IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA
Cite as: R. v. B.T., 2013 NSPC 23
Date: March 28, 2013
Docket: 2388561 -2388565
Registry: Halifax
BETWEEN:
Her Majesty The Queen
v.
T.(B.)
SENTENCING DECISION
JUDGE: The Honourable Anne S. Derrick
HEARD: March 21, 2013
DECISION: March 28, 2013
CHARGES: sections 234, 334(b), 355(b), 342(1)(c), and 88(1), of the Criminal Code
COUNSEL: Ronald Lacey and Kimberly McOnie, for the Crown
Luke Craggs, for T.(B.)
Introduction
[1] On November 19, 2011, Glen Oakley went out for his evening walk. Sometime after 10 p.m. that night he was found lying on the pedestrian walkway of a bridge not far from his home. He had been shot.
[2] Mr. Oakley’s nightly walks took him on an extended loop through the neighbourhood where he lived with his wife, Sheila. There was nothing different in his routine on November 19, 2011 except this time he never returned.
[3] In the period of November 21 and 22, 2011, three teenagers were arrested for Mr. Oakley’s murder. T.(B.) has been on remand since his arrest. On October 12, 2012, I convicted him of manslaughter. I found that he killed Mr. Oakley with a single, deadly shot.
[4] I also found T.(B.) guilty of: theft – stealing Mr. Oakley’s wallet; unlawful possession of Mr. Oakley’s RBC client card and his MBNA credit card; unlawful use of the RBC client card; and unlawful use of a .22 calibre rifle (a sawed-off semi-automatic .22 calibre Ruger) for the purpose of committing an offence, a culpable homicide. (R. v. T.(B.), [2012] N.S.J. No. 541, paragraphs 118 and 119)
[5] In my decision, I made the following findings of fact concerning T.(B.)’s role in the offences for which he was convicted:
117… on November 19 T.(B.), using the sawed-off .22 calibre Ruger rifle he and Mr. Upshaw had taken with them from Mr. Picco's apartment, shot and killed Mr. Oakley as he stood on the Drysdale Road bridge. A little later, T.(B.) returned to the bridge with Mr. Upshaw and took Mr. Oakley's wallet. After going back to Mr. Picco's with the wallet, T.(B.) and Mr. Upshaw then went to the Herring Cove Royal Bank and tried in vain to use Mr. Oakley's RBC client card and his MBNA credit card.
[6] I characterized the shooting of Mr. Oakley as follows:
133 The evidence establishes beyond a reasonable doubt that T.(B.) intentionally pointed the Ruger at Mr. Oakley and, apparently impulsively, pulled the trigger. It turned out to be a catastrophically accurate shot, hitting Mr. Oakley in the abdomen.
134 However it is not reasonable to infer from the evidence that T.(B.) pulled the trigger of the Ruger intending to cause Mr. Oakley bodily harm of “such a grave and serious nature” that he knew would probably result in Mr. Oakley’s death.
[7] T.(B.)’s “reprehensible” actions constituted manslaughter, not murder. (T.(B.), paragraphs 135, 137 – 139)
Documentary and Witness Evidence at the Sentencing
[8] Various reports have been provided to me for T.(B.)’s sentencing: a pre-sentence report dated November 16, 2012; a psychiatric assessment dated December 19, 2012 (Exhibit 7); a section 34 psychological assessment dated December 21, 2012 (Exhibit 2); a report dated January 30, 2013 from the Nova Scotia Youth Facility (“Waterville”) (Exhibit 5); and an IRCS (intensive rehabilitative custody and supervision) treatment plan dated March 8, 2013 (Exhibit 3).
[9] Only one witness testified at T.(B.)’s sentencing hearing. The Crown called Stephen Gouthro, a psychologist with the IWK Clinical and Forensic Services at Waterville.
[10] Mr. Gouthro’s primary professional responsibilities are court-ordered assessments for youth. He has completed over 300 youth assessments and has testified as an expert in the Provincial and Supreme Courts of Nova Scotia. (Exhibit 1, curriculum vitae of Stephen Gouthro) Mr. Gouthro was centrally involved in the preparation of T.(B.)’s section 34 psychological assessment and the IRCS treatment plan.
[11] There was no objection to Mr. Gouthro being qualified to provide expert opinion evidence at T.(B.)’s sentencing on the assessment and treatment of young persons under the Youth Criminal Justice Act (YCJA), and clinical consultation related to assessment, treatment, and programming. I will discuss Mr. Gouthro’s testimony in due course.
[12] I have also reviewed the Victim Impact Statements of Sheila Oakley and her son, Frank Oakley, which they read at T.(B.)’s sentencing hearing. I will discuss those statements next.
The Victim Impact Statements
[13] Mrs. Oakley describes being in an emotionally fragile state, crying a lot and needing mental health support. In her grief she pounds the table and pulls her hair out. She finds herself being angry with family and friends without meaning to be. She refers to Mr. Oakley as “the love of my life” and says that part of her heart has been torn out. She is “extremely lonely” and finding it hard to cope after losing her husband of 40 years.
[14] Frank Oakley also referred to his parents’ long marriage. He is concerned about his mother’s poor physical health and the stress she is under. Now that her “life partner” is gone, Mr. Oakley says his mother “has no one but me” and he lives 4000 miles away.
[15] For Frank Oakley his father’s death has meant an increase in stress and anxiety, sleepless nights, hyper-vigilance, anger, irritability, and frustration. What happened to his father is incomprehensible. In Mr. Oakley’s words: “The absurdity of this crime is unfathomable to me and yet I constantly wonder how my father could go for a walk not even 10 minutes from home never to return.” He observes that he will “never get to spend another moment with my father” commenting that “I can’t seem to let this go.” He echoes his mother’s grief, describing them as a family that has been torn apart and “left in tatters.”
[16] Any untimely death is tragic for those left behind. The tragedy of Mr. Oakley’s death is compounded by the fact that it was utterly senseless.
T.(B.)’s Family Background and Childhood
[17] Sentencing is a highly individualized process. It is essential to understand, for the purposes of sentencing T.(B.), how he came to be pointing a loaded rifle at Mr. Oakley and pulling the trigger. What happened to T.(B.) on his way to this tragic junction in his life?
[18] T.(B.) is now 18 years old, turning 19 in September. On November 19, 2011 he was a mere two months past his 17th birthday. He comes from an intact, pro-social, and loving family which provided T.(B.) with what he describes in the pre-sentence report as “a good family upbringing.” The December 21, 2012 section 34 psychological assessment confirms that there is no family history of abuse, mental health issues, substance misuse, or criminal involvement. Drugs and alcohol were not an issue in the home and T.(B.) indicates that his parents “have been supportive throughout his life.” He has fond memories of his childhood that included family camping trips and activities such as fishing with his father and two paternal uncles. (Pre-sentence Report, page 3)
[19] T.(B.)’s characterization of his family is confirmed in the pre-sentence report by T.(B.)’s parents. T.(B.)’s mother noted that T.(B.) was “a wonderful baby, toddler, and adolescent.” He played well with other children and could also entertain himself. He was shy and quiet in elementary school and his parents kept him occupied with hockey and baseball. T.(B.) made appropriate academic progress in school and never repeated a grade. (Pre-sentence Report, page 4)
[20] Although there were some incidents as a result of T.(B.) being harassed in school, he was, according to his mother, “the peacekeeper, not aggressive but would stand his ground if pushed past his limits.” (Pre-sentence Report, page 3) T.(B.) was involved in two fights in junior high. There were no other issues.
