ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
K. Simone, for the respondent
Respondent
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
S. Stauffer, for the applicant
Applicant
HEARD: September 22, 2014
1On June 1, 2012, I found the applicant, who I shall refer throughout these reasons by his initials, S.M., guilty of first degree murder. On September 10, 2012, I dismissed the Crown’s application to have S.M. sentenced as an adult. Instead, I imposed a youth sentence on S.M. comprised of four years in custody to be followed by a period of four years of community supervision. This sentence reflected a credit for the two years that S.M. had already spent in custody. The total effective sentence was therefore one of ten years, the maximum penalty permitted by the Youth Criminal Justice Act, S.C. 2002, c. 1 for first degree murder.
2Two years have since passed. As required by the YCJA, S.M.’s sentence is subject to an annual review. On this annual review, S.M. seeks what is, in essence, a variation of the original sentence that would permit him to serve the remaining two years of the custodial portion of his sentence in what is referred to as “open” custody. There is no dispute that if that request is refused, S.M. will be transferred from the youth facility in which he has been housed for the past four years to an adult provincial facility. This result follows from the fact that S.M. will soon be twenty-one years old and the YCJA presumptively would have him moved out of a youth facility as a result of his age. This result is further driven by the fact that S.M. has availed himself of all of the programs that he can in the youth system.
3S.M. wishes to be moved to open custody because it would allow him to attend college to both further his education and train him for gainful employment. This is an avenue available to him because, just last week, S.M. graduated from high school. I note in that regard that in order to graduate from high school, S.M. needed to accumulate thirty credits. I also note that when S.M. was first incarcerated he had but one high school credit. In other words, during the time of his incarceration, S.M. has essentially both started and completed his high school education. This feat would be impressive in and of itself but it is rendered more impressive by the fact that S.M. suffers from a learning disability – something that may have not been known before his incarceration but, if it was known, it was certainly not properly addressed. S.M.’s earlier failures at school can undoubtedly be linked directly to that reality. Now with proper assistance, structure and supervision, S.M. has been able to make up all of that lost educational ground. By saying that, I do not mean to ignore S.M.’s own very dedicated efforts to reach that achievement.
4The evidence before me from both S.M.’s probation officer and his psychologist shows that S.M. has developed significantly over the past four years but especially in the last two years. His probation officer reports that S.M. has “grown into a mature, responsible, kind, thoughtful individual”. His psychologist says that S.M. has matured and become much more serious about his life. She describes S.M. as having made “tremendous gains” over the past two years. In that regard, it is reported that S.M. has become a role model for other youth within the youth facility in which he is housed and has, on a number of occasions, moved to diffuse tense situations including ones involving staff members. Indeed, it is hard to think of two reports that could be more positive than are the ones filed regarding S.M.
5Both S.M.’s probation officer and his psychologist express very serious concerns that if S.M. is moved to an adult facility he will lose all that he has gained over the past few years. They point out that there is no opportunity for S.M. to attend college if he is in an adult provincial facility. They also point out that there is little of the programming and counselling available in an adult facility of the type that he has benefitted from in the youth system. Simply put, both of them are concerned that if S.M. is sent to an adult provincial facility, he will simply be “warehoused” for two years, will have little constructive activities to occupy his time and will be surrounded by older, and perhaps more seasoned, adult criminals who could adversely influence S.M.
6The Crown quite fairly acknowledges the progress that S.M. has made but says that S.M. was part of a horrific crime and that the sentence that was originally imposed on him should be continued.
7I accept the Crown’s point. This was a case of first degree murder. First degree murder is the most serious offence in our criminal law. Further, this was a case where the victim was apparently killed simply because he was a witness who had had the courage to come forward and provide evidence against the people who he believed were responsible for an attack against him. It was a brave step that we see too many others unwilling to take.
8At the same time, however, it must be kept in mind what S.M.’s role was in this murder. He was the getaway driver. He was also just sixteen years old. As I said in my reasons rejecting an adult sentence, S.M. got caught up in an event put in motion by another, something that young persons often do without due regard for the consequences of their actions. I believe that S.M. now understands those consequences. I also believe that S.M. is truly remorseful for his actions as the handwritten letter he delivered on this application quite capably outlines.
9I said something else in my reasons rejecting the adult sentence. I said:
S.M. is entitled to an opportunity to rehabilitate himself and to demonstrate that he can be a law abiding, contributing member of our society. That opportunity is still available to him if we afford him the chance for it. S.M. is entitled to the opportunity to show that he can change.
10It appears to me that S.M. has taken that opportunity. He has shown that he can change. He is entitled to a chance to show that he can continue that change.
11Section 94(6) of the YCJA allows a youth sentence to be reviewed on a number of grounds, one of which is that the young person has made sufficient progress to justify a change in the youth sentence.
12I have been referred to two authorities: R. v. D.H. [2008] O.J. No. 779 and R. v. J.S. [2005] B.C.J. No. 66. I will say that I do not find the decision in J.S. to be of much assistance as the judge in that case seemed to find a confusion in the review process that is not apparent to me. It also appears that the judge in that case took a view of J.S.’s participation in the underlying offence that did not allow for any realistic prospect for J.S. to demonstrate any acceptable level of change.
13The decision in D.H. is of more assistance in particular because it refers to the Supreme Court of Canada’s decision in R. v. J.J.M. [1993] S.C.J. No. 14 where Cory J. explained the purpose of such a sentence review in the following terms, at para. 33:
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.
14A further decision that I find to be helpful is R. v. M.T. [1995] Y.J. No. 6 where Stuart J. also explained the purpose behind a youth sentence review where he said, at para. 13:
Unlike a sentencing appeal, the review focuses on what can now best advance the needs of the young offender and the interests of society, not on whether the sentencing adequately addressed the guiding principles of sentencing and properly accounted for all mitigating and aggravating circumstances at the time of the sentence. [emphasis added]
15The YCJA is very much focused on rehabilitation. Indeed, s. 38 outlines the purpose and principles of sentencing under that Act. It notes that the purpose of sentencing a youth is to:
… promote his or her rehabilitation and reintegration into society thereby contributing to the long-term protection of the public.
16If we are truly committed to that principle of rehabilitation then when a young person does all that can be reasonably expected of them, and more, to demonstrate that they are committed to improving themselves as a person, we, as the society to which that young person will eventually return, ought to both reward that change and encourage its continuation. That is in our own self-interest as much as it is in the young person’s interest. It is that basic concept that s. 94(6) encapsulates. If we simply hold rigidly to the notion that more time in custody equates to increased safety, we will never achieve the desired objective of rehabilitation. I note on that point that there is no evidence before me that suggests that S.M. would be a risk to the public if he is permitted to move to open custody.
17S.M. has now spent four years in secure custody. That may not seem like a long time relative to the time that an adult would spend in custody for the same offence but it is, in fact, a long time for a teenager. I can keep S.M. in that secure custody for two more years where he will be exposed daily to negative influences and run the risk that the significant progress that he has made to date will be lost or I can give S.M. the opportunity to demonstrate that he truly has a long-term commitment to his improvement by varying his sentence as the YCJA permits. I believe that S.M. has shown that he should be given that chance. He will know that his conduct will be continued to be watched and he will know that he has no margin for error in that regard. One false step will land him back in secure custody, only this time in an adult facility.
18I therefore grant the application and vary the remaining portion of the custodial sentence to one of open custody, such variation not to take effect before November 1, 2014.
NORDHEIMER J.
Released:
Court File No.: YC-11-10000002
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
S.M.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: