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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2017-07-20
Court File No.: Lindsay Y120159
Between:
Her Majesty the Queen
— and —
D.F., a young person
Before: Justice S. W. Konyer
Heard on: May 30, June 20, July 4 and 7, 2017
Reasons for Judgment released on: July 20, 2017
Counsel:
Ms. S. Repka — counsel for the Crown
Mr. M. Bebee — counsel for the accused D.F.
REASONS FOR JUDGMENT
KONYER J.:
[1] D.F. is before me for an optional review of his sentence pursuant to s.94(3) of the Youth Criminal Justice Act. On an optional review, I must first determine whether D.F., as the applicant, has established one of the grounds for a review set out in s.94(5). If I find that there are grounds to review his sentence, then I must review the sentence and either confirm the sentence or convert the balance of the custodial portion of the sentence to conditional supervision. To make the decision on a sentence review, I must consider both D.F.'s needs and the interests of society.
[2] This sentence in question was imposed on February 20, 2015 by Morgan J, who has since become a supernumerary judge. The sentence was imposed following a plea by D.F. to a charge of second degree murder. The length of the sentence is 7 years, composed of 4 years secure custody followed by 3 years of community supervision. This was imposed in addition to a period of pre-sentence custody since D.F.'s arrest on Nov. 26, 2012. Although the pre-sentence custody was taken into account by Morgan J, the joint recommendation which he followed called for no deduction from the mandatory 7 year youth sentence for second degree murder. Morgan J also made an intensive rehabilitative custody and supervision order in relation to this sentence.
[3] Youth sentences differ from adult sentences in many respects, due in part to a recognition of the reduced level of moral culpability of offenders who are youths – see s. 3(1)(b) of the Y.C.J.A. The primary purposes of any youth sentence include holding the youth accountable for his or her actions while at the same time fostering his or her rehabilitation and reintegration into the community. Youth sentences that exceed one year of custody require an annual review of the custodial portion of the sentence, in recognition of the fact that a youthful offender may make sufficient progress towards his or her rehabilitation so as to justify a change. In this sense, youth sentences are not fixed or inflexible, and Parliament specifically intended that courts would retain the ability to adjust sentences after their imposition to reflect changes in the circumstances of youth offenders. In R. v. J.J.M., 81 C.C.C. (3d) 487, the Supreme Court of Canada said that the similar youth sentence review provisions contained in the former Young Offender's Act were "an integral part of the disposition" [para. 35].
[4] In that case, the Court described the review provisions as follows:
The section is obviously salutary. It provides an incentive to 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 made 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.
This approach has been followed by courts across the country in conducting reviews of custodial sentences under the Y.C.J.A.
[5] I agree with the following summary of the law as it applies to sentence reviews under the Y.C.J.A. as set out by Duncan J. in R. v. C.K., 2008 ONCJ 236, [2008] O.J. No. 1951 (C.J.), at para. 16-17:
A review is a reassessment of circumstances subsequent to sentencing: R. v. B. (L.K.), 2002 ABCA 227, 169 C.C.C. (3d) 572 (Alta. C.A.). It is designed to monitor and reward rehabilitation and progress but also to make certain that appropriate treatment and programs are made available to the offender: R. v. J.J.M., supra. The availability of continuing review is virtually unlimited: R. v. M.K., 107 C.C.C. (3d) 149 (Ont. C.A.).
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: R. v. M.T., [1995] Y.J. No. 6.
[6] This review is governed by s. 94 of the Y.C.J.A. The grounds upon which an optional review can succeed are set out in s. 94(6). In D.F.'s case, he relies on paragraphs (a) and (d) – namely that he has made sufficient progress to justify a change in his sentence and that the opportunities for rehabilitation are now greater in the community.
[7] As the applicant, D.F. bears the onus of proving that he has made sufficient progress to justify a change in his sentence or that the opportunities for rehabilitation are now greater for him in the community. I agree with previously decided cases which have held that "the more serious the offence, the greater the need for exceptional evidence of change in circumstances of the offender": R. v. D.H., [2008] O.J. No. 779 (C.J.), at para. 21; see also R. v. E.L., [2008] O.J. No. 5927 (C.J.), at para. 9, and R. v. J.J., [2017] O.J. No. 1174 (C.J.), at para. 11.
