ONTARIO YOUTH CRIMINAL JUSTICE COURT

Court File No.: YC-13-50000005-00
Date: 2014-07-17

Between

her majesty the queen

-and-

R.S.

Counsel:
Mr. T. Lissaman and Ms. K. Rogozinski, for the Crown
Mr. G. Grill and Mr. M. Forte, for R.S.

Heard: June 5, July 4, 17, 2014

Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the name of R.S. or any other information that would identify R.S. Section 111 of the Act prohibits the publication of the names of C.D. and T.I. or any other information that would identify them.

M. FORESTELL J.

REASONS FOR sentence

Overview

[1] R.S., a young person, as defined under the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), was tried before me on charges of second degree murder, attempted murder by discharging a firearm, discharge of a firearm with the intent to endanger life, careless use of a firearm and possession of a firearm without being the holder of a license and registration certificate.

[2] On March 24, 2014, I found R.S. guilty of manslaughter, aggravated assault, careless use of a firearm and possession of a firearm without being the holder of a license or registration certificate.

[3] The charges arose out of a shooting that occurred on April 12, 2012 in the lobby of an apartment building at 220 Woolner Avenue in Toronto. Jaivoan Cromwell, T.I. and two other young men assaulted R.S. in the lobby of his apartment building. Jaivoan Cromwell hit R.S. on the back of the head with a baseball bat as the others closed in around R.S. R.S. had previously armed himself with a handgun as a result of being shot at on two prior occasions. R.S.’s gun fell to the ground when he was hit. He picked up the gun and turned and fired the gun. The four men were running away when he fired at them. Jaivoan Cromwell was killed in the shooting. T.I. was grazed by a bullet.

[4] The sentencing hearing in this case was held on July 4, 2014. On a previous appearance a Pre-sentence report and records from the Roy McMurtry Youth Centre were filed with the Court. On July 4, 2014, I received a s. 34 assessment report authored by Dr. J. Beitchman. Also on July 4, I received the Victim Impact Statement of Tara Cromwell, the mother of the deceased, Jaivoan Cromwell. The Victim Impact Statement was read by Ms. Cromwell’s brother.

[5] The Crown submits that I should impose the maximum available sentence: a three-year Custody and Supervision Order (YCJA s. 42(2)(o)). The Crown further submits that I should order that two years be spent in custody and one year under conditional supervision in the community. The Crown submitted on the last appearance that if an Intensive Rehabilitative Custody and Supervision (“IRCS”) program was determined to be available to R.S., the Crown supported an order that the same period of custody and supervision be ordered, but as part of an IRCS Order. In addition, the Crown submitted that the ancillary orders to be made were a DNA order and a s. 51 weapons prohibition that the Crown submitted should be for life.

[6] The position of the defence was that a non-custodial sentence was appropriate in light of the time that this young person has already spent in custody and in light of his rehabilitative progress. The defence submitted that if a Custody and Supervision order was appropriate, the custodial portion of the order should be for one day and the community supervision order should be for one to two years. While submitting that aspects of the IRCS order could be of benefit to R.S., his counsel was concerned about the order lengthening the sentence beyond what is appropriate in the circumstances of this case. The defence argued that the s. 51 weapons prohibition should be for 10 years rather than for life.

[7] The s. 34 assessment report of Dr. Beitchman indicated that R.S. was, in the opinion of Dr. Beitchman, a suitable candidate for an IRCS order. This case was adjourned until today to allow the Ministry of Children and Youth Services to prepare a report as to R.S.’s suitability for an IRCS program in accordance with s.42(7) of the YCJA and to seek the consent of the Provincial Director for an IRCS order in accordance with s.42(8) of the YCJA. It was agreed that no further submissions would be made on today’s date, but that I would receive and consider the IRCS report and the decision of the Provincial Director before imposing sentence.

[8] I have received and read the IRCS Suitability Assessment Report prepared by a probation officer and the half-page of reasons of the Provincial Director refusing his consent. In light of the decision of the Provincial Director, I will not consider the IRCS programme in determining an appropriate sentence. I will draw no inferences for or against R.S. as a result of his participation in the process. However, I feel obliged to make some observations about the plan and about the denial of consent by the Provincial Director.

