IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA
Citation: R. v. N.H., 2009 NSPC 36
Date: 2009-06-17
Case#: 1987864
Registry: Port Hawkesbury
Between:
Her Majesty the Queen
v.
N.H.
Restriction on publication: Pursuant to s.110(1) and 111(1) of the Youth Criminal Justice Act
Judge: The Honourable Judge Laurel Halfpenny MacQuarrie
Heard: May 4, 5 and 6, 2009 in Port Hawkesbury, Nova Scotia
Charge: On or about the 1st day of June 2008, N.H. at or near Inverness, Inverness County, Nova Scotia, did unlawfully kill Ivan Joseph Rorison and thereby commit manslaughter contrary to Section 236(b) of the Criminal Code
Counsel: Richard MacKinnon and Diane McGrath, for the Crown
Allen Nicholson and Patricia Fricker, for the defence
By the Court:
1. N.W.T.H. (hereinafter referred to as “N.H.”) has entered a plea of guilty in the Youth Justice Court of Nova Scotia to a charge that:
On or about the 1st day of June 2008, N.H. at or near Inverness, Inverness County, Nova Scotia, did unlawfully kill Ivan Joseph Rorison and thereby commit manslaughter contrary to Section 236(b) of the Criminal Code.
2. A Section 36 YCJA finding was made after the Court heard the facts, such supported the charge.
3. The Crown has given notice to N.H. that it is applying to this Court that he be sentenced as an adult pursuant to s.64(2) of the YCJA. N.H. opposes this application.
Legislation
4. Section 72 provides:
(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and
(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and
(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.
(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.
(3) In making its decision, the youth justice court shall consider a pre-sentence report.
(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.
5. The burden of proof is upon the Crown and that burden is on a balance of probabilities.
(See R. v. D. (A.J.) 2009 NSSC 56, paragraph 38).
6. Other provisions in the legislation are also vital in the consideration before this Court, in particular the preamble of the Act:
WHEREAS members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood;
WHEREAS communities, families, parents and others concerned with the development of young persons should, through multi-disciplinary approaches, take reasonable steps to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes;
WHEREAS information about youth justice, youth crime and the effectiveness of measures taken to address youth crime should be publicly available;
WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have the rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms;
AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons;
7. Section 3 outlines policy considerations the Court must take into account when sentencing youth:
(1) The following principles apply in this Act:
(a) the youth criminal justice system is intended to
(i) prevent crime by addressing the circumstances underlying a young person’s behaviour,
(ii) rehabilitate young persons who commit offences and reintegrate them into society, and
(iii) ensure that a young person is subject to meaningful consequences for his or her offence
in order to promote the long-term protection of the public;
(b) the criminal justice system for young persons must be
separate from that of adults and 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
(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and
(d) special considerations apply in respect of proceedings against young persons and, in particular,
(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights to decisions that affect them, and young persons have special guarantees of their rights and freedoms,
(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,
(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and
(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.
(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).
8. Section 38 provides the purpose and principles that are applicable to youth sentencing:
(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.
(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; and
(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.
(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) and 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.
Agreed Statement of Facts
9. The application commenced with the filing of an Agreed Statement of Facts which provided:
N.H. was born on the * day of *, 1990;
On May 31, 2008 N.H. resided with his girlfriend, L. G. and his son, J.;
On May 31, 2008 N.H. was picked up in W. by J. F. R. and P. B. and went to Inverness, Inverness County, Nova Scotia with J. F. R., P. B.,
R. B. and L. P.;
Attached as Appendix “A” is the Criminal Record of J. F. R.;
Attached as Appendix “B” is the Criminal Record of P. B.;
Attached as Appendix “C” is the Criminal Record of R. B.;
On May 31, 2008 N.H. went to a birthday party for K. T. T. at his home in Inverness, Inverness County, Nova Scotia. While he was travelling from W. to Inverness with J. F. R., P. B., R. B. and L.P., N.H. was snorting crushed-up Percocet tablets;
Percocet is a prescription drug;
While N.H. was at the birthday party for K. T. T. he was drinking beer, he smoked several joints of marijuana and he continued to snort Percocet tablets. There were other people at the birthday party drinking beer, smoking marijuana and snorting Percocet tablets;
In the early morning hours of June 1, 2008 N.H., B. T., K. T. and K.M. were driven by J. F. R. to the home of Ivan Rorison located on Central Avenue, Inverness, Inverness County, Nova Scotia and K. M. purchased a case of beer from Mr. Rorison who they knew was a person who had liquor for sale after hours;
On June 1, 2008 between 4:30 a.m. and 5:30 a.m. N.H. again went to Ivan Rorison’s house in the company of K. T. T., B. T., M.T., R. B., J. T. M. and L.P.. He and these persons went to Mr. Rorison’s house in order to get some beer;
When N.H. and these other persons arrived at Ivan Rorison’s house, M.T. tried to kick in the door, was unable to do so, and shouldered in the door, knocking it off its hinges. Everybody entered the house, then came back out onto the doorstep, Ivan Rorison came to the door and N.H. punched Ivan Rorison in the left eye knocking him backwards into the kitchen;
N.H. then went past Mr. Rorison to a fridge looking for beer, was told by B. T. that he was at the wrong fridge, then he went to another fridge and took a case of 24 beer out of this fridge and then left the residence and returned to the residence of K. T. T.;
When N.H. went to get beer out of the fridge of Ivan Rorison, some of the other people that were with him were standing around Ivan Rorison who was now on the floor in the kitchen of his residence, other people were punching and kicking Ivan Rorison;
When N.H. returned to K. T. T.’ residence, he drank some more beer and then returned to W. with J. F. R. and P. B. and R. B.;
Ivan Rorison called his son, Wendall Rorison, who in turn called the R.C.M.P. in Inverness and an ambulance. Paramedics attended the residence of Ivan Rorison, however, Ivan Rorison refused to go to the hospital with the paramedics;
On June 2, 2008 Wendall Rorison went to Ivan Rorison’s residence early in the day. He noted that Ivan Rorison’s condition had worsened and he called an ambulance which came and took Ivan Rorison to the Inverness Hospital. At the Inverness Hospital, doctors tried to stabilize Ivan Rorison so that he could be transferred to Cape Breton Regional Hospital for investigation and treatment, however, doctors were unable to stabilize Ivan Rorison. On June 2, 2008 Ivan Rorison suffered a cardiac arrest, was revived and later suffered cardiac arrest and died at approximately 6:00 p.m. on June 2, 2008. At the time of his death, Ivan Rorison was 70 years of age;
Dr. Matthew Bowes is the Chief Medical Examiner for the Province of Nova Scotia and on the 3rd day of June, A.D. 2008 he performed an autopsy on the body of Ivan Rorison. Dr. Bowes concluded that Ivan Rorison died from internal bleeding caused by blunt trauma to his abdomen. Attached as Appendix “D” to this Agreed Statement of Facts is the autopsy report prepared by Dr. Matthew Bowes.