[8] Therefore, I must consider both the circumstances surrounding the commission of the offence, as well as D.F.'s progress since that time and the opportunities now available to him for rehabilitation, in order to decide if there are grounds to review his sentence at this time. If I find that there are grounds for a review, the same factors will inform the balancing of D.F.'s needs with the interests of society that I must then undertake.
The Circumstances of the Offence
[9] D.F. intentionally took the life of another person, Phillip White. He either intended to kill Mr. White by stabbing him, or intended to cause him harm that he knew was likely to cause death. Either way, the offence at the root of the sentence I am being asked to review is extremely serious. It has had an enormous impact on Mr. White's family and friends, and a significant impact on the community.
[10] That said, the circumstances of this particular offence place it at the lower end of the range of seriousness for second degree murder in my view. D.F. was 16 at the time he stabbed Mr. White to death. Mr. White was 23, and the two had been involved in an ongoing dispute over a debt that Mr. White felt D.F. owed arising from property damage. On the night of the murder, Mr. White repeatedly challenged D.F. through insulting text messages to a fight because of the unpaid debt. D.F., who was intoxicated at the time, initially told Mr. White to leave him alone. After Mr. White persisted and D.F.'s own friends encouraged him, D.F. agreed to meet Mr. White to fight him. He left the party he was at after concealing a steak knife in his jacket. He met Mr. White and engaged in a fist fight. Mr. White knocked D.F. to the ground. After getting up, D.F. pulled out the knife and stabbed Mr. White twice, fatally wounding him.
[11] While any murder is serious by definition, in this case D.F. acted impulsively in a state of intoxication after being provoked, challenged to a fight, and then engaged in a fight by an adult. Morgan J described his conduct as the "intentional risk-taking of […] a 16 year old who lacked insight, who had Attention Deficit Disorder, explosive temper, Opposition Defiant Disorder, judgment clouded by alcohol" and concluded that D.F. "acted impulsively"[1].
D.F.'s Progress Since Committing the Offence
[12] D.F. surrendered himself to the police the day after killing Mr. White, and has been in custody since that time. As discussed previously, his sentence commenced on February 20, 2015, roughly 2 years and 3 months after the murder. This is the fourth review of D.F.'s sentence that I have heard since his sentence commenced.
[13] On Feb. 23, 2016, I presided at the first annual review of D.F.'s sentence and heard evidence from Shawn Valleau, the Youth Worker responsible for the management of D.F.'s sentence. Mr. Valleau has been responsible for the case management of D.F. since his arrest for murder in 2012. At the time of the first annual review, the information I received was that D.F. was progressing very well. After an initially tumultuous period in custody at the Brookside Youth Facility in Cobourg, D.F. stabilized, his behaviour improved remarkably, he was working towards completing his high school education, as well as participating in all counseling and programming asked of him to further his rehabilitation. The prognosis going forward appeared to be positive, but both counsel agreed that it was too early into D.F.'s sentence to consider a change in the status of his sentence. On consent, his sentence was confirmed.
[14] On the reviews I have conducted, I have been provided with a wealth of background information about D.F., including a pre-sentence report, a s.34 assessment, transcripts of the proceedings from the guilty plea and sentencing hearing, Victim Impact Statements, together with progress reports filed at each review hearing. D.F. was 16 years old at the time he committed the offence of murder, and had already accumulated a significant record of offences, including numerous prior offences for crimes of violence and breaches of court orders. He was charged and convicted of further offences of violence during the first months following his arrest while residing at Brookside. His background, briefly stated, includes a lack of positive parenting, exposure to domestic violence, troubling behaviour at home and in school, together with a history of significant alcohol and substance abuse beginning at a young age. All of which makes the progress made by D.F. at the time of his first annual review more remarkable. D.F. was encouraged by all parties, including myself, to continue that progress with an eye towards future sentence reviews.
