Court File and Parties

COURT FILE NO.: 8710/22 DATE: 2024-06-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – J.S. Defendant

Counsel: Robert Skeggs/M. Talbot, for the Crown Eric D. McCooeye, for the Defendant

HEARD: June 10, 2024

Varpio J.

Reasons for Sentence

Overview

[1] J.S. was found guilty of attempt murder, aggravated assault and sexual assault after a jury trial. Prior to the sentencing hearing, the Crown sought to sentence J.S. as an adult and I dismissed that application (2024 ONSC 3106).

[2] Accordingly, J.S. shall be sentenced as a youth.

Facts

[3] In the transfer hearing decision, I recounted the facts of the offence and need not reproduce same in these reasons. I rely upon the findings of fact made in my transfer hearing reasons.

The Parties

The Victim and Her Father

[4] The victim’s Victim Impact Statement (“VIS”) was read into the record as was the victim’s father’s statement. The victim has suffered demonstrably as a result of this crime. The victim has several scars, two of which feature prominently on her neck and on her abdomen which have caused her serious concern with respect to her ability to present herself in public.

[5] She suffered injuries including a 6 cm laceration to her liver and a 4 cm laceration to her diaphragm. Untreated, these wounds were life-threatening such that they can only be described as being serious injuries. With that said, it is important to note that the treating physician at the Elliot Lake hospital did not initially think that the injuries were serious and, as a result, the injuries were left untreated for 24 hours which necessitated emergency surgery.

[6] The victim also described severe psychological trauma that flowed from this incident. She suffers from PTSD, she fears being touched, fears being in contact with others and has moved to another province in order to generate some semblance of safety. All told, the victim has suffered meaningfully as a result of the incident.

[7] The victim’s father described his fears in his VIS, and it is clear that this event had an enormous emotional and psychological impact upon him.

The Offender

[8] J.S. is 19 years old and turns 20 in August. As was noted in my transfer hearing reasons, the offender was an emotionally immature young man at the time of the offence. Nonetheless, he was otherwise a seemingly normal young man who had average(-ish) grades, had a part-time job, had no youth or criminal record and otherwise had a largely pro-social life.

[9] Put another way, but for this crime, one would not think that this young man would find himself in trouble with the law.

[10] This tendency has continued since he was charged. He is attending college, has a fiancée, has become a Christian and indicates that he would like to work in the chaplaincy in some capacity going forward.

[11] I have reviewed the offender’s Pre-Sentence Report (“PSR”) and his s. 34 YCJA psychiatric report and nothing in either document reveals any risk of recidivism or threat to society. J.S. has no criminal or youth record. J.S. has not undergone meaningful counselling for underlying problems that may have provoked his criminal conduct, however J.S. has been treated for depression and other problems related to the court case.

[12] I also note that the offender did not accept responsibility for his actions or show remorse in his statement to the court, in the PSR or the psychiatric report.

Positions of the Parties

[13] The Crown seeks a three-year sentence to be spent in a secure custodial facility. This sentence reflects the severity of the offence and the incumbent need to make the offender accountable for his actions. [1]

[14] The offender submits that a two-year sentence is appropriate in the circumstances given his otherwise good background and pro-social life. The offender did not particularize how the sentence ought to be served, but suggested that a 12-month open, 12-month probationary period might be appropriate in the circumstances.

Analysis

[15] The parties agree that the accused is to be sentenced according to the principles described in the YCJA. Section 3(1)(a) of the Act describes the principles underlying the YCJA:

Policy for Canada with respect to young persons

3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

[16] Sections 3(1)(b) and (c) describe the diminished moral blameworthiness that young persons are deemed to possess under the YCJA:

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and…

[17] Sections 38(1) and (2) of the YCJA describe the purpose and principles to be applied when sentencing young people:

Purpose

38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

[18] Section 38(3) of the YCJA lists the factors to consider when sentencing a youth:

Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[19] Finally, section 83(1) of the YCJA describes the nature of custody for young people:

Purpose

83 (1) The purpose of the youth custody and supervision system is to contribute to the protection of society by

(a) carrying out sentences imposed by courts through the safe, fair and humane custody and supervision of young persons; and

(b) assisting young persons to be rehabilitated and reintegrated into the community as law-abiding citizens, by providing effective programs to young persons in custody and while under supervision in the community.

