Court File and Parties

COURT FILE No.: St. Catharines YNR19-0601 DATE: 2024.06.26 ONTARIO COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN — AND — N.M. [1] (A Young Person Within the Meaning of the Youth Criminal Justice Act)

Before: Justice Fergus ODonnell

Reasons for disposition on a youth sentence review

Counsel: Michal Sokolski, for the Crown Christopher Raimondo, for the defendant, N.M.

Fergus ODonnell J.:

[1] On 29 January, 2019 N.M. got in an argument with his foster-father, Tony Paonessa, with whom he had been living for about four years. As I set out in my reasons for sentence in 2021, the relationship between the boy and the man had been fraught for some time. The police had been to the house on one prior occasion. Family and children’s services characterized the problem as an alpha male conflict.

[2] To the extent that an immediate cause for the conflict could be identified, it was trivial—was it because N.M. didn’t wear a shirt around the house or because he wanted to eat dinner in his room rather than with the family at the dining table, neither a matter of life or death, except that whatever it was about soon became a matter of life or death. The actual “reason” for the dispute tragically evaporates into irrelevance because the end result of the conflict that night was that N.M. got a baseball bat and hit Mr. Paonessa in the back of the head, killing him. N.M. was charged with murder.

[3] N.M. was seventeen and so was charged under the Youth Criminal Justice Act, rather than as an adult. Like most countries, Canada treats young people who commit offences differently than it treats adults, although when it comes to murder charges the Crown can seek to proceed against the defendant as an adult, albeit still with different sentencing outcomes than if he actually were an adult offender. There are compelling reasons for this differential treatment, which may be difficult for a victim’s family to understand or to accept.

[4] N.M. eventually pleaded guilty to second degree murder before one of my colleagues, who was ultimately unable to complete the case, whereupon it came before me. The Crown asked me to sentence N.M. as an adult. The defence asked that I sentence him as a young person. I chose a middle path, one which is recognized as an option in serious cases like this in order to optimize the likelihood of achieving the Youth Criminal Justice Act’s objectives while recognizing the seriousness of the crime: I imposed the maximum youth sentence but did not allow N.M. credit towards that sentence for the thirty-four actual months he had spent in youth custody before being sentenced. I imposed that sentence on 29 November, 2021, a bit more than two-and-a-half years ago. The seven-year sentence required N.M. to serve three-and-a-half years in custody and three-and-a-half years under community supervision.

[5] The Youth Criminal Justice Act mandates annual reviews of a sentence imposed in N.M.’s circumstances and permits optional reviews also. N.M. has already had two annual reviews, in each of which I declined to modify his sentence. This is the third such hearing. [2] He seeks to have the balance of his custodial term converted to community supervision; the Crown says the original sentence should not be modified at all. The burden is on N.M.. The more serious the offence, the greater will be the challenge on the applicant. N.M.’s offence was one of the most serious in the Criminal Code.

[6] In an application of this nature, we start with the assumption that the sentence I originally imposed on N.M. was fit. This is not an appeal of that sentence or a review of its correctness at the time it was imposed. It is instead a determination of what would be most fitting in light of the young person’s needs and society’s interests. While the outcome in any case might hinge on a conflict between those two criteria, it would be a serious error to assume that those two criteria necessarily conflict. The sentencing provisions of the Criminal Code and Canadian sentencing philosophy have long placed a heavy emphasis on the importance of rehabilitation as a criminal law principle since almost every offender, even one convicted of murder, will re-enter society at some point so it is in society’s interests that rehabilitation never be forgotten. Society’s long-term safety is particularly important in relation to a young offender, who will, by virtue of his youth, spend a longer time back in society than would a substantially older offender.

[7] At the same time, public confidence in the administration of justice must be maintained. It should go without saying that when applying that consideration, one starts with the assumption that the public whose opinion must be measured is a public that is fully aware of all of the details of the case including its background and its complexities. This tragic case is full of complexities and of missed opportunities that paint it in a very different colour than a mere scan of its headline details would allow. Those details are set out in my reasons for sentence: R. v. N.M., 2021 ONCJ 617.

