SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Youth Criminal Justice Act, S.C. 2002, c.1

HER MAJESTY THE QUEEN v. A.S.M.

P R O C E E D I N G S A T C O U R T (Reasons for Sentence)

BEFORE THE HONOURABLE JUSTICE M. FUERST on April 25, 2016 at BARRIE, Ontario

INFORMATION CONTAINED HEREIN THAT WOULD IDENTIFY THE OFFENDER OR ANY YOUNG PERSON IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT

APPEARANCES:

L. Shirreffs Counsel for the Crown

J. Hershberg Counsel for Ms. A.S.M.

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

Exam. Cr.- Re- WITNESSES : In-Ch. exam. exam.

EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE

REASONS FOR SENTENCE Page 1 Transcript Ordered: . . . . . . . . . . . . . . .May 6, 2016 Transcript Completed: . . . . . . . . . . . . . .May 11, 2016 Transcript Approved for Release . . . . . . . . June 14, 2016 Notified Ordering Party:. . . . . . . . . . . . .June 15, 2016

MONDAY, APRIL 25, 2016

REASONS FOR SENTENCE

FUERST, J. (Orally)

Introduction

After a night of drinking, A.S.M. stabbed Steven Garnier to death with a kitchen knife. Ms. A.S.M. was then 17 and a half years old.

Ms. A.S.M. pleaded guilty to second degree murder. Because of delays caused by a variety of circumstances, including a change of counsel on her part, she is now 21 years old. Nonetheless, this sentencing is governed by the provisions of the Youth Criminal Justice Act (“YCJA”), as it was at June 23rd, 2012.

Crown and defence counsel are far apart in their positions as to the sentence that I should impose. Crown counsel asks that Ms. A.S.M. be sentenced as an adult and placed in the penitentiary. Defence counsel submits that Ms. A.S.M. should be sentenced as a youth to the time that she has spent in pre-sentencing detention and an additional period of conditional supervision in the community.

The Circumstances of the Offence

A.S.M. was 13 or 14 years old when she met Steven Garnier. He was then six or seven years her elder. Notwithstanding the age difference, they developed a physical/romantic relationship soon after their first meeting.

The relationship continued off and on into June 2012. It was marked by drinking, threats of violence toward one another and, on occasion, mutual acts of violence followed by reconciliation.

On the evening of June 22nd, 2012, Ms. A.S.M. and Mr. Garnier attended a party at the A. home of her friend, H.H.. Both Ms. A.S.M. and Mr. Garnier were drinking. Ms. A.S.M. became angry when she saw Mr. Garnier flirting with another young woman. During the evening, a third party told Ms. A.S.M. that Mr. Garnier had left earlier with another female. Ms. A.S.M. was observed to become angry.

At some point in the evening, Ms. A.S.M., Mr. Garnier and another male left the party to go to the male’s home. Before they got there, Mr. Garnier turned around to go back to the party. Ms. A.S.M. cried as a result. She said that she loved and hated Mr. Garnier.

Ultimately, Ms. A.S.M. and Mr. Garnier ended up back at the H.H. home where they stayed the night. They were intimate with one another there.

The next day, the two went to Wasaga Beach with Miss H.H. and other friends. They returned to the H.H. house between 6:00 and 6:30 p.m. They started to drink from a bottle of alcohol that had been stolen from the liquor store.

After dinner, Ms. A.S.M., Mr. Garnier and Miss H.H. went to a Tim Horton’s. At some point, Mr. Garnier was seen in the back seat of a motor vehicle, with a female’s head resting in his lap. Ms. A.S.M. became angry and began arguing with him. The arguing continued throughout the night.

Ms. A.S.M., Mr. Garnier and Ms. H.H. returned to the H.H. residence, where they were joined by others. The drinking continued, as did the arguing between Ms. A.S.M. and Mr. Garnier. Ms. A.S.M. was also angry that Mr. Garnier hid the liquor bottle from her.

The two went outside, where their argument escalated into a physical fight. Ms. A.S.M. spit on Mr. Garnier. The two of them rolled around on the ground. She bit his nipple. When she got up off the ground, in a manner described as that of a drunk person, another female held her while Mr. Garnier ran into the house.

While Ms. A.S.M. kicked on the door trying to get into the house, Miss H.H. made a 911 call to the police. Initially, she said that she wished to remove unwanted parties from her home. Then she clarified that she wanted Ms. A.S.M. off her property. The police were dispatched to the house at 11:53 p.m.

Before the police arrived and while Miss H.H. was still on the phone with police dispatchers, Ms. A.S.M. gained entry to the house. She went into the living room area where Mr. Garnier was, and then into the kitchen where Miss H.H. was still on the phone. Ms. A.S.M. demanded her shoes. Miss H.H. told her to get out. Ms. A.S.M. refused to leave.

In a matter of seconds, Ms. A.S.M. said, “Fuck it”, opened the knife drawer, and removed an 8-inch kitchen knife. She stepped back towards Mr. Garnier and in one motion plunged the knife up to its hilt into his chest area. She then fled the scene barefooted.

Police and emergency services arrived at the house. Mr. Garnier was transported to hospital, where he died of a single knife wound to the chest. It had pierced his heart and nicked his vertebrae.

Meanwhile, Ms. A.S.M. fled to an apartment building where a friend of hers lived. When she saw two female friends pass by the building, she ran out and flagged them down. She asked them for a cigarette and to use a phone. She asked to come over to the house of one of them, but her request was refused. She said that she and Mr. Garnier were really drunk, that he told her their love was a lie, and that he was cheating on her. She demonstrated how she had stabbed him, showing how she had held the knife and where it had landed on her body, indicating under the shoulder toward the right side of the chest. She asked if the heart was on that side, and said that there were lungs on both sides. She was described as being jittery and scared.