Principles to be used

(2) In addition to the principles set out in section 3, the following principles are to be used in achieving that purpose:

(a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used;

(b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as a consequence of a sentence under this Act or another Act of Parliament;

(c) that the youth custody and supervision system facilitate the involvement of the families of young persons and members of the public;

(d) that custody and supervision decisions be made in a forthright, fair and timely manner, and that young persons have access to an effective review procedure; and

(e) that placements of young persons where they are treated as adults not disadvantage them with respect to their eligibility for and conditions of release.

[20] The parties also agree that s. 42(2)(o) of the Act mandates that the offender can serve a sentence of up to three years, given the conviction for attempted murder.

[21] The sentencing regime of the YCJA therefore permits the court to consider denunciation and specific deterrence as principles of sentencing but it also ensures that the sentences imposed under this act reflect the “diminished moral blameworthiness” associated with youth.

[22] With that stated, the parties effectively agree that the offences for which J.S. was found guilty demand that denunciation and deterrence play a meaningful role. I agree. The Court of Appeal for Ontario in R. v. Cunningham 2023 ONCA 36 stated at paras. 23 to 26:

Primary sentencing objectives

[23] The primary sentencing objectives of attempted murder are denunciation and deterrence. These objectives address the moral blameworthiness inherent in the conviction.

[24] The moral blameworthiness for attempted murder is the same as for murder, because a conviction of either requires the same mens rea. The fact that the victim did not die was not due to any action on the part of the perpetrator who intended her death. As Doherty J.A. stated in R. v. McArthur, [2004] O.J. No. 721, 182 C.C.C. (3d) 230 (C.A.), at para. 47:

The moral culpability of the attempted murderer is at least equal to that of a murderer. He or she avoids a murder conviction and the automatic sentence of life imprisonment not because of any mitigating factor, but because through good fortune, the victim was not killed.

[25] The sentence must reflect this gravity. Even though there is no automatic life sentence for attempted murder, “the offence is punishable by life and the usual penalty is severe”: R. v. Logan, [1990] 2 S.C.R. 731, [1990] S.C.J. No. 89, at p. 743 S.C.R.

[26] In a domestic context, the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence.

[23] It is also clear from the submissions of the parties that they agree that a custodial disposition is necessary given the seriousness of the attempted murder finding.

[24] I agree.

[25] I must also consider the difference between secure and open custody. The difference between the two forms of punishment was canvassed by the Court of Appeal for Ontario in R. v. J.S., 2006 O.J. No. 2654. In so far as the YCJA mandates that the least restrictive punishment be imposed in the circumstances of a given case, the Crown submitted and I accept that where custody is appropriate, the Crown bears the onus of satisfying the court that said custody ought to be secure, as opposed to open custody.

[26] J.S.’ counsel provided me with two cases to consider: R. v. J.S. 2013 ONCJ 257 and R. v. T.S.P. 2018 BCPC 365. In J.S., George J. (as he then was) dealt with a case where a mentally ill youth unannouncedly slashed the throat of his 8-year-old foster sibling. The offender was abused as a child, was diagnosed with PTSD and had a history of both suicidal and homicidal ideation. The facts of this case were sufficiently brutal such that George J. commented at para. 4:

It was only through luck, or the intervention of a higher-being, that the child survived. Those who responded, including the officers, found it incredible this act didn't take the child's life, given the nature of the injury and the loss of blood.

[27] George J. sentenced the offender to nine months of secure custody, nine months of open custody and nine months of community supervision, less pre-sentence custody. In so doing, George J. noted at para. 7 that “[r]ehabilitation is always a key factor when sentencing a youthful offender”. Of note, in this case, the youth plead guilty and accepted responsibility for his actions.

[28] In T.S.P., the British Columbia Provincial Court sentenced the offender to 15-month custody and supervision order following 14.5 months of pre-sentence custody. The offender was involved in a gang-style swarming and stabbing. The offender was assessed as a moderate to high risk to reoffend.

