WARNING
The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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
Ontario Court of Justice
Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended
Date: 2015-10-21
Court File No.: 2811 998 15 Y18034-02
Parties
Between:
Her Majesty the Queen
— AND —
S.C., a young person
Before: Justice M.T. Devlin
Heard on: June 12, 2015
Reasons for Judgment released on: October 21, 2015
Counsel
J. Pollard — counsel for the Crown
J. Chan — counsel for the defendant S.C.
Decision
DEVLIN J.:
[1] This is the decision on sentence in the case of S.C., a youth within the meaning of the Youth Criminal Justice Act.
[2] On June 12th, 2015, Mr. S.C. pled guilty to three offences:
a. Theft of a motor vehicle
b. Possession of a weapon for a purpose dangerous to the public peace
c. Fail to stop for police
The charges stem from an incident which occurred on January 17, 2015.
[3] The Crown is proposing a custodial sentence of six months secure custody followed by probation. The Defence is submitting a non-custodial sentence with 18 months' probation and a substantial amount of community service work.
Issues
[4] The issues are:
Whether custody is an available option pursuant to s. 39(1)(a) or s. 39(1)(d) of the Youth Criminal Justice Act?
If custody is an available option, should it be imposed in this case?
Facts
[5] According to the Agreed Statement of Facts:
On January 17, 2015 the Durham Regional Police received a 911 call from Leo Meawasige who reported that five to eight people in a silver SUV were outside his house and armed with weapons. He advised that the weapons were knives and possibly a gun.
Constable Troccoli and Constable Jung responded to the armed person call. While en route to the complainant's address they observed a silver SUV travelling westbound on Bayley Street in Ajax. They followed the vehicle and observed it fail to make a complete stop for a stop sign at Hunt Street. The vehicle then turned east onto Hunt Street and accelerated towards Harwood Avenue, where it failed to stop for a red light and made a sharp left turn onto Harwood Avenue.
At approximately 9:55 p.m., Constable Troccoli activated the emergency lights in the police cruiser and initiated a pursuit of the vehicle. The vehicle continued on Harwood Avenue and made a sharp left turn onto Station Street, accelerating to approximately 100 kilometres per hour. The police continued to pursue the vehicle west toward Westney Road, where the vehicle failed to stop for the red light and make a sharp right turn onto Westney Road. The vehicle continued onto the entrance ramp to Highway 401 westbound. Several police cruisers joined the pursuit onto the 401, with their lights and sirens activated.
The vehicle proceeded in the collector lanes of the 401, travelling approximately 130 to 150 kilometres per hour. The vehicle swerved from lane to lane and on several occasions the driver drove as if he intended to exit on an off-ramp, then swerved back onto the highway at the last moment in an attempt to evade the police.
The vehicle exited the highway at Port Union Road in Toronto. It failed to stop for the red light and turned left onto Kingston Road. As the vehicle proceeded west toward Sheppard Avenue it nearly missed colliding with another vehicle travelling eastbound through the intersection.
The vehicle then veered into the curb lane on Kingston Road and mounted the curb. One of the passengers, later identified as Scott Emms, discarded a 12" black handled knife out the window. While the vehicle was still in motion, Mr. Emms attempted to exit the vehicle from the passenger side and was dragged for a short time. Mr. Emms fled the scene and was later arrested at his home.
Constable Troccoli positioned the police cruiser to pin the vehicle against a fence, causing it to stop. The occupants of the vehicle all attempted to flee the scene on foot. Two parties escaped by hopping over a wooden residential fence. Two male occupants and one female occupant were apprehended at the scene.
Constable Roy searched the vehicle and located a very large "Rambo" style knife tucked in the back of the front passenger seat along with a sheath for the knife under the seat. He also located a large machete in a sheath tucked between the driver's side seat and centre console.