[21] T.(B.)’s smooth progress through adolescence veered off course. He started to associate with a different group of friends. His parents had concerns but hoped the values they had instilled would ensure T.(B.) made appropriate decisions. (Pre-sentence Report, page 3) Negative peer associations overrode those pro-social influences, with tragic consequences. T.(B.) made sure his parents were in the dark about the choices he was making.
[22] T.(B.)’s parents have visited him weekly at Waterville and call at least once a week as well. T.(B.) recognizes that he is “very fortunate to have their support.” (Pre-sentence Report, page 3)
The Downward Slide
[23] T.(B.)’s positive development and good relationship with his family began to take a detour in 2010. His parents noticed he was spending increasing amounts of time with peers who were a concern to them. The police informed them that T.(B.) was “associating with a problematic group of peers” although T.(B.) himself was not causing problems and “always complied with police directives.” (Psychological assessment, page 5) By November 19, 2011, T.(B.)’s best friends were his two co-accused. (Psychological assessment, page 9)
[24] T.(B.) retreated from his family and by 2011, T.(B.)’s parents found that their son was becoming “a stranger” to them. (Psychological assessment, page 5) He took to staying in bed until his father left for work and not returning home until his father was asleep. He remained respectful toward his parents and would call them when he was out past his curfew to tell them where he was, leading them to believe they had control of the situation. (Pre-sentence Report, pages 4)
[25] It became apparent that T.(B.) was using substances: on one occasion he came home under the influence of marijuana, and on another occasion, he had been drinking and was inebriated. Although his parents and an uncle indicated to the assessors that they would not have been surprised if T.(B.) drifted into minor criminal activity such as vandalism or drug use, they were devastated by T.(B.)’s involvement in Mr. Oakley’s shooting. His uncle was taken completely by surprise: “…it never crossed his mind that [T.(B.)] was capable of harming someone.” (Psychological assessment, page 6)
[26] During T.(B.)’s downward slide, he was “for all practical purposes” out of school. He left school in February 2010, his Grade 10 year, returning for only brief periods of time in September 2010 and again in February 2011. By then he had an established pattern of absenteeism and deteriorating marks. When discussing his loss of interest in school, T.(B.) told the assessors that he became “lazy” and “bored…I got tired of sitting all day in school.” He used his time to play “Call of Duty” online while his parents thought he was attending classes. (Psychological assessment, page 14) T.(B.) was becoming accomplished at deceit.
[27] In the section 34 psychological assessment, T.(B.) elaborated on his criminal activities in the months before he shot Mr. Oakley. He was breaking into cars and then homes and businesses. He sold stolen property, including for other people. He began to buy guns. He told the assessors that on the night of November 19, 2011, his plan had been to rob a convenience store at gun point. (Psychological ssessment, page 16)
[28] During this period, T.(B.)’s drug use escalated quite quickly and soon he was smoking marijuana “every day, all day.” He began to sell marijuana, purchasing an ounce and selling grams to finance his own drug habit and to buy food or video games. His personal consumption increased to the point where he was smoking most of his profits. His aspiration was to sell cocaine and make “big money.” (Psychological assessment, page 16)
[29] The psychological assessment indicates that “few pro-social influences in [T.(B.)]’s life had an adequate understanding of the severity and versatility of his anti-social behaviour.” (Psychological assessment, page 15)
[30] During much of 2011, T.(B.) was “heavily invested in a pro-criminal lifestyle and his involvement in substance abuse, theft and violence was escalating.” (Psychological assessment, pages 16 – 17) He found the criminal lifestyle appealing. It offered him friendship and acceptance. The loyalty and cohesion of his peer group was important to him. He was impressed by what money earned from selling drugs could buy and thought the successful drug dealers were “cool” with their expensive jewelry and clothing. He was aware that criminal status and notoriety accorded him protection from earlier problems where retaliation might have been an issue. (Psychological assessment, page 17)
Psychological Testing Results
[31] In preparation for his sentencing, T.(B.) was assessed by Stephen Gouthro using a number of psychological instruments, including the Million Adolescent Clinical Inventory (MACI) and the Minnesota Multiphasic Personality Inventory – Adolescent (MMPI-A), with T.(B.)’s responses on the MMPI-A viewed as having “captured the persona, attitudes and lifestyle [T.(B.)] was living in the period leading up to the index offences.” (Psychological assessment, page 22) The following assessment was drawn from T.(B.)’s responses on the MMPI-A:
…The MMPI-A…also identified anti-social qualities in [T.(B.)’s] personality. Youth with MMPI-A profiles similar to [T.(B.)] are often overly interested in violence and aggression and engage in assaultive or aggressive acting out behaviour. Such youth can be self-centred, engage in risk-taking behaviours and seek immediate gratification of their wishes. The MMPI-A described a young man who can be disinhibited and is likely to engage in high risk-taking, impulsive and irresponsible behaviour. [T.(B.)]’s responses on the MMPI-A portrayed him as a young man who is less bound by moral restraints and who may show callous disregard for others…(Psychological assessment, page 22)
[32] The section 34 psychological assessment concluded that T.(B.) met the criteria for Conduct Disorder, Adolescent onset. T.(B.)’s rating would have been “severe” based on “the presence of many conduct problems in excess of those required to make the diagnosis.” The assessment noted that up to his arrest and remand, T.(B.) “demonstrated a persistent pattern of behaviour in which the basic rights of others and societal norms were violated.” (Psychological assessment, page 22) While these behaviours are not presently being manifested, this only means that T.(B.)’s behaviours “are being effectively managed by the structure and routine” of Waterville, not that his Conduct Disorder is in remission or resolved. (Psychological assessment, page 23)
[33] However, the section 34 psychological assessment notes that T.(B.)’s presentation of Severe Conduct Disorder is “unusual in that it is late adolescent onset type.” Therein lies a distinct hope, that,
The late onset of conduct disorder may indicate that the traits, attitudes, and values that support anti-social behaviour are less ingrained, less entrenched, and more amenable to change. (Psychological assessment, page 34)
[34] The psychological assessment noted that a “prominent theme” for T.(B.) was “the value he placed on his acceptance [by] and affiliation with his anti-social peer group.” This peer group affiliation was identified as having a powerful influence with T.(B.) being viewed by the assessors as “willing to risk his own safety and show disregard for the welfare of others to gain respect and increase his status within the criminal subculture.” The assessment notes: “He was eager to impress his friends and associates” and was “invested in a sub-culture that promoted and celebrated criminal exploits…” (Psychological assessment, page 25)
[35] T.(B.) was assessed using the Structured Assessment of Violent Risk (SAVRY) which, it is noted, “serves as a guide and does not enable the prediction of the probability that someone will re-offend.” His overall risk for violent recidivism was determined to be in the “moderate” range if no efforts are made to manage his risk. (Psychological assessment, page 27) Using the Youth Level of Service/Case Management Inventory, 2.0 actuarial measure (YLS/CMI 2.0), which focuses on the previous year in a youth’s life, T.(B.)’s overall risk for general criminal recidivism, without interventions, was determined to fall within the “low” range, “in comparison to male youth in a custodial setting.” As T.(B.) spent the past year in a custodial setting, the utility and accuracy of this assessment is limited. (Psychological assessment, page 28)
[36] T.(B.)’s overall risk for general criminal recidivism in the community, with no interventions in place to address risk factors, was assessed as “moderate to high” compared to youth in the community. This took into account his moderate SAVRY rating, his acknowledgment of having had a significant investment in a criminal lifestyle, and his admissions of involvement in a significant amount of undetected criminal activity. (Psychological assessment, page 28)
[37] The section 34 psychological assessment looked at static and dynamic risk factors relevant to T.(B.). Protective factors – individual and contextual factors that can reduce the negative impact of a risk factor – include: strong attachments to pro-social adults, particularly his immediate and extended family, and the positive attitude he has shown while in custody to programming and treatment and his active engagement in these features of the custodial experience, and his compliance and cooperation in relation to authority figures. (Psychological assessment, page 29)
[38] T.(B.) has been assessed as amenable to rehabilitation. He does not have significant mental health, learning, or cognitive issues. Testing indicates that T.(B.)
