Court File and Parties

Court File No.: 8710/22 Date: 2025-10-01 Ontario Superior Court of Justice

Between: His Majesty the King – and – J.S., Defendant

Counsel:

• Marie-Eve Talbot, for the Crown
• Eric D. McCooeye, for the Defendant

Heard: September 15, 2025

Before: Varpio J.

Reasons on Application for Sentence Review

Introduction

[1] This is an application brought pursuant to s. 94 of the YCJA whereby I am to review the sentence I imposed upon Mr. J.S.

[2] Mr. J.S. was found guilty by a jury of: attempted murder, aggravated assault and sexual assault. After a transfer hearing where I denied the Crown application to have Mr. J.S. sentenced as an adult (2024 ONSC 3106), I imposed a sentence on the attempted murder charge of 30 days credit for time served, 11 months of secure custody, 12 months of open custody and 12 months of community supervision (2024 ONSC 3628).[1]

The Offender

[3] I imposed sentence on June 28, 2024. Mr. J.S. initially spent approximately 3 months at the Don Doucet Centre (a youth custodial facility) in Sault Ste. Marie. According to the Young Person's Progress Report filed with the court, during his time in youth custody, Mr. J.S. was a pro-social participant in programming. The report writer indicated that:

Facility records indicate J.S. exhibited positive overall behaviour. He demonstrated a positive attitude towards staff and peers and acted as a role-model on the unit. He was described as polite, mature, and respectful in his interactions, regularly sought guidance from staff when needed and was engaged with peers in all areas of programming (academics, recreation, daily routine). J.S. presented as highly motivated to improve himself by maintaining a Level 4 status (reward system), by participating in most programs available to him (academic, upgrading; CBT therapy geared to emotional regulation, substance abuse, healthy relationships, and effective communication with facility social worker) and voiced an interest in participating in the facility's kitchen and/or maintenance program. A new referral to Algoma Family Services' CST program was offered to Jacob but was declined.

[4] On October 2, 2024, Mr. J.S. was transferred to the Algoma Treatment and Remand Centre ("ATRC") which is an adult custodial facility in Sault Ste. Marie when his Application to Remain in a Youth Facility After Age 20 (under section 93.1 of the YCJA) was denied. Administration at the youth facility opposed Mr. J.S.' application because, as per the report writer, Mr. J.S. "refused CST (Community Support Team) involvement and has not taken responsibility for his actions". The administration apparently believed that Mr. J.S. "was better suited for the programs and services available to him within the adult custodial setting".

[5] Since being imprisoned at the ATRC, Mr. J.S. has participated in the following programs:

• 2 educational sessions (Anger Management; Planning for Discharge) and the Change is Choice program offered in-house;

• Various independent literacy booklets provided by John Howard Society of Manitoba and geared to subjects such as Stress, Anxiety and Depression; Staying Sober; Eating Right; Math – What's the Point; Understanding Anger; and Getting Along, among others;

• Numerous bible study programs including:

  • Redemption Prison Ministry (graduated Level I; currently working on Level II);
  • Gospel Echoes Team (completed 8-course program);
  • Crossroad for Prisoners (completed Tier I; currently working on Tier II);
  • New Life Ministries (completed in excess of 40 courses to date such as The Everlasting Story Books 1-5; Grieving with God; Praying the Psalms; Manga Messiah 1-5; Manga Metamorphosis 1-5; The company we Keep; Winds of War; Walkin' the Walk; the Lord's Prayer; Lessons for Christian Living and the Letter of James);

[6] On June 3, 2025, the Ontario Parole Board denied Mr. J.S.' application to be paroled. In so doing, the Parole Board found that he represented a risk to reoffend as a result of his equivocation about his guilt coupled with an opaque plan of release. Specifically, Mr. J.S. was proposing that he might live with an aunt or an uncle in Sault Ste. Marie, or that he might live in student housing. I admitted the parole board's decision however I give it no weight because Mr. J.S.' equivocation is already before me (as will be seen later in these reasons) and because the parole board's conclusions were inherently tied to a very different release plan than the one proposed by Mr. J.S. today.

[7] The Young Person's Progress Report writer gave the following recommendations:

[Mr. J.S.] has demonstrated positive conduct and has not been the subject of any Behaviour Reports since his admission to custody. He has participated in various programs available to him in an ongoing effort at self-improvement.

[Mr. J.S.] has not expressed any remorse for the Attempt to Commit Murder charge as he continues to maintain his innocent [sic] in the matter; as such, he has not participated in any meaningful victim empathy therapy to date, which remains a concern.

[8] Given the facts as outlined above, the issue for me to decide is whether I ought to vary the sentence as per s. 94 of the YCJA since there are no adult penal facilities that replicate open custody as contemplated by the YCJA.