[15] D.F. next appeared before me for an optional review on June 10, 2016. He had continued to make excellent progress. By that time, he had completed high school and community service hours, continued to attend and actively participate in all rehabilitative programming including substance abuse therapy, vocational counseling, and psychological interventions. He had begun acting as a mentor to new youths coming into Brookside, and had been given frequent leaves to attend counseling in the community and visits with his family. By this point, D.F. had progressed as far as he could with education and vocational training at Brookside, and had been accepted into a college program at Centennial College. He asked that I convert the balance of the custodial portion of his sentence to open custody to allow him to attend college. His case manager, Mr. Valleau opposed the review based primarily on the recommendation of D.F.'s treating psychologist, whose opinion was that despite the significant gains made, D.F. needed to continue to work to solidify those gains in a structured environment. Mr. Valleau did agree that he could not see any bar to a conversion of the sentence to one of open custody in the future if D.F. continued to progress well.
[16] The Crown opposed the review for the same reasons, and also argued that it was too early into the custodial portion of the sentence for a review to be granted. To do so at such an early stage, the Crown argued, would not hold D.F. sufficiently accountable for his actions. The Crown relied on the decision of Duncan J in C.K., supra, which was a review of a youth sentence imposed for first degree murder where the offender had likewise made remarkable progress and sought a review at an early stage of her sentence. Duncan J held that while C.K. had made real progress and that one purpose of the review section was to reward progress, that the reward need not be immediate. He held that "the timing and the extent of the reward must be tempered with other considerations" which include the need to hold offenders accountable by punitive sentences of sufficient length to achieve that purpose. I agreed with the Crown at that time that a change in the level of custody was premature given the seriousness of the offence committed by D.F. and the fact that he had served less than 1.5 years of the 4 year custodial portion of his sentence at that stage. I encouraged D.F. to continue his progress with a view towards future reviews. While leave to review his sentence was granted, his sentence was once again confirmed at that time.
[17] On February 7, 2017, D.F. appeared for his next annual review. He had continued to progress well through the summer and fall of 2016, to the point where he was regularly attending a local high school for a personal school program designed to meet his interests in diesel mechanics. He continued to attend counseling in the community and visits with his family. Then, on December 4, 2016, he was charged with assault for an incident that had occurred at Brookside. I was provided with a copy of a "Serious Occurrence Report" from Brookside detailing the incident. I have also reviewed video surveillance footage of the incident. Essentially, D.F. briefly prevented staff from intervening to put a stop to a 2 on 1 assault that was occurring inside the facility. The relevant portion of the report accurately summarizes the events in the following terms:
At approximately 15:20 while in the Lower Lounge of Thomson House, T. initiated and engaged in a fight with N. throwing closed fist punches to the head of N. At the same time, M. joined T. and also began throwing closed fist punches to the head of N. As staff attempted to intervene, D.F. stepped between the youth who were fighting near the corner of the lower lounge and with his arms spread out and away from his body and actively attempted to interfere and prevent staff from intervening.
Staff gave verbal direction to the youth to stop fighting as they attempted to step past D.F. Staff were able to get in between the fighting youth as the fight moved away from where D.F. was blocking staff. T. and M. then followed staff direction to go to their assigned bedrooms and were then escorted by staff to their assigned bedrooms.
D.F. was also escorted to his assigned bedroom by staff. N. suffered a bloody nose, abrasions about his head and neck and swelling around his right eye. Staff assisted N. with first aid to control his bleeding nose and with cleaning himself.
[18] Further, on January 3, 2017, D.F. was involved in another physical altercation with a resident, described in a Serious Incident Report as follows:
On January 3, 2017, C. and D.F. were involved in a game of ping-pong at the Rec Hut. After the game, C. got in D.F.'s face and started calling him names and using vulgar language towards D.F.