Aggravating and Mitigating Factors

[29] The Crown listed, and I accept, that the aggravating features of this case are as follows:

1. The offence involved intimate partner violence;
2. A sharp-edged weapon was used;
3. The attack was unprovoked;
4. The victim was vulnerable given her size and age;
5. The victim suffered serious injuries, as well as long-standing physical and psychological damage;
6. The offender left the victim to die; and
7. The offender considered murdering the victim over some period of time, although this mulling fell short of planning and deliberation.

[30] The mitigating features of this case are as follows:

1. The offender has no criminal or youth record other than this entry;
2. J.S. has lived a largely pro-social life, both before and after arrest.

[31] Finally, although technically not a mitigating feature of the case, J.S. was on a relatively restrictive bail leading up to his sentencing. This bail lasted for a period of over 3 years. J.S. also spent 20 days in pre-sentence custody.

Principles Applied

[32] The first step I must consider when I impose sentence in this case is the length of incarceration. The defence points to the accused’s immaturity at the time of the offence and his otherwise pro-social lifestyle in his submission that a two-year sentence is therefore appropriate in the circumstances.

[33] I disagree with that position. The aggravating features of the case are such that nothing less than the maximum length of sentence will address the severity of the actions undertaken by J.S. Specifically, the attempted murder via stabbing of his intimate partner in an unprovoked attack, coupled with the lasting physical and psychological scarring on the victim, are such that the proportionate sentence in this matter can be nothing short of the maximum period permissible under the legislation (with one caveat to be explored later in these reasons). In situations where otherwise law abiding adults attempt to murder another person, the Court of Appeal for Ontario has made clear in Cunningham that deterrence and denunciation are paramount. A similar concern would exist when sentencing a youth. While the need to rehabilitate remains a paramount consideration in youth sentencing by virtue of the YCJA, the nature of this crime, its effects, and the rationale described in Cunningham are such that a three-year sentence is appropriate in the circumstances.

[34] I have been advised, and I accept, that youth normally receive credit for time served on a 1:1.5 basis. In this case, J.S. has not breached his bail, he has been pro-social since his release, and there is no basis to suggest that he is a high-risk to re-offend. Thus, there is no good reason to deviate from the norm and I will therefore credit J.S. with 30 days times served.

[35] The Crown submits that the entirety of the sentence should be spent in secure custody, again given the aggravating features of this case. While this position is certainly reasonable, it does not take J.S.’ circumstances into adequate account. J.S. was a young person that fell under the spell of an older group of individuals and his immaturity clearly contributed to his criminal behaviour. J.S.’ conduct is seemingly out-of-character in that J.S. has led an otherwise pro-social life. These factors suggest that J.S. does not require a sentence comprised of exclusively secure custody to hold him accountable for his action. Rather, sentencing J.S. to a blend of custody would likely have the desired effect of holding J.S. accountable while at the same time rehabilitating him in the “least restrictive way”. I note that the court in R. v. J.S. [2] did likewise, even though the offender in that case undoubtedly presented a much higher risk to re-offend than does the young man who presents himself before me.

Conclusion

[36] When I consider the principles of sentencing described by the YCJA, the informative jurisprudence, the state of the victim, and J.S.’ situation, the following sentence shall be imposed on the charge of attempted murder:

1. 11 months secure custody; to be followed by
2. 12 months open custody; to be followed by
3. 12 months community supervision.

[37] J.S. will provide a sample of his DNA pursuant to s. 787 of the Criminal Code.

[38] J.S. be subject to a s. 51(1) YCJA weapons prohibition for life.

[39] J.S. will be subject to a s. 743.21 order while in custody such that he will have no contact with names that have been provided to the Registrar.

[40] The aggravated assault charge shall be stayed provisionally at the Crown’s request.

[41] J.S. will be sentenced to one day of secure custody and one day community supervision on the sexual assault, concurrent to the sentence imposed on the attempted murder, at the Crown’s request.

Varpio J. Released: June 28, 2024

Footnotes

[1] The Crown conceded that the victim’s inability to provide supporting documentation for her claim of $29,000 in restitution was such that restitution was not available because, as per s. 42(2)(o) of the YCJA, the amounts claimed must be “readily ascertainable”. I agree.

[2] I am referring to the case decided by George J., as opposed to the case before me which is also R. v. J.S.