COURT FILE NO.: YC-21-30000004-00SR DATE: 20240405
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING - and - T.P., A young person
Counsel: Levi Vandersteen, for the Crown Shedrack Agbakwa, for T.P.
HEARD: March 25, 2024
Warning Section 110 of the Youth Criminal Justice Act, S.C. 2002, c. 1 prohibits the publication of the name of T.P. or any other information that would identify T.P.
FORESTELL J.
Reasons for Decision on Sentence Review
Overview
[1] On March 24, 2023, I sentenced T.P. to 17 months and five days of secure custody plus eight months and 25 days of community supervision following his guilty pleas to five bank robberies.
[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.
Circumstances of the Offence
[3] The circumstances of the index offences are that T.P. robbed five banks over the course of just over one week in January of 2020.
[4] T.P. was 16 years old at the time that he committed the offences. He was 19 years old at the time of his pleas and sentence.
Circumstances of T.P.
[5] In sentencing T.P., I had the benefit of a presentence report. The presentence report was very favourable. While in custody awaiting sentence, T.P. had finished high school and had been accepted into three colleges. He completed programs on substance use, financial literacy and employment skills as well as recreational programming. He also sought out and participated in counselling.
[6] After his sentence was imposed a year ago, T.P. was transferred to Peninsula Youth Centre from Arrell Youth Center. He adjusted well and had positive interactions with staff and other youth according to the progress report. There were no behavioural issues reported. T.P. met with a clinician for weekly sessions while at Peninsula Youth Centre. He received support in enrolling in a post-secondary course.
[7] T.P. turned 20 on June 17, 2023. A decision was made pursuant to s.93(1) of the YCJA to transfer him to an adult facility. He was transferred to Central East Correctional Centre (“CECC”) on June 19, 2023.
[8] There is no access to post-secondary education at CECC. There are no programs for T.P. that he has not already completed.
[9] Since his transfer, T.P. has participated in bible study and he has been working as a cleaner on the unit.
[10] T.P. has participated in an intake meeting with an organization called Keep6ix that offers various programs and services for people who have been incarcerated. T.P. has expressed interest in a trades program run by Keep6ix. He also wishes to enroll in college. He has not been able to submit an application for college because he has no access to a computer or the Internet. His log in information to apply for college is in his property at the institution and he has not been permitted to access it.
[11] One week after being transferred to CECC, T.P. was the victim of an assault.
[12] T.P. was given one misconduct for talking to inmates who were later involved in an altercation. Overall, T.P. has conducted himself well in the adult facility.
[13] On the sentence review, I heard from his probation officer, Agnes Sadowski. Ms. Sadowski was only recently assigned to T.P.’s case. This allowed limited time for release planning. Ms. Sadowski has discussed release plans with T.P. and with his family.
[14] Ms. Sadowski confirmed that sessions with a psychologist and family support could be put in place for T.P. and his family quickly upon any release. She would also arrange for T.P. to work with Central Toronto Youth Services, a youth outreach program. The outreach worker would provide individual counselling and support to T.P. in transitioning to the community. Contact is usually once per week. Ms. Sadowksi also confirmed that both T.P. and his mother and stepfather are supportive of T.P. living at home upon his release. Ms. Sadowksi was not familiar with Keep6ix but would assist T.P. in following up with that program.
[15] T.P.’s mother confirmed that T.P. could live with her. She has moved from the area where T.P. became involved with negative peers and where there were some safety concerns. T.P.’s mother works fulltime as a case manager at a community health centre. She is aware of programs in the community and would help her son to access appropriate programs. She is fully supportive of his plans to pursue a post-secondary education. She would support him financially and emotionally in pursuing his education. T.P.’s mother testified that she has seen a marked change in T.P. since he has been in custody. He is more mature and appears to appreciate the serious consequences of his criminal activity.
[16] T.P. also testified on the review. He said that he realizes that he is wasting his time in custody and that he does not want to live the way he was living at the time of the offences. He is grateful for the opportunity he was given to finish high school and is anxious to continue his education. He explained that it has been difficult to remain positive in the very negative environment of an adult jail. He continues to express remorse for the harm that he caused in committing the offences.
