COURT FILE NO.: YC-21-50000003-00SR DATE: 20240212
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING - and - M.L., A young person
Counsel: Alana Pasut, for the Crown Alonzo Abbey, for M.L.
HEARD: February 9, 2024
Warning: Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the name of M.L. or any other information that would identify M.L.
FORESTELL J.
REASONS FOR DECISION ON SENTENCE REVIEW
Overview
[1] On March 28, 2022, M.L. entered a guilty plea to second degree murder. On October 4, 2022 I sentenced M.L. to four years in intensive rehabilitative custody to be followed by three years under conditional supervision in the community.
[2] Section 94(1) of the Youth Criminal Justice Act, S.C. 2002, c.1 (the “YCJA”) provides that where a sentence of more than one year of custody is imposed, that sentence is to be reviewed annually. The review in this case occurred about 16 months after the sentence was imposed. The review was delayed because of an outstanding appeal which has since been abandoned.
Circumstances of the Offence
[3] The circumstances of the index offence are that on August 25, 2019, M.L. shot Alexis Charles in the abdomen at close range, killing him. M.L. later reported that, at the time of the murder, he was attempting to rob Mr. Charles of his gold chain. M.L. was intoxicated. Mr. Charles resisted the robbery and M.L. shot him.
Circumstances of the Young Person
[4] In sentencing M.L. in October 2022, I had the benefit of comprehensive reports on his background and mental health challenges. He was diagnosed with Attention Deficit/Hyperactivity Disorder (ADD/ADHD) and struggled in school with little support. By 2018, when he was 15 years old, M.L. was gang-involved. In 2019, after the murder of Mr. Charles and before his arrest, M.L. was shot twice.
[5] M.L. has been diagnosed with Post-traumatic Stress Disorder, Conduct Disorder and Cannabis and Alcohol use disorder. Before his detention he had not engaged in any treatment.
[6] The s.34 report prepared on sentencing recommended an Intensive Rehabilitative Custody and Supervision (“IRCS”) sentence, in order to address M.L.’s mental health needs. Individual psychotherapy, psychiatric consultation, substance abuse treatment and mentorship programmes were recommended. M.L. was assessed as appropriate for an IRCS sentence and that is the order that I made in October of 2022.
[7] M.L. continued to do very well following his sentencing in October of 2022 when he remained at the Roy McMurtry Youth Centre. Unfortunately, on March 22, 2023, the Provincial Director made an order that M.L. not continue to serve his sentence in a youth facility. On March 23, 2023, M.L. was transferred to the Central North Correctional Centre (the “CNCC”)
[8] M.L. received a misconduct on the date of his transfer for having contraband. He expressed great remorse for his lapse in judgment. He has had no misconducts since that time.
[9] M.L. has maintained regular contact with his family. This was difficult for the family after M.L. was transferred to CNCC because of the distance and because of the cost of telephone calls. As of January 2024, IRCS funding was arranged to cover the cost of telephone calls. An iPad was also obtained to facilitate video calls for educational purposes.
[10] M.L. has a good relationship with his probation officer Ms. Miller who has maintained regular contact. That contact has been more difficult since the transfer because of the distance and because of the frequent lockdowns at CNCC. Ms. Miller has only had two in-person meetings with M.L. since his transfer.
[11] While at the Roy McMurtry Youth Centre, M.L. had weekly sessions with Mauro DeLorenzi, a psychometrist and clinical and forensic psychotherapist. According to the Progress Report filed on this review, M.L. has been invested in pursuing treatment and, in particular, he has been willing to fully address his role and responsibility in the offence. Mr. DeLorenzi reported good progress in the area of victim awareness, victim impact and empathy.
[12] M.L. and his family were able to begin Family Therapy sessions in the youth facility. It is not possible to conduct the sessions at the CNCC.
