CITATION: R v. JES II, 2013 ONSC 4854
COURT FILE NO.: YC-11-0109-00
DATE: May 28, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David MacKenzie, for the Crown
- and -
JES II
Chris Watkins, for the Defence
HEARD: April 17, 2013, at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 65 OF THE CRIMINAL CODE OF CANADA
Reasons For Sentence
Overview
[1] The young person, JES II., (whom I will refer to as “JES II”) was charged with the offence of second degree murder to which he pleaded not guilty. The trial commenced before a jury. Following the Crown’s case, the young person changed his plea to guilty of manslaughter, a plea that was acceptable to the Crown. The jury was discharged and counsel made sentencing submissions.
[2] The Attorney General does not seek to have JES II sentenced as an adult. An order shall be issued pursuant to s. 65 of the Youth Criminal Justice Act S.C. 2002, c. 1, (the “Act”) that JES II is not liable to an adult sentence. Pursuant to that section, an order will issued banning publication of information that would identify him as having been dealt with under this Act.
[3] JES II, an aboriginal youth, was 15 years old at the time of the offence. The Crown submits that a sentence of two years should be imposed with credit for 6 months served in pre-trial custody; in other words, the total remaining sentence should be 1.5 years. The Crown did not recommend how that sentence should be broken down between secure custody and conditional supervision. In addition, the Crown seeks ancillary orders for a weapons prohibition and for supply of the young person’s DNA.
[4] The defence submits that the sentence should be served under conditional supervision in the community because of JES II’s successful performance in the community during his release on bail, and in view of Gladue factors discussed during sentencing. The defence also argues that the young person should be given credit of 1.5 days credit for each day of pre-trial custody.
[5] The question to be decided is what is an appropriate sentence in view of the sentencing principles set out in the Youth Criminal Justice Act, the circumstances of the offence, and of the offender?
The Circumstances of the Offence
[6] On July 24, 2010, in E[…] Nation (also known as F[..]), an aboriginal youth, E.W., died as a result of stab wounds inflicted by JES II. E.W. was 17 at the time of his death. This event is a tragedy for E.W.`s family as well as for the community. E.W. was the much loved son of C.W.. He was a cousin to JES II, and in the earlier years, was his protector and friend.
[7] On the day that E.W. died, there was a dance organized at the school. Before the dance, JES II was sniffing gas. He went to the dance at about 6 p.m. and left, returning around midnight. In the meantime, he sniffed more gas.
[8] The evidence suggests that E.W. went to some lengths to provoke JES II into a fight and that JES II was a reluctant combatant, initially ignoring E.W.s taunts and shoving outside the school. After a while, E.W.s aggression led JES II to retaliate. He stabbed E.W. 5 times with a knife. Some of the knife wounds were superficial. Unfortunately, one of the stab wounds proved fatal.
[9] JES II was arrested on July 24, 2010, and held in custody until January 20, 2011, when he was released on a recognizance to live with his parents in Thunder Bay. He has done so without incident since that time. He therefore served six months in pre-trial custody.
The Community in which the Young Person Lived
[10] Before the circumstances of the young person are considered, it is important to consider the community of which he was a member at the time of the offence, so that his violent behaviour has a context.
[11] The pre-disposition report contains important information about E[…] Nation. It is an O[…] community about 200 km Northwest of G[…], Ontario, accessible only by air, water, or winter ice road. Poverty is prevalent and there is high unemployment. Many residents are supported by Ontario Works benefits.
[12] The poverty is aggravated by the high cost of living and the scarcity of suitable housing. Groceries, household supplies and fuel must be transported over ice roads in winter, or flown in when possible. Many families live in over-crowded conditions. Solvent abuse has been a long-standing problem in E[…] Nation; more recently, opiate abuse has become widespread. The social conditions in the community are chaotic.
[13] The community has approximately 1,200 residents. Crime and addictions increasingly go hand-in-hand at E[…] Nation. As of November 2010, the community reported two homicides, an attempted murder, 47 arsons, numerous assaults, break and enters, and animal mutilations in the previous twelve months.
[14] The community has limited resources. There is a nursing station, police station, band office, community hall, school, hockey arena, radio station, two grocery stores and several smaller stores. A social services agency provides lay counselling to community members, but it is routinely understaffed. Child welfare services are available on a fly-in basis about every six weeks.
[15] The community has suffered traumatic events in recent years. The youth of E[…] Nation have struggled with suicide, substance abuse, gangs, and dropping out of school. There is a general sense of hopelessness.
[16] The pre-disposition report also notes that the community is unable to address the needs of solvent abusers who may display signs of mental illness, cognitive impairment, violent and antisocial behaviour and low motivation. A detoxification program opened in the summer of 2011, but it does not serve those under eighteen years old.
