is more likely to reoffend if he or she serves his or her youth sentence entirely in custody without the benefits of serving a portion of the youth sentence in the community under supervision; and

(f) Evidence of a pattern of committing violent offences while he or she was serving a portion of a youth sentence in the community under supervision.

[7] The defence objects to the order sought, asserting a deficiency that cannot now be rectified. The position is that given the index offence (attempted murder) and having regard to section 42(o) of the YCJA, the procedure set out in section 104 must be followed.

[8] Section 42 generally sets out the dispositions available to a youth court judge. Subsection (o) provides that:

In the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105.

[9] The argument is that this subsection operates to specifically exclude the application of section 98 to an attempt murder offence. It is submitted that section 104 would have been the appropriate provision to proceed under, a section which requires an application on behalf of the Attorney General and not the provincial director.

[10] At the outset of the hearing, the Crown advised that should the court conclude there is a deficiency in the process, it will be seeking to remedy that by bringing the appropriate application, thereafter conceding that the appropriate test to be applied is that which is found within section 104. This concession is seemingly an admission that the application was improperly brought, which the court finds to be correct. At the same time, the argument was mildly made that even though sections 42(o) and 104 specifically reference attempt murder, section 98 did not exclude the offence, essentially providing the Attorney General options in how to proceed, a decision that would be dependent on the timing of the application, the nature of the evidence relied upon, and the position of the provincial director.

[11] To complete the legislative framework, section 104 of the YCJA provides:

When a young person on whom a youth sentence under paragraph 42(2)(o), (q) or (r) has been imposed is held in custody and an application is made to the youth justice court by the Attorney General, within a reasonable time before the expiry of the custodial portion of the youth sentence, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court and the youth justice court may, after giving both parties and a parent of the young person an opportunity to be heard and if it is satisfied that there are reasonable grounds to believe that the young person is likely to commit an offence causing the death of or serious harm to another person before the expiry of the youth sentence the young person is then serving, order that the young person remain in custody for a period not exceeding the remainder of the youth sentence.

[12] Subsection 2 contemplates a hearing not being completed before the expiry of the custodial portion of the sentence, permitting the court to detain the young person until final determination.

[13] This is the court's decision on the jurisdictional question. The application was not properly brought. However, the court will consider the application and counsel's arguments, in doing so applying section 104 of the YCJA. The court arrives at this conclusion having considered the following:

• that sections 98 and 104 of the YCJA are strikingly similar;
• the evidence that would have been called on the section 98 application is identical to that which would have been relied upon under section 104;
• the fact the application was brought before the expiry of the custodial portion of the sentence, which is a prerequisite under both provisions;
• the court accepts that the Attorney General would have brought this application had the Provincial Director declined to; and
• that there is no real prejudice in proceeding and determining this case on the merits, as J.C. is currently in the community subject to terms of community supervision and there is no motion before the court seeking to have him incarcerated prior to the court's determination.

Legal Framework

[14] The factors the court is directed to consider under section 104 are similar to those found in section 98. Subparagraph (a) focuses entirely on evidence relating to the young person's behavior, while subparagraphs (b) through (f) permit the court to consider other factors, including psychiatric and psychological evidence which would lead to the conclusion the commission of a serious violent offence is likely; any planning by the young person to commit a serious violent offence; the availability and suitability of community-based supervision and programs which would ameliorate any such risks; whether the likelihood of reoffending is greater in or out of custody; and behaviors exhibited by the young person while he has been out of custody.

[15] The court rejects the defence argument that, since J.C. is not now being held in custody, section 104 does not apply. This position fails to recognize that the section specifically contemplates the hearing not being completed before the custodial portion of the sentence expires. It also ignores the section's list of factors which clearly references the young person's behavior while out of custody. That being said, there is an issue as to whether this application was brought in a reasonably prompt fashion, but the remedy for that is addressed in not detaining the young person while the application is outstanding.