Additional Facts (viva voce and documentary evidence)
10. N.H. has been in custody following his arrest in late June 2008.
11. Filed with the Court was a Section 34 YCJA Report, a Progress Report from the Nova Scotia Youth Facility at Waterville, a Gladue Report regarding the young person as well as a pre-sentence report.
12. At the time of the offence this young person was seventeen years and nine months of age. He was raised in Nova Scotia and his ancestral background is Aboriginal Canadian.
13. N.H. is a registered member of a * First Nation in Nova Scotia and the eldest child born to his parents, whom were never married. His mother was kicked out of her home and moved to * and became involved with N. H.’s biological father at the age of sixteen. This relationship was initially stable for the young person, however after five years of several break ups and reconciliations, it ended.
14. It was at that time that N.H. began his life of moving from place to place, between his parents and maternal grandmother. The young person’s mother drank to excess as did his paternal grandmother. In his younger years his father was involved in his life but this waned as the years went on. His father also consumed alcohol to excess.
15. The young person’s educational experience was marred from the beginning, with him being teased as the only aboriginal person in his school to the point that his mother had to remove him as a teacher made racial comments and physically grabbed him, this resulted in a complaint to the school board, the teacher was removed.
16. The Gladue Report states as follows:
N.H. described his childhood as ‘... not good.’ The first 12 years of his life was spent living in *. He stated both his parents drank a lot. As a child N.H. recalled there used to be a lot of parties at his mothers. He stated ‘every day and every night there would be a party and there would always be fights’. While the parties were happening N.H. reported he would try to sleep, but would be scared and stayed up crying at night.
In regard to the rest of his family, he indicated that his great-grandmother... was a bootlegger [she]... ‘still drinks a lot and she was mean when he was younger’.
...N.H. recalled his grandmother abused heroin for a period of time ...[he] reported there have always been problems within his family. He stated, ‘this is the one thing that was handed down to me through the generations. I learnt it because of my upbringing and adapted to it’. [He] did not report any incidents of physical abuse toward him from his mother. He stated he experienced emotional abuse through her words. [He] reported (she) would take her anger out on him and mainly yell at him, put him down, and call him an idiot. He reported his mother also threatened him by saying ‘do you want me to treat you how I was raised?’.
17. His mother married again and it ended after years of domestic violence for which his step father was incarcerated. The young person saw his step-father choking his mother, hitting her and punching the wall around her head. Because of her alcoholism he, from his early school years had to get himself ready in the morning, he reports returning from school and his mother would still be “passed out”. When he was eight he watched his mother being beaten and tried to extract his step-father from her but was thrown across the floor, he recalls seeing blood everywhere, beer bottles smashed and tables flipped over. He reports “ as [he] got older he found himself fighting with grown men, because they would argue with his mother...if anyone said anything about my mom I would get mad and fight”. As this relationship ended another physical move for the young person ensued, eventually back with his mother, at which time his mother had commenced a new relationship.
18. N.H. was given grown up adult responsibilities at a very young age.
19. In the Gladue Report the following is written:
When N.H. was nine, she stated she found out she was pregnant with her second son...she was not planning a baby and had assumed she was unable to conceive. She stated she called N.H. into the Doctors office with her to listen to the baby’s heartbeat and asked [him] if she should continue the pregnancy. She stated, ‘I looked to [him] for guidance and asked him if, we should keep it. [He] said that we should and that we’d be alright.
20. A relationship had developed between the young person and his step-father but he was angry when his step-father left and moved to * propelling the young person into being “man of the house”, he had responsibilities for taking care of his younger siblings including their feeding, changing and day to day care. He missed a lot of school and was not able to participate in age appropriate activities for himself. At page 13 of the Gladue Report the following is stated:
N.H.’s father ... stated that this is the period when he began to notice the change in [him]. ‘I don’t think he liked his mother’s boyfriend much. He was very protective of his mother. Never talked about her at all, especially nothing bad. But that time [he] left them, N.H. had to climb out the bathroom window because [his step-father] held a rifle on her’
And further:
[He] reported he began smoking weed at the age of 12. He stated he grew up with it as both his mother and birth father regularly used marijuana. [His] father stated that his mother used her store as a front to sell drugs. He stated he was told at 12 [he] would make certain transactions for his mother. ‘He was selling it for her. I think that they used to do weed together. I tried to talk to him about it but he would have mood swings and say I couldn’t tell him what to do. By 14 he was a regular smoker. By the time [he] was 13 years old he began drinking. He stated he began to drink because everyone around him did and he wanted to ‘see what was so fun about it’... [he] stated when he was younger he had a good time drinking but by the time he was 15 his drinking became coupled with fighting.
21. And at page 14:
[He] reported his addiction escalated to the use of pills and prescription drugs by the time he was 16. [He] reported abusing percocet, dilaudid, revatrol, lectopam, dexedrine, oxycotin, ecstasy, cocaine, and acid. He stated he ‘almost died’ in an overdose and the incident scared him away from drug use for a while. N.H. stated pills were his addiction ‘taking 30-35 percocet daily’. He stated once he began mixing the pills and alcohol he ‘started getting into lots of fights’.