The Circumstances of the Young Person
[17] JES II was born on […], 1994; he is presently 18. He has no criminal background and has a reputation in the community for being a gentle person. However, there were some minor behavioural outbursts while in custody. His family and personal circumstances are important to an understanding of his risk of repeated violence, and his prospects for rehabilitation.
[18] Darren Borg, a Gladue worker at the Thunder Bay Indian Friendship Centre, has prepared a detailed Gladue report about JES II`s circumstances. As well, the pre-disposition report contains information about JES II and his family. JES II is the youngest child in a family of ten children.
[19] Both JES II’s parents were placed in residential schools as children and suffered a breach with their own parents and culture as a result of that experience. JES II’s mother, L., was mistreated at school and sexually assaulted as an adolescent. His father, JES., was also absent from his family in childhood when he was treated for tuberculosis for three years. JES drank heavily when he returned home. He stopped drinking in the late 1980s and early 1990s. Wisely, JES II’s mother did not drink during her pregnancy with JES II.
[20] JES II suffered from asthma and eczema as a toddler. An undetected peanut allergy led to a severe adverse reaction. He also contracted pneumonia and was sent out to hospital a lot. At six or seven, he was sexually abused by a priest in the community. His parents were unaware of this assault.
[21] JES II reports a good relationship with his family until conflicts emerged in his family when he was a teenager. Both his parents worked in E[…] Nation. JES worked for T[…] and Family Services, an aboriginal child welfare agency, while L. worked for the health and social services office in the community.
[22] JES II struggled at school. He was truant from time to time. Even though he did not believe he had a learning disability, JES II was placed in a special education class in elementary school. He was bullied, starting in grade four but did not confide his fears to his parents. Fortunately, E.W. began to protect him. JES II began to consider him a brother.
[23] JES II`s mother described him as not causing trouble at home prior to the offence. He sat in his room, writing songs and singing. At times, his friends would come to the house. On other occasions, he roamed the community with his friends.
[24] JES II began to use marijuana at 12, and his use increased as he grew older.. There is some evidence that this continues to be a problem for JES II.
[25] In addition, JES II started sniffing solvents at 13 or 14 in order to gain acceptance among his friends. Gas was the solvent of choice, although naphtha was also used. Sometimes he would go on binges.
[26] Upon his arrest and incarceration in Thunder Bay, JES II`s parents relocated to Thunder Bay to be near him. They have offered their support throughout this process, even though it cost them their jobs at E[…] Nation.
[27] While in custody, JES II attended Alcoholics Anonymous, anger management, substance awareness programs, as well as cultural and recreational activities. He was approved to assist in the kitchen.
[28] JES II’s school achievement at E[…] Nation is limited due to poor attendance. Those problems continued in Thunder Bay where he made two attempts at high school. He enrolled in H[…] High School in February 2011, with a promising beginning, showing good attendance and good grades. Unfortunately, he was suspended for marijuana use. He began to skip class and failed to complete assignments. He attempted to return to school in September 2011, but was withdrawn from the rolls by October due to poor attendance. He enrolled in the Adult Education Centre, but also failed to attend classes. To date, JES II has only four high school credits. He has difficulty concentrating at school. He has a hands-on learning style that may not be accommodated in traditional schooling.
[29] JES II has no employment history. Currently, he remains at his parents’ home, playing video games or guitar or watching television. However, he is undergoing counselling.
[30] The pre-disposition report notes that JES II does not wish to return to E[…] Nation and does not wish to stay in Thunder Bay. He expressed an interest in returning to school and then pursuing a career in the Canadian Armed Forces. Without completing high school, it is unlikely that the Armed Forces will accept him. He is remorseful about his conduct towards E.W. and feels a sense of loss as well.
Impact on the Family and the Community
[31] E.W.’s mother, C.W., read her victim impact statement to the court. This was very difficult for her to do as her loss is profound and her hurt runs very deep. C.W. left E[…] Nation for Sioux Lookout in order to escape the memories of her loss, but she found herself feeling numb in her effort to forget. She also found herself removed from her own family who remained in the community. She now plans to return. Unfortunately, her foster children who have lived with her in Sioux Lookout are unable to return to E[…] Nation with her, which makes her feel sad.
[32] C.W. expressed a feeling of betrayal: that JES II, a person who came to her home and was regarded as a friend, could do such a thing. She wishes that she had known what was going on between E.W. and JES II and feels responsible because she did not foresee this coming. She also feels that she can no longer trust JES II, even though she wants to. She says that hurts.
[33] The Chief of E[…] Nation reports that there are family and friends of E.W. who still struggle with unresolved anger. He has suggested a restorative circle in the community to help with their healing journey.
Legal Parameters
[34] The Youth Criminal Justice Act sets out a scheme of sentencing principles that are unique to young people. At the date of the offence, these principles did not include deterrence.
