Court Information

Date: February 2, 2017

File Number: 2811-998-14-Y26030-01

Ontario Court of Justice Youth Justice Court

In the Matter of the Youth Criminal Justice Act, S.C. 2002, c.1

Her Majesty the Queen - and – J.J.

Before the Honourable Justice M.S. Felix

At the Courthouse, 150 Bond St. E., Oshawa, Ontario

On Thursday, February 2, 2017

Publication Ban Notice

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT

Reasons for Judgment on Sentence Review

Appearances

T. Hewitt – Counsel for the Crown

R. Elbirt – Counsel for J.J.

Judgment

FELIX J. (Orally)

Introduction

J.J. is before this Youth Justice Court for a statutory annual review of his sentence pursuant to s. 94(2) of the Youth Criminal Justice Act.

On October 29, 2015, J.J. was found guilty of robbery after a trial. The sentencing is reported at R v. J.J., 2015 ONCJ 762 and I need not restate my reasons for sentence on this review. It is sufficient to simply recognize that the young person forcibly entered a private residence for the purpose of robbery. He struck a resident of the home in the head with an offensive weapon resembling a firearm for the purpose of facilitating the robbery of the residents. This crime was committed with a second party – his co-accused. The gentleman before the court was sentenced to 15 months custody composed of 450 days open custody, followed by 225 days of community supervision, probation, and ancillary orders.

Position of the Young Person

Counsel for the young person submits that he has made excellent progress while in open custody. It is clear that the young person has a record of perfect compliance while in custody. He has become a leader amongst the other young persons and sets a positive example. He has completed his high school credits and will attend college in the fall of 2017.

The review focused primarily on the availability of a pre-apprenticeship employment and training program commencing March 1, 2017. Counsel for the young person eloquently submits that he needs to be released from custody by the third week of February 2017 in order to be processed for this opportunity. This opportunity would provide him with work and partial funding directed towards his college education. Evidence was presented that the terms and conditions associated with a Reintegration Leave would not permit participation in the program.

Evidence: The Review

There is no issue with notice or the record placed before the Court for the purposes of review.

The following record was placed before the Court:

1. The Young Person's Progress Report;
2. Transcript of the sentencing in this case;
3. Viva voce evidence of a worker at Blue Jays Lodge;
4. Letter from the young person's teacher at TDSB;
5. Support of the young person's mother regarding residency; and
6. Submissions of counsel.

Applicable Legal Principles

This review has been framed as an annual review pursuant to section 94 of the Youth Criminal Justice Act. The Youth Criminal Justice Act provides broad jurisdiction for review. Section 94(19) requires the court to have regard to "the needs of the young person and the interests of society."

The Supreme Court of Canada considered the broad purpose of a review with respect to a similarly worded section in the Young Offenders Act in R v. J.J.M., [1993] S.C.J. No. 14:

This section is obviously salutary. It provides an incentive to the young offenders to perform well and to improve their behaviour significantly as quickly as possible. As well, it gives an opportunity to the court to assess the offenders again and to make certain that the appropriate treatment or assistance has been available to them. It introduces an aspect of review and flexibility into the sentencing procedure with the result that any marked improvement in the behaviour, outlook and performance of the offender can be rewarded and any deterioration assessed. The Act provides a system that it is akin to, yet broader than, the probation review provided for adult offenders.

Section 94(19) provides for three possible outcomes, of which only two apply to this case:

1. I may confirm the original sentence, or
2. I may release the young person and place him under conditional supervision in the community.

The onus is on the young person to demonstrate that the original sentence should be modified: (See R v. D.H., 2008 ONCJ 78 and the authorities cited in paragraph 17 of that decision.)

Further, for more serious criminal offences, exceptional evidence of a change in circumstances is required: (See R v. D.H., supra; R v. E.L., [2008] O.J. No 5927 (Ont. C.J.) at paras 8-11)

The Focus of the Review

The considerations outlined in subsection 94(6) of the Youth Criminal Justice Act while not irrelevant, are directed toward optional reviews: (See R v. C.K., 2008 ONCJ 236 para 12-14.)