The Relevant Legislation and Jurisprudence

The Legislation

[9] In my reasons for sentence in this matter (2024 ONSC 3628), I reviewed the principles of sentencing for youth, and I will not reproduce same save and except where relevant.

[10] Section 94(1) and (2) of the YCJA state:

Annual review

94 (1) When a young person is committed to custody pursuant to a youth sentence under paragraph 42(2)(n), (o), (q) or (r) for a period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court without delay at the end of one year from the date of the most recent youth sentence imposed in respect of the offence — and at the end of every subsequent year from that date — and the youth justice court shall review the youth sentence.

Annual review

(2) When a young person is committed to custody pursuant to youth sentences imposed under paragraph 42(2)(n), (o), (q) or (r) in respect of more than one offence for a total period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court without delay at the end of one year from the date of the earliest youth sentence imposed — and at the end of every subsequent year from that date — and the youth justice court shall review the youth sentences.

[11] Section 94(5) of the YCJA empowers the court to review the sentence:

Review

(5) If a youth justice court is satisfied that there are grounds for review under subsection (6), the court shall review the youth sentence.

[12] Section 94(6) of the YCJA describes the grounds for reviewing a sentence:

Grounds for review

(6) A youth sentence imposed in respect of a young person may be reviewed under subsection (5)

(a) on the ground that the young person has made sufficient progress to justify a change in the youth sentence;

(b) on the ground that the circumstances that led to the youth sentence have changed materially;

(c) on the ground that new services or programs are available that were not available at the time of the youth sentence;

(d) on the ground that the opportunities for rehabilitation are now greater in the community; or

(e) on any other ground that the youth justice court considers appropriate.

[13] Section 94(19) of the YCJA describes the sentences that I may impose after such a review:

Decision of the youth justice court after review

(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.

[14] Section 105 of the YCJA describes conditional supervision. I note that this section bears some resemblance to probation terms that are often imposed in adult courts:

Conditional supervision

105 (1) The provincial director of the province in which a young person on whom a youth sentence under paragraph 42(2)(o), (q) or (r) has been imposed is held in custody or, if applicable, with respect to whom an order has been made under subsection 104(1) (continuation of custody), shall cause the young person to be brought before the youth justice court at least one month before the expiry of the custodial portion of the youth sentence. The court shall, after giving the young person an opportunity to be heard, by order, set the conditions of the young person's conditional supervision.

Conditions to be included in order

(2) The youth justice court shall include in the order under subsection (1) the following conditions, namely, that the young person

(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 the young person's address of residence on release and after release report immediately to the clerk of the youth justice court or the provincial director any change

(i) in that address,

(ii) in the young person's normal occupation, including employment, vocational or educational training and volunteer work,

(iii) in the young person's family or financial situation, and

(iv) that may reasonably be expected to affect the young person's 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 as authorized by the order; and

(h) comply with any reasonable instructions that the provincial director considers necessary in respect of any condition of the conditional supervision in order to prevent a breach of that condition or to protect society.

The Jurisprudence

[15] The Supreme Court of Canada considered the review section of the antecedent legislation, the Young Offenders Act in R. v. J.J.M., [1993] 1 S.C.R. 454, 81 CCC (3d) 487. At para. 33 of its reasons, the court stated:

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. The Act provides a system that it is akin to, yet broader than, the probation review provided for adult offenders.

[16] At para. 19 of J.J.M., Cory J. described the nature and purpose of open custody facilities:

The Act empowers the judge, in those situations where it is decided that custody is required, to determine whether it should be open or closed. Section 24.1(1) defines "open custody" as "a community residential centre, group home, child care institution, or forest or wilderness camp" or other similar facilities. Certainly, places which come within the definition of "open custody" will restrict the liberty of the young offender. Yet those facilities are not simply to be jails for young people. Rather they are facilities dedicated to the long term welfare and reformation of the young offender. Open custody facilities do not and should not resemble penitentiaries. Indeed the courts have very properly resisted attempts to define as open those facilities which provide nothing but secure confinement. See for example Re D.B. and the Queen, 27 C.C.C. (3d) 468, and Re L.H.F. and the Queen, 24 C.C.C. (3d) 152.

[17] In R. v. C.K., 2008 ONCJ 236, Duncan J. reviewed a sentence that he had imposed following a finding of guilt of first-degree murder. He had imposed a sentence of 6 years custody to be followed by 4 years of conditional supervision. An issue arose in that the youthful offender was to be transferred to an adult institution as a result of his age. At paras. 16 and 17 of his reasons, Duncan J. synopsized the jurisprudence to be followed:

A review is a reassessment of circumstances subsequent to sentencing: R. v. B. (L.K.), 2002 ABCA 227, 169 C.C.C. (3d) 572. 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: R. v J.J.M., supra. The availability of continuing review is virtually unlimited: R. v M.K., 107 CCC (3d) 149.

