Youth Criminal Justice Act 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Ontario Court of Justice

Date: 2021 07 14

File Numbers: 19 Y 190800 and 19 Y 190548

Between:

HER MAJESTY THE QUEEN

— AND —

K.S., a young person

Before: Justice B. Weagant

Heard on: June 24, 2021

Ruling on Sentencing released on: July 14, 2021

Counsel:

Craig Brannagan and Robert Wright............................................ counsel for the Crown Althea Coke........................................................................... counsel for the young person

Reasons for Ruling

WEAGANT, B., J.:

[1] This is my ruling in the sentencing of K.S., found guilty after trial on February 16, 2021 of three counts of common assault, aggravated assault, assault with a weapon and assisting Jacob A. for the purpose of enabling him to escape. She was acquitted on the most serious charge, second degree murder, and the Crown has asked me to enter a stay on one assault with a weapon, applying the Kienapple principle.

[2] The facts as I found them are set out in the February 16 judgment. R. v. K.S., 2021 ONCJ 396

[3] I am placing K.S. on probation for 3 years, with an invitation to have the probation reviewed on (at least) a yearly basis. Further, her record will reflect that she spent 242 days in secure detention awaiting disposal of the litigation.

[4] I am also making a weapons prohibition for 2 years, as at least one of the findings of guilt is a Criminal Code section 109(a) offence, thus making the prohibition mandatory.

[5] I am also ordering that a DNA sample be taken from K.S.

[6] There are two main issues to be decided on this sentencing. The first issue concerns whether the gateway to custody is open on all charges. The gateway is open on the violent offences under 39(1)(a). However, the accessory after the fact charge is not, strictly speaking, covered by 39(1)(a) as it does not fit the definition of ‘violent offence’. The Crown urges me to find the gateway is opened by operation of 39(1)(d) – that this is an exceptional case wherein the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[7] The second main issue is whether further custody is warranted, given that K.S. was held in secure detention for 8 months, which, if deemed part of the disposition, would be the equivalent of a 12 months custodial and supervision sentence.

[8] In addition to very helpful submissions by counsel, I also had the benefit of a s. 34 psychological report, a cognitive and academic assessment, a presentence report prepared by Ontario’s provincial director and 8 victim impact statements from the family of the deceased victim, F.N. The impact statements are relevant in this case, in spite of the fact that K.S. was acquitted on the charges involving his death. She became accountable to the family of F.N. when she secreted the knife used in his murder in order to help the perpetrator escape detection.

[9] The range of sentences available to me include a community disposition to a possible custodial sentence. The time available to me is 3 years. The circumstances of the offences, as I found them, warrant looking at the entire sentencing capacity available.

[10] There is no question that the gateway to custody is open in this case by virtue of the fact that I made findings of guilt on charges involving violence. Because the gateway is open, and because I am declining to re-incarcerate K.S., there is no need for me to determine whether the accessory after the fact offence here would have fit into the exceptionality afforded by s. 39 (1)(d). The leading case in this regard is the Ontario Court Appeal in R. v. R.E.W., [2006] O.J. No. 265 (C.A.). In that case the young person was found guilty of two counts of being an accessory after the fact to a vicious and gruesome murder, wherein the body was cut up and the body parts packaged and disposed of with the help of the young person. He was not found guilty of any s. 39(1) (a) (b) or (c) offence. Thus, it was necessary to consider whether the circumstances of the offence warranted the use of the exception in 39(1)(d). For several reasons, the Court found that the horrific facts of the case established the clearest of cases for which a custodial disposition is the only reasonable response.

[11] The facts in the case certainly establish objective gravity, given that K.S. was involved in a series of incidents involving a knife, there was no actual provocation by the victims, the venue for the incidents was a busy downtown party, and the injuries sustained were severe and significant. She hid the knife that Jacob used to attack his victims. Prior legal involvement by K.S. is aggravating, in that K.S. was on a s. 810 bond to keep the peace at the time.

[12] Having acknowledged that, I note that Jacob’s behaviour was described by his friend Christian as being very unusual, thus K.S. could not have anticipated the bizarre rampage that ensued. Although her assistance after the fact was not minor, I am not necessarily prepared to declare her actions to be the ‘clearest of cases’. But, as I said above, since the gateway to custody is already open, there is no need to make this legal determination.

[13] The second issue concerns whether the offences for which K.S. was found guilty, should attract further incarceration. The pre-sentence report and section 34 psychological report are central to this decision.

[14] Both reports reveal an offender who is rather unremarkable compared to other young people I see in youth court, including other female offenders.

[15] K.S. was adopted at 9 months, her biological mother suffering from mental health and substance abuse problems. K.’s adoptive parents are educated and stable and there is no history of child welfare involvement. The family has moved around a bit over the years, but it has not faced financial issues.