[8] I have noted that N.M. was in custody for about thirty-four actual months between the night he killed Mr. Paonessa and the day I sentenced him. That time was spent in youth custodial facilities, where N.M. was in custody with age-appropriate fellow detainees and had access to a comprehensive range of educational and counselling options. The day that I sentenced him, N.M. was placed in an adult detention centre, the Niagara Detention Centre (“NDC”), where he spent almost a year. Whatever may be the genuine efforts of many of NDC’s staff, it is not a facility that is well-endowed with rehabilitative programming. On an earlier review, I described this overnight change in N.M.’s circumstances as the provincial government chucking him off a cliff. That is particularly so when one considers that he was not only taken from a youth facility with robust programming to an adult facility with almost none, he was also placed in maximum security at NDC, which a review only of the name of his offence would justify but even a rudimentary review of the background would easily demonstrate to be folly, a folly that is contrary to society’s own interests. As I observed in earlier reasons (R. v. N.M., 2024 ONCJ 58), I am, sadly, not the first judge to have commented harshly about the provincial government’s severe shortcomings in handling the transition of young offenders from their youth status to adulthood. Based on history to date, I very much doubt that I shall be the last to have reason to be critical.

[9] After about eleven months, N.M. was finally transferred out to Central North Correctional Centre, where he got access to programming and, equally important, a diagnosis, in his case of Attention Deficit Hyperactive Disorder, Anti-Social Personality Disorder and Borderline Personality Disorder. In a “penny-wise, pound foolish” scenario on the part of the provincial government, the denial of a diagnosis for the eleven months N.M. was at NDC effectively precluded him from being admitted to a treatment setting, that being precisely what he needed in order to reduce his danger to society, which is precisely what governments are supposed to prioritize. N.M. has limited access to a psychiatrist while in custody at Central North. [3]

[10] The most recent progress report filed with the court is extremely favourable, setting out N.M.’s diagnosis, his interaction with his officer, his work ethic and his plan for the future if released. That plan is comprehensive, covering places of residence, a secured offer of employment and a substantial network of family and personal supports overlain on top of professional or governmental supports in the form of counselling in the community. N.M. has a very strong personal support network, one that was manifested by the attendance of over a dozen people at his review hearing.

[11] The Crown raised concern over N.M.’s history of misconducts while in custody. The existence of that history is beyond question. Some of that was evident at the time I imposed sentence on N.M., as he had some history of institutional misconducts while he was in pre-trial custody in a youth institution. To be frank, the existence of institutional discipline issues among a group of teenage detainees is hardly surprising; indeed, some of the incidents are the sort of things any parent raising teenagers would encounter. Given the near three years that he spent in pre-sentence custody, I would characterize the number and seriousness of the youth facility misconducts here as quite modest, nothing of any enduring concern.

[12] The second tranche of misconducts was while N.M. was in custody at the Niagara Detention Centre. There were many of them. I have made my opinion of the absurdity of that placement clear earlier. That placement was, quite simply, a recipe for failure on the part of the government, keeping in mind that it is the government and not individual institutions or individual personnel who determine resource allocations and overall ministry policies, both of which clearly worked to the detriment of N.M.’s rehabilitation. Anyone with the slightest familiarity with corrections would question the wisdom of moving a high-needs youthful offender from a youth correctional facility to the maximum security wing of a facility with very limited programming options, where he would be immersed among the worst of the worst of the NDC’s offenders, typically much older and with much longer criminal histories, or, in the words of the first progress report, “considerable negative peer influences”. [4] This was a setting where N.M.’s assertion to the report writer that he felt “ “obligated” to participate in the group’s mentality and actions,” carries a ring of truth. His involvement in misconducts in that setting was about as predictable as the sun rising in the east. I note that despite his history of misconducts at NDC, his relationship with staff was almost always respectful and constructive.

[13] The third tranche of misconducts involves N.M.’s time at Central North. There were none. Zero. For anyone who has spent time in N.M.’s presence, that is not particularly surprising. The absence of institutional misconducts is demonstrated in the most recent progress report, along with a remarkable work ethic on N.M.’s part.

[14] It is relatively uncommon for a judge to have an ongoing interaction with an offender. This review process in the case of long youth sentences is atypical of criminal cases generally, but is an important feature of the law relating to young offenders. In this particular case, I have not only dealt with N.M.’s murder case over the years since I inherited it from a colleague; I happened to be the judge who dealt with N.M.’s only previous involvement with the criminal justice system, a schoolyard assault some years before this offence.