[9] IRCS orders provide access to more intensive rehabilitative programming for youth who have committed serious violent offences if they are considered to be suffering from a mental illness or disorder, are considered to be responsive to treatment and are considered by the Provincial Director to be appropriate candidates for an available programme. R.S. met all of the criteria except for the last mentioned: R.S. was not considered to be an appropriate candidate by the Provincial Director. The decision of the Provincial Director appears to be based on a single interview with R.S. The half-page of reasons provided by the Director offers the following reasons for the denial of consent: “that [R.S.] agreed only to minimal Treatment and Reintegration supports, which only related to academic assistance; while [R.S.] said he ‘would try’ clinical supports offered to him (as outlined in this suitability assessment) he felt he did not need them; [R.S.] was clear in indicating he would not accept any treatment oriented medically prescribed medication as part of his treatment plan, if recommended by a medical practitioner.”

[10] I find these reasons troubling.

[11] The report contains no details of any plan to reintegrate R.S. into the community. The plan is focused entirely on secure and open custody. The plan that was provided to the Court would require a period of additional secure custody of at least two years followed by a period of open custody before R.S. would live in the community. The Crown in this case has only sought a further period of custody of two years as part of a three-year Custody and Supervision Order. Although Dr. Beitchman recommended placement at Sprucedale if there was to be a custodial sentence, the plan indicates placement for the entire period of custody at the Roy McMurtry Centre without addressing the recommendation of Dr. Beitchman. R.S. has just spent over two years at the Roy McMurtry Centre and has already participated in many of the programmes set out in the plan. It is not surprising that he showed little enthusiasm for more than two years in the same place doing the same programmes, particularly when the proposed custodial period exceeds that sought by the Crown.

[12] In relying on R.S.’s stated belief that he did not need treatment beyond academic support, the Provincial Director does not appear to have taken into account that this intellectually challenged young man only received a diagnosis two weeks ago. In light of R.S.’s cognitive limitations, to expect him to have a full appreciation of his diagnosis and resulting treatment needs is unreasonable.

[13] Finally, I find it very concerning that the Provincial Director relies on R.S.’s refusal to agree to take prescribed medication as a basis to deny consent for him to participate in the IRCS programme. R.S. has just completed a thorough psychiatric and psychological assessment, the contents of which were available to the Provincial Director. The highly qualified medical practitioner who authored that report did not prescribe any medication for R.S. He did not indicate that there was any diagnosis that would be likely to require prescription medication. Moreover, the report indicates that R.S.’s developmental delays make him unable to reason abstractly. It is unreasonable to pose such a hypothetical question to this young person as the one apparently posed by the Provincial Director, that is: ‘If you were to be diagnosed by some doctor, at some point, with some illness that required some medication would you agree to take the medication?’ It seems particularly unfair to use his response as a basis to deny R.S. access to appropriate intensive programming.

[14] I recognize that there were time constraints on the officials tasked with the preparation of the plan and on the Provincial Director. However, the failure to tailor the plan or the decision-making process of the Director to take into account the specific developmental delays of this young person is disappointing.

[15] As indicated above, I draw no inferences from R.S.’s unwillingness to commit to the plan. The denial of consent for an IRCS program has no impact on the sentence that I will give, except of course that I will not make an IRCS order. Leaving aside the issue of an IRCS order, I will now move to my reasons for sentence.

[16] In order to determine the appropriate sentence I have considered the statutory framework and the legal principles that that govern youth sentencing, the circumstances of the offences and the circumstances of R.S. I will, in these reasons, explain how I have applied those principles of youth sentencing to the circumstances of these offences and to the circumstances of this young person to arrive at the sentence in this case.

Circumstances of the Offences

[17] I will begin by addressing the circumstances of the offences. The details of the offences are set out in detail in my reasons for judgment.[^1] I will not repeat in detail the findings that I made.

[18] It is of course essential, in considering the circumstances of the offences, to consider the tragic consequences of the actions of R.S. Jaivoan Cromwell lost his life. His mother lost her son. I have considered the Victim Impact Statement of Tara Cromwell which was read to the Court by her brother. The profound pain that Ms. Cromwell has suffered and will continue to suffer must be considered by the Court in this sentencing hearing. I have considered the impact of these offences on Ms. Cromwell while recognizing that no sentence will compensate her for her loss.

