R. v. M. (J.J.), [1993] 2 S.C.R. 421

J.J.M. Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. M. (J.J.)

File No.: 22790.

Judgment rendered orally: 1993: February 5.

Reasons for judgment rendered: 1993: May 19.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier, Cory, Iacobucci and Major JJ.

on appeal from the court of appeal for manitoba

Criminal law ‑‑ Young offenders ‑‑ Sentencing ‑‑ Principles stated in Act including requirement that dispositions both protect society and be in best interests of offender ‑‑ Act providing for annual review of sentence ‑‑ Youth with prior record, uncompleted "community service" probation, a poor family situation and yet good school reports when removed from his siblings sentenced to 2 years' open custody ‑‑ Whether consideration might be given to annual review in crafting disposition ‑‑ Whether or not sentence appropriate in the circumstances ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 3(1), (2), 20, 23(2)(f), 24(1), 24.1(1), 28(1), (3).

Appellant was convicted of three counts of break, enter and theft and one count of breach of probation. He had already acquired a significant record and was subject to a probation order requiring him to undertake community service. Very little of it had been completed at the time of appellant's arrest because of appellant's being uncooperative.

Appellant's home life was depressing. His parents were prone to alcohol abuse and incidents of violence occurred, not only between the parents themselves but also by the parents against the children. On some of these occasions, appellant tried to stop the fighting. Eight of the nine children in the family had been, or were at the time of sentencing, subject to probation orders and three of the five younger children still living at home were in custody at the Manitoba Youth Centre. Appellant was a good student but became rebellious when his siblings were released from custody and returned to school. On several occasions he and his siblings were placed in foster homes but were returned to their parents when they proved to be uncontrollable.

The trial judge took careful note of the prior record and the depressing family history and ordered appellant be placed in open custody for two years. The disposition was found on appeal to be fit and proper, although the dissent, concerned that it was an attempt to provide appellant with welfare assistance rather than assessing the appropriate sentence, would have reduced the period of open custody to one year. This appeal deals with the sentencing of young offenders.

Held: The appeal should be dismissed.

The Young Offenders Act is part of a spectrum of legislation running from those statutes providing welfare care for children through to the strict sentencing provisions of the Criminal Code. Section 3 sets out a number of principles. This section is not merely a preamble but is to be given the force normally attributed to substantive provisions. The references in s. 3(1) to responsibility and to the protection of society suggest that a traditional criminal law approach should be taken into account in the sentencing of young offenders. Yet dispositions must be imposed on young offenders differently because the needs and requirements of the young are distinct from those of adults.

Section 24(1) requires judges to consider the protection of society, the seriousness of the offence and the needs and circumstances of the young person before imposing a custodial term. The judge can also decide, where custody is required, whether it should be open or closed. Open custody facilities have been defined and, although they will restrict the liberty of the young offender, they do not and should not resemble penitentiaries. These facilities must be dedicated to the long term welfare and reformation of the young offender.

Proportionality has greater significance in the sentencing of adults than the sentencing of young offenders. For the young, a proper disposition must take into account not only the seriousness of the crime but also all the other relevant factors.

The home situation should always be taken into account because it is relevant in complying with the Act's requirement that an assessment must be made of the special needs and requirements for guidance of the young offender. The home situation, however, should not be made the predominant factor in sentencing.

The principle of general deterrence must be considered but has diminished importance in determining the appropriate disposition in the case of a youthful offender as opposed to that of an adult. Sections 3, 20 and 24 all indicate that general deterrence must be taken into account. Dispositions can have an effective deterrent effect. Since crimes committed by the young tend to be a group activity, the disposition imposed on an individual member of the group should be such that it will deter other members of the group. General deterrence should not be unduly emphasized.

The annual review procedure provided in s. 28 is an integral part of the disposition and is one factor ‑‑ and not a major one ‑‑ to be considered in determining the appropriate disposition. The annual review of disposition provides an incentive to young offenders to perform well and to improve their behaviour significantly as quickly as possible. As well, it gives the court an opportunity 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.

The disposition of two years in open custody was appropriate here in light of the offences committed and the needs and requirements of the young offender.

Cases Cited

Approved: R. v. O. (1986), 1986 4759 (ON CA), 27 C.C.C. (3d) 376; R. v. L.(S.) (1990), 1990 3289 (QC CA), 75 C.R. (3d) 94; disapproved: R. v. G.K. (1986), 1986 ABCA 217, 31 C.C.C. (3d) 81; R. v. C.W.W. (1986), 1986 ABCA 47, 25 C.C.C. (3d) 355; R. v. R.C.S. (1986), 1986 4693 (NB CA), 27 C.C.C. (3d) 239; R. v. S. (H.S.), Nfld. C.A., June 2, 1990, unreported; referred to: R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749; Re D.B. and the Queen (1986), 1986 117 (NS SC), 27 C.C.C. (3d) 468; Re L.H.F. and the Queen (1985), 1985 176 (PE SCAD), 24 C.C.C. (3d) 152; R. v. R.I. (1985), 1985 3604 (ON CA), 17 C.C.C. (3d) 523.

