R. v. D.A., 2015 ONSC 701
COURT FILE NO.: 13-Y1153
DATE: 2015/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
D.A. (a Young Person)
Appellant
Moiz Karimjee, for the Crown
Michael A. Johnston, for the Appellant
HEARD: January 7, 2014
SUMMARY CONVICTION APPEAL DECISION
On appeal from the Sentence of Justice C. Dorval of the Ontario Court of Justice, dated January 17, 2014.
RAtushny J.
1. Background
[1] The appellant, a young person under the Youth Criminal Justice Act (the YCJA), pleaded guilty to sexual assault. The Crown recommended a sentence of probation. The Defence requested a conditional discharge.
[2] The sentencing judge imposed twelve months of probation, remarking that the appellant had pleaded “to having touched inappropriately two girls in the context of the school setting with a lot of attitude in the words that accompanied those gestures…And because of that attitude, I conclude, I agree with Crown counsel that I have to impose a period of probation. I do so.”
[3] The appellant was 16 years of age at the time of the offence. He is now 18 years of age.
[4] The appellant appeals his sentence on the ground that the sentencing judge erred in depriving him of his “right of allocution” before sentence was imposed. He also seeks the admission of fresh evidence in the form of the statement he says he would have made to the sentencing judge had he been given that opportunity then, and to have his sentence changed to that of a conditional discharge.
[5] The issue on this appeal in deciding whether an error occurred is, therefore, whether under the YCJA there is, or as the Defence has submitted there ought to be, a right accorded to a young person to speak to the court before sentence is imposed.
2. The Legislative Scheme
[6] For adult offenders, s. 726 of the Criminal Code governs this issue:
- Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say.
[7] The appellant’s plea proceedings were conducted under the provisions of the YCJA. The YCJA sets out, in s. 3, principles applicable to the youth criminal justice system in Canada and these, in turn, operate to make some aspects of criminal proceedings for young persons under the YCJA significantly different than those for adult offenders under the Criminal Code.
[8] One of these differences is contained in s. 50(1) of the YCJA, making all of Part XXIII of the Criminal Code dealing with sentencing inapplicable to proceedings under the YCJA, except for specified sections that do apply. S. 726 of the Criminal Code is not one of those Criminal Code sections that apply to proceedings under the YCJA, with the result that there is no obligation imposed on the sentencing judge in youth justice court to ask a young person if she or he has anything to say.
[9] However, s. 42(1) of the YCJA does require the sentencing judge to consider recommendations and representations before imposing a youth sentence, as follows:
- (1) A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under section 41 [a s. 19 conference], any pre-sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court.
[10] The Defence also asks this Court to also focus on principles enunciated in s. 3 of the YCJA and in particular in ss. 3(1) and (2) as follows:
3.(1) The following principles apply in this Act:
(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,
(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).
[11] From a plain reading of these provisions under both Acts it is clear that a the youth justice court is not required to ask whether the offender has anything to say, however she is required to consider everything presented to her as set out in s. 42(1) of the YCJA before imposing sentence. This is not new law and accords with well-established practice.
[12] The issue moves to a consideration of whether a youth justice court is required, according to common law principles including principles of fundamental justice and fairness of process and as embodied in ss. 3(1) and (2) of the YCJA, to ask whether a young person has anything to say before sentence is imposed.
3. Analysis
[13] The Defence has not brought a motion alleging a violation of the appellant’s s. 7 Charter rights or attacking the constitutionality of s. 50(1) of the YCJA.
[14] Instead, the Defence relies on jurisprudence dealing with adult offenders (R. v. Dennison (1990), 1990 2345 (NB CA), 60 CCC (3d) 342 (N.B. C.A.); R. v. Dinelle, [2001] O.J. No. 1692 (Ont. S.C.J.); R. v. M.T. [2009] O.J. No. 3247 (Ont. S.C.J.), the latter case involving an application by the Crown to have the young person receive an adult sentence), and submits that “all traditional rights emanating from the principle of a fair trial” (Dennison, at p. 349) including “the final opportunity to convince the judge why the deprivation of the accused’s liberty should be minimal” (Dennison, at p. 348) apply with full force to the YCJA.
[15] This jurisprudence and particularly the case of R. v. Senek, 1998 17680 (MB CA), 130 C.C.C. (3d) 473, a 1998 decision of the Manitoba Court of Appeal, makes an important distinction between a deliberate decision to take away the right of an adult-accused to make a statement to the Court and an inadvertent oversight, and then proceeds to consider the disadvantage or unfairness caused by that decision or oversight.
[16] In the present case, neither situation is squarely applicable.
[17] The sentencing judge was not required under the YCJA to ask whether the young person had anything to say before imposing sentence. There was, therefore, no deliberate taking away of a statutory right akin to that in s. 726 of the Criminal Code.
[18] The sentencing judge was required, pursuant to s. 42(1) of the YCJA, to consider any recommendations and representations before imposing sentence. She did just that, including a sexual behaviours assessment report ordered pursuant to s. 34(1) of the YCJA. The Defence, through oversight I understand, did not inform the sentencing judge that the young person wished to speak to the court.