Law and Analysis
[17] This review is governed by s. 94(19) of the YCJA which provides as follows:
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; …
[18] T.P. seeks a change in the sentence from custody to conditional supervision. The Crown submits that T.P. has not met his onus to justify a change in the sentence and that the sentence should be confirmed.
[19] As I wrote in a recent decision in R. v. M.L., 2024 ONSC 2002:
[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. R. v. C. (B.) at p. 9 and R. v. S. (J.), 2005 BCPC 45.
The young person bears the evidentiary and persuasive burden to show that the sentence should be changed. The burden approximates a balance of probabilities R. v. T. (M.) at para. 31.
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. (R. v. Z.(A.A.), 2013 MBCA 33; R. v. C.(A.) 2005 BCPC 450; R. v. T. (M.); R. v. T.P., 2017 ABPC 253 at para. 38; R. v. S. (S.N.J.), 2013 BCSC 2065).
[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. 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.), 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.), 2008 ONCJ 236, considered the balancing of the two considerations in the context of the purpose of the review and wrote at paras. 16 & 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. S.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.), 2014 ONSC 5510 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.”
[20] Applying these principles to the case before me, I have concluded that T.P. should be released from custody and placed under conditional supervision.
[21] 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 T.P. I find that T.P. has met the evidentiary and persuasive burden on him to show sufficient change to justify the change in the sentence.
[22] I have considered the submission of the Crown that T.P.’s progress towards rehabilitation since June of 2023 has not been as impressive as his progress in the youth system.
[23] T.P. has not advanced his education, nor has he engaged in counselling. However, this is because these opportunities have not been open to him. There is currently no rehabilitative programming available to T.P.
[24] There is rehabilitative programming available to T.P. in the community.
[25] In my view, progress has to be assessed in the context of what is available to the young person. Within that context, I have concluded that T.P. has done “all that can reasonably be expected of him and more to demonstrate that he is committed to improving himself”. T.P. has avoided misconducts even though he was assaulted in the jail; he has maintained a good relationship with his family and has listened to their views on his release plans; he has been open with the probation officer; he has sought out the Keep6ix program.; and, he has been given a job at the institution as a cleaner.
[26] T.P. has shown that he can act with maturity and avoid conflict even though he has been in an extremely difficult environment.
[27] I find that T.P. needs further programming, including counselling and education to achieve rehabilitation. Society has a compelling interest in the rehabilitation of T.P. The long-term protection of society is achieved through T.P.’s rehabilitation.
[28] I have 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 T.P. under conditional supervision, I will fashion conditions that will significantly restrict his liberty for the next four months. The strict conditions that I will impose are intended to ensure that T.P. maintains his focus on counselling and education 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.
[29] I therefore order, pursuant to s. 94(19) of the YCJA, that T.P. be released from custody and placed on conditional supervision for the remainder of his total sentence.
[30] The mandatory conditions provided by section 105(2) of the YCJA that apply throughout the conditional supervision are that T.P. 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.
[31] In addition to the mandatory conditions, I impose the following further conditions:
(h) have no contact directly or indirectly with any of the victims in this case and not attend at any of the financial institutions where the offences were committed; (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) Reside with his mother, Thandi Wong, or at an address approved by his probation officer and not change his address without the prior written approval of his probation officer; (k) Abide by the rules and direction of his mother while residing with her; (l) not to possess or consume any alcohol or non-medically prescribed drugs; (m) attend school or seek employment and provide proof of attendance at school or employment to the probation officer; (n) 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; (o) for four months from the date of his release, T.P. shall not leave his residence except: (i) to attend counselling on a schedule approved in advance by his probation officer; (ii) to report to his probation officer; (iii) to attend school on a schedule approved in advance by his probation officer; (iv) to seek or attend work on a schedule approved in advance by his probation officer; (v) to attend any recreational or physical activity approved in advance by his probation officer; (vi) for prearranged medical or dental appointments approved in advance by his probation officer; (vii) to travel directly to and from any of these places; (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. (p) For the remainder of his sentence, T.P. shall be subject to a curfew from 11:00 p.m. to 5:00 a.m., 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: April 5, 2024