Statutes and Regulations Cited

Juvenile Delinquents Act, R.S.C. 1970, c. J‑3.

Young Offenders Act, R.S.C., 1985, c. Y‑1, s. 3(1), (2), 20, 23(2)(f), 24(1) [am. by R.S.C., 1985 (2nd Supp.), c. 24, s. 17], 24.1(1) [ad. by idem], 28(1), (3).

Authors Cited

Beaulieu, Lucien A. " From Challenges and Choices' to A Climate for Change'", in Y.O.A. Dispositions: Challenges and Choices, a report of the Conference on the Young Offenders Act in Ontario. Presented by the Ontario Social Development Council. Toronto: Ontario Social Development Council, 1988.

Cusson, Maurice. Why delinquency? Translated by Dorothy R. Crelinsten. Toronto: University of Toronto Press, 1983.

Zimring, Franklin E. "Kids, Groups and Crime: Some Implications of a Well-known Secret" (1981), 72 J. Crim. L. & Criminology 867.

APPEAL from a judgment of the Manitoba Court of Appeal (1991), 1991 11959 (MB CA), 75 Man. R. (2d) 296, 6 W.A.C. 296, dismissing an appeal from sentence imposed by Gyles Prov. Ct. J. Appeal dismissed.

Michael O. Walker, for the appellant.

Don Slough, for the respondent.

Cory J.

The judgment of the Court was delivered by

Cory J. -- Neither great constitutional questions nor vexing Charter problems are raised on this appeal. Yet since it deals with the sentencing of young offenders it is concerned with a subject of some importance that may affect the safety and future of our society.

Factual Background

On January 18, 1991 J.J.M. and another young offender broke into premises occupied by a local radio station. An expensive camera and six audio cassettes were stolen together with $120 cash. On January 28, they broke into an office and stole some $1,200 to $1,700 from an office cabinet. On April 26, J.J.M. and his co-accused broke into premises, which they severely damaged, and stole a camera and $324.

On June 17, 1991 J.J.M. was convicted of three counts of break, enter and theft and one count of breach of probation. Prior to that date he had already acquired a significant record. He had been found guilty of three counts of break, enter and theft between February and April 1990, and two separate counts of taking an automobile without consent in the months of January and February of that same year. He was, as well, subject to a probation order when the offences were committed in 1991. The probation order required him to undertake community service. However he had not cooperated with the authorities and had completed very little of it at the time of arrest.

J.J.M. is one of nine children. The family history is depressing. The parents appear to be prone to alcohol abuse. What is worse, there are reported incidents of violence not only between the parents themselves but also of violence by the parents directed against the children. On some of these occasions, J.J.M. attempted to stop the fighting. Of the nine children, no less than eight of them had been, or were at the time of sentencing, subject to probation orders. Indeed at the time J.J.M. was sentenced, one of his sisters was sentenced in connection with an unrelated offence. Of the five younger children, still living at home, three were in custody at the Manitoba Youth Centre.

His school principal observed that the appellant was a good student until his siblings were released from custody and returned to school. As soon as that happened, he became rebellious. On several occasions J.J.M. and his siblings had been apprehended by the Awasis Agency and placed in foster homes. However, they were returned to their parents when they proved to be uncontrollable.

Courts Below

At the trial, Gyles Prov. Ct. J. took careful note of the prior record and the depressing family history and ordered the appellant be placed in open custody for two years.

In the Court of Appeal (1991), 1991 11959 (MB CA), 75 Man. R. (2d) 296, Huband J.A., with Lyon J.A. concurring, found the disposition to be a fit and proper one. He found that it was appropriate for the trial judge to take into account the mandatory judicial review of the sentence after a year. Helper J.A. in dissent would have reduced the period of open custody to one year. She expressed the concern that in reality the disposition attempted to provide welfare assistance for the appellant rather than assessing the appropriate sentence.

Analysis

General Approach to Young Offenders Dispositions

The approach the court should take when sentencing young offenders, is to be ascertained from s. 3 of the Young Offenders Act, R.S.C., 1985, c. Y-1. That section is entitled "Declaration of Principle" and sets out a declaration of principle in subs. (1).

