COURT FILE NO.: YC-20-8000010-0000
DATE: 20211209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
M.M., A young person
Karen Simone, for the Crown
Ryan Handlarski, for M.M.
HEARD: December 3, 2021
warning
Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the name of M.M. or any other information that would identify M.M.
FORESTELL J.
REASONS FOR SENTENCE
Overview and Issues
[1] M.M. entered a guilty plea to a charge of second degree murder in relation to the killing of his mother, G.M. At the time of the murder, M.M. was 17 years old. He is now 19 years old. The provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 govern this sentencing because of his age at the time of the offence.
[2] Although the Crown had previously served notice of an intention to seek an adult sentence in this case, the Crown submitted at the sentencing hearing that a youth sentence was the appropriate disposition.
[3] Both Crown and defence support M.M. receiving an Intensive Rehabilitative Custody and Supervision (“IRCS”) sentence pursuant to s. 42(2)(r)(B) of the Youth Criminal Justice Act.
[4] Pursuant to s. 42(7), an IRCS order can only be imposed if the following four conditions are satisfied:
(a) the young person has been found guilty of murder, attempted murder, manslaughter, aggravated sexual assault or a third serious violent crime;
(b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance;
(c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe the plan might reduce the young person's risk of recidivism; and
(d) the provincial director has determined that an IRCS program is available and the young person's participation in it is appropriate.
[5] It is agreed that the four conditions are met in this case. M.M. has longstanding issues with phobias, anxiety, social interactions, and learning disabilities. Recent assessments suggest a possible Autism Spectrum Disorder. The conclusion of the Provincial Director as contained in the Intensive Rehabilitative Custody and Supervision Suitability Assessment Report is that M.M. is an eligible and suitable candidate for an IRCS sentence; that he is amenable and consenting to the proposed Treatment and Reintegration Plan and that an appropriate plan has been developed to meet his identified needs and to reduce the likelihood of future conflict with the law.
[6] The maximum youth sentence for second degree murder is seven years, comprising four years in custody and three years under conditional supervision. Both Crown and defence agree that a seven-year IRCS sentence should be imposed.
[7] The issue between the Crown and defence in this case is the amount of credit to be given to M.M for the 688 days that he has now spent in pre-sentence custody. Counsel for M.M submits that M.M. should receive 1:1 credit for that time in custody. This would leave just over two years for M.M to serve in custody and three years to be served under conditional supervision in the community, pursuant to s. 105 of the YCJA. The Crown’s position is that M.M. should receive credit of about one year for his presentence custody and that he should serve three years in custody before the commencement of the period of community supervision.
[8] It is well-settled law that although I must consider presentence custody in sentencing a young person, the treatment of the pre-sentence custody is discretionary.[^1]
Circumstances of the Offence
[9] The circumstances of the offence are that sometime between November 21, 2019 and January 21, 2020 M.M. killed his mother by beating her with a sledgehammer. At some point during that time he withdrew money from his bank account and left Toronto. He was located in Winnipeg in January of 2020 after the police located the decomposed body of his mother. He initially denied involvement in the killing when questioned by the police but then admitted that he killed his mother when he spoke to his aunt from the police station.
[10] Further details of events leading up to the killing were contained in the reports filed by the defence on sentencing. These details are not relied upon by the Crown as aggravating circumstances. They are, however, relied upon by the Crown as relevant to the need for a longer period of custody and structured and closely supervised treatment. Aspects of these additional circumstances are also relied upon by counsel for M.M. as relevant to an assessment of M.M.’s vulnerability to exploitation by adults.
[11] M.M. reported to Dr. Ramshaw that he killed his mother in the evening and early morning of November 22nd and 23rd, 2019. He was living at home with his mother. His father had moved out of the home about two months earlier. He described a third party named Viktoria as being responsible for the break-up of his parents. This person was someone that his father initially met on-line. His father introduced Viktoria to M.M and his mother (also on-line). This person manipulated the family members, first to cause the marital breakup of M.M.’s parents and then to cause M.M to turn against his mother. There is independent evidence that confirms the existence of Viktoria, including screenshots of communications and evidence of money transfers from M.M. and his mother to a person who lived in New Zealand. M.M. reported abusing his mother in the days or weeks preceding her death.