Ms. A.S.M. made two unsuccessful phone calls to the friend who lived in the apartment building. When her female friends left her, she was sitting on the ground in the fetal position, rocking back and forth. One of the females said that Ms. A.S.M. was extremely intoxicated, while the other described her as having been drinking but not extremely intoxicated.

A male friend rode by on his bicycle. Ms. A.S.M. called out to him. He did not talk to her, and instead called police. She was arrested for murder at 12:58 a.m. on June 24th, 2012. She provided an inculpatory statement to the police.

Victim Impact Information

In her Victim Impact Statement, Mr. Garnier’s mother described experiencing depression and anxiety as a result of her son’s murder. She was unable to complete a college program in which she was enrolled. She tried to return to work, but could not deal with stress or conflict. She continues to see a psychiatrist. Her younger son struggled in school, and still suffers from anxiety and panic attacks. She expressed that there “will forever be a hole in my heart for the son I have lost and the new memories we will never make with him”.

The Circumstances of Ms. A.S.M.

A number of reports about Ms. A.S.M. were prepared for the purpose of the sentencing hearing. They include a Pre-Sentence Report, a psychiatric assessment by Dr. Joseph Beitchman, a s. 34 psychiatric report by Dr. Alex Luczak, a psychological assessment by Dr. Ken Marek, and an Intensive Rehabilitative Custody and Supervision Suitability Assessment (“IRCS”) report.

I reviewed all of the reports. They provide detailed information about Ms. A.S.M.’s background and personal characteristics, which I am required by the YCJA to consider. The following is a summary of that information.

(a) Ms. A.S.M.’s Background and Circumstances Prior to the June 2012 arrest.

Ms. A.S.M. is now 21 years old. She was born on […], 1994. Her mother was 16 years old and her father was 18 years old at the time of Ms. A.S.M.’s birth. Her father is of aboriginal descent. Ms. A.S.M.’s aboriginal heritage does not appear to have been a factor in her life, prior to her arrest.

Unfortunately, both Ms. A.S.M.’s parents had drug addiction issues. As a young child, she witnessed incidents of violence between her parents. Because of those issues, as well as parental neglect, Ms. A.S.M. was placed in the care of her maternal grandmother and step-grandfather when she was about three years old.

Her contact with her parents diminished and, ultimately, ceased. She grew up with her grandparents in the role of parents.

Ms. A.S.M. has a younger brother, but their relationship was distant.

Ms. A.S.M. had no behavioural issues as a child, although she apparently had few friends and felt socially awkward. She enjoyed horseback riding, including competitive riding. She engaged in that activity until she was about 14 years old.

In elementary school, Ms. A.S.M. functioned below average. An Independent Education Plan was developed for her. It offered additional in-school supports for her, to meet her academic needs. She attended elementary school regularly. She was suspended on one occasion after she struck another student in the hand with a pen.

When Ms. A.S.M. was 13 and about to enter high school, her mother died of a drug overdose. Ms. A.S.M. reconnected with her father at her mother’s funeral, and continued to be in contact with him intermittently after that point. By all reports, her behaviour changed significantly after her mother’s death, and once she started high school. She struggled to cope with the loss of her mother and any hope that they would one day get to know one another. She developed associations with peers who were significantly older than her, and who regularly used substances. She began experimenting with drugs and alcohol. She was truant from school and had academic difficulty. She was twice suspended from school, once for being in possession of stolen property, and a second time for swearing at a vice-principal. She became increasingly short-tempered, defiant and oppositional at home.

From the age of 13 or 14, Ms. A.S.M. used alcohol and marijuana almost daily. From the age of 15 or 16, she used cocaine and ecstasy weekly. She also used magic mushrooms and OxyContin. She supported her substance use by stealing. She stole money from her grandparents. She stole alcohol from the liquor store, which she traded for drugs.

At some point, Ms. A.S.M. learned that her first boyfriend had committed suicide. This contributed to her behavioural problems.

On occasion, she ran away to her father’s home. She also stayed elsewhere, including at the homes of friends, a shelter, drug houses, and with her maternal aunt.

Ms. A.S.M.’s grandparents had increasing difficulty managing her behaviour.

By the time of her arrest, Ms. A.S.M. had earned only 13 of the 30 credits required to graduate from secondary school.

(b) Previous Record

Ms. A.S.M. was found guilty in Youth Court in April 2009 for assault on her grandmother and possession of property obtained by crime under $5,000. She was placed on probation for 12 months. She lived with her maternal aunt while on probation. She was resistant to counselling, and did not complete a counselling program during the probationary period.

(c) Ms. A.S.M.’s Circumstances Since her June 2012 Arrest

Ms. A.S.M. was detained initially at Roy McMurtry Youth Centre (“Roy McMurtry”). She was assessed as having a history of alcohol dependence and drug abuse, conduct disorder, and signs of depression.

While at Roy McMurtry, her mood level varied. She expressed violent thoughts when angry. There were occasions when she was verbally aggressive toward others, including yelling and swearing. On two occasions she was involved in physical altercations with other youths. She met regularly with a consulting psychiatrist, who prescribed medication including antidepressants, and recommended cognitive behavioural therapy.