[15] In the time I have observed and dealt with N.M., certain things have been very consistent. In general terms, he has always come across as well-spoken, introspective and reasonable. This has come across very clearly both when N.M. has addressed the court directly and in a very detailed letter he wrote in the autumn of 2022. In more specific terms:

a. First, he has never sought to diminish the awfulness of his killing of Mr. Paonessa or the impact of his crime on Mr. Paonessa’s family, friends and community. b. Second, he has never sought to diminish his personal responsibility for that crime; indeed, he has spoken about reflecting on it daily, which I do not consider to be window-dressing on his part. While I have seen traces of frustration on his part over some of the institutional challenges he has faced, none of that has involved self-pity. To be clear, the institutional shortcomings that frustrate N.M. appall me as a judge. c. Third, N.M. has consistently sought to engage with assessment, counselling and treatment and to seek out an understanding about his own issues and challenges. d. Fourth, N.M. has achieved a very high level of personal insight, one that I would say is not only well above the insight of most offenders, but also well beyond the degree of personal insight of most non-offenders. e. Fifth, N.M.’s perspicacity and degree and duration of mission-focus on rehabilitation sets him well apart from the average offender. f. Sixth, I do not take N.M. to sugar-coat or underestimate the challenges ahead of him in re-integrating into society. To put it bluntly, as he approaches his twenty-third birthday, to date N.M. has spent very close to a quarter of his entire life in custody, a period when people his age have been progressing through key stages of their personal and social development. I think he has a very realistic lens on the nature and scope of his challenges. g. However, seventh, despite the climb ahead of him, N.M. strikes me as being uniquely likely to reintegrate himself successfully and to re-enter society as a positive, constructive and contributing member of the community for many decades to come. It would be unrealistic to expect his progress to be perfectly linear or entirely bump-free, but the record before me suggests that it will be consistent and sustained.

[16] The rehabilitative plan put forward on N.M.’s part is robust. It provides structure in the form of a residential plan involving his family and his girlfriend and her family, as well as a landing spot in a pre-arranged job with his brother, both of which will provide a degree of stability not available to many offenders. The programming available to him from government sources to help him continue to address his underlying history and diagnoses will be greatly supplemented by the broad family support that awaits his release.

[17] It is common for judges dealing with homicides to say that the sentence they are imposing in no way reflects the value of the deceased’s life, in this case that of Mr. Paonessa, whose life was lived larger than most and whose loss was a huge blow to his community. We do not say such things as a balm, but because it is true. The role of the judge can never be to make things whole because we have no magic wand. Our role is to impose a sentence that reflects all of the principles that Parliament, as the representative of Canadian values, says should make up a fit sentence. The decision I make today is again no statement about the value of Mr. Paonessa’s life or the severity of N.M.’s crime. No reasonable person could question either of those things. The specific role here, in this specific procedure under the Youth Criminal Justice Act, is to determine whether N.M. has demonstrated to the appropriate standard that the better path forward for society and for N.M. is to move him into conditional supervision about eleven months earlier than the date originally fixed, while leaving the total sentence duration unchanged.

[18] On the record before me, I am satisfied that N.M. has met the high standard required to succeed on his application. No valid public or social objective would be advanced by keeping him in custody any longer. There is, in my opinion, a very high likelihood [5] that society’s immediate and long-term interests would be far better accomplished by placing him under conditional supervision now, where he will be far better placed to continue with his rehabilitation and his reintegration into society.

[19] Accordingly, I grant N.M.’s application.

[20] It would be ignoble of me to leave these reasons without making the following comment. I have found the progress reports filed for each of N.M.’s applications to be very balanced and extremely helpful and I thank Ms. Irving for her assistance, insight and professionalism throughout.

[21] I shall hear from counsel about what optional conditions should be included in N.M.’s conditional supervision order.

Fergus ODonnell J.

Footnotes:

[1] Under s. 110 of the Youth Criminal Justice Act it is a serious criminal offence, punishable by up to two years’ imprisonment, for anyone to publish the identity of a young person charged with an offence or to publish any information that could lead to disclosure of the young person’s identity.

[2] I ordered an optional review after N.M.’s second annual review.

[3] N.M.’s placement at Central North Correctional Centre was undoubtedly an improvement from his placement in maximum security at NDC, but it still fell far short of the type of placement his circumstances and his status as a young offender and the interests of public safety inescapably called for. Anyone paying attention would realize that N.M. was an offender who would lap up rehabilitative programming and treatment as a kitten laps up warm milk.

[4] On an earlier sentence review N.M. wrote a long letter about his experience at NDC and how his productive time at a youth facility before sentencing contrasted with the hugely counter-productive environment he was placed in at NDC. It is an impressive document and not only since it demonstrates a twenty-year-old prisoner with more insight into corrections than anyone involved in N.M.’s placement and categorization. It should be mandatory reading for anyone at the mid- and upper-levels of the corrections side of the Ministry of the Solicitor General. and it should be mandatory reading for any minister taking over that portfolio.

[5] Much higher than fifty percent, close to certainty.