One of the passengers, Nicholas Anderson, was interviewed by the police following his arrest. He told them that when the police activated their lights for the vehicle to pull over, all the occupants told Mr. S.C. to pull over but he wouldn't listen. Mr. Anderson also advised that the reason they attended the complainant's address was to collect money from someone who owed a debt to Mr. S.C.
Analysis
[6] I turn now to the legal analysis.
[7] Section 39(1)(a) of the Youth Criminal Justice Act states:
"A youth justice court shall not commit a young person to custody under section 42 unless the young person has committed a violent offence".
[8] The term "violent offence" is defined under s. 2(c) of the Youth Criminal Justice Act as:
"An offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm"
Section 39(1)(d) of the Youth Criminal Justice Act states:
"A youth justice court shall not commit a young person to custody under section 42 unless in exceptional cases where the young person has committed an indictable offence the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38".
1. Violent Offence
[9] I will first address the issue of whether the Crown has proven beyond a reasonable doubt that Mr. S.C. endangered the life or safety of another person by creating a substantial likelihood of causing bodily harm.
The Crown submits that it has proven this beyond a reasonable doubt based on the following facts:
- The significant length and speed of the pursuit which began on residential streets and continued to the 401;
- The fact that there were three passengers in Mr. S.C.'s vehicle who were essentially held captive during the chase;
- Mr. S.C.'s attempts to trick the police by pretending to exit the 401 and then suddenly returning to the 401;
- The fact that Mr. S.C., who was 17 at the time of the incident, would have been an inexperienced driver.
[10] The defence submits that the substantial likelihood of causing bodily harm has not been proven beyond a reasonable doubt because there is insufficient evidence before the Court. I disagree. Based on the facts before me, I conclude that the Crown has proven beyond a reasonable doubt that the flight from police count is a violent offence within the meaning of the Youth Criminal Justice Act. Custody is therefore an available option pursuant to s. 39(1)(a).[1]
2. Exceptional Circumstances
The next issue is whether the Crown has proven beyond a reasonable doubt that custody would be an available option pursuant to s. 39(1)(d) of the Youth Criminal Justice Act. The case law presented to the Court states that this characterization is meant to be limited to the "clearest of cases".
[11] I was impressed by the extensive case law review prepared by Mr. S.C.'s lawyer who was unable to find any cases where failing to stop for the police was characterized as exceptional within the meaning of s. 39(1)(d).
[12] Based on the facts of this case, and in the absence of any case law indicating a contrary view, I conclude that this is not an "exceptional case" and that custody is therefore not available pursuant to s. 39(1)(d).
3. Jail or No Jail
The next issue is whether custody is the appropriate sentence in this case. Under the Youth Criminal Justice Act, all options other than custody should be explored. The overall goal is to impose a sentence that holds Mr. S.C. accountable through the imposition of just sanctions that have meaningful consequences.
[13] There is a very positive Pre-Sentence report which outlines Mr. S.C.'s strict compliance with his bail terms, his efforts at school and in the community, and his deep remorse. Mr. S.C. has steadfastly maintained from the beginning that his passengers did not know the vehicle was stolen and that he was the sole person responsible for the events of January 17th, 2015.
[14] Most importantly, Mr. S.C. has now returned to his mother's home. At the time of the offences, he was not living at home and was involved in an unhealthy and a transient lifestyle. I further note that Mr. S.C. has no prior criminal record.
[15] Having considered the submissions of counsel and the requirements of the Youth Criminal Justice Act, I conclude that the appropriate sentence in this case is probation for the following reasons:
Mr. S.C. is a first-time offender and has entered guilty pleas.
Mr. S.C. spent approximately four days in pre-trial custody.
According to the Pre-Sentence Report, over the past eight months Mr. S.C. has applied himself at school and in the community where he has demonstrated leadership qualities.
Mr. S.C. is remorseful and is willing to complete 100 hours of community service work.
Sentence
[16] The sentence will therefore be eighteen months' probation with one hundred hours of community service work.
Released: October 21, 2015
Signed: Justice Devlin
[1] This sentence was added to the transcript for the purpose of clarity.