Ms. A.S.M. completed five individual counselling sessions concerning her relationship with alcohol and drugs, and a self-directed Psychology Substance Use Treatment program. She participated in dialectical behavioural therapy with a psychometrist, and also independent learning anger management modules. She received her certification for Emergency First Aid and CPR Levels A and C.

In early August 2013, because Roy McMurtry no longer accepted females, Ms. A.S.M. was moved to Syl Apps Youth Centre (“Syl Apps”). She was transferred back and forth between Syl Apps and Craigwood Youth Services Woodview Program (“Craigwood”) a number of times in the months that followed.

While at Syl Apps, she was noted as being increasingly irritable, having a significant change in mood, being at times defiant, and displaying explosive behaviour. There were no incidents of physical aggression, although on one occasion she threatened to punch a staff member in the face. The criminal court trial process was noted as contributing to her worsening mood and increased levels of anxiety.

Ultimately, arrangements were made for Ms. A.S.M. to remain at Craigwood after she expressed interest in doing so. It appears from the reports that this happened in the spring of 2014. She continues to be held at Craigwood.

While at Craigwood, she met with Dr. Mirza, a psychiatrist with the London Family Court Clinic, on approximately a monthly basis beginning in late 2013. Dr. Mirza monitored her medications. He indicated that she was diagnosed with depressive disorder not otherwise specified, and that she is currently in remission.

The pre-sentence reporter states that Ms. A.S.M. appears to have connected well with the programming available at Craigwood. She earned most of the available privileges, including late bedtime and extra phone calls. She participated in group programming for anger awareness; financial literacy; substance awareness/relapse prevention; girls groups; and native cultural teachings. In particular, she repeated the anger awareness and substance abuse awareness programs approximately three times. She had some minor behavioural outbursts with verbal abuse concerning the condition of her room, but overall her behaviour as well as her socialization with peers was reported as positive. She connected with her aboriginal heritage and on occasion engaged in smudging. She participated in leisure activities, including arts and crafts and baking group. She was awarded the Youth Leadership Bursary for demonstrating excellent leadership skills and working toward her treatment goals.

Ms. A.S.M. completed the courses necessary to earn her Ontario Secondary School Diploma while in custody. Her academic achievement across courses ranged from 81 to 92 per cent. Presently she is completing an online Veterinary Office Management Certificate Program through Mohawk College. She earned a $2,000 scholarship through the Second Chance Scholarship Foundation. She also was awarded a Youth Leadership Bursary.

The pre-sentence reporter noted Ms. A.S.M.’s behaviour stabilized once she opted to remain at Craigwood, and she has made productive use of her time. However, while Ms. A.S.M. identified the loss of her mother as a factor contributing to her substance abuse, she has not engaged in counselling to address that loss. The pre-sentence reporter commented that Ms. A.S.M. was unaware that her depression is in remission. She must acquire a better understanding of her personal mental health needs.

Ms. A.S.M.’s primary worker at Craigwood suggested that she needs to concentrate on counselling or psychological therapy, including emotion management and healthy relationships. In-depth counselling or therapy was not arranged for her at Craigwood, at least in part because her sentencing was pending.

While in custody, Ms. A.S.M. has been in contact with family members, most particularly her grandparents who visit her regularly and are supportive of her.

(d) Mental Health Status and Prognosis

In September 2014 Ms. A.S.M. was assessed by Dr. Joseph Beitchman, a staff psychiatrist with the Youth Justice Clinic at the Centre for Addiction and Mental Health. The assessment included psychological tests, and a risk assessment.

He made the following diagnoses: major depressive disorder; social anxiety disorder; alcohol, cannabis and cocaine use disorder; conduct disorder, adolescent onset; and rule out learning disorder, attention-deficit/hyperactivity disorder - inattentive type. He found Ms. A.S.M.’s risk to re-offend as moderate. This was primarily because of her past history and tendency to become interpersonally triggered leading to emotion dysregulation which in the past led to verbal and physical aggression, and her use of substances which compromises her ability to control her affect and behaviour. He noted that she demonstrates empathy and concern for others and has a pattern of seeking and engaging with mental health services; that she scored well in testing measuring readiness to change and willingness to engage in treatment; and that she has engaged well with staff at detention facilities and demonstrated an improved ability to control her behaviour and progress through the levels of privileges. In his opinion, her risk to re-offend would likely decrease with appropriate interventions.

Dr. Beitchman concluded that Ms. A.S.M. is rehabilitatable. She should have ongoing mental health treatment for her major depressive disorder and challenges with affect and behavioural regulation.

Dr. Beitchman suggested that Ms. A.S.M. would be best served by a youth rather than an adult sentence. She is at a vulnerable developmental stage, and requires more time to mature to crystallize a pro-social trajectory. An adult sentence would expose her to more seasoned offenders while her pro-social identity is still crystallizing, and she would not have as much support to continue her schooling and move toward her career goals. Further, an adult criminal record would greatly diminish her chances of finding work.

Dr. Alex Luczak conducted a s. 34 Independent Psychiatric Examination of Ms. A.S.M. in September 2015. He found her to have moderate depression, and low anxiety. He saw no indications of thought disorder, and no psychotic features. Her insight and judgement were normal. He noted that she was taking antidepressants.

Dr. Luczak’s view was that substance abuse appeared to have been a major factor contributing to Ms. A.S.M.’s anger, impulsivity and aggressiveness leading up to the offence. She now demonstrates more appropriate social traits. Substance use can cause delay in the maturity of the brain and its higher executive functions such as judgement and control of impulsivity. He posited that being substance-free for the last three years has allowed her brain to mature. She now is better able to handle interpersonal conflict, authority and rules, and to control her previous mood swings and aggressive outbursts. Her recent behaviours suggest a good rehabilitation potential. The risk for her re-offending appears to be reduced in comparison to when she was arrested.