22. His mother reported that when her son was under the influence of drugs and/or alcohol he would threaten suicide to get a reaction and a family friend had to cut him down one time. From the ages of 14 to 17 he threatened suicide about 30 times.
23. Her son’s life changed when he met his girlfriend and the two had a baby in 2008.
24. This child unfortunately has since passed away.
25. At page 16:
Both [parents] report that [he] did have a quick temper, though they both say that he was never violent toward them. [He] reported his anger came out a lot when he was drinking. He said, ‘I have a lot of anger from all the stuff I seen.’ [He] stated that he did not seek help to deal with his emotional stress, but instead would hold it all inside.
26. The young person reported that when he was in his early years of school he was often the victim of bullying and would as a result be in trouble for fighting.
He reported he was in Grade 3 when a teacher grabbed him by the wrist so hard it left bruises. She yelled at him and physically dragged him down the hall. He indicated the principal of the school reprimanded the teacher and after his mother filed a complaint the teacher was placed on probation and ordered to have no contact with [him]....
[He] quit school at 17 with a Grade 9 education.
27. At page 20, recommendations were made based on the resources and interviews conducted and a number of Gladue factors became apparent:
1. That N.H. is a young man of * Ancestry.
2. That [he] is willing to address the underlying impact factors that helped to cause the conduct so that future offences can be avoided.
3. That there is family and community support for [him]. Community and family support will often indicate a greater chance that rehabilitation will succeed.
4. That a number of adverse impact factors that affect Aboriginals in general are present in the personal life of N.H.
· Substance abuse; personally, in the immediate family, extended family and community
· Poverty; as a child, offenders family or community
· Overt/Covert racism in the community, by family members, strangers, and at school
· Family (divorce, born out of wedlock) or community breakdown
· Abuse; emotional, verbal, and physical
· Witnessing violence; within his family and community
· Unemployment, low income, lack of employment opportunity
· Lack of educational opportunities
· Dislocation from an Aboriginal Community, loneliness and community fragmentation
· Loss of identity, culture, ancestral knowledge
· Family members experienced foster care or adoption
· Family involvement in Criminal activities
· Family member attended residential school
· Social issues affecting the offenders home community
28. Alyson Muzzerall, the Senior Superintendent at the Nova Scotia Youth Facility in Waterville testified as to the facility itself, its physical design, its capacity and the process upon entrance to determine programming. There are specialty programs such as music therapy and art as well as cultural specific programs for aboriginal youth. Young persons once admitted to the Youth Facility are given a Correctional Services Code of Discipline which has Level I, Level II and Level III infractions.
29. In general terms the cut off point for a young persons stay at the facility is age 20 but there are exceptions if he is doing well in programs and not a behaviour concern. When questioned as to this specific young person she stated that if he was to get a maximum sentence of 3 years he would start the sentence with her and if he was doing well he could be at the facility for the full two years in custody and one year on conditional supervision. That there is an automatic transfer to an adult facility if there is a breach.
30. She has not reviewed this specific young persons progress at the facility but is aware his programming to date and if he were to be sentenced as a young person the Intensive Rehabilitation Custody and Supervision Program (IRCS), would be available to him. She was very straightforward in her response to questioning by defence counsel as to whether or not a youth of such an age and on such a program was on “a short leash”, and said most certainly, it is a privilege for him to be so housed and she would have no hesitation in seeking a review should there be behavioural or other issues.
31. Mr. George Crooks, Youth Worker NSYF, testified. He works in Cottage * where this young person is housed. He gave an overview of N.H.’s programs and in particular substance abuse, AA’s, life skills and education. The substance abuse program, is an in-house program delivered by a Youth Worker trained in addictions counselling and this young person participated quite appropriately in the same. The AA program is a closed program for which he has no information. Life Skills deals with the cognitive skills for such issues as anger management and stress.
32. N.H. completed the substance abuse and life skills programming, progressing very well and being an active participant. With respect to education he completed three credits for Grade 10, English, Math and Science and was at the time of the hearing working on Biology and Canadian History 11. Again he said the young person did very well and did not present any behaviour problems.
33. The youth worker outlined N. H.’s record of behaviour at the institution. He received eight Level II and five Level III infractions. He has not had any discipline problems since January 23rd, 2009. In explaining his understanding of the young persons behaviour since that date, Mr. Crooks says the young person has matured, has completed the anger management program and is fully cognizant of the rules and regulations of the Youth Facility.
34. Mr. Paul Getson is the Unit Supervisor at the Nova Scotia Youth Facility, with 20 years experience having previously been the shift supervisor at the Shelburne School for Boys. He has known the young person since August 2008 and reviewed Exhibit 3, a Progress Report for the Court which was submitted by himself, Mr. Crooks, and the Deputy Superintendent, Michael Sampson.
35. The Court believes it is important to reference portions of this report in detail for the purposes of this decision, particularly so because of the divergent opinions between those staff persons who have dealt on a daily basis for almost the past 12 months with this young person as compared to the authors of the Section 34 Assessment Report.
36. The Progress Report provides:
YP...was admitted to this facility on June 10th, 2008.
...on June 27th... YP...received a Level III (most serious of NSYF rules) for causing a disturbance and profanity directed at staff. He had been kicking and banging on his cell door for a period of time. He then demanded a book and when refused he yelled obscenities at the staff....
...on July 27th... he received a Level II (intermediate NSYF breach) for hitting another young person on the arm while returning from the dining hall. On August 1st... he was involved in a group sanctioned Level II for not returning to his unit from an outdoor recreational program after receiving numerous directions from staff....
...on August 3rd... this individual received another Level II for directing profanity at a staff member....
Due to the number of Level II incidents on August 4th... he received a Level III for not following the rules and regulations governing this facility and was returned to discipline Unit 1B.