A quick reading of that section indicates that there is a marked ambivalence in its approach to the sentencing of young offenders. Yet that ambivalence should not be surprising when it is remembered that the Act reflects a courageous attempt to balance concepts and interests that are frequently conflicting.

Society must be concerned with the illegal acts of young people. The wanton destruction of the contents of a home by young offenders is just as keenly felt by the victims as would be a ransacking by adult burglars. "Swarmings" by young gangs, where the victims are surrounded and their clothing or money torn from them, are a serious cause for concern since they can be the forerunner of even more violent mob action by the same offenders as adults.

Yet there must be some flexibility in the dispositions imposed on young offenders. It is not unreasonable to expect that in many cases carefully crafted dispositions will result in the reform and rehabilitation of the young person. That must be the ultimate aim of all dispositions. They may often achieve this goal if the disposition is carefully tailored to meet both the need to protect society and to reform the offender. Let us consider once again the provisions of s. 3(1). It provides:

3. (1) It is hereby recognized and declared that

(a) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;

(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;

(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;

(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;

(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;

(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;

(g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and

(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate.

(2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).

This court has recognized the importance of this statement of principle. In R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749, L'Heureux-Dubé J. writing for the Court noted that the section should not be considered as merely a preamble. Rather it should be given the force normally attributed to substantive provisions.

Section 3(1) attempts to balance the need to make the young offenders responsible for their crimes while recognizing their vulnerability and special needs. It seeks to chart a course that avoids both the harshness of a pure criminal law approach applied to minors and the paternalistic welfare approach that was emphasized in the old Juvenile Delinquents Act, R.S.C. 1970, c. J-3. Society must be protected from the violent and criminal acts committed by the young just as much as from those committed by adults. The references to responsibility contained in s. 3(1)(a) and to the protection of society in paras. (b), (d) and (f) suggest that a traditional criminal law approach should be taken into account in the sentencing of young offenders. Yet we must approach dispositions imposed on young offenders differently because the needs and requirements of the young are distinct from those of adults.

For instance, the declaration in s. 3(1)(a) and (c) notes that young offenders cannot be held accountable in the same way as adult criminals because of their dependency on others and their obvious lack of maturity. There are other elements in the declaration which suggest that there should be a departure from the strict criminal justice model in imposing penalties on young offenders. Section 3(1)(d) for example, suggests that in some circumstances, no judicial measure should be taken against the child. Paragraph (f) confirms the offender's right to the least possible interference with his or her liberty. As well, s. 3(1)(h) establishes that young people coming within the provisions of the Act are, wherever possible, to remain under parental supervision. Further, while the wardship provisions that were set out in the Juvenile Delinquents Act have been abolished, it is significant that s. 23(2)(f) of the Young Offenders Act provides for probation orders which will contain residence requirements. These probation orders may be used by correctional authorities to place children with provincial welfare agencies.

Thus the Act does specifically recognize that young offenders have special needs and require careful guidance. Each disposition should strive to recognize and balance the interests of society and young offenders. The very fact that these are young offenders indicates that they may become long term adult offenders unless they can be reformed to become useful and productive members of society. Thus the disposition imposed on a young offender must seek to have a beneficial and significant effect on both the offender and the community.

Senior Judge Beaulieu (as he then was), in " From Challenges and Choices' to A Climate for Change'", Y.O.A. Dispositions: Challenges and Choices (1988), aptly described the Act's approach to sentencing at p. 4:

The Y.O.A. does not do away with looking at who the offender is; it specifically directs the judge to do so, but the youth's needs must be seen in the context of his accountability and the protection of society.

The Y.O.A. too, contains some "blend" of criminal law and protection philosophies. However, here the scales are weighted, at least at the pre-adjudicative and adjudicative stage, toward the criminal law process. The paternalistic character of the J.D.A. is replaced by the concept of accountability of the individual, coupled with the need to ensure that individual rights are protected by proper procedure.

The Y.O.A. attempts to balance the protection of society and the young offender's needs. It attempts to balance the due process and treatment approaches. [Italics in original.]

I agree with the academic writers who have observed that the Act should be seen as part of a spectrum of legislation that runs from those statutes that provide welfare care for children at one end to the strict sentencing provisions of the Criminal Code.

Factors To Be Considered When Imposing Custodial Sentences

Section 24(1) of the Act requires judges to consider three elements before imposing a custodial term:

(1) the protection of society;

(2) the seriousness of the offence;

(3) the needs and circumstances of the young person.