However, Dr. Luczak found that she still has major vulnerabilities and remains in a fragile state. She needs ongoing monitoring of her mood disorder, ongoing psychotropic medication, and follow-up with a psychiatrist. She would benefit from counselling to reinforce techniques in handling difficult situations in relationships. Her rejection sensitivity may need further therapy. She should be tested to rule out a learning disorder.

Dr. Luczak concluded that Ms. A.S.M. would be a good candidate for the IRCS program. He expressed concern that sentencing as an adult and incarceration in a facility with serious offenders would expose her to individuals with significant antisocial personality traits, which may influence her social development.

Dr. Ken Marek conducted a psychological assessment of Ms. A.S.M. involving the administration of various psychological tests in the fall of 2015. Test data suggested that she is inclined to be down-hearted and despondent. She perceives herself as inadequate. She tends to find it difficult to conform to societal norms and expectations. She has problems with authority figures. She is at high risk for substance abuse. She can behave aggressively toward other people. She requires help in developing better self-control strategies. She can be impulsive, exercise poor judgement, not learn from past experiences, and be easily influenced by others. She has poor insight into her feelings, behaviour and the impact she has on others.

Dr. Marek endorsed Dr. Beitchman’s conclusions that Ms. A.S.M. has pro-social attitudes and has demonstrated readiness to change, but is still at a vulnerable developmental stage and requires more time to mature so that her pro-social trajectory is established. Dr. Marek concluded that in order to significantly reduce the chance of recidivism, it is essential that she totally abstain from all drug and alcohol use. She will require ongoing therapy to deal with issues including impulse control, interpersonal relationships, and anger management, to reduce the probability of a slide back into out-of-control behaviour and emotions.

Dr. Marek acknowledged the seriousness of the offence, but agreed with Dr. Beitchman that an adult sentence would be counter-productive for Ms. A.S.M.. It would place her under the strong influence of an antisocial environment at a time when she has just started to commit to pro-social thinking and behaviour. Support for her continuing education may not be as great, which could negatively impact on her positive view of herself and future. Further, an adult criminal record could diminish her chances of finding work, which could precipitate a slide back to antisocial behaviour and substance use.

(e) Ms. A.S.M.’s Attitude Toward Her Offence

Ms. A.S.M. followed legal advice that she not discuss the offence while in detention. As a result, those who worked with her at Craigwood were unable to comment on whether she has remorse or insight into her offence. To date, she has not addressed the offence through any therapeutic treatment.

She told Dr. Beitchman that she feels guilty that she took someone’s life away, and would trade places with Mr. Garnier if she could. She became tearful when speaking with Dr. Beitchman about this.

Dr. Luczak found that during his assessment, her mood and affect was generally flat, and that her affect did not change appreciably when speaking about the events of June 23rd, 2012. However, she voiced regret and remorse to him. She said that after the stabbing, she felt shocked about what she had done. He wrote, “She knows what she did was wrong. She made no excuses.”

In court, Ms. A.S.M. expressed that she is deeply sorry for her offence. She said that she realizes what she did was wrong, and that she damaged Mr. Garnier’s family.

(f) Ms. A.S.M.’s Plans for the Future

On her release from custody, Ms. A.S.M. wishes to live with a great-aunt and great-uncle in Burlington. They are members of her step-grandfather’s family. Apparently, Ms. A.S.M. had only occasional contact with them while growing up. They have not visited her while she was in custody, because they were not on her approved contact list. They will provide her with basics, such as food and clothes. Her grandmother will provide financial support, until she can become self-sufficient.

In the short term, Ms. A.S.M. would like to work, and perhaps volunteer, in the animal care field. Her long-term plan is to obtain an Associate Diploma in Veterinary Technology Alternative Delivery, which eventually would allow her to pursue a career as a Registered Veterinary Technician. The IRCS report notes that one of her strengths is her education, and that it should be continued.

Ms. A.S.M. is prepared to complete programming directed at persons who commit murder in the context of a domestic/intimate relationship. She is willing to engage in counselling for violent behaviour and mental health issues. She plans to abstain from drugs and alcohol. She does not feel a need for substance abuse counselling, but will participate in it if it is recommended. She acknowledges that substance abuse destroyed her life.

Dr. Mirza recommended that after sentencing, Ms. A.S.M.’s medications be reduced and potentially eliminated, within a period of months. Ms. A.S.M. is prepared to engage in treatment in managing her medications.

Ms. A.S.M. expressed, through the IRCS report, that she would participate in programming and treatment as directed by the court.

Evidence About Custodial Facilities

As Ms. A.S.M. is now 21 years old, if a youth sentence is imposed, she will be transferred from the youth system to an institution for adults.

Crown counsel, who is seeking an adult sentence to be served in the penitentiary, called evidence about custodial facilities for female offenders in both the federal and provincial systems.

Grand Valley, located in the Kitchener area, is a federal institution for women serving custodial sentences of two years or longer. Sarina Randall, who is the Program Manager there, testified that on admission to the institution, an inmate is classified for maximum, medium, or minimum security based on assessments of her risk and needs. The level of security determines a woman’s access to programs.

Ms. Randall said that maximum security consists of a secure unit divided into pods. Although it has four levels of security within it, it is quite restrictive. Women can come off the unit with staff to attend programs. Medium security consists of cottage-style living in a house. The women do their own cooking, and there is a wider range of programming available to them. Minimum security inmates live in a building in the community, outside the institution fence.