[35] The purpose of sentencing is set out at s. 38, as follows:
- (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:
(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;
(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and
(e) subject to paragraph (c), the sentence must
(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.
Factors to be considered
(3) In determining a youth sentence, the youth justice court shall take into account
(a) the degree of participation by the young person in the commission of the offence;
(b) the harm done to victims and whether it was intentional or reasonably foreseeable;
(c) any reparation made by the young person to the victim or the community;
(d) the time spent in detention by the young person as a result of the offence;
(e) the previous findings of guilt of the young person; and
(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.
[36] The portions of the declaration of principle in the Youth Criminal Justice Act that are relevant to sentencing are as follows:
- (1) The following principles apply in this Act:
(a) the youth criminal justice system is intended to
(i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour,
(ii) rehabilitate young persons who commit offences and reintegrate them into society, and
(iii) ensure that a young person is subject to meaningful consequences for his or her offence
in order to promote the long-term protection of the public;
(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:
(i) rehabilitation and reintegration,
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;
(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should
(i) reinforce respect for societal values,
(ii) encourage the repair of harm done to victims and the community,
(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and
(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and
(d) special considerations apply in respect of proceedings against young persons and, in particular,
(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,
(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,
(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and
(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.
[37] In this case, JES II is not liable to a combined sentence of custody and community supervision longer than three years. Gladue factors are also relevant in determining the length and structure of the sentence.
Case Law
[38] The Crown has submitted four cases involving youth court sentences for manslaughter convictions. Only two of the cases deal with aboriginal youths. A brief review of the facts of each case may be helpful.
[39] In R. v. R.R.B., 2005 BCPC 1164, [2005] B.C.J. No. 1164 (Prov. Ct.), the young offender was on bail for a previous offence when he was hit on the head with a metal bar by the victim’s friend. The victim pulled out a crescent wrench. The young offender was armed with a knife. When the victim was standing unarmed before the young offender, he was hit on the head by another young person, fracturing his skull. While the victim was on the ground, a number of other young men kicked and punched him. Then the young offender stabbed the victim in the chest, inflicting fatal injuries.
[40] R.R.B. was an aboriginal youth who was 16 at the time of the offence. On the night of the offence, he had smoked marijuana and shared a 40 ounce bottle of liquor with two friends; he also had used ecstasy and crack cocaine. He had a history of drinking from the age of 12 or 13 and was drinking every weekend by the age of 15. He began using marijuana at 15 and had a chaotic upbringing.
[41] He had a conviction for mischief and one diversion for a physical confrontation involving pulling a knife. R.R.B. was remorseful and denied wanting to kill the victim.
[42] The court credited R.R.B. with 14 months based on 9 ½ months in pre-sentence custody and sentenced him to a further 15 months in secure custody followed by 7 months conditional supervision.
[43] The second case is that of R. v. A.C., 2004 BCPC 99 [2004] B.C.J. No. 811(Youth Court). The facts are that the young offender was one of five intoxicated young men who loaded a car with baseball bats and golf clubs and stalked a man who was alone in a park. The young offenders chased their victim. Then the ring-leader began beating the victim; then the others, including A.C. joined in. A.C. beat the victim at least three times with a bat. The victim died as a result of blows to the head and neck. The young offender pleaded guilty to manslaughter.
[44] A.C. was 17 years old at the time of the offence. His prior criminal record included convictions for mischief; two convictions for possession of a stolen car; dangerous driving; and driving while disqualified. He was on probation at the time of the offence and was assessed at low to moderate risk of re-offending.
[45] The young offender spent 21 days in custody before being released on bail. During that time he enrolled in school and participated in various programs and activities. A.C. was sentenced to the maximum custodial sentence of three years custody and supervision.
[46] A.C.’s co-accused, and the ring-leader, J.S., was sentenced on a plea to manslaughter to the maximum penalty of three years with 2/3 in custody and 1/3 under conditional supervision. This was the third or fourth time the young offender had beaten up men in the park for what he described as “entertainment.” See: R. v. J.S., 2003 BCPC 442, [2003] B.C.J. No. 2877 (Youth Court).
[47] Finally, the Manitoba Court of Appeal considered the appropriate sentence for a young offender on a guilty plea to manslaughter in R. v. B.W.P., 2004 MBCA 110, 187 Man.R. (2d) 80. The victim was killed in a fight. The young offender was aboriginal and 15 years old at the time of the offence. He had a minor record for non-violent offences. He was sentenced to 15 months in custody, broken down as one day in custody and the remainder on conditional supervision in the community plus one year of probation. His family was described as supportive and involved. The young offender had rejected gang activity and did well at vocational school and during his time in custody at the youth centre. He showed remorse.
[48] The sentencing judge concluded that his rehabilitation in the community was well under way and would not be enhanced by a return to custody. The sentence was approved by the Manitoba Court of Appeal and subsequently by the Supreme Court of Canada in R. v. B.W.P.;.; R. v. B.V.N., 2006 SCC 27, [2006] 1 S.C.R. 941.
