COURT FILE NO.: YC-13-50000005-00
DATE: 20150609
ONTARIO YOUTH CRIMINAL JUSTICE COURT
BETWEEN:
her majesty the queen
- and -
R.S.
Mr. T. Lissaman and Ms. K. Rogozinski, for the Crown
Mr. M. Forte, for R.S.
HEARD: May 27, 2015
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.
JUDGMENT
(Section 109 of the Youth Criminal Justice Act, S.C. 2002, c. 1)
Overview
[1] On March 24, 2014, R.S., a young person as defined under the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”), was found 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 (R. v. R.S., 2014 ONSC 1996).
[2] On July 17, 2014 I imposed a sentence on R.S. of Custody and Supervision for two and one-half years with one day of secure custody and the balance of the sentence to be served under community supervision (R. v. R.S., 2014 ONSC 4279). The order was made under s. 42(2) (o) of the YCJA.
[3] As a result of another sentence that R.S. was serving, he was not released from secure custody until October 31, 2014.
[4] On April 20, 2015 R.S. was arrested and charged with four counts of trafficking in heroin and one count of possession of cocaine for the purpose of trafficking.
[5] His Conditional Supervision Order was suspended and the matter was referred to this Court pursuant to s. 108 of the YCJA to determine whether the suspension should be cancelled or continued.
Nature of the Inquiry
[6] The relevant section of the YCJA governing this review is s. 109 which provides as follows:
- (1) If the case of a young person is referred to the youth justice court under section 108, the provincial director shall, without delay, cause the young person to be brought before the youth justice court, and the youth justice court shall, after giving the young person an opportunity to be heard,
(a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach a condition of the conditional supervision, cancel the suspension of the conditional supervision; or
(b) if the court is satisfied on reasonable grounds that the young person has breached or was about to breach a condition of the conditional supervision, review the decision of the provincial director to suspend the conditional supervision and make an order under subsection (2).
(2) On completion of a review under subsection (1), the youth justice court shall order
(a) the cancellation of the suspension of the conditional supervision, and when the court does so, the court may vary the conditions of the conditional supervision or impose new conditions;
(b) in a case other than a deferred custody and supervision order made under paragraph 42(2)(p), the continuation of the suspension of the conditional supervision for any period of time, not to exceed the remainder of the youth sentence the young person is then serving, that the court considers appropriate, and when the court does so, the court shall order that the young person remain in custody…
(4) In making its decision under subsection (2), the court shall consider the length of time the young person has been subject to the order, whether the young person has previously contravened it, and the nature of the contravention, if any.
Evidence
[7] On the hearing for this review the Crown filed the police synopses of the outstanding charges and called as a witness the undercover officer who allegedly purchased the heroin from R.S. Counsel for R.S. has conceded the strength of the Crown case on the outstanding charges and has conceded that the evidence satisfies the statutory threshold in s. 109(1)(a) that the court must be satisfied on reasonable grounds that R.S. breached a condition of his Conditional Supervision Order. I will not therefore summarize the circumstances of the outstanding charges except to note that the evidence shows reasonable grounds to conclude that R.S. made four sales of heroin to the undercover officer on March 17th and 29th and on April 9th and 20th. The amounts sold were 1 gram, 2.57 grams, 2.37 grams and 10.68 grams respectively. The police then executed a search warrant at the residence of R.S. and found 6.05 grams of crack cocaine in his bedroom.
[8] The circumstances of the original offences for which R. S. was sentenced are set out in detail in my reasons for judgment and in more summary form in my reasons for sentence. The charges arose out of a shooting that occurred on April 12, 2012. 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.
[9] The s. 34 report of Dr. Joe Beithchman filed on sentencing in July 2014 was filed on this review. In addition, the Crown filed the criminal record of R.S. and the progress report of R.S.’s probation officer Jacob Berkenblit. Two witnesses were called on the hearing ‑ Mr. Berkenblit and a social worker who has been involved with R.S., Ms. Micah Dell.
[10] In addition to the offences for which he received the Conditional Supervision Order that is the subject of this review, R.S. has the following 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.
July 2, 2014
robbery
4 months secure, 2 months’ community supervision, 12 months’ probation
[11] R.S. is now 20 years-old. He will turn 21 in July. At the time of the offences 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.
[12] As I noted in my reasons for sentence last year, the pre-sentence report and the s. 34 assessment filed at the original sentencing hearing both indicated that R.S. had a fairly good relationship with his parents. There is nothing to indicate that R.S.’s relationship with his parents has deteriorated since last year. His mother attended court for this review. R.S. now also has a girlfriend and his girlfriend attended court. R.S. has had and continues to have family support.
[13] The s. 34 report indicated that 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. The s. 34 report also indicated real strengths in R.S.’s level of effort and his strong work ethic. With smaller classes and supports, R.S. successfully completed high school credits at the Roy McMurtry Centre.
[14] Immediately prior to R.S.’s release from custody, his probation officer arranged for R.S. to begin counselling with a social worker from the African Canadian Legal Clinic. The social worker arranged for R.S. to register with Emery Collegiate Institute Adult Learning Centre. Since his release from custody in October 2014, R.S. has completed all of his high school credits.
[15] In April, R.S. obtained employment with J Dominus Carpentry. A letter from his employer indicates that he has been a good employee.
[16] R.S. has shown that he has the ability to succeed in his education and in the workplace with proper supports.