This is an annual review, so the Court "shall review" the sentence pursuant to section 94(19) of the Youth Criminal Justice Act.

Section 94(19) requires the Court to assess the "needs of the young person and the interests of society". No further guidance is provided by the Youth Criminal Justice Act.

I find that Parliament must have intended that the review court have regard to wide-ranging factors governing the "needs of the young person" including but not limited to:

1. The overall current status of the young person;
2. Educational developments since sentencing;
3. Employment-related developments since sentencing;
4. Familial developments;
5. Medical circumstances such as the status of any counseling or treatment.

The "interests of society" must involve consideration of several factors including but not limited to:

1. All information considered during the sentencing of the young person.
2. The relevant principles of sentencing applicable to the original sentence;
3. The evidentiary record provided in support of the original sentence;
4. The evidentiary record provided on the review.

The review is not a "de novo sentencing" or a chance to re-assess the basis of the original sentence.

In my view Duncan J. best articulated the object of the review in R v. C.K., supra, para 17:

The review focuses on what can now best advance the needs of the young offender and the interests of society and requires a balancing of those two considerations. Consequently, no matter how compelling the attraction to serve the young person's needs, larger public interests cannot be ignored. The interests of society and the needs of a young offender are not distinct, wholly conflicting interests. On many fronts, they obviously promote the same objective. Rehabilitating young offenders serves the best interests of society. However, rehabilitation must include an acceptance by young offenders that they are responsible for the consequences of their conduct and that they cannot act in a manner that threatens the property or person of others. In this fashion, and in many others, the needs of young offenders and the interests of society converge.

Balancing the "Needs of the Young Person" and the "Interests of Society"

There are numerous considerations that I will outline now.

Positive Steps Taken by the Young Person

The following positive changes are demonstrated on the record before me:

• The young person has been totally compliant with the rules and conditions in his open custody placement.
• The young person has never been cited for an infraction or breach of the house rules.
• The young person has completed his high school credits.
• The young person has applied to institutions of higher learning and has been granted admission.
• The young person has taken counselling designed to provide him with insight into his offending behaviour.
• The young person has taken counselling designed to furnish him with empathy for the victims of his crime.

I am satisfied that the young person has made excellent progress.

Educational Developments

The young person has completed high school and will attend college in the fall of 2017. He has demonstrated the ability to dedicate himself to his educational pursuits.

When I consider the record before me there is no evidence that serving the open-custody sentence would be a bar to furthering his education. Young persons in open-custody facilities attend all manner of educational institutions. A review is not needed to remove an obstacle to the young person's attendance at college in the fall of 2017.

Employment-related Developments

The young person strikes me as having a business or entrepreneurial inclination.

The focus of this review was his wish to attend a pre-apprenticeship employment and training program commencing March 1, 2017. I am impressed with this initiative and believe that his approach should be encouraged and supported. That being said, I do not believe that this should take priority over the rationale for the sentence in this case.

The young person's worker from the home has testified and presented the Court with essentially a hard choice: collapse the sentence or fulfill the aims of the original sentence. The viva voce evidence supports a position that the terms and conditions of Reintegration Leaves are not flexible enough to permit attendance at the program. His position is that the logistics around the Reintegration Leave will not permit the young person to attend.

With great respect to the experience, knowledge and dedication of the youth worker that has been assisting this young man, I am not satisfied that Reintegration Plans, as an instrument, are so inflexible that it is impossible to participate in the work preparation program commencing March 1, 2017.

I recognize the evidentiary record placed before me and I recognize the limits of judicial notice.

But surely I am not required to ignore my general experience and knowledge of the criminal justice system gleaned from working in several different jurisdictions on Ontario.