Evidence

[16] Several witnesses were called at the hearing, including Anago Detention Center staff member Chris Edwards, probation officer Katie Power, clinical and forensic psychologist Dr. Karen Bax, and psychiatrist Dr. Rida Mirza. Both Dr. Bax and Dr. Mirza provide services for the London Family Court Clinic – Center for Children and Families in the Justice System. They are both members of J.C.'s therapeutic team. Dr. Bax at one time treated J.C., that direct relationship since coming to an end. Dr. Mirza continues to see J.C. and to prescribe him medication.

[17] Dr. Mirza began meeting with J.C. upon his admission to Anago. He diagnosed J.C. as having a delusional disorder, post-traumatic stress disorder, and a mild intellectual delay. Dr. Mirza believes J.C. has issues respecting the parameters surrounding consensual sex, the use of force in a sexual context, and having violent sexual thoughts towards women. His opinion is J.C. struggles with differentiating between reality and fantasy.

[18] Dr. Bax used to treat J.C. She also began her relationship with him upon his admission to Anago. She reported to the probation officer, and confirms in her testimony, that she is concerned with J.C.'s violent, sexual thoughts and with his difficulty in telling the truth. She is "uncomfortable with his body language" and describes him smirking and laughing at inappropriate things. She attributes to J.C. statements suggesting he will breach the terms of his community supervision order, and to expressing a strong interest in consuming alcohol and ingesting illicit drugs. She reports him disclosing that he will not take his prescribed medication.

[19] She testified that not only does J.C. have violent sexual thoughts but that he finds pleasure in them. J.C. reported to Dr. Bax being somewhat concerned about harming others and himself when he is released and talked openly about "torturing, knifing, slicing, and strangling" unknown female victims.

[20] The most concerning aspect of her evidence is in regards to the cessation of their therapeutic relationship. At some point in October 2014, J.C. disclosed to Dr. Bax that he was developing romantic feelings towards her and that he had thoughts of killing her and then himself.

[21] Chris Edwards' testimony focused on a role-playing scenario with J.C. that occurred on September 11, 2014. This was as part of Anago's programming and counselling efforts. As they progressed, and upon noticing a change in J.C.'s behavior, Mr. Edwards asked J.C. what was wrong. J.C. then described having thoughts of harming "someone" upon his discharge. When probed further, J.C. revealed that he "wanted to put people six feet under" and that his target would be someone he had built a relationship with rather than a complete stranger. This utterance is linked to three male staff at Anago as, according to the probation officer, J.C. explained that he "believed hurting the three male staff that have demonstrated care and compassion for him is the way he wants to end such relationships."

Defence Arguments

[22] The defence points to the following in arguing the threshold has not been met and that J.C. should not be detained any longer.

[23] First, J.C. has now been living in the community, without incident, since October 30 without incident, abiding by the terms of community supervision.

[24] Second, he is being supported by the St. Leonard's Society through its Supervised Independent Living Program (SIL). This program provides two primary workers who are with him 80 hours per week. The probation officer, in her report, states that "it appears as though J.C. is adjusting to residing in the community and is slowly establishing relationships with staff at St. Leonard's Society."

[25] Third, that, without exception, J.C. has expressed his thoughts and views, with encouragement and in a therapeutic setting. And, that it would be bad practice to in essence discourage openness and honesty, when this is the very information a mental health professional requires in order to develop strategies and to make proper diagnoses.

[26] Fourth, despite protestations about taking his medications, J.C. has done so, with positive and discernable results. Dr. Mirza testified that although the specific purpose of the medications he prescribes is not necessarily to lessen J.C.'s fantasies and delusions, it has had that outcome. The point is, J.C. is able to follow direction, while simultaneously expressing his honest thoughts to mental health professionals.

[27] Fifth, despite indications he would not follow the terms of the community supervision order, he has been compliant.

[28] Sixth, while out of custody, he has remained active in the recommended counselling and treatment programs. Dr. Mirza in particular seems committed to taking the appropriate steps now that J.C. is an adult, including forming him under the Mental Health Act if he proves to be a danger to either himself or others, and to making the appropriate referral to the dual diagnosis program at Regional Mental Health Care, a transition that must take place as Dr. Mirza is a child and adolescent psychiatrist and J.C. is now 19.

