ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-113
DATE: 2014/01/22
PROTECTED FROM PUBLICATION
BY SECTIONS 110
OF THE YOUTH CRIMINAL JUSTICE ACT
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.D.S.
Isabel Blanchard and Daniel Brisebois, counsel for the Crown
Oliver Abergel, counsel for the Accused
HEARD: January 8th, 2014
REASONS FOR JUDGMENT
LAFRANCE-CARDINAL, J.
[1] On September 5th, 2013 J.D.S. plead guilty to second degree murder of Jean-Paul Tessier, contrary to section 235(1) of the Criminal Code of Canada. It has been agreed between the prosecution and defence that this young man would be sentenced as a young person under the Youth Criminal Justice Act (YCJA). The question to be determined today is whether or not J.D.S. should be given one-for-one credit for any pre-trial sentence custody served or whether the Court should use its discretion in ordering somewhat less than the one-for-one credit.
THE OFFENCE
[2] It is the Crown’s case that J.D.S. had stored some contraband tobacco and cigarettes in a basement of an apartment building located at 4 McConnell Avenue. Two other males were also residents of that same apartment building, both males knew J.D.S. and both males conspired together to steal J.D.S.’ cigarettes. Their plan was to steal the cigarettes and quickly dispose of them by selling them to third parties. The male who had orchestrated the theft was able to find a third party purchaser and in order to avoid detection he organized for the victim, Mr. Jean-Paul Tessier, to carry the cigarettes in a large dark travellers suitcase that could easily be wheeled from McConnell Avenue to Prince Arthur Street where the third party purchaser was residing. At that same time, J.D.S. realized that his cigarettes had been taken and he went looking for them. As instructed, Mr. Tessier proceeded to travel by foot to Prince Arthur Street while pulling the large coloured suitcase while the instigator of this plan took an alternate route to meet him on Prince Arthur Street. J.D.S. was able to find Mr. Tessier walking southbound on Prince Arthur Street and he demanded that he disclose to him the contents of the suitcase. As they approached the Prince Arthur Street residence where the drop off point was, J.D.S., Mr. Tessier and the instigator of the theft engaged in a verbal altercation about the contents of the suitcase. It is the evidence of everyone that Mr. Tessier was 6’ tall and weighed approximately 150 pounds, J.D.S. is 6’1” and weighed 148 pounds; he is described as a scrawny kid. However, the perpetrator of the theft was slightly shorter but described as an imposing muscular intimidating man. There was an altercation when J.D.S. attempted to reach for the suitcase, Mr. Tessier would have kicked J.D.S. in the shin to prevent him from reaching the suitcase and simultaneously and, what has been described as a momentary flare up, J.D.S. would have pulled a knife from his pocket and struck in a single motion Mr. Tessier in the left side of his upper chest area. J.D.S. immediately fled the scene. Police at the scene of the crime recovered a knife which was not the murder weapon. It was later discovered that that knife belonged in fact to the perpetrator of the theft. Mr. Tessier was brought to the hospital where he succumbed to his injuries.
[3] After the incident, J.D.S. fled to a friend’s home where he changed his clothing. He remained hidden for approximately one hour and during that period of time, his girlfriend disposed of the knife which knife was later recovered by police. J.D.S. and his girlfriend, through the help of innocent acquaintances were transported the couple across the St. Lawrence River in the area of Snye, Quebec. J.D.S. found himself on the U.S. side and he surrendered to the Cornwall Police eight days later on September 2nd, 2010. He has been in custody since then and has never made an application for an interim release order.