[13] M.L. despite his ADD/ADHD completed high school before his sentencing. There is no post-secondary education available to M.L. through CNCC. However, Ms. Miller has been successful in arranging for M.L. to have the assistance of Amadeusz, an organization that supports young people in custody through access to education. Through Amadeusz and the Ministry of Children, Community and Social Services, a teacher attends CNCC twice a month to support M.L. in post-secondary courses. He is currently registered in the General Arts and Science certificate program at Northern College. He has completed an Abnormal Psychology course and obtained a grade of 79%. The Progress Report notes that M.L. has experienced difficulty in completing assignments and exams because of the noise on the range at the jail. A request from his probation officer for M.L. to have access to a quiet area for a few hours a week was denied by the institution due to staffing challenges.
[14] The Progress Report notes that many areas of the treatment plan cannot be met in the current setting. There is no meaningful programming available to M.L. in this setting. The Progress Report also notes that M.L.’s PTSD symptoms have been triggered by the daily violence and aggression witnessed by M.L. at the CNCC.
[15] M.L. provided a letter to the court on this review. The letter describes the significant steps taken by M.L. to advance his treatment and rehabilitation while still in a youth facility. He and his family engaged in family therapy. He had frequent sessions with his psychotherapist. The letter describes his insight into the harm that he caused when he took the life of Mr. Charles and, in the letter, M.L. expresses remorse for his actions. The letter also describes the challenges that M.L. has faced since his transfer. In his words:
“ Other than Mauro who is able to come there about 2 times a month, and a tutor who helps me from time to time, I have nothing else. Family therapy stopped cause you can’t have these program in adult jail, at least not now. CNCC is so far away that I have hardly seen my family cause it’s not easy for them to get up there, whereas I had a lot of visits at RMYC. There are hardly any programs and getting education done is next to impossible. There have been a lot of lock-downs, guards that do not have time to help you, and ranges that have many inmates who are criminals, who have no intention to change and who seem to fight all the time. I have been traumatized again by all the violence, stabbings, fights, blood that seems to go on there all the time. The ranges are always tense and stressful. How can a person who wants to work on his goals get any better in there?”
[16] Ms. Miller, in her Progress Report and her testimony also described the significant obstacles to M.L.’s treatment and rehabilitation that have been created by his current placement. Ms. Miller pointed out that even in the face of the conditions under which he is now detained, M.L. has had no misconducts, he has completed a post-secondary course and he has maintained contact with his family who remain very supportive of M.L. Despite his current circumstances M.L. has been focused on advancing the objectives that were identified at his sentencing.
Law and Analysis
[17] This review is governed by s. 94(19) of the YCJA which provides as follows:
s.94 (19) When a youth justice court reviews under this section a youth sentence imposed in respect of a young person, it may, after giving the young person, a parent of the young person, the Attorney General and the provincial director an opportunity to be heard, having regard to the needs of the young person and the interests of society,
(a) confirm the youth sentence;
(b) release the young person from custody and place the young person under conditional supervision in accordance with the procedure set out in section 105, with any modifications that the circumstances require, for a period not exceeding the remainder of the youth sentence that the young person is then serving; or
(c) if the provincial director so recommends, convert a youth sentence under paragraph 42(2)(r) to a youth sentence under paragraph 42(2)(q) if the offence was murder or to a youth sentence under paragraph 42(2)(n) or (o), as the case may be, if the offence was an offence other than murder.
[18] Section 94(19)(c) has no application to these proceedings because there is no recommendation that the IRCS sentence be converted to a sentence of continuous custody. The two possible outcomes of this review are the confirmation of the sentence or the release of M.L. under conditional supervision.
[19] M.L. seeks a change in the sentence from custody to conditional supervision. The Crown submits that M.L. has not met his onus to justify a change in the sentence and that the sentence should be confirmed.
[20] There are certain principles that emerge from the case law and that apply to this review:
- A review under s.94 is not an appeal or review of the original sentence which is presumed to have been fit. [1]
- The young person bears the evidentiary and persuasive burden to show that the sentence should be changed. The burden approximates a balance of probabilities [2].