D.F. then turned and started to walk away. C. then used 2 hands and pushed D.F. in the back. D.F. turned around and used 2 hands and pushed C. in the chest area. C. then proceeded to open hand slap D.F. in the head with his right hand. D.F. then retaliated with an open right handed slap to C.'s head. Staff immediately provided redirection, initially they stopped. However C. went back at D.F. and the situation escalated quickly. Moving towards the altercation staff provided more direction, however both youths started throwing punches and kicks at each other. Neither youth complied with the direction and continued to strike each other. D.F. was then able to secure a rear choke on C. Staff then separated the youths. D.F. was secured (standing) by YSO's near the window. C. was transitioned to the floor in a prone position (restraint) due to struggling to get away from staff.
[19] Again, I reviewed surveillance footage of the incident, which is consistent with this account. As a result of this incident, D.F. had a small laceration to his lip while the other youth had no visible injuries.
[20] As a result of these incidents, D.F. was subjected to internal discipline, including a loss of privileges and reduction in his security level, which effectively prohibited him from attending any functions in the community. Mr. Valleau was not supportive of any change in D.F.'s custodial status on the second annual review. D.F. effectively waived his right to have his sentence reviewed at that time, and on consent, his sentence was confirmed.
[21] D.F. had turned 20 years of age on May 6, 2016. Section 93(1) of the Y.C.J.A. provides that persons serving youth custodial sentences who reach the age of 20 shall be transferred to an adult facility to finish their sentence unless the provincial director orders the person to serve the sentence at a youth facility. The provincial director had made such an order in D.F.'s case, but this order was rescinded on March 3, 2017 as a result of the two incidents described above. On that date, D.F. was transferred to the Central East Correctional Centre (C.E.C.C.) where he has remained since.
[22] D.F. pleaded guilty before me in Cobourg on March 27, 2017 to an assault charge from the December 4 incident described above. Although he did not strike the victim himself, he acknowledged that he assisted the two perpetrators in continuing the assault already in progress by momentarily preventing Brookside staff from intervening. D.F. appears to accept that he was wrong to act as he did, and seemed genuinely perplexed at why he chose to become involved in the incident at all. I suspended the passing of sentence and placed D.F. on probation for a period of 12 months.
[23] On the present review, the Crown also proffered evidence that D.F. had been involved in an occurrence on his range at C.E.C.C. that led to him receiving an institutional misconduct. D.F. testified, and was asked in cross-examination about his role in the incident. He explained that most of the other 31 inmates on the range were causing damage inside the range. When correctional officers ordered everyone to return to their cells, all of the inmates refused to comply. D.F. denied causing any damage to property, but agreed that he acted in solidarity with the other inmates by refusing to comply with staff orders out of a fear of retaliation if he did otherwise. He agreed that this led to him receiving a misconduct.
[24] The Crown did not call any witness who directly observed the incident, nor was any surveillance footage produced. I know from judicial experience that all ranges at C.E.C.C. are monitored by video surveillance. D.F.'s evidence about his limited role in the occurrence is, therefore, uncontradicted.
[25] The Crown did call evidence from Jeffery Adams, also an inmate at C.E.C.C. He was transported to court in Lindsay on the same date as D.F. appeared to commence this review. He claimed that D.F. bragged to him about using drugs while at C.E.C.C., about breaking things during the riot just described, and about having no regrets for killing Mr. White. It turns out that Mr. Adams' daughter is currently dating Mr. White's brother. D.F. emphatically denied making any of the statements alleged by Mr. Adams. I found Mr. Adams to be an unimpressive witness whose evidence was imprecise and elusive, and I do not accept his claims.
Opportunities for Rehabilitation
[26] Prior to his transfer to an adult facility, D.F. had access to an impressive amount of programming and services. He was seen regularly by a psychologist and a psychiatrist, completed his high school education, completed college courses by correspondence, worked doing property maintenance, had access to an individualized program in diesel mechanics at a local high school, was attending regular A.A. and N.A. meetings, and had received an array of programming designed to address his particular rehabilitative needs. There is funding available through the Ministry of Children and Youth Services to continue programming in accordance with his needs because D.F. is subject to an intensive rehabilitative custody and supervision order – see s. 42(2)(r) of the Y.C.J.A. This funding continues to be available to him for the entire 7 years of his sentence.