THE OFFENDER
[4] J.D.S. was a native 17½ year old young man when this crime occurred. A very extensive “Gladue” Report was prepared by Stephanie Bean of the Aboriginal Legal Services of Toronto. It is a 33 page report that paints a very sad and grim picture of this young person’s life on the A[…] Reserve. His mother was a hard drug addict. Throughout his life, she was in and out of jail, she has 48 convictions mostly for smuggling charges and about 7 or 8 assault charges. J.D.S. was raised by his extended family, his aunts and uncles up until he was approximately 10 years old. His dad also was in and out of jail. The most positive influence in J.D.S.’s life was his uncle Moses, he used to do everything with him, he would take him places, he would do construction with him, they ran their own business from the backyard. Once his uncle passed away, J.D.S. decided that he wanted to spend more time with his mom. His mom was never a good influence, even as a very young child, at the age of 5, his mother would take him for cigarette runs on the river with her boyfriend. At the age of 10, she was having him break into homes by going through the windows to open the doors to the houses where many of the drug dealers lived. He was a small skinny kid so it was easy for him to get in and out of homes. At the age of 12, he was put in a group home. He wasn’t listening. He was getting into trouble and the boys that he was hanging out with were stealing. J.D.S. also was placed in a Youth Facility called the Shawbridge Youth Facility, in the Province of Quebec, where he resided for 6 months to a year. He went and lived with his cousin and his wife in Cornwall where things were going well. He was attending school, etc., until his mother came into the picture and again he started breaking into houses for her, at her request, because he was under age and he could not get charged. J.D.S. talks about what it was like growing up in the reserve:
“I was a little kid that wanted to be 20 or 18. I always seen everyone else, my cousins and stuff, having these things, cars, spoilers, ATV’s, money, so I wanted that… One of the first things I started doing was moving cigarettes in a boat. I was just hanging around partying. As soon as you get paid once it’s hard to walk away. In grades 7 and 8, I did ecstasy and sold it. I would only do that on the weekends. I started selling Oxy, then doing it later. Selling ecstasy started in grade 8. Oxy, I was selling it at 14, and then I started doing it every day.”
[5] His dad comments on life on the reserve:
“He grew up here, and he is going to do what daddy does and uncle does. The kids have gotten smarter about it: cocaine, guns, gambling has always been here, but when the pill epidemic hit the reserve, it wasn’t smuggle to survive or pay bills, it was to do it for a habit. I grew up that way, and he grew up that way. Like me I got things, J.D.S. was making the same kind of money, 15 year old making, $10,000.00 a night, but he never had anything, he wasted it. They are driving Hummers and they don’t have gas, or insurances or plates. A[…] is the worse for it.”
[6] At the age of 16, J.D.S. had his first child with his girlfriend, A., who was half Mohawk and half Caucasian, she too was addicted to Oxy. Two years later they had another son together named J.. At about that time, J.D.S. spent 7½ months for a robbery charge in Malone, New York. He was released on Bail and as soon as he was released he started working for his dad until there was an opening in the smuggling business and he went back to his old lifestyle. J. Sr. has the following comments to share about life in prison and how it affects his son:
“He’s never had to look outside the reserve. Where he is, is making him realize there’s another life. It’s probably the worst way to show him, but that’s what’s happening. His eyes are opening. Education is what’s going to motivate him to get out there.”
[7] At the time that these offenses were committed J.D.S. had a youth record dated August 6th, 2010 for:
a) Failing to appear – Section 145(5) of C.C.;
b) Theft under $5,000.00 – Section 334(b) of C.C.;
c) Failure to comply – Section 145(3) of C.C. for which he received a $500.00 fine and 12 months probation on each charge concurrent and concurrent.
[8] He was seriously addicted to Oxy like many other young men on the reserve, and he was smuggling cigarettes and selling some Oxy in order to get by.
PROGRAMS SINCE DETENTION
[9] This young person has successfully completed a number of programs since his detention began. Appendix “A” of the Gladue Report sets out 14 certificates received by J.D.S. while at the William E. Hay Centre. It covers everything from anger management to conflict resolution to aboriginal life skills workshop, to peer aggression youth sessions, to first aid. The worker at the William E. Hay Centre discusses J.D.S.’s eagerness to participate in program:
“- Any programs I put forward: dog walking, instrumental peer aggression, he’s always been the first one to jump on it and do them. Some of them multiple times;
− Any programs that comes down the line, I present the program to him and he jumps on it;
− There’s nothing new that he has done lately, because there are no new programs right now;
− J.D.S. was at the highest level of achievement for almost a year until he recently violated the rules related to computer use.”