…is of average intelligence, does not present as having cognitive processing deficits and depending on motivation and effort, should be able to achieve a wide range of educational and occupational goals. (Psychological assessment, page 20)
[39] T.(B.) is not burdened by a history of early childhood trauma, with the longstanding impact that has on social and emotional development. He presents a mixed profile that nonetheless suggests reasons to be optimistic about his potential for rehabilitation:
…as an anti-social young man with significant issues related to pro-criminal attitudes and values…[and] substance abuse issues, problems with emotional regulation, is self-centred, hedonistic, and appears to lack empathy. However his behavioural history does not indicate that these issues are ingrained or entrenched. He has assumed a degree of responsibility for his actions. He presents as motivated to engage in treatment and…optimistic that he can make significant changes in his life. [He] has some understanding that the targets of rehabilitation in his case would focus on pro-criminal attitudes and values. He has the cognitive abilities to achieve his academic and career goals and presents as able to meet the intellectual demands of talk based therapy. [He] has demonstrated himself to be independent and self-motivated. He has the support of a pro-social family. He has demonstrated the ability to form positive attachments to others and appears to value social acceptance and affiliation…[he] would be rated as highly amenable to treatment. (Psychological assessment, page 36)
[40] The section 34 psychological assessment has made a number of recommendations in relation to T.(B.). These focus on exploring and addressing his anti-social and violent tendencies, his anger and his difficulty regulating emotions; assisting him increase his emotional awareness and expression; supporting and encouraging his ongoing education and vocational options; remaining at Waterville “as long as age and progress permit”; ongoing substance abuse counseling and maintenance services; structure and clear accountability upon community re-integration; development of a pro-social network; and increasing independent living and life skills. (Psychological assessment, pages 38 and 39)
[41] Community reintegration raises the issue of what community? The prospect of T.(B.) returning to his home community has troubling features, identified in both the section 34 psychological assessment, Mr. Gouthro’s evidence, and the IRCS treatment plan. The community policing officers familiar with T.(B.) told the assessors for the section 34 psychological assessment that:
…there is much anticipating regarding [T.B.]’s release and return to Spryfield, as he will be viewed as a leader within [the group he was affiliated with that is known to be involved in anti-social and criminal activity.]…it would be detrimental for T.(B.) to return to Spryfield, if he has intentions to try and make positive changes in his life. This sentiment was echoed by [T.B.]’s primary Youth Worker [in Waterville]…who indicated that T.B. is well aware that he is unlikely to stay out of trouble, should he return to Spryfield upon his release. (Psychological assessment. page 9)
The December 19, 2012 Psychiatric Assessment
[42] T.(B.) was interviewed on December 18, 2012 at Waterville for the psychiatric assessment prepared by Dr. Ahmad, a psychiatrist with the IWK Forensic Services. This assessment confirmed information obtained from T.(B.) for the pre-sentence report and the section 34 psychological assessment about his involvement in crime and drugs.
[43] T.(B.) was not a follower but “a kind of co-leader” with one or two other friends. (I will note at this point that in his police interrogation this is how Jerrico Upshaw described T.(B.).) T.(B.) was “smart enough” to get away with the crimes he was committing by leaving the scene before the police arrived. He was unaffected by the consequences of what he was doing. According to Dr. Ahmad’s report, T.(B.): “…enjoyed his criminal activities which gave him excitement and acceptance by his undesirable peers.” (Psychiatric assessment, page 3)
[44] Dr. Ahmad diagnosed T.(B.) with a late onset Conduct Disorder and a past history of Substance Abuse (Axis I), and Anti-social Personality Traits (Axis II). It is Dr. Ahmad’s opinion that T.(B.) shows no symptoms of psychosis, a thought disorder, or Obsessive Compulsive Disorder. (I note that the section 34 psychological assessment also found no support for a diagnosis of a major mood or thought-related psychiatric disorder. (Psychological assessment, page 22))
[45] Dr. Ahmad concluded his report with the following comments about T.(B.)’s prospects for rehabilitation:
We have discussed in our team conference his prognosis as well as what would be the best way to advise the court about his sentence and rehabilitations. We all agreed that as his conduct disorder started late, and as he has a really supportive family and as he himself has never been involved in emotional, physical, or sexual abuse in the past, he has a fair chance of being rehabilitated. To be able to do that he himself has to decide to stay away from the bad company which he felt encouraged him to get involved in anti-social activities….He does take full responsibility for his actions and this could also be a good sign for his rehabilitation…
T.(B.)’s Remand – The Past Sixteen Months in Waterville
[46] T.(B.) anti-social tendencies seem to have diminished in Waterville. His parents have noticed positive changes in their son. According to them, he is “healthier, maintains eye contact, and is not fidgety anymore.” (Pre-sentence Report, page 4) The pre-sentence report indicates that T.(B.) seems to have grown closer to his family again and is more honest with them than he had been. It was Mr. Gouthro’s evidence however that T.(B.) initially resisted sharing the contents of the section 34 psychological assessment with his parents. This has echoes of T.(B.)’s pre-offence pattern of keeping his parents in the dark.
[47] T.(B.) has had some altercations with other youth at Waterville, although there have been no incidents since May 2012. He was charged with assault in May 2012 for “sucker-punching” a peer who had “disrespected” him. This led to a conviction for assault in February 2013. An earlier assault in January 2012 resulted in T.(B.) being disciplined but no charges were laid.
[48] In the face of being accused of being overly cooperative with police and labeled a “rat”, T.(B.) has disassociated himself from highly anti-social peers at Waterville and is actively engaged in programming and cooperating with staff. (section 34 psychological assessment, page 18) T.(B.) is credited for learning to “do his own time” and not getting embroiled in issues with other youths. (Pre-sentence Report, page 7) Mr. Gouthro testified that T.(B.) has not been engaging in intimidation or “muscling” of other Waterville residents, something he could have done given the high-status nature of his offence.