[27] Since D.F.'s transfer to C.E.C.C., he has received minimal rehabilitative programming, despite the good faith efforts of Mr. Valleau and others charged with implementing the intensive rehabilitative custody and supervision order made by Morgan J, and despite the efforts of D.F. himself to access the sparse programming available at C.E.C.C. He has been able to complete the sole 6 hour anger management course offered, and can apparently re-take the same course over and over again if he wishes. He is also eligible to take a substance abuse program of similar duration. Although A.A. and N.A. services are offered, D.F. has not been able to attend a single meeting due to frequent lockdowns at C.E.C.C. which routinely disrupt such volunteer-provided services. As a judge presiding in Lindsay, I can certainly take judicial notice of the fact that lockdowns at C.E.C.C. are notoriously frequent.
[28] Members of his case management team have met with staff from C.E.C.C. in an attempt to implement the intensive rehabilitation that is required as part of the sentence ordered by Morgan J. To date, these efforts have mostly failed due to rigid institutional policies which prohibit outside service providers from offering services which C.E.C.C. has determined are available through internal, unionized staff. The programs available to D.F. through C.E.C.C. are the same programs available to all adult inmates at C.E.C.C., rather than the individualized programming he was receiving at the Brookside Youth Facility in accordance with the terms of the intensive rehabilitative custody and supervision order made by the sentencing judge.
[29] I have no interest in assigning blame for this state of affairs, but it is abundantly clear that D.F. cannot expect to receive the programming required to "promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of society", which is one of the purposes of youth sentences: Y.C.J.A., s. 38(1). I agree with the sentiments expressed by Duncan J in C.K., supra, where he described the lack of services available to youths transferred to adult facilities as an "unforgivable gap in the legislative scheme" [para. 19].
[30] There is some hope that if D.F. remains in an adult jail that he may be transferred to an institution that is able to offer more services than are available at C.E.C.C., but this cannot occur due to policies which preclude the transfer of inmates unless they are "misconduct free" for at least 3 months. It seems clear that D.F.'s rehabilitative needs, and society's long-term protection, are of secondary importance to institutional policies. After being at C.E.C.C. for close to 5 months, it is troubling that no meaningful plan has been developed to address his needs, and it is difficult to have any faith that this is likely to change in the future.
[31] If he is released into the community on a conditional supervision order, conditions can be imposed on the order requiring D.F. to attend all assessments, counseling and rehabilitative programming as directed. Funding for the programming is available. If D.F. fails to comply with this condition, he can be arrested and returned to custody.
Whether Leave to Review the Sentence Should Be Granted
[32] I am satisfied that there are grounds to review D.F.'s sentence based on his progress to date, notwithstanding his actions as a party to the assault committed by other youths on December 4, 2016. His actions, while unwise and troubling, were clearly impulsive. He did not instigate the violence, he did not strike a blow towards the victim, but he did momentarily hamper the ability of staff members to intervene in the assault. While his actions speak to a need for continued behavioural and cognitive programming, they do not detract from the overall progress made by D.F. since coming into custody following the murder. His progress overall has been significant. A review is justified based on this progress.
[33] In reaching this conclusion, I place no weight on D.F.'s involvement in the incident from January 3, 2017. On that occasion, D.F. responded with proportionate force to an assault against himself by another resident. He tried to walk away after being assaulted and was attacked for a second time from behind. I fail to see how he can be faulted in any way for defending himself by using proportionate force[2].
[34] I also place no weight on the fact that D.F. has received a misconduct while at C.E.C.C. There is no evidence that the actions giving rise to the misconduct were anything more than D.F. claimed – a failure to comply with an order to return to his cell issued by correctional staff in circumstances where D.F. had real reason to fear repercussions from other inmates if he did comply.
[35] I further conclude that there are grounds to believe that rehabilitative opportunities for D.F. are now greater in the community than if he were to continue serving the custodial portion of his sentence in a provincial jail.
What Disposition Should Be Made on Review
[36] D.F. has satisfied me that grounds for a review of his sentence exist. I must now attempt to balance his needs with the interests of society in order to decide whether to confirm his sentence or release him from custody at this time under conditional supervision[3]. As Duncan J noted in C.K., supra, the interests of society and the needs of the young person often converge. Section 38(1) of the Y.C.J.A. also recognizes that successful rehabilitation and reintegration into society is the best means of protecting society in the long term.