The Act empowers the judge, in those situations where it is decided that custody is required, to determine whether it should be open or closed. Section 24.1(1) defines "open custody" as "a community residential centre, group home, child care institution, or forest or wilderness camp" or other similar facilities. Certainly, places which come within the definition of "open custody" will restrict the liberty of the young offender. Yet those facilities are not simply to be jails for young people. Rather they are facilities dedicated to the long term welfare and reformation of the young offender. Open custody facilities do not and should not resemble penitentiaries. Indeed the courts have very properly resisted attempts to define as open those facilities which provide nothing but secure confinement. See for example Re D.B. and the Queen (1986), 1986 117 (NS SC), 27 C.C.C. (3d) 468 (N.S.S.C.T.D.), and Re L.H.F. and the Queen (1985), 1985 176 (PE SCAD), 24 C.C.C. (3d) 152 (P.E.I.S.C.).

The Young Offenders Act thus provides the sentencing judge with a wide latitude as to how the disposition is to be served so as to better deal with the difficult and complex problems presented by young offenders.

With that background, it may now be appropriate to consider the specific objections that were raised by the appellant to the custodial disposition imposed on J.J.M.

Child Welfare Concerns and the Proportionality Principle

The appellant contended that the trial judge erred in imposing a lengthy disposition that could only be justified as proportional on welfare grounds. It was his submission that the dreadful conditions existing in the appellant's home should not have been a factor in assessing the length of the term of open custody. It was said that this disposition was a throw back to a type of sentence which would have been imposed under the paternalistic scheme of the Juvenile Delinquents Act. The appellant argued that pursuant to the provisions of the Young Offenders Act the disposition had to be proportional to the offence committed.

It is true that for both adults and minors the sentence must be proportional to the offence committed. But in the sentencing of adult offenders, the principle of proportionality will have a greater significance than it will in the disposition of young offenders. For the young, a proper disposition must take into account not only the seriousness of the crime but also all the other relevant factors.

For example, two years of closed custody could never be imposed on a young offender with no prior record who had stolen a pair of gloves, no matter how intolerable or how unsavoury the conditions were in the offender's home. Nonetheless the home situation is a factor that should always be taken into account in fashioning the appropriate disposition. It is relevant in complying with the Act's requirement that an assessment must be made of the special needs and requirements for guidance of the young offender. Intolerable conditions in the home indicate both a special need for care and the absence of any guidance within the home.

The situation in the home of a young offender should neither be ignored nor made the predominant factor in sentencing. Nonetheless, it is a factor that can properly be taken into account in fashioning the disposition.

This was very ably expressed by Thorson J.A. in R. v. R. I. (1985), 1985 3604 (ON CA), 17 C.C.C. (3d) 523 (Ont. C.A.). At pp. 530-31 he wrote:

... I would sound a note of caution. It does not follow, in my opinion, that the relativity principle referred to by counsel must now be applied to young offenders in exactly the same way as it is to adult offenders. The close correlation which is generally looked to as appropriate in the case of an adult offender, between the seriousness of the offence and the length of the sentence imposed for it, may or may not be equally as appropriate in the case of a young offender, where the task of arriving at the "right" disposition may be a considerably more difficult and complex one, given the special needs of young persons and the kind of guidance and assistance they may require. Any uncritical application of the principle to young offenders could thus run counter to the larger objectives of the new legislation. On the other hand, as a factor to be taken into account in the disposition process, the principle is one which the new legislation must be taken to implicitly recognize.

Moreover, the reasoning which has led our courts to favour, wherever possible, a short first custodial sentence for a youthful adult offender may lose some of its force when sought to be applied to someone of lesser maturity, as, for example, where a young offender's committal to custody reflects an adjudged need to remove him from an unhappy or hostile home environment. [Emphasis added.]

The aim must be both to protect society and at the same time to provide the young offender with the necessary guidance and assistance that he or she may not be getting at home. Those goals are not necessarily mutually exclusive. In the long run, society is best protected by the reformation and rehabilitation of a young offender. In turn, the young offenders are best served when they are provided with the necessary guidance and assistance to enable them to learn the skills required to become fully integrated, useful members of society.

General Deterrence

The appellant submitted that it was improper for the Court of Appeal to take into account the need for general deterrence when it assessed the dispositions. Reliance was placed on the decisions of the Courts of Appeal in both Alberta and New Brunswick. In R. v. G.K. (1986), 1986 ABCA 217, 31 C.C.C. (3d) 81 (Alta. C.A.), it was held that general deterrence did not have any place in the sentencing of young offenders. This view was adopted by a special five member panel of the Alberta Court of Appeal in R. v. C.W.W. (1986), 1986 ABCA 47, 25 C.C.C. (3d) 355. The same position was adopted by the New Brunswick Court of Appeal in R. v. R.C.S. (1986), 1986 4693 (NB CA), 27 C.C.C. (3d) 239.