[49] The report from Waterville indicates that T.(B.) has been trying to make good use of his remand time. Interviewed for the pre-sentence report, Jim Nickerson, Program Worker at Waterville, noted that T.(B.) has been following his Case Management Plan, distances himself from problematic behaviour on his unit, and takes advantage of all services offered to him. (Pre-sentence Report, page 5)
[50] T.(B.) has been seeing Wanda Schofield, an addictions counselor at Waterville, which he says has been helpful. He indicated in his pre-sentence report interview that he is not interested in using any substances once he returns to the community. (Pre-sentence Report, page 6) Ms. Schofield confirmed that T.(B.) has attended sessions regularly. She has been working through a structured relapse programme with T.(B.) and in her opinion, he is taking his sessions with her seriously. She believes he would be amenable to other types of treatment. (section 34 psychological assessment, page 10) Mr. Gouthro noted in his testimony that T.(B.) needs to develop greater insight into what precipitated his substance abuse.
[51] T.(B.) also attends the CALM (Controlling Anger and Learning to Manage It) program. He is described as an active participant who conducts himself appropriately. (Report from Waterville, page 2)
[52] T.(B.) has also been working on high school credits and doing well. He does not cause any concerns in the classroom. (Pre-sentence Report, page 5) He is seen as a positive participant. (Report from Waterville, page 2) Jim Nickerson believes T.(B.) is able to achieve his educational goals at the institution.
[53] The extent to which T.(B.) has broken the anti-social ties that bound him is “unclear”, according to the section 34 psychological assessment. The assessors raise the issue of what progress T.(B.) can be said to have made since his remand:
…whether [T.(B.)]’s current compliance and cooperation with programming at [Waterville] represents a sobering acceptance of society’s expectations or simply reflects a young man who understands that it is now in his best immediate interests to align himself with the pro-social authority figures because he has been ostracized by the high status criminal influences [is a] question [that] may only be answered after [T.(B.)]’s sentencing when programming and interventions require him to extend himself to explore and practice more pro-social attitudes and coping strategies. (Psychological assessment, page 26)
[54] The section 34 psychological assessment comments on T.(B.)’s acknowledgement that his pro-criminal personal values or attitudes need to be addressed, noting that this acknowledgement came when this was pointed out to him and that he did not identify these issues spontaneously. The assessment found T.(B.)’s insight into his personal issues to be “limited” (Psychological assessment, page 26) and made this observation:
Although [T.(B.)] has demonstrated restraint during the past year, there is little indication that he has addressed the pro-criminal and pro-violence attitudes and values he embraced in the year prior to incarceration. (Psychological assessment, page 31)
[55] While the assessment questioned T.(B.)’s motivation for his compliance and cooperation in custody, it took the following view:
Regardless of the source of [T.(B.)]’s motivation, during the past year he has demonstrated that he is receptive to the programming and interventions offered and is cooperative with the rules and expectations of the NSYF [Waterville]. Should he maintain his current level of cooperation and motivation he is likely to continue to benefit from his participation in programming and may develop more appropriate coping skills and begin to restructure his anti-social attitudes and values. (Psychological assessment, page 31)
[56] Mr. Gouthro testified that the section 34 psychological assessment of December 21, 2012 is still relevant and that his assessment of T.(B.) has not changed. In Mr. Gouthro’s opinion, T.(B.)’s most significant risk factors are personality factors, attitudes and values, and peer influence. These factors are the focus of the IRCS treatment plan. The IRCS plan has the support of both Crown and Defence.
Crown and Defence Positions on Sentence
[57] The Crown has abandoned its intended application for the imposition of an adult sentence. Both the Crown and Defence support T.(B.) receiving an intensive rehabilitative custody and supervision sentence, pursuant to section 42(2)(r)(B) of the Youth Criminal Justice Act. This is what is commonly referred to as an IRCS sentence. Where there is divergence is in relation to the length of the sentence. In the Crown’s submission, T.(B.) should serve an IRCS sentence of three years going forward, with no credit for the 16 months he has spent in pre-sentence custody. The Defence argues that credit for pre-sentence custody should be given and, taking that into account, T.(B.)’s IRCS sentence should be for two years.
[58] It is the Crown’s submission that a three year IRCS sentence would have T.(B.) remain in custody for another 2 years followed by a year under supervision in the community. The Defence wants T.(B.) to spend only one further year in custody and then a year in the community under supervision.
[59] A three year custody and supervision sentence is the maximum sentence permitted under the YCJA for manslaughter. (subsection 42(2)(o)) There is no suggestion in this case that anything less restrictive than a custodial sentence is appropriate.
[60] There is no dispute about T.(B.)’s eligibility for an IRCS sentence. Crown and Defence agree that all the requirements set out in section 42(7) of the Youth Criminal Justice Act have been met: T.(B.) has been found guilty of an eligible offence – manslaughter; he has been diagnosed with an eligible condition – a Conduct Disorder; a plan of treatment and intensive supervision has been developed and there are “reasonable grounds to believe that the plan might reduce the risk of T.(B.) committing a serious violent offence”; and the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that T.(B.)’s participation in the program is appropriate. (subsections 42(7)(a)(i),(b)(c),(d)) The Provincial Director has indicated in a letter to the court dated March 20, 2013 (Exhibit 4) that, in accordance with section 42(7) of the Youth Criminal Justice Act, he has reviewed the proposed IRCS plan and finds it to be “comprehensive and responsive to the needs of this young person and that his participation in this program is appropriate.”
Purpose and Principles of Youth Sentencing
[61] The youth criminal justice system is intended to “ensure that a young person is subject to meaningful consequences for his or her offence.” (subsection 3(1)(a)(iii), YCJA) This objective is found in the Declaration of Principle for the YCJA which also provides, in subparagraphs 3(1)(b)(i) and (ii), that there be an the emphasis on “rehabilitation and reintegration” and “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity.”
[62] Section 38 of the YCJA indicates the purpose and principles of youth sentencing:
The purpose of sentencing…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.
[63] The relevant sentencing principles referenced in section 38 of the YCJA include: parity – that a young person’s 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; proportionality – that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; and, subject to the proportionality principle, that the sentence be the least restrictive sentence that is capable of achieving the overall purpose of sentencing; that it be the one most likely to rehabilitate the young person and reintegrate him or her into society; and that it promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. (subsections 38(b),(c),(e)(i)(ii)(iii),YCJA)
[64] The Supreme Court of Canada has determined that youth sentencing must acknowledge that young persons are entitled to a presumption of diminished moral blameworthiness that reflects, as a consequence of their age, their heightened vulnerability, immaturity, and reduced capacity for moral judgment. (R. v. D.B., [2008] S.C.J. No. 25, paragraph 41)
Accountability
[65] As reflected in sections 3 and 38 of the YCJA, the critical factor in sentencing a young person is accountability. I will now discuss what that means.