I am aware and I have been involved in cases in the greater Toronto area where the terms and conditions associated with Reintegration Leaves are adapted to facilitate employment or educational pursuits.

I am not required to ignore my experience in this jurisdiction, for example. If I required the attendance of the senior probation officer responsible for young persons, the liaison to this courthouse, I am confident that I would be told that it could be done. It would require some adaption of some terms, could be done and it would be done.

I want to encourage this approach. Everyone here is trying to help Mr. J. with his future. I want to encourage this approach and some flexibility, ingenuity and creativity be applied to the Reintegration Leave so that he is permitted to attend that program.

I recognize that there are different practices in this regard across Ontario. Every case is different. Every young person is unique. But nothing in the record placed before me suggests that this young person would be a risk to anyone doing the employment program. A responsible person, for example, associated with the program could be designated without compromising the privacy considerations in the Youth Criminal Justice Act. It is just one example of how these things have been done in the past.

What is required are some adjustments to the terms and conditions, some creativity, and some flexibility, along with alternative appropriate arrangements for supervision. The well-meaning and supportive individuals surrounding the young person will find a way to facilitate his attendance at the program. If I haven't been clear, I encourage these efforts.

In my view the young person should have access to such a program. A plan can be fashioned that addresses the circumstances of this program and it is up to those responsible for his current supervision to take the steps to facilitate his participation.

This is important to me because the considerations associated with the "interests of society", particularly the aggravating factors in this case, are not overridden by the request to attend this program.

The Original Sentence

At the sentencing of the gentleman before the court, there were several considerations relevant to my decision on this review.

First of all, I did not sentence him to a secure custody sentence, which was, frankly, the more appropriate way to address the sentence, given the applicable sentencing principles and the circumstances of the offence. I decided not to sentence him to secure custody because he had demonstrated early progress in his open custody facility. This consideration was heavily influenced by the submissions of his counsel at the time. To be blunt, she convinced me not to follow my inclination towards a secure custody sentence.

In terms of fairness, the gentleman's co-accused, who was also sentenced by me, who was a lesser-involved co-accused, received a one-year custodial sentence. He did not receive this benefit. Because of his age and the operation of the Youth Criminal Justice Act, he served his sentence from March 2016 until he was paroled in September 2016 in an adult facility. This co-accused was not serving a sentence for other offences when he came before me and he received a much harsher sentence by operation of the Youth Criminal Justice Act.

Finally, notwithstanding the fact that I sentenced the gentleman before the court to a term of custody consecutive to the sentence he was serving, I am aware, that by operation of ss. 42(14), 42(15), and 42(16) of the Youth Criminal Justice Act, my sentence was subject to the statutory limit of two years. In other words, even though the sentence was consecutive, it was capped.

Findings on the Review

I find that the young person has in fact demonstrated excellent progress. This must be balanced against the serious offence he committed.

I am not satisfied that "the interests of society" are served by releasing the young person at this time. The crime he committed was a violent "home-invasion" style robbery while armed with an offensive weapon that he actually used to cause injury.

One significant goal of the Youth Criminal Justice Act is accountability. This continues to be an important consideration with respect to this sentence.

Notwithstanding my decision today, I think it is consistent with the aims of sentence and the principles in the Youth Criminal Justice Act to encourage the continuation of pro-social behaviour. The record before me demonstrates that the young person has matured significantly and is making excellent progress.

Consequently, I will order that the young person return before me on June 1, 2017 for the purposes of an optional review. I will request an update of his status for the purposes of that optional review. I expect the progress to continue. I expect to receive a positive report.

If he has continued the positive steps and progress that he has demonstrated so far, out of fairness I will hear from the Crown attorney with respect to submissions and I will hear submissions from defence counsel, and I will consider any other information placed before me. In other words, I will not pre-judge the issue but I will strongly consider that he be released on that very day under supervision in the community.

That is my judgment.