[29] Seventh, that although the court can consider the psychiatric evidence and should be mindful of the brutal nature of the index offence, the emphasis in section 104 is on behaviour, and that there is a complete absence of evidence in this respect.

Crown's Position

[30] The Crown acknowledges that the threshold for detaining a young person beyond what was initially contemplated in the sentence is high. In argument, it focused on the troubling communications J.C. has had with others, asserting this does amount to reasonable grounds to believe J.C. is likely to commit an offence causing the death of or serious harm to another person.

Court's Analysis

[31] The test is a compound one. The grounds must relate not to a suspicion or possibility, but be based on reasonable and probable grounds, which must give rise to the belief the young person will likely commit a very specific type of offence. What makes the threshold even more difficult for an applicant is the requirement that it be shown the likelihood exists within a strictly defined period. It is limited, in this instance, to the now 8 months remaining on the original sentence.

[32] The defence does not dispute the nature of the test, nor does it suggest the information conveyed by J.C. is not troubling. The focus is on the distinction between established behavior on the one hand and the expression of thoughts in a therapeutic setting on the other. With that evidentiary background, the court is being asked to give enhanced weight to section 104(3)(d) which speaks to the availability of supervision programs in the community which operate to protect the public from risk.

[33] This is a compelling argument for two reasons. First, J.C. is now in the community and has been for almost a month. This has been without incident. Second, there are a vast number of supports available to J.C., and a number of people working with him directly, including the Children's Aid Society, St. Leonard's Society, probation, and the London Family Court Clinic. He has a stable residence and the evidence suggests he has, until this point, followed direction.

[34] One cannot minimize the brutality of the index offence, nor should J.C.'s very troubling views on sex, relationships, females, and violence be ignored. However, to the court's mind, what this highlights is the need to continue down the path already started. Should the court grant the application, the trouble would be this: once the sentence is served, were it to be served entirely in custody, there would then be no community supervision within a reintegration period. Based on the information before the court, this is what would better protect the public in the long term, while simultaneously addressing the very serious underlying issues.

[35] The court is satisfied that the level of monitoring now in place would, should there be any further concerns, lead to immediate steps being taken to protect the public. Of course, the only way to protect the public completely would be to incarcerate J.C. for as long as possible. This is, of course, illogical. The real concern is what occurs beyond these eight months. What then? The court's goal is to balance the immediate risk, which is seemingly being managed well, with the long-term goal of reintegration and rehabilitation. In that respect, placing J.C. back into custody would be completely counterproductive.

[36] Probation remains involved in its supervision role and in enforcing the terms of community supervision. Dr. Mirza still treats J.C. The Children's Aid Society is also still involved, and J.C. has a residence with a significant level of support from the St. Leonard's Society. Should J.C.'s mental health concerns give rise to an imminent threat either to himself or someone else, there is an involuntary admission mechanism under the Mental Health Act that his care providers seem alive to.

Community Supervision Order Terms

[37] The terms of the existing community supervision order require J.C. to, in addition to the statutory terms:

• reside where directed;
• obey a curfew if one is set for him by the probation officer;
• abstain from both alcohol and non-prescribed drugs;
• not associate with the victim or his parents or anyone else named by the probation officer;
• either attend an educational program or seek employment;
• take such counselling or therapy as recommended by probation; and
• as a substitute for a direction to take medication (which the court does not have the authority to impose), he is required to "take reasonable steps to maintain himself in such a condition that his delusional disorder and PTSD will not likely cause him to conduct himself in a manner dangerous to himself or anyone else, and will not likely commit further offences."

[38] The court cannot imagine a more detailed and structured plan which would assist in J.C.'s reintegration. This is being implemented now, and there is no evidence establishing that custody is a better option in achieving the purpose and objectives of the YCJA.

Decision

[39] In dismissing the application, and subject to counsel's input, the court will simply direct that J.C. be bound by the terms previously imposed, until the expiration of the sentence. If there is no need to amend the existing terms, the court notes only that the order in place needs to be extended as the endorsement appears to limit its application until November 17, 2014. That endorsement will be made on the Information with a corresponding correction on the face of the community supervision order.

November 26, 2014

Justice Jonathon C. George