- No single factor determines the outcome of the review. All relevant factors must be considered and weighed in the context of the individual circumstances of each case. For example, where the crime is serious and little time has passed since the sentence, in balancing the needs of the young person and the interests of society, greater weight may be given to the interests of society. [3]
[21] In approaching this review, I have also borne in mind the purpose of such reviews and their role in the overall framework of sentencing in the YCJA. The Supreme Court of Canada in R. v. J.J.M. [4] described the purpose of mandatory reviews of youth custodial sentences as follows:
The section is obviously salutary. It provides an incentive to young offenders to perform well and to improve their behaviour significantly as quickly as possible. As well, it gives an opportunity to the court to assess the offenders again and to make certain that the appropriate treatment or assistance has been made available to them. It introduces an aspect of review and flexibility into the sentencing procedure, with the result that any marked improvement in the behaviour, outlook and performance of the offender can be rewarded and any deterioration assessed. [Emphasis added]
[22] In the decision of R. v. T. (M.) [5], Stuart J. described the purpose of a review as follows:
Unlike a sentencing appeal, the review focuses on what can now best advance the needs of the young offender and the interests of society…[emphasis added]
[23] Duncan J. in R. v. K.(C.) [6] considered the balancing of the two considerations in the context of the purpose of the review and wrote at paras. 16 and 17:
16 A review is a reassessment of circumstances subsequent to sentencing. It is designed to monitor and reward rehabilitation and progress but also to make certain that appropriate treatment and programs are made available to the offender. ...
17 The review focuses on what can now best advance the needs of the young offender and the interests of society and requires a balancing of those two considerations. Consequently, no matter how compelling the attraction to serve the young person's needs, larger public interests cannot be ignored. The interests of society and the needs of a young offender are not distinct, wholly conflicting interests. On many fronts, they obviously promote the same objective. Rehabilitating young offenders serves the best interests of society. However, rehabilitation must include an acceptance by young offenders that they are responsible for the consequences of their conduct and that they cannot act in a manner that threatens the property or person of others. In this fashion, and in many others, the needs of young offenders and the interests of society converge. [citations omitted; emphasis added]
[24] The foundational principle in sentencing under the YCJA is rehabilitation. Section 38 of the YCJA states that the purpose of sentencing a youth is to “promote their rehabilitation and reintegration into society thereby contributing to the long-term protection of society.”
[25] Nordheimer J. (as he then was) observed in R. v. M.(S.) [7] that “If we are truly committed to that principle of rehabilitation then when a young person does all that can be reasonably expected of them, and more, to demonstrate that they are committed to improving themselves as a person, we, as the society to which that young person will eventually return, ought to both reward that change and encourage its continuation. That is in our own self-interest as much as it is in the young person's interest.”
[26] I have concluded that the evidence before me on this review supports a change in the sentence of M.L. to a release under conditional supervision. I am satisfied on a balance of probabilities that this change is required to advance the interests of society and to address the needs of M.L. I find that M.L. has met the evidentiary and persuasive burden on him to show sufficient change to justify the change in the sentence.
[27] In reaching this conclusion I have considered the progress of M.L towards rehabilitation in the last 16 months. I appreciate, as pointed out by the Crown, that the progress has slowed in the last ten months since M.L. was transferred to CNCC. I have considered that he has not been assessed by a psychiatrist; he has not received substance abuse treatment and he has not continued family therapy. I find on the record before me that M.L. has been unable to pursue any of this treatment because he has been transferred to an adult facility where none of these programmes are available to him. As long as he remains in custody, that programming will remain unavailable. If released all of these programmes are immediately available.