A Correctional Plan is developed for each woman, which focuses on the factors that are linked to the individual woman’s criminal behaviour. The woman’s progress is measured against the Correctional Plan. A woman can progress through security levels. The focus during the sentence is on reintegration into the community on release.

Ms. Randall described programs available at Grand Valley. She said that relationship and substance abuse issues, in particular, are integrated into the programming.

A parole officer and other professionals such as employment counsellors are available to assist women released to the community on both day and full parole.

Ms. Randall admitted that there have been very few occasions when a woman came to Grand Valley from a youth facility. She could not say what security level would apply to Ms. A.S.M., or what programs would be available to her if she received an adult sentence as the Crown seeks. An assessment of her would need to be done to determine her security level. If she received a life sentence, maximum security is the mandated placement.

Marianne Muller, the Deputy Superintendent of Programs at the Vanier Centre, testified about the programming available there. The institution is a provincial facility that holds women serving sentences of less than two years in jail, as well as women awaiting trial. The institution has maximum and medium security units for women serving sentences. All women who come into the institution initially go to a maximum security unit where they are assessed for maximum or medium security. There are no minimum security units for sentenced inmates.

Inmates in medium security have access to more programs than do those in maximum security, and some can work within the institution. The doors on medium security units do not lock, and inmates have freedom to move around.

Ms. Muller testified that attendance at all programming is voluntary. Core programs address life skills, substance use, anger management and violence awareness. The Elizabeth Fry Society is involved in programs at the institution.

Ms. Muller said that access to college level courses is very limited at Vanier. Inmates do not have access to computers.

Discharge planning officers and social workers work together on a release plan for an inmate. Community supports are put in place for her.

Ms. Muller said that the institution has had inmates sentenced under the YCJA, but she did not know if there were any currently in the institution. If Ms. A.S.M. came into the institution under a youth sentence, the institution would have to do some research and connect with its youth partners.

The Positions of the Parties

On behalf of the Crown, Ms. Armenise submits that Ms. A.S.M. should be sentenced as an adult, to life imprisonment with no parole for seven years. As she has spent over three years in pre-sentencing custody, her parole ineligibility period would be reduced accordingly. The custodial sentence would be served at Grand Valley, which offers the programs and opportunities that Ms. A.S.M. needs for her rehabilitation and reintegration into the community on parole.

Ms. Armenise submits that an adult sentence is necessary to hold Ms. A.S.M. accountable. This is a case of murder, committed by Ms. A.S.M. acting alone. The offence occurred in the context of a domestic relationship. Ms. A.S.M. became angry over a bottle of alcohol. She could have left the scene, but she made the choice to go into the house, where she retrieved the knife that she used to kill Mr. Garnier. Then she left and tried to evade the police. Ms. A.S.M. was just months away from her 18th birthday when she committed this most serious offence. As a young teenager she began using alcohol and marijuana almost daily, and became involved with an older peer group. Her substance use coincides with her criminality. She previously committed offences as a young person, including one of violence against a family member for which she was dealt with under the YCJA. She was resistant to counselling while on probation for those offences. She has done little to address the loss of her mother, which played a role in her criminal behaviour. She has not addressed her offence through any therapy or counselling. She has engaged in counselling in only a superficial way. She has few supports in the community other than her grandparents and aunt. She has done well in detention in a structured environment, but she is not yet rehabilitated. She lacks the skills to go into the community and seek the resources that she needs.

Ms. Armenise points out that no reintegration planning has been done for Ms. A.S.M.. She has had no meaningful contact with the people with whom she proposes to live. She has no real plan for her release from detention. She is at a vulnerable developmental stage, and requires further custody at Grand Valley which offers the programs she needs for her rehabilitation and reintegration into the community. It is unsafe to send her into the community when she has yet to address her issues and there is no release plan in place.

On behalf of Ms. A.S.M., Mr. Hershberg submits that she should be sentenced as a youth. As of February, he asked that the sentencing be adjourned into April so that she could complete exams necessary to finish her educational program. He submitted that as of April, the youth sentence should be one of time served in custody calculated as necessary to equate to four years, plus three years of conditional supervision in the community; or alternatively one of time served calculated as something less than four years, plus a conditional supervision order longer than three years. In either case, the total youth sentence would be one of seven years.

He emphasizes that Ms. A.S.M. pleaded guilty despite triable issues, including that of intoxication. The stabbing was an impulsive act by an immature teenager. Mr. Hershberg asked me to consider the background of the relationship between Mr. Garnier and Ms. A.S.M., not because it excuses her conduct but because it helps to explain it. The relationship was initially an illegal one because of her age and the disparity in their ages at the time. It also was toxic, involving alcohol, drugs, the exertion of influence, and acts of violence against her. As a youth, Ms. A.S.M.’s moral blameworthiness is diminished. She has expressed remorse for her offence.

Mr. Hershberg emphasizes that Ms. A.S.M.’s behaviour went downhill after her mother died. Her substance abuse likely interfered with her brain maturation. While Ms. A.S.M. has spent longer in custody awaiting sentencing than she should have, being in a youth facility has had rehabilitative effects. She completed high school and enrolled in a community college program. She was awarded a scholarship. She partook of counselling.