Victim Impact
[12] No Victim Impact Statements were filed in this case. However, I have the benefit of letters from the mother, sisters and niece of the victim, G.M. All of these family members wrote letters in support of M.M. As indicated in the letters of M.M.’s aunt and cousin, the murder of G.M. is a tragedy that has affected the entire family. The family is committed to offering M.M. support. They are arranging to sell their homes and to build a home that will accommodate M.M upon his release,
Circumstances of M.M.
[13] M.M.’s background and circumstances are set out in considerable detail in the reports filed on sentencing. I have considered carefully the report of Dr. Lisa Ramshaw, dated March 19, 2021, the s. 34 Assessment report of Dr. Julia Vinik and the Intensive Rehabilitative Custody and Supervision Suitability Assessment Report.
[14] Dr. Ramshaw describes M.M.’s history as “highly complex and unusual.” She writes that, “He has intellectual limitations, social difficulties, and he has led a sheltered life. While there was no evidence of a chronic mental illness, he experienced anxiety from a young age, mood problems as a teenager, and paranoia in 2019 and into 2020. Given this and his young age, the development of a major mental illness could not be ruled out. A mild autism spectrum disorder could also not be ruled out. Finally, a paraphilia was considered, and sadomasochism could not be ruled out. There was no evident antisocial personality organization or substance abuse.”
[15] Dr. Vinik, in her s. 34 assessment, concludes that M.M “has significant neurodevelopmental needs (a likely ASD diagnosis) and severe learning deficits with unsophisticated and concrete reasoning style as well as delays in verbal reasoning and processing speed. He was consistently described as naïve and gullible. There is also evidence of some adaptive functioning deficits, particularly in the social domain. He appears to be highly dependent on the adults around him.”
[16] M.M. has a very supportive extended family. As I have already mentioned, his family has taken steps to prepare to support him upon his release. They have been actively involved in his treatment and counselling during his time in custody and throughout the assessment process.
Evidence Relating to Custody and Rehabilitation
[17] In her recommendations, Dr. Ramshaw states: “It is likely that [M.M.] will need high support and rehabilitation over an extended period of time given his needs, vulnerabilities, and deficits. Based upon his mental health needs, his cognitive limitations, his limited social and emotional maturity, his lack of influence on other youth, his lack of previous antisociality and substance abuse, and his engagement with care providers at Sprucedale, he would likely benefit from the Intensive Rehabilitation Custody and Supervision (IRCS) program…”. She also recommends further sexological testing.
[18] Dr. Vinik writes that M.M. has “significant learning deficits and mental health needs that require extensive supports…. He will require access to counselling to address his many needs. He will particularly require extensive services to process the circumstances of the offence and identify the maladaptive patterns that led to his violent behaviour. Once released from custody, he will need considerable support and supervision to help build a prosocial and productive adult life. Considering his neurodevelopmental needs, [M.M.] will likely need long-term supports relevant to securing housing, finding employment, and engaging in continued counseling support.”
[19] Dr. Vinik’s report specifically addresses the question of how long M.M would require counselling and support to ensure that he has been rehabilitated and has acquired the skills to prevent aggressive behaviour in the future. She states that it is not possible to answer this question with certainty, especially because M.M has not yet had the opportunity to process the circumstances and implications of the offence in counselling. She notes his willingness and commitment to engage in treatment and counselling while in custody and the benefits gained from that engagement. He has been compliant with medication. Dr. Vinik observes that many of the targets for M.M.’s interventions are related to underlying neurodevelopmental deficits which may require long-term supports. She concludes that he will need at least 18 months to three years of regular therapeutic supports to meet his immediate intervention and rehabilitative goals but that the counselling need not take place in custody.