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: R. v M.T., [1995] Y.J. No. 6.

[18] At paras. 18 to 24 of his reasons, Duncan J. described the argument that he was considering, that is whether upon transfer to an adult facility, is an offender sentenced under the YCJA to be treated as an adult or a youth? Duncan J. held that the youthful offender who is serving time in an adult facility nonetheless remains a young person subject to the YCJA.[2] I agree with Duncan J.'s reasoning and need not reproduce same. As a result of this holding, Duncan J. acknowledged certain realities (at paras. 25 and 26):

A number of implications flow from this. First, it effectively means that the defendant is entitled to a review, a basic jurisdictional question that might otherwise have been in doubt. Secondly, it means, as stated above, that adult custody for transferred youth must provide for and accommodate them in a way that conforms to the principles of youth criminal justice. Thirdly, as it relates to review, it means that a failure of adult custody to conform to the principles of youth justice may support a finding that the offender's needs are not being met.

The relevant principles of youth justice include: That the youth criminal justice system must emphasize both rehabilitation and accountability; that sentences imposed must hold the offender accountable and promote his rehabilitation; that programs must be available to youth in custody to assist in rehabilitation; that custody must be safe, fair and humane and be the least restrictive consistent with public safety: (YCJA sections 3, 38, 83). Therefore, as applied to all youth, including transferred youth, it is not acceptable to subject them to unnecessarily strict confinement; it is not acceptable for custody to consist of little more than warehousing; it is not acceptable to provide phantom programs, touted as available yet in reality being non-existent, practically inaccessible or available only at someone's discretion.

[19] Duncan J. did not alter the sentence initially imposed (as he could have done under s. 94 of the YCJA) because the societal factors were of sufficient import that to do so would not reflect an appropriate balance. At paras. 27 to 31 of his reasons, Duncan J. stated:

I must consider and balance the needs of the defendant and the interests of society and do so in the context of the principles applicable to the youth criminal justice system which requires emphasis on both accountability and rehabilitation. The issue comes down to whether a change in the sentence is warranted having regard to these factors.

I acknowledge the rehabilitative progress that the defendant has made and recognize that a review provides the opportunity to reward that progress thereby providing an incentive to the defendant and others. However the reward need not be immediate. The timing and extent of the reward must be tempered with other considerations.

I am not satisfied that it is in the interests of society to release the applicant from custody at this stage. To do so would unacceptably detract from the principle of accountability which plays a central role in youth criminal justice under the YCJA, was a major component of the sentence imposed and is a principle that must be emphasized throughout the process. Put succinctly, it is too soon, having regard to the nature of the offence and length of sentence imposed, to terminate the custodial portion of the sentence now. The alternative to custody, at this stage, is simply too loose and insufficiently punitive to satisfy the accountability principle.

But I am also not at all satisfied that the needs of the young person are being met in adult custody having regard to the applicable principles of youth criminal justice. In particular, while educational and rehabilitative programs are apparently available to some extent it can not be said that they are emphasized as they are required to be for young persons, including those in adult facilities.

What should follow from these findings? One option would be to allow the review and convert the balance of the custodial term to conditional supervision thereby sending an emphatic message that the policy of treating transferred youth as adults must change. But on reflection I think that option would be too drastic and premature. Too drastic because, to refer again to R v M.T., supra, no matter how compelling the attraction to serve the young person's needs, larger public interests cannot be ignored. Too premature because no previous case that I am aware of has directly suggested that the adult system may be misinterpreting or disregarding its responsibilities to youth. Finally I am not satisfied that I have the full evidentiary picture of the rehabilitative claims and realities of Grand Valley.

While I am not satisfied that the applicant's needs are being met I am also not able to say with certainty that they are not.

[20] Given the foregoing, Duncan J. confirmed his sentence but noted that the accused could soon apply for another review.

Position of the Parties

[21] Mr. J.S. submits that the sentence that would best replicate the open custody sentence he is supposed to be serving (given that he cannot avail himself of open custody facilities) would be to engage s. 105 of the YCJA and to order that Mr. J.S. serve the remainder of his sentence under community supervision, with the next nine approximate months being served as a form of house arrest. In this way, the sentence would be similar to the staged sentence I imposed ab initio. He further submits that failure to convert this sentence would effectively turn the sentence into a two-year closed custody sentence (or worse), which is harsher than the sentence I initially imposed.

[22] For its part, the Crown submits that the sentence ought to be confirmed since converting the sentence would not give adequate weight to the societal interests that emphasize the principle of accountability. Further, the fact that Mr. J.S. is being held at the ATRC should not factor into the analysis as this potential outcome was considered at the initial sentencing hearing.