While serving his sanctions in 1B he received another Level II for swearing at staff (August 14th...) [he] yelled at staff....
On August 24th... [he] received a Level II and Level III for profanity directed at staff and creating a disturbance and was transferred back to the discipline unit....
On September 9th... this client was involved in a fight with another young person. Use of force had to be used in order to restrain [him]....
For the next two months [he] remained incident free but on November 2nd...he again fought with another young person and was issued another Level III....
On January 21, 2009 during a search of his cell in 2A a canteen article (contraband) was found in his cell that did not belong to him and he was issued a Level II for theft. On Jan. 23... he received a Level II for damage to property for writing his name on the door and walls of the safety cell.
From January 23... to the time of this report being written, [he] has not received any major incident reports. He interacts well with both peers and staff. He has had no difficulty following the rules and regulations at the facility. Staff report he is quiet, co-operative, polite and has not caused any concerns in this time frame.
37. Mr. Steven Gouthro, a Registered Psychologist was one of a team from the IWK Health Centre-Youth Forensic Services who prepared a very comprehensive assessment report as directed by the Court under Section 34 YCJA. He has been working with youth involved in the law for approximately 20 years and used a multi-team approach to preparing said report. Two of the co-authors Judy Lightfoot and Donna Hughes also testified. The psychiatric report by Dr. Mark Johnson was part of the exhibit but Dr. Johnson did not testify.
38. Mr. Gouthro interviewed the young person on five occasions and felt his demeanor was that of being fairly stoic with a flat affect. He did not express any emotion that one would expect regarding the tragic events in his life and it was Mr. Gouthro’s impression that he had a disconnect with his emotions.
39. When discussing the young person’s version of the events it was the authors opinion that he was very aware of what was going on, that he acted in a reasoned and logical manner, that there was a plan of action and it was his intention to follow through on the same.
40. Mr. Gouthro said that when recalling the index offense the young person was matter of fact and emotionless. There were several personality tests completed with respect to the young person which speaks according to Mr. Gouthro to his amenability to treatment. He reviewed the various tests, the scoring and what the same indicated.
41. He confirmed in his testimony that which is written at pages 22-23 of the report as it relates to the MMPI-2 Inventory:
...the instrument provides clinical scales that provide hypotheses about personality, traits and symptom patterns.
...[his] responses suggest he shows marginal adjustment to life’s stressors and is likely to behave in a self-centered manner. His profile suggests that [he] has difficulties with authority. Individuals with similar profiles demonstrate a chronic pattern of psychological maladjustment. They are often described as angry, impulsive and irresponsible. ...that socially [he] may appear extroverted, but his interpersonal relationships tend to be superficial.
The MMPI-2 suggests that substance abuse is likely to be a significant factor in the clinical picture.
This profile pattern is typical of individuals that view their problems as physical and tend to not request psychological treatment. [His] responses suggest he is not reflective or open to psychological interpretation of his problems. He is likely to be aggressive and caustic in relationships. Such clients tend to not comply with treatment recommendations. They are not receptive to suggestions from others. They are not considered good candidates for individual psychotherapy.
42. Risk assessment was tested for general and violent re-offending. Mr. Gouthro made it clear that the risk assessment results should not be used in any decision making subsequent to one year post the results as such is based not only on individual characteristics but rather is assessed in a context ie. home, school, community, peer influences and the like.
43. The result of the standardized scoring suggests this young person is a high risk for general criminal recidivism and from one source of testing and as a moderate risk from another. In terms of risk for violent re-offending the young person was assessed using both the Structured Assessment of Violence Risk in Youth (SAVRY) and the HCR-20. The former being used to assess risk in adolescents between the ages of 12 and 18. A review of the SAVRY rate this young person as a high risk for violent re-offending. The HCR-20 produced an identical result.
44. It was Mr. Gouthro’s position that teenagers who become involved with difficulties usually have such resolved within the teen years and that the older they are when difficulties arise the more entrenched they become in their behaviour and there’s less likelihood of change.
45. He stated that two years is not sufficient enough time to address the risk factors that have been identified. His review of the Gladue Report would not change his opinion.
46. Mr. Gouthro agreed with questioning by defence counsel that the young person’s bad behaviour was learned. Such is not unusual for youth that he deals with, nor is N.H.’s tendency to blame others who have been his so-called role models. However, he was steadfast in his opinion that the young person is mature in that he knew what he was doing was wrong and that he did it anyhow.
47. When questioned on the appropriateness of continuing to serve his sentence at the NSYF versus an adult institution, he agreed that he could not see anything positive coming out of the young person going to the latter. That his goals and successes regarding educational endeavours show that he has the potential to achieve as long as he remains motivated, but notwithstanding the positive change since January 2009 such is not a sufficient length of time to be an indicator of success. He has learned inappropriate behaviour from an early age and such cannot be unlearned on a permanent basis demonstrated through four or five months of good behaviour.
48. Mr. Gouthro stated that N.H. does not have a manipulative personality which is a very positive trait.
49. Judy Lightfoot, Clinical Social Worker with the IWK Youth Justice Service and one of the co-authors of the Section 34 Report authored the background social history for this young person and is in agreement with the conclusions and recommendations of the report.
50. Ms. Lightfoot said there are mixed indicators as to how well this young person will do to treatment because of his anti-social personality traits and the age of onset.
51. She agreed with counsel for the young person that he is at the lower end of the anti-social personality scale and there are many positives from the staff at the NSYF in terms of his behaviour becoming stabilized and his motivation for programming.
52. Donna Hughes, Registered Psychologist was the third witness who co-authored the Section 34 Report to testify. Her assessment provides information regarding the persons’ learning and cognitive abilities through testing.
53. The results indicated that he has some learning problems but that he is showing certain strengths cognitively and is doing reasonably well considering the length of time since he has been out of school. He has demonstrated he is capable and such will continue as long as he remains motivated.