[37] I accept that holding young persons accountable for their actions is also in the public interest. A youth sentence must have meaningful consequences – s. 38(1). The Y.C.J.A. is intended to protect the public in part by "holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person" – s. 3(1)(a)(i). Within the bounds of proportionality, a youth sentence must be the least restrictive capable of holding the youth accountable, the one most likely to rehabilitate the young person and reintegrate him into society, and one designed to promote a sense of responsibility in the young person – s. 38(2)(e).
[38] At D.F.'s last optional review roughly one year ago, I accepted the Crown's argument that D.F. had not yet served a sufficient period of custody in order to adequately address the need for accountability. At present, however, he has been in custody for 4 years and 8 months since the murder was committed, which exceeds the custodial length of a youth sentence for second degree murder. He has served enough time that he is now eligible for parole due to the decision to transfer him to an adult facility. The fact that a transferred youth offender is now eligible for parole is a relevant factor – see E.L., supra, at para. 26.
[39] Bearing in mind the circumstances of the offence he committed, I find the 4 years, 8 months D.F. has served in custody to be a meaningful consequence for his conduct. In my view, the public interest in holding D.F. accountable for his actions has been adequately addressed and no longer requires that he continue to serve his sentence in custody. I also take into account the fact that D.F.'s transfer to an adult jail has disrupted the progress he made while at Brookside. This is a relevant consideration – see C.K., supra, at para. 18-20; D.H., supra, at para. 23-26. I also agree that the Y.C.J.A. sentencing principles continue to apply to youths who have been transferred to adult jails – see C.K., supra, at para. 24-26.
[40] At this stage, given the progress made by D.F. and the impediments to him receiving meaningful rehabilitative programming while in custody, it is my view that his needs and the public interest in his successful rehabilitation and reintegration both weigh in favour of his release at this stage on conditional supervision. The protection of the public in the long term is best served if D.F. is able to receive the intensive rehabilitative supervision required to allow him to successfully reintegrate into the community. This is best achieved, at this stage, through supervision of his sentence in the community as opposed to having D.F. effectively warehoused in an adult prison.
[41] Accordingly, I order that D.F. be released from custody and placed on conditional supervision pursuant to s. 94(19)(b) of the Y.C.J.A. for a period not exceeding the remainder of his youth sentence. He will be subject to the following mandatory conditions pursuant to s.105(2):
Keep the peace and be of good behaviour;
Appear before the youth justice court when required by the court to do so;
Report to the provincial director immediately on release, and then be under the supervision of the provincial director or a person designated by the youth justice court;
Inform the provincial director immediately on being arrested or questioned by the police;
Report to the police, or any named individual, as directed by the provincial director;
Advise the provincial director of the young person's address of residence on release and after release report immediately to the clerk of the youth justice court or the provincial director any change:
- In that address,
- In the young person's normal occupation, including employment, vocational or educational training and volunteer work,
- In the young person's family or financial situation, and
- That may reasonably be expected to affect the young person's ability to comply with the conditions of the order;
Not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order; and
Comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society.
[42] Counsel have requested an opportunity to be heard on what optional conditions I should impose pursuant to s.105(3) in the event that I released D.F. on conditional supervision. I will give them an opportunity to be heard on this point.
Released: July 20, 2017
Signed: "Justice S. W. Konyer"
Footnotes
[1] Transcript of the Reasons on Sentence delivered on February 20, 2015, page 30, lines 20-26, filed as Exhibit 4 on this review.
[2] I also place no weight on D.F.'s involvement in an incident from 2015 that was raised for the first time on this review. I have reviewed video surveillance from this incident, which shows D.F. responding to an attack by another resident who had a weapon in hand. D.F.'s response, in my view, was proportionate to the circumstances.
[3] Confirming the sentence or releasing D.F. from custody are the only two options available on a review – see s.94(19) of the Y.C.J.A. I cannot order that D.F. be transferred back to a youth facility, no matter how sensible that option appears.