Mr. Hershberg notes that because of her age, Ms. A.S.M. will spend any custodial portion of the sentence in an adult facility, even if she is sentenced as a youth. Incarceration in an adult facility, whether Grand Valley or Vanier, for any length of time will expose her to antisocial individuals. It will prevent her from pursuing her educational goal. It is unclear what programs she would be able to take in an adult jail. She will have better opportunities to get therapy or counselling specific to her needs in the community, under a conditional supervision order. Through no fault of hers, a reintegration plan was not prepared for her by Craigwood, but her family has and will help to put a plan in place for her release.

Mr. Hershberg prepared a proposed conditional supervision order with a structured release plan including a form of house arrest and participation in therapy and counselling.

Mr. Hershberg was very specific that he was not seeking an Intensive Rehabilitative Custody and Supervision Order, in light of Ms. A.S.M.’s age.

The Statutory Framework

The YCJA as it was at the time this offence was committed contains several important statements of principle.

Section 3(1)(b)(ii) provides that the criminal justice system for young persons must be separate from that of adults and emphasize fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.

Section 38(1) specifies that the purpose of sentencing under the YCJA is to hold the young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for him or her, and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Section 38(2) specifics that a sentence imposed on a young person must be determined in accordance with the principles set out in s. 3, and a number of additional enumerated principles, including proportionality and parity of sentences. Section 38(3) sets out factors that the sentencing court must take into account, including the harm done to victims and whether it was intentional or reasonably foreseeable, and any time spent in detention as a result of the offence.

Under section 42(2)(q)(ii), the youth sentence for the offence of second degree murder is one not to exceed seven years, comprised of a committal to custody not to exceed four years, and conditional supervision in the community.

The Criminal Code provides in s. 745.1(c) that the adult sentence for a person convicted of second degree murder who was 16 or 17 years old at the time is life imprisonment with no eligibility for parole for seven years.

Section 72(1) of the YCJA sets out the test that a court is to apply in determining whether a youth or an adult sentence should be imposed. The court must consider the seriousness and circumstances of the offence; the age, maturity, character, background and previous record of the young person; and any other factors that the court considers relevant.

If, with those factors in mind, the court is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 would have sufficient length to hold the young person accountable for her offending behaviour, it must impose a youth sentence. If the court is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 would not have sufficient length to hold the young person accountable for her offending behaviour, it must impose an adult sentence.

In R. v. O.(A.), 2007 ONCA 144, at paragraph 29, the Court of Appeal for Ontario held that when the Crown seeks to have an adult sentence imposed, it bears the onus of satisfying the court of the matters necessary for the imposition of an adult sentence. In applying that onus, the court must bear in mind the very serious consequences of an adult sentence for the young person, and order an adult sentence only when necessary to fulfil the objectives of the YCJA.

The Court of Appeal stated that as a result of ss. 72, 3 and 38, accountability is the purpose that the court must consider when deciding whether to impose an adult sentence. At paragraph 42, the court said that accountability is achieved “through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society.”

The court concluded that accountability is the equivalent of the adult sentencing principle of retribution. For a sentence to hold the young offender accountable in the sense of being meaningful, it must reflect “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.”

Analysis

With those provisions in mind, I turn to the issue of whether an adult or a youth sentence should be imposed on Ms. A.S.M..

(a) The Seriousness and Circumstances of the Offence

Murder is the most serious of crimes. By her plea, Ms. A.S.M. admitted that she had the state of mind necessary to make her killing of Mr. Garnier second degree murder. At a minimum, she intended to cause him bodily harm that she knew was likely to cause death, and was reckless whether death ensued or not.

I note that Mr. Garnier’s murder has had a substantial impact on members of his family.

The offence involves a number of aggravating facts. This was not a purely impulsive act carried out by resort to a weapon readily at hand. Ms. A.S.M. forced her way into the house where Mr. Garnier had gone to get away from her. She refused to leave when told to do so by the host. She had been drinking and was clearly very angry. She retrieved a knife from a kitchen drawer and used it to stab Mr. Garnier. He was unarmed, and posed no threat to her at that time. While she inflicted only one wound, she did so by plunging the knife deeply into his chest. Knowing that he was seriously injured, and despite their long-standing intimate connection, she did nothing to assist him. Instead, she fled the scene and tried, albeit it briefly and unsuccessfully, to avoid apprehension by the police.

The background of the relationship between Mr. Garnier and Ms. A.S.M. is, however, important. Ms. A.S.M. was a 13 or 14 year-old teenager when she became involved with Mr. Garnier, who was several years older than her and an adult. Rather than serving as a stabilizing influence on a troubled teenager, Mr. Garnier began an inappropriate relationship with Ms. A.S.M.. It involved sexual activity, alcohol, and physical violence. It was a psychologically unhealthy relationship for a vulnerable and immature young person.

Against that backdrop, it is not surprising that Mr. Garnier’s conduct with other females both the night before and the evening of the stabbing fuelled Ms. A.S.M.’s anger, and played a role in her offence. That it did is reflected in her uncontradicted comment to a third party, that Mr. Garnier told her their love was a lie and that he was cheating on her. I do not suggest that his behaviour excuses Ms. A.S.M.’s crime or diminishes the necessary element of intent. It does neither. It does, however, provide some degree of mitigation and explanation for the offence.

(b) Age, Maturity, Character, Background and Previous Record

Ms. A.S.M. was 17 and a half years old at the time of the offence. She is now 21.

She has a youth record for an assault on her grandmother and a property offence, for which she received probation.

Through no fault of her own, she was born to teenaged parents who were in no position to care for her properly. The professional reports suggest that her exposure to domestic violence at an early age may have played a role in her own behavioural problems.