54. At page 35 of the Report the recommendations of the authors regarding elevation are outlined:
After having reviewed the relevant information the recommendation regarding elevation remains a difficult decision. [N.H.] presents with anti-social personality disorder. His anti-social attitude and violent behaviours present risks that will be difficult to address...
At eighteen years, eight months of age any type of custody sentence will allow [him] just over a year in a youth facility. Another year in a youth facility is not likely to address [his] issues in a meaningful way so as to significantly reduce his risk for violent re-offending...
The prognosis for his diagnosis is guarded at best. His history of violent acting out is early onset, long-standing, persistent and appears to be escalating. That being said, the personality disorder would not be considered severe in nature based upon the available information. [He] has been able to maintain long term relationships. He has maintained seasonal employment and to this point he does not show a high degree of criminal versatility. These are positive signs.
The current assessment indicates that [his] issues and his risk for violent re-offending are likely to be long-standing. His needs are not likely to be addressed in the period of time he would have available to him in a Young Offender Institution (just over one year) or within the time frame available under a youth sentence (two years in custody, one year under supervision in the community). Beyond that it is difficult if not impossible to put a specific time frame on sentencing based upon a mental heath prospective. Respectfully, in [his] case, time frames in terms of length of a custody sentence may be better informed regarding accountability and meaningful consequences and those concerns are at the discretion of the court.
55. George McAloney, Acting Program Manager, Springhill Institution explained how offenders are classified for security levels. Programming is then decided upon. In the federal system there are levels of substance abuse programming, and there are anger management and educational upgrading programs with a goal of a Grade 12 equivalency.
56. He explained the structure of an inmate’s day including recreational time and work programs that are available at Springhill. There is consideration for culturally appropriate activities in terms of aboriginal offenders. All programs are voluntary and all have a follow up maintenance proponent in the community.
57. Theresa Edwards, Deputy Superintendent of Programming with the Cape Breton Correctional Centre outlined the facility in which she works. It is a Provincial Institution for which persons who are sentenced up to two years less a day serve their sentence. It is a medium security facility with a 9 session program for substance abuse. There is an “Options to Anger” program, consisting of seven sessions and some educational programming. Again at her institution all programs are voluntary. They are at the very early stages of setting up a cultural program with respect to aboriginal inmates.
58. A. C., Clinical Therapist, W. First Nation had some sessions with this young person in 2005. She became involved with him after a crisis regarding a suicide attempt and referred him for mental health counselling.
59. She has had some communication with him since he has been at the youth facility, more or less to let him know that she is available should he require her services.
60. She testified that this young persons psycho-social development has been disrupted and such can be rebuilt, and that she is not surprised that he has done well recently at the youth facility because of the structure available there to him and says such speaks to his motivation.
61. A pre-sentence report was received and considered by the Court, his social, family and educational history is consistent with the other information this Court received.
62. N.H.’s youth record was tendered as an Exhibit. It indicates that he has convictions for offences contrary to Sections 145(3), 264.1 and 335(1) of the Criminal Code and 137 of the YCJA between April 2006 and November 2007.
63. A letter was received as an Exhibit from the young persons father indicating the positive change in attitude and emotions he has seen since visiting his son at Waterville. He outlines the young persons remorse that has been demonstrated to him and the successes he has achieved in his school work there.
64. The Crown, in its submissions to the Court, outlined the reasons why it is making this application and submits the burden has been met.
65. It is the position of the Crown that this is very serious offence, there was a loss of life and an intentional application of force by the young person who was at the time less than three months away from his 18th birthday.
66. The Crown submits that in relation to the issues of maturity he was functioning as an adult, living separate and independent with a girlfriend and a child. N.H. has a background of criminality with a youth court record pre-dating this offence by two years, a person not unfamiliar with alcohol and drug use from an early age and with an anti-social personality disorder.
67. The Crown relies heavily on the opinions expressed in the Section 34 report, that a further year in a youth facility is not likely to address the young persons issues in a meaningful way so as to reduce significantly his risk for violent re-offending.
68. On the other hand counsel for N.H. points to the fact that this was not a planned death, that such was an unfortunate result of what was to be a theft of liquor.
69. The amount of violence from the young person in relation to Mr. Rorison was minimal, that is he punched him once. That N.H.’s record is minimal and does not show a history of violence and N.H. was a young person at the time, he was under 18.
70. Defence counsel rely strongly on the recent good behaviour and progress that N.H. has made at the Nova Scotia Youth Facility, those who deal with him on a daily basis say that he has settled into the structure, that he shows potential and that he has demonstrated motivation.
71. Mr. Nicholson stated to the Court that the evidence before it is such that resources and programming at Waterville is superior in terms of quality, instruction and delivery as compared to a provincial or federal institution, and that the necessity to attend programming and be of good behaviour at the Youth Facility is a much stronger link to future good behaviour than that which would result with an adult sentence.
72. I thank counsel for their oral and written submissions together with the authorities they provided. Everyone has presented their positions to the Court in a most professional and competent manner.
The Law
73. The issue the court has to decide is whether or not a youth sentence imposed pursuant to and in accordance with the guiding purposes and principles of sections 3(1)(b)(ii) and 38 of the Youth Criminal Justice Act, would have sufficient length to hold N.H. accountable for his offence, having regard to the circumstances of the offence, his age, maturity, character, background and previous record in addition to any other relevant facts before the Court.
74. In R. v. O.(A.) 218 C.C.C. (3d) 408, the Ontario Court of Appeal set out how the statutory provisions referenced above are to be interpreted. At paragraph 42:
The combined effect of ss.72, 3 and 38 is to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence.
Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation and reintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration. Parliament has used the different terms and is presumed to have intended different meanings...
In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C. in R. v. M.(C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at paras. 80 and 81:
‘retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothing more.
Retribution as well should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate societies condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values, as enshrined within our substantive criminal law.’
75. This approach has most recently been confirmed in the Provincial Youth Justice Court in this Province by Judge Pam Williams in R. v. C.S. [2008] N.S.J. No.218.