Aggravating and Mitigating Factors
[49] The Crown submits that the lethal consequences of the wounds to E.W. are aggravating. This submission is curious given that the offence with which we are concerned is manslaughter. I agree, however, that the consequences of the attack are very serious and the fact that it was undertaken with a weapon is aggravating.
[50] The Crown also points to the fact that JES II was the sole assailant as aggravating. Frankly, although the consequences of the violence are very grievous, in my view, mob violence toward a single victim is more disturbing as there is less chance for a victim to defend himself.
[51] The Crown submits that JES II has not accepted full responsibility for the consequences of his actions: that although he didn’t start the fight, he finished it.
[52] It is mitigating that JES II was not the instigator of the fight. As well, he has a stable, supportive family; he has no prior criminal record; and he is remorseful. It is also mitigating that he has not sniffed gas since his arrest.
Reasons
[53] I am mindful that no sentence can make amends for the loss of E.W.. For that I am very sorry and I extend my condolences to his mother, and to his family and friends.
[54] The defence submits that JES II should have enhanced credit for time served in pre-sentence custody. I do not agree. I adopt the reasoning of Judge Werier in R. v. A.C. and decline to grant enhanced credit for pre-trial custody in this case. As Judge Werier notes, enhanced credit is offered to adults in part because the time awaiting sentencing is often deemed to be “harder time,” spent in remand centres, without the benefit of programs to assist in rehabilitation. As well, enhanced credit is given to recognize that remission time available to sentenced prisoners is not available to those in pre-trial custody. Neither circumstance applies in this case. JES II took advantage of school, cultural programming, facility programming and continued contact with family while in custody. Programs of mandatory remission or parole are not available in this case.
[55] Consequently, JES II will be credited for 6 months of time served against the total sentence to be imposed.
[56] I agree with the Crown that JES II is not the worst offender, deserving of the maximum three year sentence. A two year sentence is more appropriate to his age and circumstances and the circumstances of the offence. The young person is therefore sentenced to two years, with credit for six months of pre-trial custody.
[57] In my view, JES II is capable of rehabilitation. He is not violent by nature. He is a hands-on learner who is capable of doing well in school; he has a stable, supportive family, but he has some particular needs that must be addressed if he is going to live a productive life that is free of violence. The remainder of his sentence should be structured with rehabilitation in mind. However, it is still important to signal to JES II and to the community of E[…] Nation that a person who inflicts violence on others must recognize the consequences of his actions and make amends.
[58] The loss of freedom is in no way comparable to the loss of a life. Nevertheless, a period of further time in custody may have symbolic value, to make amends for the life that is lost. During this time, JES II will live outside his comfort zone, away from the security of his family’s home. For that reason, 3 further months of JES II’s sentence will be served in custody. During this time, JES II should reflect on the consequences of taking a life.
[60] There are three primary objectives for the community supervision portion of the sentence. These relate to issues that JES II has not seriously tackled. Instead, he is hiding out in his parents’ home. I am afraid that his parents have not insisted that he make a serious effort with his schooling and start on his rehabilitation. It is time that JES II grew up. So, as part of his sentence, JES II must:
return to school and complete his high school education;
deal with his addiction to marijuana and solvent abuse; and
confront his anger issues.
[61] The balance of the sentence, which is 15 months, will be served under supervision in the community upon the following conditions:
(a) to keep the peace and be of good behaviour;
(b) to appear before the youth justice court when required by the court to do so;
(c) 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;
(d) inform the provincial director immediately on being arrested or questioned by the police;
(e) report to the police, or any named individual, as instructed by the provincial director;
(f) 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
(i) in that address,
(ii) in the young person’s normal occupation, including employment, vocational or educational training and volunteer work,
(iii) in the young person’s family or financial situation, and
(iv) that may reasonably be expected to affect the young person’s ability to comply with the conditions of the order;
(g) 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
(h) 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.
In addition, JES II is ordered to:
(i) attend school regularly and complete his assignments;
(j) reside with his parents;
(k) attend a program directed at anger management;
(l) attend such programs, including culturally based programs, as are recommended to deal with substance abuse.
[62] JES II, I caution you that if you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well. You should be aware that under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.
[63] In addition to the foregoing sentence, you are ordered subject to a 2 year weapons prohibition pursuant to s. 51 of the Act.
[64] As well, you are ordered to supply a sample of your DNA to the DNA Data Bank.
Regional Senior Justice H.M. Pierce
Released: May 28, 2013
CITATION: R. v. JES II., 2013 ONSC 4854
COURT FILE NO.: YC-11-0109-00
DATE: May 28, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JES II.
REASONS FOR SENTENCE
Pierce J.
Released: May 28, 2013
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