[66] It is recognized that the YCJA brought a shift in emphasis in the sentencing of young persons. Rehabilitation, the core sentencing principle under the predecessor legislation, the Young Offenders Act, R.S.C. 1985, c. Y-1 (YOA), was replaced by accountability. In the words of the Ontario Court of Appeal, accountability “drives the entire YCJA sentencing regime.” (R. v. A.O., [2007] O.J. No. 800, paragraph 59) It is a sentencing regime designed by Parliament to
…promote the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done. (R. v. B.W.P.; R. v. B.V.N., [2006] S.C.J. No. 27, paragraph 4)
[67] There can be no suggestion that deterrence and denunciation operate as factors in the determination of T.(B.)’s sentence. This was explicitly acknowledged by the Crown in its submissions. As the Ontario Court of Appeal has held: “The purpose of accountability [under the YCJA] would seem to exclude…any notion of deterrence.” (A.O., paragraph 42)
The Principle of Retribution
[68] The principle of accountability as used in the YCJA is to be regarded as having equivalency to “the adult sentencing principle of retribution” discussed by the Supreme Court of Canada:
Retribution in a criminal context…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. (R. v. M.(C.A.),[1996] S.C.J. No. 28, paragraph 80; emphasis in the original)
[69] Proportionality is a central feature of a retributive sentence: the sentence must properly reflect the offender’s moral blameworthiness. This is consistent with the individualized nature of sentencing.
[70] The often-cited comments of the Ontario Superior Court of Justice in R. v. Ferriman, [2006] O.J. No. 3950 (S.C.J.), articulate the need for two objectives to be achieved if a sentence is to hold a young person accountable:
It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it must also be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society…(Ferriman, paragraph 38)
[71] Accountability requires the court sentencing a young person to fashion a sentence that takes into account a number of factors emphasized by the YCJA: the degree of participation by the young person in the commission of the offence – which can be understood as the moral culpability factor; the harm done to victims and whether it was intentional or reasonably foreseeable; any reparation made by the young person to the victim or the community; the time spent in detention by the young person as a result of the offence, in other words, pre-sentence custody; the previous findings of guilt of the young person; and, any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles under section 38 of the Youth Criminal Justice Act. (subsections 38(3)(a),(b),(c),(d),(e),and (f))
T.(B.)’s Moral Culpability (Degree of Participation in Offences)
[72] T.(B.)’s moral culpability for Glenn Oakley’s death is high. He took aim at Mr. Oakley, and fired the single shot that killed him. He made a choice – a highly impulsive choice - to point and fire a loaded gun, and that choice had fatal consequences. As for what followed, T.(B.) was an active participant in the theft of Mr. Oakley’s wallet and the unsuccessful attempts to get money from Mr. Oakley’s bank and credit card accounts. T.(B.) played a leadership role in the tragic events of November 19, 2011 and, as I indicated in my trial decision, his conduct after shooting Mr. Oakley was “opportunistic, predatory, and callous…” (T.(B.), paragraph 136)
The Harm Done – Intention and Reasonable Foreseeability
[73] The harm done by T.(B.) could not have been more serious. It led to the death of another person. However, I found that T.(B.) did not intend to kill Mr. Oakley and that it was not reasonable to infer from the evidence the subjective foresight that he would cause bodily harm to Mr. Oakley that would probably kill him. (T.(B.), paragraph 135) This is why he faces sentencing for manslaughter, not murder.
Reparations Made to the Victims or the Community - Remorse
[74] Subsection 38(3)(c) of the YCJA requires me to take into account any reparations made by the young person to the victims or the community. Where a life has been taken and the perpetrator has been in custody, there is little more that can be offered than an apology. T.(B.) made an apology to the Oakleys at the end of his sentencing hearing on March 21. I believe he expressed genuine remorse. I also find that his remorse is not a recent development. T.(B.) cried in September when Mrs. Oakley addressed him directly after giving her testimony on the first day of the trial, telling him she had forgiven him and did not hate him. He cried again when Mrs. Oakley read her victim impact statement and he was tearful when he made his own statement to the court. Apologizing to Mr. Oakley’s family, he said he cannot forgive himself what for he did. He wants to turn his back on the life he was living when he made the fateful choice to squeeze the trigger.
[75] T.(B.)’s comments in the pre-sentence report also indicate that he feels significant remorse. The pre-sentence report describes him as fully understanding the seriousness of his actions and acknowledging the poor peer choices he made. T.(B.) admitted that he should “not have placed himself in the situation he did” and says he “feels horrible”, is experiencing regret, “and is really sorry for what happened”, stating “It shouldn’t have happened.” He accepts responsibility and appreciates there will be serious consequences for what he did: “…while I don’t want to do a long time, I deserve to.” (Pre-sentence Report, page 6)
[76] T.(B) has also expressed remorse to his primary worker at Waterville. (section 34 psychological assessment, page 6) To the assessors, T.(B.) acknowledged feeling “horrible knowing I took someone’s life.” He also described how he felt when Mrs. Oakley spoke to him in court, indicating that it brought him to tears, as I have noted. (section 34 psychological assessment, page 19)
Previous Findings of Guilt
[77] As of November 19, 2011, T.(B.) had not been the subject of any findings of guilt. The culpable homicide of Mr. Oakley and the related offences were T.(B.) first convictions. He has since received a 45 day Custody and Supervision Order for an assault on a youth in Waterville. The assault occurred on May 22, 2012 and T.(B.) was sentenced on February 14, 2013. For the purposes of my sentencing of T.(B.) and subsection 38(3)(e) of the YCJA, this is not a “previous finding of guilt.”
[78] T.(B.) is therefore to be treated as a first offender. The revelations in the section 34 psychological assessment of T.(B.)’s admissions to the assessors that he was involved in escalating crimes in the year running up to Mr. Oakley’s shooting do not change that.
Other Aggravating and Mitigating Factors
[79] Not only is T.(B.)’s moral culpability in Glenn Oakley’s death high, his victim was an elderly, defenceless man doing nothing more than going for a walk. Once Mr. Oakley was shot there was nothing done to see how badly he was injured and no alarm was raised to get him help. T.(B.) and his accomplice, Mr. Upshaw, ran off. When they did come back it was to steal from Mr. Oakley’s lifeless body. Their focus was then on trying to get money from Mr. Oakley’s accounts. Despite being described by Christopher Picco as in shock, T.(B.) was sufficiently self-possessed to get a balaclava to wear as a mask for the visit to the bank ATM’s with Mr. Oakley’s client and credit cards. These are all aggravating factors.
[80] The mitigating factors in T.(B.)’s case were accurately described by the Crown in her final submissions: T.(B.) has no prior record; he has expressed genuine remorse; he has participated in programming at Waterville while on remand; he is amenable to treatment; and there are realistic prospects that he can be rehabilitated.
The IRCS Treatment Plan and Stephen Gouthro’s Testimony
[81] I think it is fair to say that Stephen Gouthro regards T.(B.)’s prospects for rehabilitation with guarded optimism. He concluded his testimony by indicating that he believes T.(B.) has the potential and the skills to lead a pro-social life. There is considerable ground to cover to get to this place. The IRCS treatment plan and Mr. Gouthro’s evidence leave no room for doubt that T.(B.)’s rehabilitation will be a demanding project.
[82] The IRCS treatment plan has dual components - a Mental Health Treatment Plan (the mental health aspect) and a Custody, Reintegration and Community Intensive Support and Supervision Intervention Strategies (the correctional aspect). There are four phases to the IRCS plan: Phase I, the stabilization phase; Phase II, the intensive treatment phase; Phase III, the transition phase; and Phase IV, the reintegration phase.