76. Accountability as required in Section 72 of the Act was discussed further in R. v. O.(A.) supra at paragraph 50:
Youth court judges have reached similar conclusions as to the meaning of accountability in s.72. As Blacklock J. said in R. v. M.(J.), [2004] O.J. No 2796 (Ont. C.J.) at para. 26, the sentence must be ‘long enough to reflect the seriousness of the offence before the Court and the accused’s role in it’, even taking into account the offender’s increased dependance and decreased maturity. We read this as a recognition of the need to take into account the normative character of the offender’s conduct. And in R v. Ferriman, [2006] O.J. No. 3950 (S.C.J.) at para. 38, McCombs J. said that for a sentence to hold a young person accountable it must achieve two objectives:
‘it must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. If the Crown proves that a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed’
77. And further at paragraph 58:
Contrary to A.O.’s submission, in so doing, the youth court judge did not hold that a youth sentence must be sufficient to “secure” the rehabilitation of a youthful offender, in the sense of ensuring that outcome. As acknowledged by A.O., in most cases this will be virtually impossible to predict there is no guarantee that any sentence, however skilfully fashioned, will ensure the rehabilitation of an offender. What is required under the YJCA is that the sentence imposed has meaningful consequences for the affected young person and that it promotes his or her rehabilitation and reintegration into society....
78. The Supreme Court of Canada in R. v. B. (D.) [2008] SCC 25 in discussing when a youth should be held accountable through the imposition of an adult sentence made the following comments at paragraph 1, ‘Young people who commit crimes have historically been treated separately and distinctly from adults.
79. And further at paras 45-66:
...the approach to the sentencing of young person is animated by the principle that there is a presumption of diminished moral culpability to which they are entitled. Like all presumptions, it is rebuttable....
The first question therefor is whether the presumption of diminished moral culpability is a legal principle. In my view it is...
... legislative history confirms that the recognition of a presumption of diminished moral culpability for young persons is a long-standing legal principle...
The courts, too, have acknowledged the reality of reduced moral culpability on the part of young people. In Reference re Young Offenders Act (Canada), [1991] 1 S.C.R. 252 (S.C.C.), at p.268, Lamer C.J. observed:
‘[W]hat distinguishes this legislation from the Criminal Code is the fact that is creates a special regime for young persons. The essence of the young offenders legislation is a distinction based on age and on the diminished responsibility associated with this distinction.’
80. And in addition at paragraph 77:
This does not mean that an adult sentence cannot be imposed on a young person. It may well be that the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age....
81. This Supreme Court of Canada decision was referenced in detail by the Nova Scotia Supreme Court in its decision in R. v. D.(A.J.) supra, at paragraph 37 wherein Justice Abella is quoted as follows:
This does not make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection.
Promoting the protection of the public is equally well served by putting this onus on the Crown, where it belongs... And young persons will continue to be accountable in accordance with their personal circumstances and the seriousness of the offence. But the burden of demonstrating that more serious consequences are warranted will be, as it properly is for adults, on the Crown.
[Emphasis Added]
82. And further in D.(A.J), supra Justice Boudreau references the Nova Scotia Court of Appeal in R. v. Smith, 2009 NSCA 8 at paragraph 38:
...Justice Abella commented on the philosophical differences between the Youth and Adult Criminal Justice Systems at paras 62-68...
it is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Professor Alan Manson notes that ‘the general principle that applies to youthful offenders... is that a lack of experience with the world warrants leniency and optimism for the future’ (The law of Sentencing (2001), at pp. 103-4). And Professor Bala describes the YCJA as
‘premised on a recognition that to be a youth is to be in a state of ‘diminished responsibility’ in a moral and intellectual sense. Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: ‘I don’t know.’ Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. ...This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults.’
As Professor Bala explains, ‘adolescents generally lack the judgment and knowledge to participate effectively in the court process and may be more vulnerable than adults’ (Youth Criminal Justice Law, at p.5). There is, moreover, evidence suggesting that as a result of this reduced judgment and maturity, young persons respond differently to punishment than adults, and that harsher penalties do not, by themselves, reduce youth crime.... .
Factors to Consider and Analysis
Seriousness and Circumstances of Offence
83. It is undisputable that N.H. committed a very serious offence which had tragic consequences when viewed in combination with the actions of others. N.H. in the company of other young and youthful persons intended to steal liquor from the deceased in his home, he died due to blood loss from blunt force injuries of his spleen, small intestinal mesentery, and intestines. (See Appendix D, Agreed Statement of Facts, Autopsy Report prepared by Dr. Matthew Bowes.) The accused young person punched Ivan Rorison in the left eye knocking him backwards into the kitchen. This was before he was kicked and punched.
84. N.H. had been drinking beer, he had smoked several joints of marihuana and had snorted crushed up percocet tablets.
Age
85. N.H. was seventeen years, nine months of age at the time of the offence. He is now eighteen years old.
Maturity
86. Judge Williams in R. v. C.S., supra stated that “maturity, it seems to me should be considered from two perspectives, behaviourally as exhibited by her words, thoughts and actions and chronologically by looking at her actual state of development” (para. 18).
87. Several sources provided input as to N.H.’s level of maturity. The IWK assessment report at page 33 states:
In considering the referral question, maturity in this case speaks to the degree to which [he] should be held accountable and responsible. It is necessary to take into account a youth’s dependence on others and their vulnerability to influences beyond their control when conducting these assessments. Culpability or ability to form criminal intent, criminal sophistication and moral development are also important areas to consider.
[He] has been negatively affected by a traumatic and dysfunctional early childhood. His exposure to substance abuse, domestic violence, a transient lifestyle and dysfunctional relationships with his parents have contributed to his mistrust and defiance of authority figures, his difficulty forming healthy relationships and deficits in emotional development and emotional maturity. His feelings do not appear to be well integrated into his thinking and decision making. Though his reasoning and decision making is colored by his early socialization, his decision making appears to be largely independent. His social history and self-report indicate that he has enjoyed a significant degree of autonomy and independence for a prolonged period of time. It would appear that [he] has travelled around the province and between residences at will. There is little indication that he has been accountable to authority figures including education, courts or parental figures for some time. In [his] words, ‘It’s like I’m 18 going on 28 or 29'.