[10] There were some difficulties at the very beginning of his stay at the William E. Hay Centre where there was an issue with regards to contraband drugs and an admission that he would occasionally smoke marijuana at the beginning of his stay at the centre. Considering this young man was seriously addicted to Oxy, it is surprising that he was able to maintain that very high level of achievement from the very beginning.
[11] Most importantly J.D.S. utilized his time at the William A. Hay Centre in order to get high school credits. He had absolutely no credits when he walked in, in September of 2010. He now has 22 or 23 credits. The worker at the centre indicates that J.D.S.’s work at school is incredible, the math that he is doing is second to none, he excels in school, he likes the routine. All reports indicate that he completed this high school diploma in December of 2013. He has successfully completed the literacy test and will have his 40 hours of community service to complete in order to be able to graduate. What is most troubling is that the Gladue report goes on to indicate that J.D.S. has emotionally detached from everyone including his own people and his children. Hopefully, the counselling which he will undoubtedly receive once on community supervision will be able to assist him in dealing with those emotions and feelings.
PRE-SENTENCE REPORT
[12] The Pre-Sentence Report was prepared by Lynn White and it is dated December 5th, 2013. It speaks of the very same issues as set out in the Gladue Report. It indicates that J.D.S. Sr. failed to respond to any attempts made by the probation officer to communicate with him although he now resides on the Quebec portion of A[…]. J.D.S.’ mom however was more forthcoming and agreed to be interviewed by the Probation Officer. She confirmed that she struggled for years with addiction, that she has been in and out of custody and as she stated “I screwed him up his life. J.D.S. saw me using drugs, selling drugs, smuggling and partying…that’s all he knew.”
[13] J.D.S.’s primary worker at the William E. Hay Centre in Ottawa indicates that he seldom has had issues with other peers and recently has become a positive role model. He has positive interactions with staff, and he partakes in all recreational activities. Apparently he has become more vigilant about fitness and eating in a healthy way. The report does indicate that he has aspirations of continuing post-secondary education. The report is a little bit more positive with regards to this young person’s relationship with his two sons. It states that he feels that he has not yet bonded with them but would very much like to be part of their lives.
VICTIM AND VICTIM IMPACT STATEMENTS
[14] The three victim impact statements were read by the deceased’s sister, Louise Tessier. Two of them were from his very good friends. They describe a good man, a good friend, a recluse, one with very few worldly possessions but a heart of gold and profound wisdom.
[15] His sister describes a very poor upbringing, one where they did not know how poor they were until they started school; that’s when they realized they were different. She talks of wanting more than the poor existence she had as a child but she talks of her only brother, 12 years younger as “being a man of little means but was content.” She describes missing him terribly, wanting to hear his corny laugh and seeing that silly grin on his face… She wished she could get to talk to him one last time, so she could tell him how much she loved him and how proud she was of him.
[16] The last time she spoke to her brother was in July on her son’s birthday, he told her how proud he was of her, she ends by saying:
“My brother has a life sentence for being at the wrong place at the wrong time and I feel that our family has the same….the loss you never recover from but you try to make peace with so you can embrace your life without regret… I hope he is watching me right now and I hope he is still proud….”
[17] Miss Tessier, I think I can safely say that he is still very proud of you and proud of how you are representing him and your family.
YOUTH CRIMINAL JUSTICE ACT
[18] Section 42(g)(ii) of YCJA dictates that a sentence for 2nd degree murder is not to exceed 4 years from the date of committal in a secure facility and three years of a placement under conditional supervision for a maximum of 7 years.