This approach was specifically disapproved by the Courts of Appeal of Ontario and Quebec. See R. v. O. (1986), 1986 4759 (ON CA), 27 C.C.C. (3d) 376 (Ont. C.A.), and R. v. L.(S.) (1990), 1990 3289 (QC CA), 75 C.R. (3d) 94 (Que. C.A.).

In R. v. O., supra, Brooke J.A. writing for the Ontario Court of Appeal expressed the opinion that although the principle of general deterrence must be considered, it had diminished importance in determining the appropriate disposition in the case of a youthful offender. This, I believe, is the correct approach. This is apparent from a consideration of some of the provisions of the Young Offenders Act. Section 3 in emphasizing the need for the protection of society, s. 20 by its observation that dispositions should have regard to the best interest of the young person and the public, and s. 24 which provides for a disposition imposing custody if it is in the best interest of the young person and for the protection of the society, all indicate that general deterrence must be taken into count.

There is reason to believe that Young Offenders Act dispositions can have an effective deterrent effect. The crimes committed by the young tend to be a group activity. The group lends support and assistance to the prime offenders. The criminological literature is clear that about 80 percent of juvenile delinquency is a group activity, whether as part of an organized gang or with an informal group of accomplices. See Maurice Cusson in Why delinquency? (1983), at pp. 138-39, and Franklin E. Zimring "Kids, Groups and Crime" (1981), 72 J. Crim. L. & Criminology 867. If the activity of the group is criminal then the disposition imposed on an individual member of the group should be such that it will deter other members of the group. For example the sentence imposed on one member of a "swarming group" should serve to deter others in the gang.

Having said that, I would underline that general deterrence should not, through undue emphasis, have the same importance in fashioning the disposition for a youthful offender as it would in the case of an adult. One youthful offender should not be obliged to accept the responsibility for all the young offenders of his or her generation.

The Availability of a Yearly Review

The appellant argued that the Court of Appeal was in error when it assessed the disposition in light of the mandatory review provided for by s. 28(1) of the Young Offenders Act.

Section 28(1) and (3) provide:

28. (1) Where a young person is committed to custody pursuant to a disposition made in respect of an offence for a period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth court forthwith at the end of one year from the date of the most recent disposition made in respect of the offence, and the youth court shall review the disposition.

(3) Where a young person is committed to custody pursuant to a disposition made in respect of an offence, the provincial director may, on his own initiative, and shall, on the request of the young person, his parent or the Attorney General or his agent, on any of the grounds set out in subsection (4), cause the young person to be brought before the youth court at any time after six months from the date of the most recent disposition made in respect of the offence or, with leave of a youth court judge, at any earlier time, and, where the youth court is satisfied that there are grounds for the review under subsection (4), the court shall review the disposition.

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. The Act provides a system that it is akin to, yet broader than, the probation review provided for adult offenders.

The appellant sought to rely upon R. v. S. (H.S.), Nfld. C.A., June 2, 1990, unreported. In that case the trial judge had imposed a sentence based, in part, on the fact that it would be reviewed before it had expired. The Court of Appeal disagreed and expressed the view that a disposition must be made on the basis of the facts and law as they existed at the time it was made. They held that the review of a disposition for a young offender could not be considered when a sentence is imposed any more than could be the possibility of parole for an adult. I cannot accept that position.

The Young Offenders Act provides for a mandatory system of review. In the case of adult offenders, the court controls neither the parole nor remission provisions. In the Young Offenders Act the review procedure is an integral part of the disposition. It is therefore appropriate to take it into account as a factor, albeit not a major one, in assessing the appropriateness of a disposition.

Assessment of the Disposition in This Case

The disposition of two years in open custody was appropriate. The trial judge was faced with a young offender with a significant prior record. It was obvious that he was not cooperating with the probation authorities or fulfilling his obligations with regard to community service. The offences themselves were serious. The situation in the home was intolerable. Yet, in the absence of other family members, his good work at school indicated that there was real hope for him and that there was a pressing need to provide guidance and assistance for him. The aspect of the need for general deterrence could not be overlooked since these offences had been committed with the help and assistance of others. Further it was appropriate to consider as a factor that there would be a review of the disposition. The disposition of two years open custody was, in all the circumstances, a fit sentence in light of the offences committed and the needs and requirements of the young offender.

In the result, as this Court directed at the conclusion of the hearing, the appeal is dismissed.

Appeal dismissed.

Solicitor for the appellant: Legal Aid Manitoba, Winnipeg.

Solicitor for the respondent: Manitoba Justice, Winnipeg.