The present assessment indicated that [he] is aware of the difference between right and wrong. He indicated that he knew the intent was to rob the victim on the way down to his home. When describing the index crime he demonstrated good recall. He described his reasoning including his strategies to avoid apprehension. He explained that he wanted to be quick, in and out, to get clear of the scene and eventually to leave town because of the seriousness of the situation. [His] own words and his actions as reported in the Crown information, portray him as decisive and determined. In [his] words, ‘We came here to rob him, everyone is getting scared, I came this far, I’m going to rest of the way.’ [He] should be held to a high degree of accountability.
88. Mr. Gouthro reports that his remorse and regret is inconsistent and he is less than honest in his remarks as he had during portions of the interview tried to rationalize and blame others for the index offense.
89. His unit supervisors stated that over the period of time he has been on remand he has matured, his behaviour has improved and he appears to recognize the structure that is present. Further, he has been positively engaged in programming.
90. Paul Getson stated that this young person has become a leader and has status in the institution.
91. Steven Gouthro explained his comments about maturity and his opinion that this young person should be held accountable to a high degree, that he was talking about N.H. knowing what he was doing was wrong, and that he did not want to get caught.
Character
92. Much of the evidence before the court shows this young person to have taken on adult responsibilities at a young age, in particular caring for his younger siblings, and defending his mother.
93. The assessment report quote staff at the Youth Facility as describing him as ‘quiet, co-operative, polite....’ (see p.17) and that at some points he appears to “resent authority”.
94. The report also goes into detail on various personality tests that were conducted. The overall tenor is this young person will behave in a self-centered manner, individuals with such profiles generally are demonstrating chronic patterns of psychological maladjustment and are described as angry, impulsive and irresponsible. “The MMPI-2 profile suggests that socially [N.H.] may appear extroverted, but that his interpersonal relationships tend to be superficial. Such individuals are often immature and demanding in relationships,” and ... “such clients tend to not comply with the treatment recommendations” (see pp.22-23)
95. The Court is presented once again with a divergent view with respect to this young person’s character. We have the assessment team suggesting that this young person is self-centered and marginally adjusted to life’s stressors as compared to his social history wherein he cared for others and put the needs of his family ahead of his own.
96. There has been an acknowledgement of guilt by the young person as to his role in the death of Ivan Rorison and an acknowledgement in the Gladue Report that he accepts full responsibility, that such was his reason for entering the plea. He expressed a willingness to address his addiction issues and deal with past offending behaviour.
97. In the pre-sentence report Deborah Schofield, teacher at NSYF was contacted. She stated:
... [N.H.] is a young person who will be 18 years old in August 2009 but had yet to complete a single high school credit before entering the Nova Scotia Youth Facility. He has not had a great deal of success in the public school system, with frequent moves and poor behaviour affecting his school performance. Ms. Schofield advised [N.H.’s] first language is * and his second language is English. This has not affected his ability in school at the Nova Scotia Youth Facility nor has the amount of time he has missed from school over the years affected his ability to succeed in school at this time. He now has a long-term plan to graduate high school, attend Community College for carpentry trade and apprentice with his father, who is a *. Ms. Schofield stated the subject, for all his lack of success in school to date, appears to have the opportunity and ability to succeed and graduate provided he is in the right learning environment.
... there have been no incident report issued for negative classroom behaviour. Outside the classroom, Ms. Schofield stated [N.H.] demonstrates some talent for writing poetry. He also initiated, with the assistance of several other First Nation youth, the design and implementation of a presentation on * culture that was delivered to residents and management staff of the Nova Scotia Youth Facility as part of * History Month. She advised this demonstrates his leadership skills, which are an asset if used in a positive matter.
98. As can be seen from these comments this young person has done exceptionally well in his educational pursuits and has been a leader with respect to a presentation. Such clearly are indications of his character in terms of his ambition and motivation to succeed and the pride he takes in his Aboriginal heritage.
Background
99. Unfortunately the childhood and early adolescent years for N.H. demonstrate a lack of effective parenting, with N.H. being subjected to those things a young person should not witness; for example, violence towards his mother, selling and use of drugs and alcohol, being thrust into making adult decisions, moves throughout various communities, unhealthy relationships, being the subject of racism, and the death of a child.
100. N.H. became involved with consumption and use of alcohol and drugs when he had barely entered his teenage years. He was left to parent young siblings when his parents were absent or intoxicated by alcohol or drug. He missed tremendous amounts of time from school because of his responsibilities and when at school had difficulties “fitting in”.
101. Because of the domestic relationships of his mother N.H. was moved from one community to another. At 17 he began to live independently with his girlfriend and an infant son.
Previous Record
102. On April 24, 2006 N.H. was sentenced to community service work of 25 hours for a failure to comply charge under section 145(3) of the Criminal Code.
103. On June 13, 2006 N.H. was sentenced to 12 months probation for an uttering threats charge, contrary to s.264.1, conditions included assessment, counselling and treatment for anger management, remain away from the * unless enrolled, and not to associate with or be found in the company of any person known to have a youth or criminal record in addition to the usual statutory provisions. (see Exhibit 6, Bail Report)
104. On November 20, 2007 N.H. was sentenced on a charge of joyriding contrary to section 335(1) of the Criminal Code and a breach of probation under Section 137 YJCA, for which he received 12 months probation on both and 30 hours community service work.
