Court File and Parties

Date: 2024.01.31 Court File No.: St. Catharines YNR19-0601

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 on review of a youth sentence imposed on 29 November, 2021

Counsel: Sophie Reynolds, for the Crown Christopher Raimondo, for the defendant, N.M.

Reasons on Review

[1] Five years ago this past Monday, in the context of an argument, N.M. struck his foster father Tony Paonessa in the head with a baseball bat. Five years ago tomorrow, Mr. Paonessa died of his injuries. As noted in my reasons for sentence imposed on 29 November, 2021 on N.M.’s guilty plea to second-degree murder, the circumstances of Mr. Paonessa’s killing and the circumstances leading up to N.M. committing that awful crime reflected immeasurable tragedy for Mr. Paonessa and for those left behind to deal with his death and his absence, but also for N.M. [2]

[2] N.M. has been in custody since the night he struck Mr. Paonessa with the bat, a combination of pre-sentence custody and of him serving the sentence I imposed on him twenty-six months ago. The sentence I imposed, in addition to N.M.’s thirty-four months in pre-sentence custody, was a seven-year sentence for second degree murder, split into three-and-a-half years in custody and three-and-a-half years of conditional supervision. Seven years is the maximum sentence for a young person convicted of second-degree murder and the maximum permissible custodial portion is four years.

[3] The Youth Criminal Justice Act requires an annual review of sentences longer than a year. It also allows for discretionary or optional sentence reviews more frequently. This is N.M.’s second mandatory review of sentence.

[4] Ms. Reynolds for the Crown says that I should confirm the sentence imposed. Mr. Raimondo says that the record now supports releasing N.M. into the community to serve the balance of his sentence.

[5] My role and authority in this hearing are defined by s. 94(19) of the Youth Criminal Justice Act, which, in the factual context of this case authorizes me to: a. Confirm N.M.’s sentence; or, b. Release N.M. from custody and place him on conditional supervision under s. 105 of the Act.

[6] Section 94(6) of the Act sets out what N.M. must demonstrate to succeed here, namely one of the following: a. That he has made sufficient progress to justify a change in his sentence; b. That there has been a material change in the circumstances that led to the sentence I imposed; c. Because new programmes or services have become available; d. Because N.M.’s rehabilitation is now more probable if he serves the balance of his sentence in the community; e. Any other appropriate consideration.

[7] I have been referred to numerous authorities in relation to how s. 94 is to be approached and numerous examples of instances in which it has been applied to offences similar to N.M.’s offence. I do not propose to refer to many of them chapter and verse, but rather to synthesize the guidance they provide to me as follows.

[8] First, it is accepted that the burden is on N.M. to justify a variation in the sentence on a balance of probabilities.

[9] In addition, I do not take any of the following propositions to be in dispute: a. The assessment is broad and must incorporate society’s and the young person’s needs. (I do not take these to be necessarily in conflict). b. The focus is forward-looking, that is to say, while the principles going into the imposition of the original sentence remain relevant, the present needs of society and the young person, in light of the present realities, are the focus. The present realities in any given case may have changed materially since the sentence was imposed. c. It is taken as a given that, the original sentence not having been appealed or varied, it was appropriate at the time it was imposed. d. The simple passage of time does not justify a variation in the sentence imposed. e. The more serious the sentence, the stronger the offender’s argument for a variation will need to be. N.M.’s offence falls at the top of the scale.

[10] I have concluded that N.M. has not yet demonstrated that a variation of his sentence under s. 94 of the Youth Criminal Justice Act is justified. However, I am of the view that it would be unfair to defer reconsideration of his status until the next annual review, which would be approximately a year from now. Accordingly, at the end of these reasons we shall discuss dates for an optional review to be heard in June of this year.