[19] Relevant aggravating factors in these offences are the use of a gun, the possession of a loaded gun for a period of time leading up to the offences, firing four times, fleeing the scene and disposing of the gun.

[20] Mitigating factors are the elements of self-defence and provocation present in the events that led to the offences, the remorse of R.S. and the cognitive limitations of R.S. as they impact on his decision-making.

[21] While I did not find that the defence of self-defence was made out nor that legal provocation existed, there were elements of each present in the circumstances.

[22] I will elaborate on these aggravating and mitigating factors later in these reasons but will turn first to the evidence of the circumstances of R.S.

Circumstances of the Young Person

Family

[23] R.S. is 19 years-old. He will turn 20 within a few days of this sentencing hearing. At the time of this offence he was 17 years old. R.S. was born in Jamaica and came to Canada in 2005 with his mother and two of his siblings to join his father who had been in Canada for over 10 years at that point.

[24] The pre-sentence report and the s. 34 assessment both indicate that R.S. has a fairly good relationship with his parents. He respects his parents and their values. Both reports indicate that he is reluctant to share information with his parents or to go to them with problems.

[25] Both of R.S.’s parents work outside the home. Their work schedules have made it difficult for them to supervise R.S. and to be aware of his friends and of his activities.

[26] There is a finding of guilt against R.S. that involves a threat against his father. In spite of the threatening incident, the relationship between R.S. and his father continued. R.S. continued to live with him and his father took R.S. to work with him after the incident. Both parents participated in the s. 34 assessment process.

[27] I find that R.S. has strong family support although his parents’ work schedule has made it difficult for them to supervise R.S. In addition, his parents were unaware of R.S.’s developmental delays, making it impossible for them to access appropriate supports for R.S. in the school system.

School and Employment

[28] After coming to Canada in 2005 R.S. struggled academically. While he was given some support for identified weaknesses in literacy and numeracy, his cognitive, academic and adaptive skills were not assessed at school. He struggled significantly in high school and ultimately dropped out in grade 10. The s. 34 assessment, which included a full psycho-educational assessment, indicated that without supports R.S. would have found the demands of secondary school unmanageable. It is unfortunate that R.S.’s academic challenges were not identified earlier in his schooling.

[29] The report of Dr. Beitchman also indicates real strengths in R.S.’s level of effort and his strong work ethic. With smaller classes and supports, R.S. has successfully completed high school credits at the Roy McMurtry Centre.

[30] At the time of the offences, R.S. was enrolled in a course to learn how to operate a forklift. He was also working with his father at the Ontario Food Terminal loading and unloading skids.

[31] I find that while R.S. did not succeed in the regular school system, he has the ability to succeed in his education with proper supports given his strong work ethic.

Prior Involvement with the Criminal Justice System

[32] R.S. has the following prior YCJA record:

Date

Details

Sentence

Nov. 16, 2009

(1) possession of property obtained by crime under $5,000; (2) fail to stop at the scene of an accident; (3) fail to comply with recognizance

(1 & 2) Time served (14 days) and probation 18 months on each charge concurrent.
(3) 18 months’ probation concurrent.

Dec. 30, 2009

(1) uttering threats; (2) fail to comply with disposition

(1) Time served (7 days) and probation 21 months; (2) probation 21 months concurrent.

Feb. 21, 2012

possession of a Schedule 1 substance

Probation: 18 months.

[33] In addition to the findings of guilt set out above, R.S. was found guilty in May of this year of a robbery that was committed in 2009 when he was 15 years-old. While awaiting sentence on the matters before me he was sentenced to 4 months in secure custody.[^2] In imposing the 4-month sentence, the sentencing judge in that case took into account four months of the pre-trial custody of R.S.. It is for this reason that rather than taking into account all of the 26 months that R.S. has spent in pre-trial custody I will only consider 22 months of that period of detention.

[34] The s. 34 report addresses the risk posed by R.S. and some of the factors that have led to his criminal conduct. At page 18 of the report Dr. Beitchman writes as follows:

Given his serious cognitive delays, [R.S.] would have had considerable difficulty fully appreciating the serous nature of the risky activities in which he engaged with youth in his community. He would not have been cognitively adept enough, nor have the verbal skills to actively discuss and consider the implications of the risky and criminal behaviour in which he was engaged. With his parents’ work schedule he did not receive the supervision he needed; furthermore neither he, nor any adult who could have intervened on his behalf, recognized or understood the serious extent of his cognitive delays. Although chronologically 19, developmentally he is much younger; he functions as a youth several years younger than his chronological age.