[16] K. has been largely successful at school, with some identified needs that have been addressed by the schoolboard in an individual education plan. In her early teens she started acting out, not uncommon in adolescents. She has suffered bouts of (self-described) depression, been diagnosed with ADHD and turned to marijuana for entertainment. The major psychological finding in the section 34 report was that she suffers from a generalized anxiety disorder for which she should continue to receive support and services in the areas of mood and anxiety.

[17] The features just mentioned are not all that different from common entry-level adolescent psychological concerns. Given the offences before the court, I might have expected that issues of trauma would have been identified, given the elevated rates of trauma in the juvenile justice population. [1] Dr. Vinik found no past trauma of any clinical concern in her section 34 report.

[18] K.S. does appear to have anger management issues, as reported by Dr. Vinik (section 34) and Michelle Nguyen (PSR), which issues are very likely reflected in the events of October 31, 2019. These tendencies may have been enabled on the evening in question by the fact that K.S. was abusing several substances including, for the first time, Xanax.

[19] While holding K.S. accountable, I must keep my eyes on the legislation’s philosophical prize: the long-term protection of the public. Section 34 reports are invaluable to a court in this regard. The format of assessment, loosely put, is a risk-management analysis. It is called a ‘risk-need responsivity’ model and is used in Canada, the United States, Europe, Australia and New Zealand.

[20] First, a Youth Level of Service/Case Management Inventory is applied. This is a standardized test that has been validated by many studies to accurately predict recidivism in offender populations. Thereafter, criminogenic risks and needs are identified. In a properly resourced system, those risks and needs are matched to services. The justice system then hopes that recidivism rates will drop if needs and services are matched correctly.

[21] In practice, the risk-need responsivity model is potentially more successful in lowering recidivism in male offenders than female offenders, an outcome begging to be researched more deeply. [2] However, in the case of K.S., she was assessed to be at the low risk range for continued behavioural difficulties within the next 12 months, which reflects the number of criminogenic needs that apply to her in the past 12 months. From the community’s point of view, this is good news: she has been assessed as low risk to reoffend before the implementation of a community-based program. Were K.S. at higher risk to reoffend, the programs we match her to may not lower the risk of recidivism, according to the study cited above. Dr. Vinik speculates that K.’s risk for negative behaviours was probably higher at the time leading up to the offences. Thus, K.’s recent history demonstrates she has made significant improvements in some areas (although continued supports and supervision are required).

[22] As I mentioned above, the events of the evening appeared out of character for Jacob A. There is no known history of K.S. befriending ‘bad boys’ (although some among her circle of friends had prior criminal involvement).

[23] K.S. has not reoffended since her release and reportedly has had a stable and healing time with her parents. She has a job – she has become a tax payor.

[24] Although a further period of incarceration is, arguably, within the sentencing range, it is my opinion that re-incarceration would interrupt a positive trajectory, all for the sake of satisfying one principle of sentencing at the expense of others. A proper balancing all of the sentencing principles should inform the ultimate goal: the long-term protection of the public.

[25] I intend to incorporate the suggestions of both Dr. Vinik and the provincial director into the terms of a probation order. At a minimum, I am ordering the following terms:

1. Keep the peace and be of good behaviour.
2. Report today and as required to the Provincial Director.
3. Live in a place approved by the Provincial Director.
4. Attend school or seek and maintain employment.
5. Not to have in your possession any weapon as defined by the Criminal Code, including knives, except for employment or culinary purposes.
6. No contact, directly or indirectly, with: Jacob A. A.D. M.O. M.M. F.K. L.M. X.B.
7. You will attend any therapeutic, educational or vocational program as directed by the Provincial Director and provide proof of attendance if requested.
8. Not to be in possession of, or consume, any illegal recreational drugs.

[26] I invite submissions as to further terms, or whether the terms as outlined are counterproductive or need fine-tuning.

[27] The section 34 report is to be released to the provincial director, who in turn may release it to any resource providing direct service to K.S. Any further dissemination is subject to the privacy provisions of the Youth Criminal Justice Act. The cognitive and academic assessment is also to be released to the provincial director, and K.S. may release it to anyone involved in education planning for her. I note that although this assessment is a youth court record within the meaning of the legislation, it is a separate report that is void of any mention of these proceedings.

Released on July 14, 2021

Justice B. Weagant

References

[1] See: N. Vitopoulos, M. Peterson-Bedali & T. Skilling (2018) The Relationship Between Trauma, Recidivism Risk, and Reoffending in Male and Female Juvenile Offenders. Journal of Child & Adolescent Trauma, 12:351-364

[2] N. Vitopoulos, M. Peterson-Badali, T. Skilling, (2012) The Relationship Between Matching Service to Criminogenic Need and Recidivism in Male and Female Youth, Criminal Justice and Behaviour, Volume 39 No. 8, August 2012, 1025-1041. The authors speculate that the current emphasis on gender-neutral risk factors actually may be gender-specific to males and therefore invite different interventions. I leave it to criminologists and psychologists to properly diagnose this issue through further research.