[11] Unsurprisingly, the focus of the Crown and N.M.’s focus in argument are very different. For example, the Crown focuses on N.M.’s various institutional incidents both before and after his sentencing. Mr. Raimondo fairly points out that the most recent such misconduct was in October, 2022, while N.M. was still at the Niagara Detention Centre, before his transfer to the Central North Correctional Centre. It bears noting that the most serious of these alleged misconducts is an incident in which the Crown stayed the charge against N.M. The scant details provided about what caused the injury to N.M.’s cellmate in that incident tell me nothing reliable about whether or not N.M. was at fault there. There are no witnesses other than the “victim”, who said he fell (which may or may not be true) and various potential explanations, none of which is inherently more probable than any other, in which case that most serious alleged misconduct becomes irrelevant. [3]

[12] The materiality of N.M.’s now fading institutional misconduct history is also complicated by how the custodial authorities dealt with him after he was sentenced. For almost his entire first year in custody post-sentence, N.M. was placed in maximum security at Niagara Detention Centre, an institution with very limited rehabilitative programmes. Other than the fact that N.M.’s offence was one of the most serious offences in law, his placement in such an environment as an aged-out young offender is incomprehensible. Having come out of pre-trial youth custody with a significant range of supports available to him, his warehousing as an aged-out young offender among adult prisoners who have been classified as requiring the highest level of supervision seems palpably dystopian. Even a scan of the reasons for sentence setting out N.M.’s history should have made that clear. For him then to have been left in that detention centre with limited programming available for almost a year makes this even more disturbing. It has been patently clear throughout that N.M. is deeply invested in getting to the roots of his circumstances and to pursuing a better path forward. His placement at Niagara Detention Centre and his placement in maximum security there cannot have been conducive to that progress. [4] That placement was contrary to both his and society’s interests.

[13] I note that N.M.’s application for a treatment placement was frustrated at Niagara Detention Centre because he lacked a diagnosis. Somehow, however, within twelve days of his placement at the Central North Correctional Centre, he obtained a psychiatric diagnosis, albeit that facility does not itself provide intensive treatment. This sounds like two steps forward, one step back, unfortunately, but it is progress of a sort.

[14] Shockingly, the incomprehensible disconnect between how young offenders are treated while within the young offender system and how they are treated when they age out into the adult system is nothing new. The fact that this is nothing new, however, does not make it any less scandalous. To the contrary, it makes it all the more troubling. Insofar as the correctional system should be heavily focused on reducing prisoners’ future risk of re-offending, chucking young offenders off a cliff when they age out of youth facilities and depriving them of comparable programming (or even any significant programming) simply because the calendar has clicked over appears to be a significant failing on the part of the provincial government. It simply cannot be reconciled with the reasoning and science and focus that have gone into the Youth Criminal Justice Act, which clearly establishes the need for dramatically differential treatment of young offenders. Placing an aged out young offender in maximum security in a detention centre for a year also appears patently sub-optimal in terms of optimizing outcomes. I do not have absolute insight into precisely why these things have happened or been allowed to happen, but accountability for them necessarily falls at the highest levels of the ministry.

[15] I have mentioned that these are not new concerns. More than fifteen years ago, in R. v. C.K., 2008 ONCJ 236, [2008] O.J. No. 1951, Duncan J. of the Ontario Court of Justice made the following observations (bolding mine):

[20] Ms Gallow acknowledges that notwithstanding the position that the YCJA applies and that a transferred youth is serving a “youth sentence”, in practice a youth serving a youth sentence in an adult facility is treated exactly the same as an adult. If this practice is correct, then it is apparent that transfer to an adult facility has far more significance than a mere housing placement. It effectively marks the end of the defendant being treated as a youth, including the abandonment of rehabilitative and correctional principles and objectives as applied to youth. If it is not correct, then the adult corrections system had better immediately recognize that fact and regulations must be passed [4] and practices developed that provide for this special class of offender.

[21] There are arguments that go both ways. On the one hand it could be reasonably said that it is implicit in the transfer to an adult facility that the offender should no longer be treated as a youth. Arguably, it is a simple matter of the offender aging out of the warm embrace of the youth system and leaving all that that entails behind. It would be unreasonable to expect the adult system to continue to attempt to accommodate such inmates and effectively provide for a mini system within a system to serve that purpose. On the other hand, the whole thrust of the youth criminal justice system is to provide for a different penal response for youth, based on the offender’s age at the time of commission of the offence. Subsequent aging does nothing to disqualify the offender from being treated as a youth in the imposition of sentence nor, logically, should it have any bearing on the way the sentence is administered. It makes little sense to determine a sentence in accordance with youth criminal justice principles and then immediately disregard them in carrying out the sentence.