[28] I have measured M.L.’s progress in the context of his circumstances and what it has been possible for him to do while he has been at CNCC. Within that context, I have concluded that M.L. has done ‘all that can reasonably be expected of him and more to demonstrate that he is committed to improving himself.’ M.L. has avoided any misconducts; he has maintained contact with his family; he has maintained a good relationship with his probation officer; he has advanced his therapeutic goals through sessions with his psychotherapist; and, he has furthered his education.
[29] While some of these accomplishments would be unremarkable if M.L. was in a youth facility, his ability to progress to this degree while in the harsh and violent setting of the CNCC is exceptional. It demonstrates M.L.’s commitment to his treatment and rehabilitation goals. It also shows the level of maturity that he has developed.
[30] In this case, I find that the interests of society and the needs of M.L. converge. M.L. needs further programming to achieve rehabilitation. Society has a compelling interest in the rehabilitation of this young person. The long-term protection of society is achieved through M.L.’s rehabilitation.
[31] I have carefully considered the important principle that a youth sentence must have meaningful consequences for the young person and that it must promote a sense of responsibility in him and an acknowledgement of the harm that he has done. In releasing M.L. under conditional supervision I intend to fashion conditions that continue to significantly restrict his liberty. He must understand that this continues to be a sentence. The strict conditions that I will impose are intended to ensure that M.L. maintains his focus on his treatment and rehabilitation and to ensure that there are meaningful consequences for the very serious offence that he committed. A breach of the conditions of this order will result in a return to custody.
[32] I therefore order, pursuant to s. 94(19), that M.L. be released from custody and placed on conditional supervision for the remainder of his total sentence.
[33] The mandatory conditions provided by section 105(2) of the YCJA that apply throughout the conditional supervision are that M.L. will:
(a) keep the peace and be of good behaviour; (b) appear before the youth justice court when required by the court to do so; (c) report to the provincial director immediately on release, and then be under the supervision of the provincial director or a person designated by the youth justice court; (d) inform the provincial director immediately on being arrested or questioned by the police; (e) report to the police, or any named individual, as instructed by the provincial director; (f) advise the provincial director of his address of residence on release and after release report immediately to the provincial director any change (i) in that address, (ii) in his normal occupation, including employment, vocational or educational training and volunteer work, (iii) in his family or financial situation, and (iv) that may reasonably be expected to affect his ability to comply with the conditions of the order; (g) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except for the purpose of employment and only with the prior written approval of his probation officer.
[34] In addition to the mandatory conditions, I impose the following further conditions:
(h) have no contact directly or indirectly with any member of the family of Alexis Charles; (i) Have no contact with anyone known to him to have a criminal record except a member of his immediate family or with the prior approval of his probation officer. (j) Not to be within 100 metres of 172 Toryork Drive or 122 Millwick Drive. (k) Reside with his mother Nadine Jutus or at an address approved by his probation officer and not change his address without the prior written approval of his probation officer; (i) Abide by the rules and direction of his mother while residing with her; (j) not to possess or consume any alcohol or non-medically prescribed drugs; (k) attend school or seek employment and provide proof of attendance at school or employment to the probation officer; (l) Attend such counselling, psychotherapy or other therapeutic programmes as are recommended by his probation officer and sign any release forms necessary for his probation officer to monitor his attendance and progress in such programmes; (m) For 30 months from the date of his release, M.L. shall not leave his residence except: (i) to attend counselling; (ii) to report to his probation officer; (iii) to attend school; (iv) to seek or attend work; (v) to attend any recreational or physical activity approved in advance by his probation officer; (vi) for prearranged medical or dental appointments; (vii) to travel directly to and from any of these places in the company of his mother or a person approved by his probation officer; (viii) for any other purpose that has been approved in advance and in writing by his probation officer; or, (ix) for a medical emergency involving him or a member of his immediate family. (n) For the remainder of his sentence, M.L. shall be subject to a curfew of 11 pm to 5 am except with the prior written approval of his probation officer or in the event of a medical emergency involving him or a member of his immediate family.
Forestell J.
Released: February 12, 2024