[83] Phase I is intended as an opportunity for T.(B.) to deal with his emotional reaction to his sentence and introduce him to his treatment providers. Phase I is designed to prepare T.(B.) for the intensive treatment phase “through the development of a therapeutic alliance and establishing trust.” The components are: adjustment to sentence; stabilizing primary mental health concerns; review of current services; and the introduction to the treatment team. In Phase I T.(B.) will begin meeting with his individual therapist. Mr. Gouthro explained that although Phase I would usually take three months, in T.(B.)’s case the time is likely to be reduced as he has done “quite a bit of stabilization already.” Phase I may take as long as four to six weeks although the IRCS plan urges that “all efforts to expedite this process…should be taken…” (IRCS treatment plan, page 4) The greatest challenge, according to Mr. Gouthro will be assembling the resources for the treatment team. I note that an IRCS order provides access to federal funding for therapeutic and rehabilitative resources of up to one hundred thousand dollars a year.
[84] Phase I will also “clearly identify a schedule of regular case conferences to review progress, re-define treatment goals as needed and draft the parameters of brief progress reports to be provided to the court.” (IRCS treatment plan, page 3)
[85] Phase II is the Intensive Treatment phase of the IRCS plan. As the IRCS treatment plan notes:
The focus on this second stage of treatment is on the implementation of specific treatment programs shown in the research to be effective in addressing [T.(B.)]’s risk factors and treatment needs as well as the implementation of other programs to facilitate successful risk management and rehabilitation. (IRCS treatment plan, page 4)
[86] Mr. Gouthro testified that Phase II will involve cognitive restructuring, skill-based learning and life skills. It is the beginning of the development of a release plan with supports in the community. The specifics of the plan are spelled out in the IRCS treatment plan:
a. Violent Offender Treatment: Research suggests that an individual violent offender program that targets a youth’s dynamic risk factors and develops risk management strategies is most effective in managing a youth’s risk to violently reoffend. The length of this program will often depend on the youth and how quickly an individual progresses through the treatment program. In [T.(B.)]’s case the treatment program would involve individual therapy with the following goals:
a. Increase insight into his risk factors with well developed, well rehearsed strategies for self-risk management…
b. Increase emotional and mental health stability…
c. Demonstrate stable pro-social behaviour and attitudes with peers, staff, and family/supports…
d. Increase ability to assume more responsibility and independence…(IRCS treatment plan, page 5)
[87] The IRCS treatment plan recognizes that T.(B.)’s behaviour may be well controlled in the highly structured setting of Waterville. However, as it goes on to note: “…if he is not actively engaged in addressing his pro-criminal and pro-violent attitudes and values, his risk for re-offending in less structured environments will remain high.” (IRCS treatment plan, page 5)
[88] Mr. Gouthro testified that it is critical to address T.(B.)’s personality issues and the attitudes and values that permitted him to sustain a committed pro-criminal lifestyle. He said it is difficult to put a specific time frame on how long it will take for T.(B.) to achieve meaningful change. According to Mr. Gouthro, much depends on T.(B.)’s motivation and his investment.
[89] Mr. Gouthro noted that the more intensive the therapy, the better the outcomes. In Mr. Gouthro’s opinion it is important that there be adequate time to address the attitudes and values which, as he pointed out, are a challenge to confront in any situation. Mr. Gouthro testified that if T.(B.) commits to the therapeutic interventions undertaken in Phase II, this aspect can move along fairly quickly. However, he noted that “talk therapy” will be difficult for T.(B.) who is not introspective, reluctant to be seen as vulnerable, and shows a degree of callousness, which may be a protective device, Mr. Gouthro is unable to say.
[90] Mr. Gouthro indicated that Phase II of the IRCS treatment plan will address the contributing factor of substance abuse. Although T.(B.) has been involved in substance abuse counseling for the better part of his remand, in Mr. Gouthro’s opinion he has not yet shown much insight into the cause and significance of his substance using. In Mr. Gouthro’s words: “IRCS counseling needs to have a deeper impact.”
[91] It is apparent from Mr. Gouthro’s evidence that T.(B.) needs more intensive interventions than have been available at Waterville through the institution’s conventional programming. Mr. Gouthro noted that T.(B.)’s issues with violence, notably the use of instrumental violence, are outside of what can usefully be addressed by the CALM program which targets anger management.
[92] Other components of Phase II treatment will be mentorship, education, transition planning, recreational leisure pursuits, meetings with community supports, family therapy, and bridging to Phase III. (IRCS treatment plan, pages 6 and 7) It has been emphasized in the IRCS treatment plan and Mr. Gouthro’s testimony that T.(B.) must disassociate himself permanently “from the influences and supports of the pro-criminal friends and acquaintances he has established.” (IRCS treatment plan, page 6) As the IRCS treatment plan indicates:
[T.(B.)] needs to re-invent himself and re-discover pro-social recreation and leisure pursuits. In doing so he may begin to develop a more positive network of social support and affiliation…(IRCS treatment plan, page 6)
[93] The critical nature of this disengagement is underscored by the recommendation emphasized by the IRCS treatment plan, Mr. Gouthro, and the section 34 psychological assessment that T.(B.) not return to his home community once he is released from Waterville. The risk he will reintegrate with former confederates is high: there seems to be a consensus, shared in by T.B., that he is unlikely to stay out of trouble if he returns to Spryfield on release. (Psychological assessment, page 9; IRCS treatment plan, page 6) In Mr. Gouthro’s words: “He needs a fresh start.”
[94] Mr. Gouthro noted that T.(B)’s family is very committed to T.(B.) and to the objective of him turning his life around and avoiding any further conflict with the law. This was apparent to me from what T.(B.)’s mother said in her statement to the court at the end of the sentencing hearing. There has been no discussion about whether the family would relocate altogether or whether T.(B.) would relocate on his own but, according to Mr. Gouthro, IRCS funding can be used to assist the relocation of a family in support of a young person’s rehabilitation under an IRCS sentence.
[95] As for the education component of Phase II, the IRCS treatment plan, correctional aspect, indicates that T.(B.) could complete his high school education by June 2014. The plan is for him to attend Centre 24/7, an educational facility based in the community near Waterville, to complete his high school diploma requirements. (IRCS treatment plan, page 6)
[96] During the “bridging to Phase III” stage of the IRCS plan, a risk reassessment will be conducted by a third party who is not directly involved in T.(B.)’s treatment plan. This will be followed by a formal case conference with T.(B.), his family, his case manager, and primary treatment and supervision providers “to review progress to date and to clearly identify and review goals and expectations of the Transition Phase.” (IRCS treatment plan, page 7)
[97] Phase III, the transition phase, focuses on “coordinating all services to facilitate a successful transition for T.(B.) from the custody facility into the community.” As reintegration will need to contemplate a relocation to another community, “It would be preferable that prior to physically re-locating into a community, [T.(B.)] establish social, recreational, and educational/vocational contacts such that his network of social support is pre-established and pro-social.” The IRCS treatment plan anticipates that this phase will take some time, “given the planning and coordination that will be required.” (IRCS treatment plan, page 8)
[98] Mr. Gouthro was unambiguous in his assessment of the challenges presented by T.(B.)’s lack of a pro-social peer group. He described the transition back into the community in such circumstances as “very difficult”. Despite best efforts, this can be “the point where things fall down...” with the young person picking up with the same negative peers and returning to the same anti-social activities. To address this Mr. Gouthro indicated that treatment will need to target T.(B.)’s social anxiety and his self-esteem and explore his values so he can relate to peers who are positive influences. The past associations and values must be undone: T.(B.) was invested in an extremely anti-social peer group which accorded status and acceptance to crime and substance abuse. Mr. Gouthro testified that to counter this there will have to be a focused emphasis on leisure and recreational pursuits, mentoring, and the identification of T.(B.)’s strengths.