Ms. A.S.M. had the benefit of being taken in by her grandmother, who with her step-grandfather raised her as her own child and provided her with a stable home. This served Ms. A.S.M. well until the death of her mother. As Ms. A.S.M. has not addressed the impact of her mother’s death in counselling or therapy, it is difficult to identify the precise role it, along with the reintroduction to her father, played in her downward spiral as she entered high school. I accept that it was an important factor.

Once in high school, Ms. A.S.M. became involved with older individuals. She began to use alcohol and drugs. She developed a substance abuse problem, which played a significant role in her behavioural difficulties. Those difficulties included running away from home, truancy, problems controlling her temper, and a defiant and oppositional attitude at school and at home. Her grandparents were unable to manage her behaviour. It is unclear to what extent they sought professional help. To the extent that she had the opportunity while on probation, Ms. A.S.M. failed to engage in counselling.

Overall, there is little positive that can be said about Ms. A.S.M.’s circumstances at the point when she murdered Mr. Garnier.

Initially, Ms. A.S.M. had difficulty while in custody. Changes in her medications, better connections to staff and programming once she settled in at Craigwood, the positive effects of prolonged abstinence from alcohol and drugs, and the maturation process that teenagers undergo as they move toward adulthood, combined to produce remarkable results. While in custody, Ms. A.S.M. completed high school, and recently an online Veterinary Office Management program through a community college. She achieved high marks and earned a scholarship. She participated in group programming, including for anger awareness and substance abuse/relapse prevention. She demonstrated an ability to control her behaviour. Her socialization with peers has been positive overall. She earned privileges. She was awarded a bursary for demonstrating leadership skills and working toward her treatment goals.

Although counsel did not suggest the need for a Gladue report, I note that Ms. A.S.M. is of aboriginal heritage through her father. She connected with her heritage while at Craigwood, where she participated in programming for native cultural teachings, and smudging.

Professional assessments indicated that Ms. A.S.M.’s test scores suggest some concerning personal qualities, including difficulty conforming to social norms, problems with authority figures, and poor insight into her feelings and behaviour. Yet, she also is described as demonstrating empathy and concern for others.

Dr. Beitchman, Dr. Luczak and Dr. Marek all indicated that Ms. A.S.M. has demonstrated pro-social attitudes and a readiness to change. Being substance-free has allowed her brain to mature, so that she is better able to control her anger, impulsivity and aggressiveness. She is rehabilitatable, and her risk of re-offending is reduced from what it was when she was arrested. But, she is at a vulnerable developmental stage, and there is more work that she needs to do. That includes ongoing mental health treatment for her major depressive disorder, and ongoing counselling or therapy for issues including impulse control, interpersonal relationships, and anger management. She must abstain absolutely from drugs and alcohol. She has yet to have counselling to address the loss of her mother, which is linked to her substance abuse, or for her offence. Dr. Beitchman identified her risk of re-offence as moderate, but suggested that it would likely decrease with appropriate interventions.

Ms. A.S.M. has indicated that she is willing to participate in counselling as recommended.

(c) Other Relevant Factors

There are three additional factors that are relevant. The first is that Ms. A.S.M. pleaded guilty, which is a sign of remorse and willingness to accept responsibility for her offence.

The second is that I find Ms. A.S.M. understands that what she did was wrong, and that she is genuinely remorseful for taking Mr. Garnier’s life.

The third is that each of Dr. Beitchman, Dr. Luczak and Dr. Marek expressed concern that an adult sentence would be counterproductive for Ms. A.S.M., primarily because it would expose her to antisocial individuals just as her pro-social identity is crystallizing. As well, it would saddle her with a criminal record, which would make it more difficult for her to reintegrate into society. While this body of professional opinion is not controlling given the test contained in section 72(1), it is a factor for consideration.

(d) Adult Versus Youth Sentence

If she is sentenced as an adult, Ms. A.S.M. would receive a sentence of life imprisonment with no eligibility for parole for seven years. The time she has already spent in custody, approximately three years and ten months, would be credited to effectively reduce the parole ineligibility period to one of three years and two months.

If Ms. A.S.M. is sentenced as a youth, the maximum sentence for second degree murder is one of seven years, composed of no more than four years in custody, followed by conditional supervision in the community. As Ms. A.S.M. is 21 years old, under s. 89 of the YCJA if a youth sentence involving custody is imposed, she “shall” be committed to a provincial correctional facility. In other words, she will serve any custodial portion of her sentence at the Vanier Centre, and not at Craigwood.

Section 38(3)(d) of the YCJA requires the sentencing judge to take into account the time spent in pre-disposition detention, but does not require that the custodial portion of a youth sentence be reduced accordingly. The treatment of pre-trial custody is a matter of discretion for the sentencing judge: R. v. J.S.R., 2012 ONCA 5568; R. v. Logan, 2009 ONCA 402. This leaves open the prospect of imposing a youth sentence that has a custodial portion in addition to time spent in pre-disposition detention, followed by conditional supervision on the community.

In sentencing Ms. A.S.M., I do not lose sight of the impact of Mr. Garnier’s murder on his family. Unfortunately, no sentence that I impose can restore him to those who loved him.

The offence is very serious. This weighs in favour of an adult sentence. However, the context of the relationship between Ms. A.S.M. and Mr. Garnier provides some measure of mitigation as well as some explanation for her conduct. I note that a youth sentence is not prohibited for the offence of second degree murder.