[20] Ultimately, on the issue of the amount of time M.M. requires in custody, Dr. Vinik writes:
In judging how much time [M.M.] will need to be rehabilitated and when he will be ready to safely return to the community, there are indications that become evident over time. [M.M.] would be expected to continue participating in counselling sessions and to meet regularly with a psychiatrist for medication management and mental health monitoring. He should demonstrate continuing improvements in his assertiveness as well as emotion understanding and regulation skills (to the best of his abilities considering his underlying deficits). Most importantly, [M.M.] should demonstrate a better understanding of the factors that led to the offence and how to prevent violence from reoccurring. [M.M.] should also demonstrate his understanding of victim impact. He should continue to actively participate in recreational programs offered while in detention and pursue his educational/vocational goals.
Analysis
[21] Youth sentences must focus on holding the young person accountable, protecting the public and rehabilitating the young person.[^2]
[22] I have no difficulty in accepting the submissions of both counsel that a youth sentence and specifically, an IRCS sentence is the appropriate disposition in this case. A youth sentence is sufficient to hold M.M. accountable for his actions. This is an extremely unusual and tragic case. M.M. has significant challenges requiring long-term treatment, counselling and support in order for him to be rehabilitated and reintegrated into society.
[23] M. M. has shown himself to be capable of making real progress in rehabilitation while he has been in custody. He has been engaged in treatment, counselling and education. He has been compliant with medication. He has developed empathy and has taken responsibility for his actions. He deserves to receive credit for all of his efforts. One of the ways that this effort on his part has been recognized is in the joint submission for a youth sentence and the finding that he is suitable for an IRCS sentence. Without the commitment that he showed during this time in custody, this result may not have occurred.
[24] M.M has clearly started the rehabilitative process. However, as noted by both Dr. Ramshaw and Dr. Vinik there are uncertainties that remain with respect to diagnosis and with respect to the course of treatment. The length of time needed cannot be determined with certainty. What is clear is that M.M. will require some level of support long-term.
[25] For this reason, I have concluded that M.M. should receive credit of one year for the time spent in pre-sentence custody, leaving three years to serve in custody and three years under conditional supervision.
[26] I note that s. 94 of the YCJA provides for annual reviews of the custodial portion of the sentence. A youth court may, having regard to the young person’s needs and society’s interests, grant early release from custody. In addition, pursuant to s. 96 of the YCJA, the Provincial Director can make a recommendation to the youth justice court that a young person be released from custody and placed under conditional supervision if satisfied that the needs of the young person and the interests of society would be better served by so doing.
[27] These provisions allow the flexibility for M.M. to be released earlier rather than serving the full three years of custody. Once M.M.’s diagnosis is clarified, and he has the opportunity to engage in counselling directly relating to the offence, a better assessment of the need for further custodial treatment and supervision can be made.
Conclusion
[28] I therefore impose a youth sentence of seven years. I order that M.M be subject to an IRCS order for the sentence.
[29] Four years of the seven-year sentence is to be spent in custody, but M.M is to be credited with having served one year of those four years, leaving three years to serve in custody. The remaining three years is to be served under conditional supervision in the community.
[30] There will also be an order pursuant to section 487.051(1) of the Criminal Code, R.S.C., 1985, c. C-46 authorizing the taking of bodily substances for the purpose of DNA analysis and a further order pursuant to section 42(2)(j) and section 51(1) of the Youth Criminal Justice Act prohibiting M.M. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life.
Forestell J.
Released: December 9, 2021
COURT FILE NO.: YC-20-8000010-0000
DATE: 20211209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
M.M.
REASONS FOR SENTENCE
Forestell J.
Released: December 9, 2021
[^1]: R. v. S. (D.) (2008), 93 O.R. (3d) 211, [2008] O.J. No. 4231, 2008 ONCA 740, at para. 26; R. v. W. (D.), [2008] O.J. No. 1356, 2008 ONCA 268, at para. 3
[^2]: R. v. W. (M.), supra, at para164