[99] Mr. Gouthro testified that Phase III is highly structured at first with an emphasis on T.(B.) practicing the skills he has been learning, such as budgeting, grocery shopping, job applications, and banking. (IRCS treatment plan, page 8) Phase III provides T.(B.) with the opportunity to demonstrate that he is making progress which may accelerate Reintegration Leaves (RL’s) and his transitioning on to the final phase of the IRCS plan. (Mr. Gouthro noted in his evidence that while the therapists and clinicians can offer opinions, decisions about RL’s are made by the Superintendent of Waterville under the correctional aspect of the IRCS plan which governs T.(B.)’s custody and supervision.) Although it is a collaborative process, deference is given to Waterville’s determinations of when RL’s are appropriate. Concerns about the potential for institutionalization go into the mix.
[100] A further risk assessment is done at the point when T.(B.) would be “bridging” into Phase IV. Phase IV emphasizes practice and application of acquired skills rather than initiating new forms of treatment. (IRCS treatment plan, page 9) Components of Phase IV are maintenance of treatment; in-home support; school transition; and continuation of other programs. The IRCS treatment plan notes:
There should be continued emphasis on reducing [T.(B.)]’s unstructured free time through encouraging his sustained involvement in pro-social activities (already established while in custody) and creating opportunities for [T.(B.)] to experience pro-social successes. It is anticipated [T.(B.)] will continue with his community mentor and continue to engage in activities to challenge his anti-social beliefs and attitudes. (IRCS treatment plan, page 10)
[101] The following is from the correctional aspect of the IRCS treatment plan, reflecting the risk management dimensions of T.(B.)’s “graduation” to Phase IV:
Following participation in the final case conference prior to release to the community, Community Corrections will complete a risk/needs assessment to determine youth’s level of risk and program/service needs in the community. Community Corrections will review release summary from [Waterville] and consult with [Waterville] staff, IWK Youth Forensics and other treatment providers to build on progress made while youth in custody. A community focused plan will be developed and implemented in consultation with IWK Youth Forensics and the supervising probation officer will establish scheduled case conferences. The youth will be subject to supervision, including but not limited to electronic monitoring, police checks, reporting appointments, and monitoring techniques. The level of supervision will change related to the youth’s progress and commitment to treatment/compliance goals. With respect to treatment, Community Corrections will consult on an on-going basis with the IWK Youth Forensic Complex Case Manager to ensure best practices are used to provide the youth with programs and services most likely to result in pro-social change. Community Corrections will monitor issues of compliance and provide the court with notification of any concerns in this area. (IRCS treatment plan, page 10)
[102] In Mr. Gouthro’s opinion the sentence that will enable the goals of rehabilitation to be achieved is a three year sentence, going forward from now. Mr. Gouthro sees it as “beneficial to maximize the time available to address T.(B.)’s risk factors.” The time frame for the rehabilitative process is dictated in Mr. Gouthro’s opinion “by how the risk factors are addressed and what kinds of supports are set up in the community.” Asked on cross-examination to comment on a further one year period of custody as the custodial component of T.(B.)’s IRCS custody and supervision sentence, Mr. Gouthro said he thought it would be “extremely challenging” to engage T.(B.) in that time frame.
[103] Mr. Gouthro testified that there have been three meetings with T.(B.) to discuss the IRCS plan. On all three occasions, T.(B.) indicated he was on board and willing to commit.
An IRCS Sentence
[104] This is not a case where I find myself agonizing over the appropriate sentence for T.(B.). It is an IRCS sentence that best satisfies the sentencing objectives of the YCJA. This is obvious from the psychological and psychiatric assessments and what the IRCS treatment plan indicates can be undertaken and achieved through intensive rehabilitative custody and supervision.
Taking into Account Pre-Sentence Custody
[105] In my earlier examination of the factors that section 38(3) of the YCJA requires me to consider, I skipped over subsection 38(3)(c) – the time spent on remand. Section 38(3)(c) of the YCJA states that, “In determining a youth sentence, the youth justice court shall take into account…any time spent in detention by the young person as a result of the offence.”
[106] In the Crown’s submission, the YCJA’s direction that I “take into account” T.(B.)’s remand time does not oblige me to give T.(B.) any credit for this time. Although most courts do so, as evidenced in the case law provided to me by the Crown, the Crown says the awarding of any such credit is discretionary.
[107] The Defence submits that T.(B.) is entitled to receive credit for his time on remand although a ratio of 1.5 to 1 is not being sought. Mr. Craggs notes that T.(B.) has not been subject to the “dead time” that often justifies according credit for time in pre-sentence custody: he has been using his remand time productively, and taking advantage of programming. However, it is Mr. Craggs’ submission that “some number” has to be picked as a remand credit.
[108] In R. v. Skeete, [2013] N.S.J. No. 22, at paragraphs 171 – 179, I found that Canadian courts do not appear to have reached a consensus on this remand credit issue. Roscoe, J.A. in R. v. J.R.L.,[2007] N.S.J. No. 214, discussed conflicting appellate decisions and reached the following conclusion:
…In my view, the time spent in pre-sentence detention can be “taken into account” without expressly giving specific credit for time served by deducting the number of days or some ratio of that number from the number of days of a custodial sentence. When the sentence imposed is not a custodial sentence to be served in an institution, taking the remand time into account does not necessarily have to result in a deduction in the length of sentence. It can be taken into account by reducing the type or severity of the sentence. (J.R.L., paragraph 47)
[109] The Court of Appeal in J.R.L. was dealing with a sentence of Deferred Custody and Supervision, not a custodial sentence for manslaughter. The decision does not provide a definitive answer on the issue of remand credit when a court is imposing a sentence of custody and supervision.
[110] Although not addressed directly by the Supreme Court of Canada, in its decision in D.B., the Court appears to have tacitly agreed that a youth court judge may order the maximum sentence on top of a significant amount of remand time. The Court upheld the sentence that had been imposed on this basis. (D.B., paragraph 101)
[111] In D.B., the sentence imposed for manslaughter was an IRCS sentence, an intensive rehabilitative custody and supervision order of three years, 30 months continuous intensive rehabilitative custody and the remainder of the sentence under conditional supervision in the community in accordance with section 105 of the YCJA. The sentencing judge viewed the maximum youth sentence for manslaughter as “necessary to achieve the desired ends of the rehabilitation programme..” He then addressed the remand credit issue: “…and for that reason I have not given credit for the one year of pre-trial custody.” (D.B., paragraph 14) D.B. was shown to have made some positive progress while in pre-sentence custody.