[35] The report also states that R.S. overall has a pro-social orientation. However, Dr. Beitchman indicates that it will be important to maintain this attitude by providing him with opportunities for education, training and employment. The presentence report and the s. 34 report note that R.S.’s family has moved out of the neighbourhood where the offences occurred and where he appears to have associated with criminal peers.

Substance Abuse

[36] There is some indication of abuse of marijuana during the time period leading up to the offences. R.S. was under the influence of marijuana at the time of the offences. He has participated in a treatment programme at the Roy McMurtry Centre.

Conduct in Custody

[37] R.S. has also participated in counselling while in custody.

[38] The staff at the Roy McMurtry Youth Centre gave very positive reports about R.S.’s conduct in the last year. He has complied with the rules and has earned the respect of staff. While there were incidents in his first year in custody, R.S. has conducted himself well in the last year.

[39] The reports available to me also indicate that during his time in custody R.S. has realized that his friends have led him into trouble. His response has been to isolate himself during the last year of his time in custody. This is not an unreasonable response given his current detention, but as a long term response it will potentially lead to further mental health problems. The assessment refers to R.S.’s chronic depression. He has been separated from his family and is isolated and withdrawn in custody.

[40] Overall, I find that the conduct of R.S. in custody demonstrates that he has used his time in custody to begin to change his behaviour and to begin to rehabilitate himself. There are limits, however, to the rehabilitation that is possible in a custodial setting. In particular, it will be important for R.S. to be able to pursue vocational goals, to develop a network of supports and to make appropriate friends.

Remorse

[41] R.S. has expressed remorse for the killing of Jaivoan Cromwell. He has acknowledged the impact of his actions on Ms. Cromwell who has lost her son. This is documented in the Pre-sentence Report and in the s. 34 assessment. It was evident in R.S.’s statement to the court before sentencing.

Determination of the Appropriate Sentence

[42] With that brief summary of the circumstances of the offences and the circumstances of R.S., I will now apply the principles of sentencing to the circumstances of this case.

[43] I must attempt to find a sentence that accords with the general principles of the YCJA and achieves the protection of the public by promoting fair and proportionate accountability and respect for the law, by promoting the rehabilitation and reintegration of this young person into society and by supporting the prevention of crime by addressing the circumstances underlying the offending behaviour (YCJA s. 3(1)(a)).

[44] Section 38 of the YCJA deals specifically with sentencing. The purpose of a youth sentence is to protect the public by holding the young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his rehabilitation and reintegration into society (YCJA s. 38(1)). The sentence imposed must be proportionate to the seriousness of the offence and the degree of responsibility of the young person. It should also be the least restrictive sentence that is capable of achieving the purpose in s. 38(1) (YCJA ss. 38(2)(c) and (e)).

[45] Subsection 38(3) of the YCJA requires that I take into account several factors, including: the degree of participation by the young person in the commission of the offence; the harm done to victims and whether it was intentional or reasonably foreseeable; the time spent in detention by the young person as a result of the offence; the previous findings of guilt of the young person; and 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.

[46] The maximum available sentence under the YCJA for these offences is a three-year custody and supervision order (YCJAs. 42(2)(o)) and that is the sentence sought by the Crown. In determining whether it is appropriate to impose the maximum sentence I must consider s. 38(2)(a) which provides that 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.

[47] There is a wide range of sentences for an adult convicted of manslaughter. The circumstances leading to a finding of guilt of manslaughter range along a spectrum from near accident to near murder. In R. v. Bennett[^3] the offender, an abused spouse who stabbed her husband to death, was given a suspended sentence. In R. v. Chan[^4] the court imposed a four-year sentence on a 61 year-old man who killed his wife in a struggle. At the other end of the spectrum are cases such as R. v. Clarke[^5] and R. v. Cleyndert[^6] in which sentences of 12 years were imposed. Sentences for adults at the low end of the range tend to have elements of self-defence, intoxication or provocation.