Analysis

[23] There are two major factors that auger in favour of the accused's position.

[24] First, the offender has shown progress while incarcerated and has taken a number of courses and has been involved in prosocial activities. His prospects for rehabilitation appear to be reasonably strong.

[25] Second, counsel agree – and I accept – that the nature of the custody at the ATRC is much different than youth open custody. By definition, the ATRC often houses hardened criminals who are serving sentences of up to two-years-less-a-day but whose global sentence for the crimes committed may well exceed that number. For example, an offender with three years plus one day of time served would serve the remainder of his sentence at the ATRC were he to receive a five-year sentence. The exposure to such criminality must be a detriment to Mr. J.S.'s rehabilitative prospects given the interactions that undoubtedly occur in these facilities.

[26] Conversely, the societal interest in ensuring that the accused be held accountable is strong in this case and supports the Crown view that I ought to confirm my original sentence. Mr. J.S. was convicted of serious crimes and was given a stern sentence in order to convey to the offender that his conduct was wrong, that it had dramatic consequences on the victim's life, and that it could well have ended her life had emergency surgery not proven successful.[3] Given the importance of the accountability principle, Mr. J.S.'s failure to accept responsibility and his failure to show remorse and empathy for the victim would normally cause me to dismiss this application outright.

[27] Nonetheless, the reality is that Mr. J.S.'s transfer to adult facilities will effectively force the offender to serve a much harsher sentence than that originally imposed. Indeed, three months of secure custody followed by 21 months at the ATRC is considerably harsher than the 11 months of secure custody followed by 12 months of open custody that I originally imposed. The Crown agrees with this fact.

[28] I disagree with the Crown position that I ought not consider this issue since it was initially canvassed at the original sentencing hearing. A section 94 hearing concerns a reconsideration of the youth sentence and its current effectiveness. On June 28, 2024, no one could have predicted with certainty that Mr. J.S. would lose his section 93.1 application. No one could have predicted that he would be denied parole. No one could have predicted what his view of the offences would be 12 months later. No one could have predicted the future. As per J.J.(M.), sentence reviews exist to reconsider exactly these kinds of situations. To suggest that the court implicitly considered the possibility that Mr. J.S. would serve his open custody at the ATRC simply goes too far. I therefore give no weight to this submission.

[29] Thus, the fact that the offender is currently serving time with adult criminals for a youthful offence necessitates that I reconsider the sentence I imposed.

[30] In the end, I accept Mr. J.S.' position that serving 21 months at the ATRC is a much harsher sanction than that which I initially imposed. In this case, requiring Mr. J.S. to serve 21 months at the ATRC would place insufficient emphasis on the rehabilitative aspects of youth sentencing, a goal towards which Mr. J.S. appears to have already undertaken reasonable steps. Mr. J.S. should not be forced to serve a harsher sentence than that originally imposed. Rather, his sentence should approximate as much as possible that which he received on June 28, 2024.

[31] Therefore, and given the foregoing, I hereby convert the remainder of the sentence to one of community supervision. Commencing today, and ending on June 28, 2026, Mr. J.S. shall comply with the statutory terms as described in s. 105(2) of the YCJA, and he will also comply with the following terms and conditions:

1. You shall reside with your mother at 120 Dieppe Street in Elliot Lake, Ontario;

2. You shall remain in your residence at all times except:

   • a. in the presence of your mother;
   • b. while attending and/or travelling to and/or from school;
   • c. while attending work and/or travelling to and/or from work; or
   • d. while attending medical appointments or emergencies, and/or travelling to and/or from those appointments.

3. You shall have no contact with people named in your s. 743.21 order currently in place;

4. You shall attend at all counselling and/or other appointments as ordered by your youth probation officer; and

5. You shall follow such directives as your youth probation and/or adult probation directs.

[32] This "house arrest" best approximates the open custody to which Mr. J.S. was already sentenced.

[33] From June 29, 2026 until the expiration of the sentence, Mr. J.S. will be subject to the same terms and conditions as described in paragraph 31 of these reasons save and except for the fact that the mobility prohibitions described at point 2 of paragraph 31 (remain in your residence except for certain conditions) will be excised from the order.

Conclusion

[34] Application granted. The sentence is converted to a community supervision order with the terms and conditions as described in these reasons.

Varpio J.

Released: October 1, 2025

Footnotes

[1] The aggravated assault was provisionally stayed and I sentenced Mr. J.S. to one day secure custody (concurrent) on the sexual assault.

[2] Both parties explicitly and/or tacitly accept Duncan J.'s findings in that regard.

[3] I note, however, that the Elliot Lake hospital did not initially operate which may have contributed to the fact that she required emergency surgery the day after the stabbing.