Ms. A.S.M.’s prior youth record is limited. While she was approaching the upper end of the age range for youth offenders when she committed this offence at the age of 17 and a half, which generally weighs in favour of an adult sentence, the professional reports make it clear that she lacked maturity. In particular, Dr. Luczak suggests that her use of drugs and alcohol delayed the maturity of her brain and its higher executive functions. While it is true that Ms. A.S.M. used drugs and alcohol of her own volition, the explanation for her use is more complex and harkens back to circumstances not within her control, including her family background and her mother’s death. Ms. A.S.M. has made great strides while in custody. She has matured and she has adopted pro-social attitudes. She has pursued her education with success. She has responsible goals that are attainable. She has not maintained contact with undesirable friends and, in fact, wants to stay away from A. on her release from custody, to avoid bad influences. She has a real commitment to change, and is supported in this by her family.

I recognize that Ms. A.S.M. is not yet fully rehabilitated. She continues to have significant counselling and therapeutic needs. There are issues that she has yet to address, most particularly the death of her mother, and her offence. But she is on a pro-social trajectory and is rehabilitatable. Her risk to re-offend, assessed as moderate, can be reduced through participation in the appropriate therapy and counselling. She is willing to take that therapy and counselling. She understands that what she did was wrong, and she is genuinely remorseful.

Both Grand Valley and the Vanier Centre offer therapy and counselling programs. However, the psychiatrists and psychologist who assessed Ms. A.S.M. all agree that placement with serious adult offenders, as obviously would occur in the case of an adult sentence served at Grand Valley, would adversely affect her pro-social development. In addition, an adult sentence would leave her with an adult criminal record, which could adversely impact her ability to find employment on her release from custody. I agree with both concerns. By definition, a penitentiary houses adult offenders serving lengthier sentences for more serious offences. It could not be more different from the protected environment of a youth facility of the kind where Ms. A.S.M. has been detained. She would be easy prey in a penitentiary setting for more sophisticated offenders with antisocial mindsets.

I have considered the case law submitted by Crown and defence counsel. Applying the test set out in s. 72(1), I am satisfied that a youth sentence imposed in accordance with the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 that is composed of some additional time in custody followed by several years of conditional supervision in the community will have sufficient length to hold Ms. A.S.M. accountable for her offending behaviour. It will have meaningful consequences for her and will promote her rehabilitation and reintegration into society. It will reflect her moral culpability, having regard to her intentional risk taking, the consequential harm caused by her, and the normative character of her conduct. It will hold her accountable, and it will promote her rehabilitation and reintegration into society, thereby contributing to the long-term protection of society.

The Crown’s application for an adult sentence fails. A youth sentence must be imposed.

The Appropriate Youth Sentence

I have concluded that some additional time in custody is necessary, followed by conditional supervision in the community. The additional custodial time must be more than minimal.

I recognize that this is a somewhat unique case because of the time Ms. A.S.M. has spent in pre-sentencing custody and her current age. The long period of time from her arrest to this disposition is due primarily to her change of counsel as her first scheduled trial date approached, protracted negotiations between Crown and defence counsel that resulted in her guilty plea, and the time involved in obtaining relevant reports. The reality is that she has been detained for over three years in a highly structured environment where she has been closely monitored. She has had no real access to the community.

Because of the uncertainty of her sentencing, no reintegration planning was done for her by the staff at Craigwood, or other professionals who have been involved with her. According to the IRCS report, neither Ms. A.S.M. nor her family had explored any services to support her discharge to the community as of the date of that report. Her primary worker at Craigwood described her as tending to lack self-motivation to seek services to address her needs. The IRCS report identifies resources in the Halton area through which counselling or psychological therapy can be obtained, but they must be contacted by Ms. A.S.M. or her family, and there may be issues of wait periods and cost.

I have significant concerns with the defence position that Ms. A.S.M. be credited with time served that equates to four years or close to it in custody, and that she be released to the community immediately or very soon on a conditional supervision order. While I am impressed by the progress that Ms. A.S.M. has made in custody, and agree that she should be encouraged to continue, I am not satisfied that she is ready to be released into the community. She has done well while in detention, but she has therapy and counselling needs that she has yet to address. Some additional time in custody would, in addition to holding her accountable as I have discussed, also allow her to undergo therapy or counselling in that setting that is directed at her specific needs, including the death of her mother and her offence. It would allow her, with the assistance of her family, to make contact with entities such as the Elizabeth Fry Society, and to start the process of putting in place the necessary supports in the community that she will need on her release.

I am satisfied that the Vanier Centre can make the appropriate arrangements to meet Ms. A.S.M.’s needs as an individual serving a youth sentence.

I order that Ms. A.S.M. serve a youth sentence totalling seven years. I take into account her time in detention and credit it as three years. I order that she serve a further period of one year in custody, for a total of four years in custody. This will be followed by three years of conditional supervision in the community.

I make a weapons prohibition order under s. 109(2)(a) and (b) of the Criminal Code for 10 years and life. I recommend that while at the Vanier Centre, Ms. A.S.M. receive counselling or therapy to address her specific needs, including the death of her mother, the commission of the offence, substance abuse, and anger management. She should meet with a psychiatrist on a regular basis. I also recommend that she be permitted to participate in educational activities. I require that the Vanier Centre report to me in writing within 45 days of today’s date as to what steps it has taken to implement these recommendations.

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2) Evidence Act)

I Phyllis Torrance (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of in the ONTARIO COURT OF JUSTICE (Name of Case) (Name of Court) held at 75 Mulcaster Street, Barrie, Ontario (Court Address) taken from Recording 3811-20160425-FUERSTJ, which has been certified in Form 1 by P. Torrance June 15, 2016 Phyllis Torrance ACT 4026163594