Conclusion
105. Will a youth sentence be of sufficient length to hold N.H. accountable for his offending behaviour having regard to all the considerations placed on the court under ss. 72, 3 (1)(b)(ii) and 38 of the YCJA
106. The Court has received evidence and opinions on N.H.’s maturity and character and how to best hold him accountable through sanctions that will have meaningful consequences for him, that will promote his rehabilitation and reintegration into society and thereby contribute to the long-term protection of the public. As noted by Judge Williams in R. v. C.S., supra, at para 60:
Optimal accountability is therefore achieved through the imposition of a sentence that is both long enough and substantive enough to address the needs of the young person.
107. The evidence as put forth by the authors of the Section 34 Report, both in their testimony and in their report suggests that the time frame available under a youth sentence (two years in custody, one year under supervision in the community) is not likely to be a sufficient amount of time to address his needs, and also that “it is difficult if not impossible to put a specific time frame on sentencing based upon a mental health perspective”. (see page 35)
108. The Section 34 Report provides specific treatment recommendations at pages 36 and 37 which were expanded upon during the evidence.
109. The Gladue Report recommends because of the success this young person has had at the Youth Facility that he serve a sentence there as a participant in the IRCS program with specific counselling and a reintegration program in place.
110. The Senior Probation Officer who authored the pre-sentence report, Ms. Cossar, did not offer an opinion with respect to sentencing other than to identify those areas of counselling necessary.
111. When N.H. first presented to the Youth Facility he experienced a number of infractions. In total from June 2008 to January 2009 he had 13 Level II and III infractions. It is noteworthy that eight of these were in the one month period immediately following the death of his son. There was very little if any, comment made by the assessors in this regard. It was noted that his son had passed away but there was nothing expressed as to whether or not such may have had an effect on N.H.’s behaviour. It is hard to imagine that such would not.
112. As with all evidence, the court can accept some, none or all of what a witness has to say and though the Section 34 assessors were not qualified as experts they certainly had skill and training in areas not possessed by lay people.
113. The section 34 report suggests that this young person’s history of violent acting out, and his personality disorder, though not severe in nature, mean his risk for re-offending is going to be longstanding. Mr. Gouthro in particular says that four or five months of good behaviour is not sufficient enough to confirm that he will continue to make positive changes.
114. The Court notes on the other hand that his classroom teacher, his unit supervisor and youth worker all say that he has performed remarkably in that he has limited formal education and has received credits towards Grade 10, and not just by making passing grades but by making very good marks. Also that he has become a leader, he has shown initiative and motivation and he has settled into a routine adjusting to the structure and rules.
115. Mr. Gouthro says he is not a manipulator. That to the court is an extreme positive trait and a sign of character that cannot go unnoticed.
116. There was much discussion about this young person’s maturity and how, because he was living independently, and moved between communities he knew what he was doing on this particular night was wrong and did it notwithstanding, and sought to avoid apprehension, that he should be held accountable to the highest degree.
117. Maturity is a very difficult concept or term to be definitive about and the declaration of principle in section 3(1)(b)(ii) specifically speaks of the reduced level of maturity of young persons and that such have a greater dependency and their accountability has to be fair and proportionate with the same.
118. The s.34 report highlights this at p.33:
In considering the referral question, maturity in this case speaks to the degree to which [he] should be held accountable and responsible. It is necessary to take into account a youth’s dependence on others and their vulnerability to influences beyond their control when conducting these assessments.
119. N.H. had many negative influences that have impacted his life.
120. Maturity denotes a sense of logic and measured choices. In this young person’s case to describe his early childhood and teenage years as chaotic is an understatement. He was without choice, made an adult with adult responsibilities and decisions. He decided, as Mr. Gouthro says in the report, where he was going to live. However, the other evidence before me showed it was not a decision that he wanted to make, it was a decision he had to make. N.H. is clearly a product of his environment and generations of dysfunction.
121. N.H. was at the time of this offence a young person within the meaning of a Youth Criminal Justice Act. That is the starting point and all considerations by this Court. He was involved in the commission of a shocking and senseless crime. He has to be accountable for his role in the same based on the enumerations in section 72 of the Act, combined with ss.3(1)(b)(ii) and 38.
122. N.H. has since January demonstrated a change in behaviour, admittedly this is a short period of time. He has completed all programs, has sought out additional programming, has been a leader and shown motivation, and has a desire to continue the same.
123. It appears from the evidence that much, if not all, of the programming that this young person has had in his life, has been since he has been on remand. In addition there is other programming available to him as a young person should he maintain appropriate behaviour, at the Youth Facility until age 21 in optimal conditions.
124. The section 34 assessors do not feel the maximum youth sentence will be sufficient to address all of his needs. Mr. Gouthro, however, when asked as to the appropriateness of continuing to serve a sentence at the Youth Facility as compared to an Adult Institution agreed that there was nothing positive that could come out of a young person going to the latter.
125. This Court is faced with the decision on this application as to whether or not, in it’s opinion, a youth sentence imposed in accordance with sections 72, 3(1)(b)(ii) and 38 would be of sufficient length to hold N.H. accountable for his offending behaviour. There appears to be nothing gained by imposing an adult sentence on N.H., and quite possibly much of his recent success lost.
126. A sentence in an Adult institution has voluntary programs, very unlike a youth sentence where structure, programming, motivation, good behaviour, and productivity are expected.
127. Like all judges, and Mr. Gouthro, I have no crystal ball as to what the future will hold for N.H. however, as suggested by the Crown, past behaviour is often the best indicator of future behaviour. His most recent behaviour has been good. This young person in his short 18 almost 19 years has had many life experiences that elderly Canadians never witness. He has had a life of turmoil as it related to his parenting, his schooling, his moral development, substance abuse, poverty, racism, violence and social fabric. The most unfortunate part for this young person is that all of the structure in his life and positives in terms of his education, behaviour and desire to deal with his past has come on remand, since this crime was committed.
128. I agree with the evidence that it is impossible to know with any certainty how long and under what circumstances his rehabilitation and reintegration into society will take, with the goal being long term protection of the public however, it is almost a given that an adult sentence will not further his most recent progress.
129. The Crown has not met the burden upon it.