[16] The same concern arose in the case of R. v. D.F., 2017 ONCJ 495, a decision of Konyer J. of this court. When one reads paragraphs 26-31 of D.F. and Justice Duncan’s comments in C.K. and the details of N.M.’s situation, it all comes across as some sort of correctional services version of Groundhog Day. It simply makes no sense at all in light of the principles and objectives of the Youth Criminal Justice Act and flies in the face of the idea of young persons being of reduced moral blameworthiness and in need of differential treatment than adults. If the provincial government is committed to keeping society safe, its enduring inattention to providing appropriate supports for offenders who age out of the youth system and into the adult system is a most peculiar way of demonstrating it. The rehabilitation of offenders is the surest and most enduring protection of the public and the sooner in a person’s life that it is done the better, ideally during an offender’s first involvements with the criminal justice system.

[17] Coming back to N.M. specifically, I accept the Crown’s position that he had a significant number of misconduct incidents both pre-trial and while in Niagara Detention Centre, but as I have noted, there is now a substantial gap. Having finally been moved out of Niagara Detention Centre, he now has a diagnosis, monthly access to a psychiatrist and a stable institutional record. While he was excluded from working in the kitchen so long as the allegation of assaulting his cellmate at Niagara Detention Centre was outstanding, he now has a placement in the kitchen at Central East Detention Centre. Remarkably, despite the system’s failures to respond to his needs as an aged out young offender, N.M. remains positive and has plans for his future. This has been a constant during my involvement with N.M. For N.M. to have maintained that attitude despite having largely been cast adrift by the correctional authorities is all the more remarkable, although I am sure he finds his limited access to resources to be extremely frustrating.

[18] I have said earlier that, in light of all the factors I have to consider, including accountability for a very serious crime, I do not believe N.M. has quite reached the point required for him to succeed in an application under s. 94 of the Youth Criminal Justice Act, which means that, for now, the sentence is confirmed. However, I do think that the pattern N.M. has established despite the constraints placed upon him by his placement in maximum security and at Niagara Detention Centre is impressive, as is the continued positivity he has demonstrated from the time of his sentencing. It bodes well for the future. I propose to schedule an optional sentence review for June, 2024 because, while I have concluded that N.M. has not reached the end, there is a very real chance that he is at or near the beginning of the end and there is a very real chance that he will have a sufficient argument for a successful review before the next mandatory review at the end of the year.

[19] I note that N.M. has recently been brought back to the Niagara Detention Centre in anticipation of his in-person attendance here today. It would be an understatement to suggest that it would be regrettable if he were to be kept at Niagara Detention Centre pending his next review. That would be a major step backward. He has maintained stability at Central North Correctional Centre so a placement there or in a treatment centre in the coming period would seem to be the rational choices if society hopes to achieve the optimal outcome.

Released: 31 January, 2024

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] Without diminishing N.M.’s qualified responsibility as a young person for killing Mr. Paonessa, what happened could likely have been avoided if society had done a better job of caring for its most vulnerable members. The history of N.M.’s family background and care by child welfare services is set out in my reasons for sentence.

[3] I also note that this alleged serious misconduct was so serious that charges were not laid against N.M. until more than nine months after the alleged assault, in a context where the alleged victim and the alleged offender were immediately accessible to the police at all times.

[4] While this necessarily involves some element of speculation, the stark contrast between N.M.’s misconduct history at Niagara Detention Centre and his clean record at Central East Correctional Centre does beg the question of whether N.M.’s misconduct record post-sentence would even have existed had he not been placed among the most serious offenders for almost a year. Whatever other institutional policies may have played a role in his placement, keeping him at Niagara Detention Centre and placing him in maximum security cannot have served society’s long-term interests at all.