[112] In Skeete, counsel for Mr. Skeete was not seeking any credit for time spent on remand. I took remand time into account in the context of determining the Crown’s application for an adult sentence where the issue was whether a go-forward youth sentence imposed in addition to the time served on remand was sufficiently long enough to hold Mr. Skeete accountable for second degree murder. The issue I am addressing in T.(B.)’s case is different.
[113] In T.(B.)’s case I am determining what length his youth sentence should be – should it be a go-forward three year sentence on top of sixteen months on remand, which is what the Crown is seeking, or should it be something less than that, a go-forward sentence reduced by some credit for remand time as urged by Defence? In this situation, how do I take T.(B.)’s remand time into account?
[114] Sentencing is a nuanced undertaking. The factors I am mandated by section 38(3) of the YCJA to take into account in determining a youth sentence must be deftly calibrated. The legislated list ensures that sentencing judges do not fail to consider an important factor in the mix. The weighing and balancing of these factors is not an arithmetic or scientific exercise. I view the taking of T.(B.)’s remand time into account this way: does the fact that T.(B.) has already spent a considerable length of time in custody mean that his go-forward sentence should be reduced?
Meaningful Consequences, Accountability, and Rehabilitation
[115] T.(B.) committed a very serious crime. The expert opinion and assessments indicate that it will take considerable time and the application of significant resources to address the factors that led to T.(B.) committing a homicide. An IRCS sentence of sufficient duration is the meaningful consequence that can hold T.(B.) to account and pull him back from the brink.
[116] It was Mr. Gouthro’s evidence that T.(B.)’s issues need to be dealt with intensively, with a very significant expenditure of motivation and effort on T.(B.)’s part. This is all going to take time and there will be challenges, particularly as I have noted, in reintegrating T.(B.) into a pro-social peer group and community support network.
[117] The YCJA recognizes that rehabilitation and reintegration are essential to the long-term protection of the public. I accept that the maximum youth sentence of three years is the sentence that best serves the purpose and principles articulated in section 38 of the YCJA. A sentence of less than three years will not satisfy the imperatives of accountability and will fall short of what is required for T.(B.)’s rehabilitation. In the circumstances of this case, the least restrictive sentence is the maximum allowable sentence.
[118] Under section 42(2)(o) of the YCJA it is left to me to determine the length of the custodial portion of T.(B.)’s IRCS’ sentence and the length of the community supervision portion. I order that T.(B.) spend the next 20 months in continuous custody followed by 16 months under supervision in the community under conditions.
[119] In fixing T.(B.)’s sentence, I have taken into account his progress at Waterville, for which he is to be commended, but the past sixteen months on remand do not constitute a significant enough down-payment on rehabilitation for me to credit T.(B.) for his remand time. An IRCS sentence offers T.(B.) a concrete opportunity to rehabilitate himself and I am not prepared for its potential to be diluted. Credit for T.(B.)’s remand time would, in my opinion, have that effect. I am on the same page as the sentencing judge in D.B. who was upheld by the Supreme Court of Canada: I view three years as the necessary amount of time to achieve the desired ends of the IRCS treatment plan, those desired ends being T.(B.)’s rehabilitation and reintegration and accordingly, the long term protection of society.
[120] Taking T.(B.)’s remand time into account raises for me a concern about institutionalization which is why I am ordering that the custodial portion of T.(B.)’s sentence be a further 20, not 24, months. He will be looking at returning to the community late next year and not two years from now. And while placement is not a factor to be weighed in sentencing under the YCJA, I do note that during the custodial portion of T.(B.)’s sentence, he will turn 20. When T.(B.) turns 20 in September 2014, he will still be in custody at Waterville. I note that section 93(1) of the YCJA provides that he could, upon reaching 20, be transferred to a provincial correctional facility for adults to serve the rest of his sentence – indeed, section 93(1) mandates such a transfer, “unless the provincial director orders that the young person continue to serve the youth sentence in a youth custodial facility.”
[121] In my opinion, the transfer of T.(B.) at age 20 to an adult facility would be a mistake. Where negative peers have been such a significant part of T.(B.)’s drift into an anti-social lifestyle, forced association with incarcerated adult offenders carries the great risk of undoing the accomplishments of the IRCS sentence to that point.
[122] I asked Mr. Gouthro about this issue. He testified that the superintendent at Waterville indicated that two further years in custody would place T.(B.) on the cusp of transferrability and an assessment of the suitability of his remaining in Waterville would be influenced by his compliance with his sentence, whether he posed any risk in the institution, and what progress he had made. The superintendent apparently told Mr. Gouthro it would be possible for T.(B.) to serve his entire sentence at Waterville. I want to emphasize that the evidence indicates it would not serve the goals of rehabilitation for T.(B.) to be transferred from Waterville. Of course, T.(B.) also bears responsibility for ensuring his transfer will be unnecessary.
[123] T.(B.)’s sixteen months in the community will be governed by section 105(1) of the YCJA which provides that the provincial director shall cause T.(B.) to be brought before the youth justice court at least one month before the expiry of the custodial portion of his sentence. At that appearance, after giving T.(B.) an opportunity to be heard, I am required to set the conditions of his conditional supervision.
[124] However I am interested in knowing how T.(B.) is doing earlier than this mandated appearance. I am therefore directing that he return, with a report from his IRCS treatment team, in six months. I may order subsequent appearances and reports.
[125] I will add here that I endorse the idea of IRCS funding being sought to support the relocation of T.(B.)’s family if it is decided that this will help support T.(B.) in a new community, given the strong consensus that T.(B.) should not return to Spryfield. T.(B.)’s family are a crucial source of love, encouragement, and positive role-modeling and if T.(B.) needs them close at hand, resources should be found to achieve that. A relocation away from old neighbourhoods – the “fresh start” Mr. Gouthro spoke of – seems very well-advised.
[126] T.(B.), you are facing a challenging road ahead. You have some heavy-lifting to do and it is going to be frustrating and painful at times to confront the person you let yourself become, and rebuild yourself. You are also going to have to build new relationships and completely let go of the old ones, and their corrupted values. Real opportunity lies before you: spare no effort in seizing it and reclaiming your life.
[127] I am also imposing the ancillary orders sought by the Crown: a weapons prohibition under section 109 of the Criminal Code and section 51 of the YCJA and a DNA order for a primary designated offence under section 487.051 of the Code.
[128] Finally, I am imposing concurrent sentences of 60 day custody and supervision orders for each of the other offences for which T.(B.) was convicted: theft of Mr. Oakley’s wallet (an included offence under Count 2); unlawful possession of Mr. Oakley’s RBC client card and his MBNA credit card (Count 3); unlawful use of the RBC client card (Count 4); and unlawful possession of a .22 calibre rifle for the purpose of committing an offence, a culpable homicide (Count 5). Mr. Craggs made the legitimate point that T.(B.) is not custody eligible on these offences under section 39(1) of the YCJA unless I resort to section 39(1)(d), where a custodial sentence can be imposed against a young person “in exceptional cases, where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.” I am satisfied that resorting to section 39(1)(d) of the YCJA is justified for these offences, all related to the shooting of Mr. Oakley, so as to qualify them for custodial dispositions.