[17] There was some indication of substance abuse during the time period leading up to the offences. R.S. participated in a treatment programme at the Roy McMurtry Centre. After his release into the community, he attended and successfully completed a substance abuse programme at the Centre for Addiction and Mental Health.
[18] In his testimony, Mr. Berkenblit indicated that R.S. appeared to be compliant with the conditions of the Conditional Supervision Order and did not resist participation in programmes or counselling recommended by Mr. Berkenblit. Ms. Dell, the social worker, testified that R.S. was open to talking about his education, employment and his goals. Ms. Dell had spoken to R.S.’s mother and was willing to work with R.S. and his family, including attending at their home if there were restrictions on R.S. leaving his home as a result of any variation in the order.
Positions of the Parties
[19] The Crown submits that the breaches of the conditions of the order were serious and repeated. The Crown’s position is that the public is placed at risk by the conduct of R.S., not only as a result of the impact of heroin trafficking on the purchasers of the drug but also because of the violence associated with drug trafficking. The Crown points out that while under community supervision R.S. appeared to be compliant and doing well, but was involved in multiple drug transactions. The Crown’s position is that the suspension of the Conditional Supervision Order should be continued for a period of 6 months to one year. This would convey to R.S. the consequences of non-compliance, but still allow a period of community supervision that would assist R.S. in continuing his progress with respect to his education and employment.
[20] The position of counsel for R.S. is that the suspension should be cancelled. Counsel points to R.S.’s accomplishments in completing his high school credits and in obtaining employment. He submits that the supports available to R.S. in the community provide sufficient safeguards to the public. He also points out the challenges faced by R.S. as a result of his cognitive limitations and the vulnerability of R.S. to exploitation by others as a result of those limitations. Counsel for R.S. submits that R.S. will remain in custody regardless of the decision on this review. R.S. is detained on the new charges and is likely to resolve the charges and be sentenced on those charges. Counsel submitted that it would be in the interests of R.S. and the public for R.S. to have the benefit of strong community support under the Conditional Supervision Order for as long as possible after he is ultimately released.
Analysis
[21] Subsection 109(4) requires that I consider three factors: the length of time the young person had been subject to the order, whether the young person had previously contravened the order and the nature of the contravention.
[22] The breach in this case is serious. R.S. engaged in serious criminal conduct and put himself and the public at risk. While R.S. did not previously contravene the order, this breach cannot be characterized as an isolated incident showing bad judgment, but must be characterized as a deliberate course of criminal conduct. R.S. had been in the community and subject to the supervision order for just under five months before breaching the conditions of the order.
[23] Factors other than the mandated statutory factors may also be considered on review. In addition to the factors in s. 109(4), I have taken into account the goals of sentencing and sentencing principles in reaching a decision on this review.
[24] R.S. has had significant success in attaining his academic and vocational goals. The support and assistance of his probation officer and social worker have undoubtedly contributed to his success. There are clear benefits for the community and for R.S.’s rehabilitation in ensuring a strong level of community supervision and support for as long as possible.
[25] However, the sentencing goal of promoting a sense of responsibility in the young person is also a factor to be considered in this case. R.S. deliberately and repeatedly breached the conditions of his order. He was able to do so in spite of the efforts of his probation officer, his social worker and his family. He apparently brought crack cocaine into his family home. There should, in my view, be consequences for this type of breach in order to bring home to R.S. the impact of his conduct.
[26] Having considered the factors mandated by s. 109(4) and the other applicable sentencing principles, I have concluded that the suspension of the Conditional Supervision Order should be continued for a period of four months. After the four months, if R.S. is otherwise entitled to be released, he shall be released on the same conditions as the original order. I have taken into account that R.S. has been in custody on this order since April 21st when the Conditional Supervision Order was suspended. Therefore, with the additional four months he will have served a period of custody of five months and 19 days.
[27] I wish to make one final observation. Section 743.5(1) of the Criminal Code provides that if a person is sentenced to imprisonment while subject to a sentence under s. 42(o) of the YCJA, the remaining portion of the youth sentence shall be dealt with for all purposes as if it had been a sentence under the Criminal Code. This provision was considered by the Court of Appeal in R. v. L.S. 2009 ONCA 762. The Court of Appeal in L.S. found that section 743.5(1) means that an outstanding community supervision order is converted to a sentence of imprisonment if the young person receives an adult sentence of imprisonment while the order is outstanding. Therefore, if R.S. is sentenced to a period of imprisonment on his outstanding charges before January 16, 2017, the date that his youth sentence expires, the youth sentence will be treated as a sentence of imprisonment and R.S. will not be released on community supervision regardless of my decision in this review. I raise this issue not because it impacts on my decision but because it may affect the sentence to be imposed on the outstanding charges if R.S. is found guilty of those charges.
Conclusion
[28] In conclusion, my order on this review is that the suspension of the Conditional Supervision Order shall continue for four months from today’s date after which R.S. may be released subject to the conditions of the Community Supervision Order made on July 17, 2014.
Forestell J.
Released: June 9, 2015
COURT FILE NO.: YC-13-50000005-00
DATE: 20150609
ONTARIO
YOUTH CRIMINAL JUSTICE COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
R.S.
JUDGMENT
(Section 109 of the Youth Criminal Justice Act, S.C. 2002, c. 1)
Forestell J.
Released: June 9, 2015