[19] The Crown’s position is that before imposing sentence, the sentencing judge is only required by s. 42(1) of the YCJA to consider “any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person.” The Crown submits that the sentencing judge has no obligation either statutory or according to principles of fundamental justice to ask whether that young person has anything to say.
[20] This is because, the Crown argues, s. 42(1) of the YCJA gives offenders a broader “right of allocution” by including not only the young person or his counsel or his agents, but also the parents of the young person. The Crown also submits that in addition to this broader right to address the sentencing judge, by not importing the s. 726 Criminal Code obligation so that it applies to a youth justice court judge, more control is conferred on counsel and parents and this is in recognition of the greater immaturity and dependency of young offenders as opposed to adult offenders.
[21] The bottom line from the Crown’s perspective is that while the young person has a right to address the youth justice court, the sentencing judge has no duty to inquire whether the young person has anything to say. I agree.
[22] The YCJA, as set out in its “Declaration of Principle” in s. 3, enacts a criminal justice system for young persons that is separate from that of adults because of a different emphasis being required, based on young persons’ greater dependency, their reduced level of maturity and their resultant diminished moral blameworthiness.
[23] In respect of procedural protections, s. 3(1)(b) provides:
(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, …
[24] In addition, s. 3(1)(d) says:
(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, …
[25] When the principles governing the criminal justice system for young persons as set out in the YCJA are considered in their entirety including the excerpts referred to above, I agree there should not be a duty placed on the sentencing judge, as there is for the sentencing of adults, to ask whether the young person has anything to say. The young person has the right to be heard, of course, but given his status as a young person, that decision is best left to him or his counsel, and to his parents.
[26] I can understand no unfairness or disadvantage created by this slight distinction between the Criminal Code and the YCJA. Instead, the “enhanced procedural protection” required by s.3(1)(b) of the YCJA is achieved and the young person retains his right to be heard and to participate in the sentencing process.
[27] I conclude, therefore, that no error was committed by the sentencing judge by not asking the appellant whether he had anything to say before imposing sentence.
Admission of Fresh Evidence
[28] The appellant states in his affidavit filed on this appeal that he had wanted to speak to the sentencing judge before sentence was imposed. He did not have anything written down but he had intended to say something along the following lines:
These past few months have not been easy. As a result of my actions, two girls were hurt, and I was expelled from a high school I love, where I had many friends.
My actions also caused my parents to be upset, and disappointed.
Needless to say, I very much regret what I did.
I want to apologize to Ms. [J.] and Ms. [M.]. I am sorry. I want you both to know that my intention was not to hurt, or to disrespect. At the time, I was a very naïve 16 year old, who was trying to figure out how to approach the opposite sex. I realize now, in hindsight, how inappropriate my actions were, and for that I apologize. Since the incidents, I have been more conscious of how I approach the opposite sex, and I can assure the Court that nothing like this has happened since, or will ever happen again.
I am truly sorry for my actions, and beg the Court for mercy when it imposes sentence. [Names suppressed]
[29] The four criteria for the admission of fresh evidence on a sentence appeal are set out in R. v. Levesque, 2000 SCC 47, at para. 35, as referred to in Dinelle, at para.3. The criteria involve the requirements that the new evidence be considered: (1) “fresh”, in that by due diligence it could not have been adduced at trial; (2) relevant; (3) credible in terms of being reasonably capable of belief; and (4) if believed and when taken with the other evidence adduced, it could reasonably be expected to have affected the result.
[30] The appellant’s statement that he had hoped to make is certainly relevant. The second of the criteria is met. The third of the criteria, considered generously, could also be said to have been met although it is a statement recently set down in writing with reduced probative value as a result.
[31] An additional weakness is that the statement should not be considered as “fresh” evidence according to the second criteria referred to in Levesque. There was nothing preventing counsel from requesting the sentencing judge to hear directly from his client and yet that request was not made.
[32] Neither does the statement satisfy the fourth criteria As is evident from the sentencing judge’s reasons, she was concerned with the appellant’s behaviour and attitude that he had exhibited, as indicated in the agreed statement of facts, both at the time of two incidents and later to the medical advisors as reported in the sexual behaviours assessment report. As the Crown’s submissions to her indicate, that affected the gravity of the offence and elevated it out of the range of a conditional discharge. The sentencing judge evidently concurred. As a consequence, I am unable to conclude, if the appellant’s statement had been given in court in the face of all of the other evidence, that it could reasonably be expected to have caused the sentencing judge to reduce her sentence to one of a conditional discharge as opposed to probation.
[33] As a postscript, even if I am wrong and this fresh evidence was admitted, I would regard its probative value as slight compared to the other evidence. The sentence imposed is not demonstrably unfit. The fresh evidence would not cause me to interfere with the discretion exercised by the sentencing judge in imposing probation.
[34] It is for these reasons the appeal is dismissed.
Justice L. Ratushny
Released: January 29, 2015
CITATION: R. v. D.A., 2015 ONSC 701
COURT FILE NO.: 13-Y1153
DATE: 2015/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
D.A.
Appellant
SUMMARY CONVICTION APPEAL DECISION
Ratushny J.
Released: January 29, 2015