[48] The comparison of adult and youth sentences is not a mathematical exercise. The treatment of pre-trial custody is different and the conditions of detention are different. However, some comparison must be made. In this case, in light of the aggravating factor of the use of a gun and the mitigating factors of elements of self-defence and provocation, a sentence in the 4 to 5-year range would be appropriate for an adult who committed this offence in similar circumstances. Therefore, the sentence that I impose on R.S. cannot be greater than 4 to 5 years. An adult would be entitled to credit for pre-trial custody, usually at the ratio of 1.5:1. R.S. has been in custody for 22 months. While I recognize that the accounting for pre-trial custody is not the same for a youth as it is for an adult offender, I must take R.S.’s pre-trial custody into account. As a result, in my view, any Custody and Supervision order imposed by me should not exceed two and one-half years because to impose more than two and one-half years would be to effectively impose a greater sentence on R.S. as a youth than would be imposed on an adult in similar circumstances.

[49] I have considered the circumstances of R.S. that led to the offences. While I did not have the benefit of the s. 34 assessment at the time of the judgment, the conclusions of the assessor with respect to this young person’s limited ability to engage in abstract reasoning and to make reasoned decisions provide context for my findings. R.S. chose to arm himself in response to the prior attacks upon him rather than to seek out other solutions, including seeking help from responsible adults including his parents and the police. He chose to shoot at the retreating attackers rather than to use less force to ensure his safety. According to the report, R.S.’s ability to problem-solve and to think abstractly is limited. He lacked the verbal skills to discuss and consider the act of arming himself. In addition, he has shown reluctance in seeking help from appropriate sources when faced with problems. In the interview with the assessor he said that he did not tell his parents about the incidents in which he was shot at because he did not want to worry them. At trial he gave a similar explanation. In my view, this combination of his developmental delays and his reluctance to seek appropriate help combined to lead to these offences. His developmental limitations were not within his control. His choices about where and when to seek help were and are within his control.

[50] In fashioning an appropriate sentence in this case I am conscious of the principles in s. 3(1)(c) of the YCJA that within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should 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. In addition, the measures should respond to the needs of young persons with special requirements. R.S., as a result of his level of development has special needs. A sentence must be fashioned to protect the public by addressing those needs.

[51] In this case, R.S. has taken many positive steps over the past two years in custody. He has used the time in custody to work towards rehabilitation. The s. 34 assessment report speaks to his pro-social attitudes and his efforts to avoid negative peers.

[52] Had R.S. been sentenced to the maximum Custody and Supervision Order shortly after the commission of the offences he would have completed the custodial portion of a Custody and Supervision Order by this time. He has now spent just over two years away from his family. The impact of this separation is significant, particularly in light of his limitations and his attachment to his parents and siblings. The period of secure detention has served to hold him to account for what he did.

[53] In my view, the benefits of custodial rehabilitation for this young person have already been achieved. The next step is to ensure that the progress made by R.S. continues as he is reintegrated into society. The s. 34 report provides recommendations for programmes available in the community that will assist in the rehabilitative process. Vocational counselling and training and the development of an appropriate network of supports in the community will protect the community by rehabilitating this young person.

[54] In my view, the appropriate sentence to achieve the purposes in the YCJA is a Custody and Supervision Order of two and a half years. Because the custodial rehabilitation of this young person has already been maximized during his pre-trial custody I will order that the first portion of the sentence, the custodial portion, be for a period of one day. The balance of the period of Custody and Supervision will be served under conditional supervision in the community.

Conclusion

[55] Therefore, taking into account the time served of 22 months of pre-trial custody on the manslaughter charge, I impose a sentence of Custody and Supervision for two and half years with one day of secure custody and the balance of the sentence to be served under community supervision. On the charges of aggravated assault, careless use of a firearm and possession of a firearm without being the holder of a licence or registration certificate, I take into account the time served of 22 months and impose a sentence of one day in secure custody on each charge concurrent to each other and concurrent to the sentence on the manslaughter charge. These sentences are to be served concurrent to the sentence that R.S. is currently serving on the robbery charge.

[56] The YCJA (s. 105(1)) states that the young person who is subject to a Custody and Supervision Order is to be brought to the court to set the conditions one month before the expiry of the custodial portion of the sentence. Because of the length of the custodial portion of the sentence I am imposing, I will set the conditions now.

[57] The communit