[19] The Act speaks of the possibility of intensive rehabilitative custody but neither the Crown nor defense are requesting such therapy as it is not warranted in this case.
[20] Paragraph 38(3)(d) of YCJA states the Court shall take into consideration the time spent in detention as a result of this offense.
[21] The Crown is asking for .5 of a day credit for every day served up until the day of the plea of guilt when the credit would be increased to 1 day credit for every day served. Defence argues that there is nothing exceptional in this case that would warrant reduced credit, and although the Ont. C.A. in R. v. T.B. 2006 4487 (ON CA), 78 O.R. (3d) 721 at para 42 talks of a starting point of 1.5 days credit for every day of pre-sentence custody, defence in this case is only seeking 1 day credit for 1 day served.
[22] Again the Ont. C.A. in R. v. D.S. 2008 ONCA 740, [2008] O.J. No. 4231 confirms R. v. T.B. and states at para 27, p. 6:
“So, for example, in R. v. E.L. (2006), 210 O.A.S. 124, this Court confirmed a youth sentence in which significantly less than one-for-one credit was given for pre-sentence custody. However, the Court affirmed the reasoning in B.(T.), noting that only in exceptional cases should the Youth Justice Court exercise its discretion to reduce the credit given below one-for-one.”
[23] In R. v. D.S. (supra) the Crown was arguing that the young person should not be given enhanced credit but conceded that there were no exceptional circumstances that warranted less than one-for-one.
[24] There is nothing in this case that would qualify it as exceptional either to argue for enhanced credit of more than one-for-one or for reduced credit of less than one-for-one. In particular:
a) The accused will serve the maximum sentence for second degree murder as set out in Section 42(g)(ii) of the YCJA;
b) 2nd degree murder is one of the most serious offenses in the Criminal Code;
c) It was reasonably foreseeable that the stabbing of the victim, although only stabbed once, could cause his death;
d) In committing the offence, the accused was committing another crime: that of tobacco contraband;
e) The accused has been in custody since the day of the arrest, he has never requested a bail hearing;
f) The accused plead guilty to second degree murder although there were some very triable issues, including self-defence not as much against the victim as against the perpetrator of the theft of the cigarettes. As well a plea of guilt was entered even though many of the Crown’s key witnesses could have been unsavory, unreliable, with criminal pasts of their own;
g) The crime was committed within seconds of the altercation; it was not planned;
h) The Gladue Report and the Pre-Sentence Report are very positive. The accused has availed himself of all possible programs, has completed his high school and has maintained the highest level of achievement;
i) The accused’s behaviour is the direct result of his upbringing. Both of his parents lived in a criminalized lifestyle: that all this young man ever knew. He is slowly learning that there is a whole new world out there based on values and education rather than on smuggling, drugs and fast cash.
j) Although the accused had made his way to the USA after the commission of the offense, with the help of Mr. Abergel, he willingly cooperated and turned himself in.
[25] In considering the sentencing principles of Section 38(2)(3) of the YCJA, this Court imposes the maximum sentence of 4 years secure custody less time spent on a for one-for-one credit since September 2nd, 2010. This will be followed by the maximum conditional supervision of 3 years.
[26] There will be a mandatory DNA order as second degree murder is a primary designated offence under Section 487.04 of the Criminal Code.
[27] There will be a mandatory weapon prohibition under Section 51 of the YCJA for a period of 2 years to end no earlier than two years after completion of the custodial portion of the sentence.
Madam Justice Lafrance-Cardinal
Released: January 22nd, 2014
COURT FILE NO.: 11-113
DATE: 2014/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
PROTECTED FROM PUBLICATION
BY SECTIONS 110
OF THE YOUTH CRIMINAL JUSTICE ACT
HER MAJESTY THE QUEEN
– and –
J.D.S.
REASONS FOR JUDGMENT
Madam Justice Lafrance-Cardinal
Released: January 22nd, 2014