R. v. R.(A.), 2007 ONCJ 131 (CanLII)

WARNING

            The court hearing this matter directs that the following notice should be attached to the file:

            This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act.  These provisions     read as follows:

110.   Identity of offender not to be published.—(1)   Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

.   .   .

111.   Identity of victim or witness not to be published.—(1)   Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

.   .   .

129.   No subsequent disclosure.—   No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138.   Offences.—(1)   Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published)  . . .  or section 129 (no subsequent disclosure)  . . .

   (a)   is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

   (b)   is guilty of an offence punishable on summary conviction.

 

Citation:  R. v. R.(A.), 2007 ONCJ 131

 

JUDGMENT ON SENTENCE

 

Accused	A.R.
Date(s) of Evidence & Submissions	November 10, 2006 February 2, 2007
Defence Counsel	Mr. M. Hamalengwa
Crown	Ms. Jana Harowitz
Charge(s)	B/E with intent to commit theft   Possession of a firearm knowing it was obtained by the commission of an offence   Possession of a firearm knowing he did not have a licence to do so
Date of Judgment	March 5, 2007
Nature of Judgment	Sentence

 

Tuck-Jackson J.:

 

Introduction:

 

On November 10, 2006, A.R. pleaded guilty to three offences arising from an incident that occurred during April 2006. Those offences were as follows: (1) he broke into a dwelling house and committed therein the offence of theft; (2) he possessed a firearm knowing it was obtained by a criminal offence; and (3) he possessed a firearm knowing he had no licence to do so.

 

Circumstances of the Offences:

 

Given the issues that I must consider and resolve in completing this sentencing, it is necessary for me to go into some detail regarding the facts of this case.

 

In April 2006, A.R., along with two other young persons, broke into a residence at [address deleted]. This address was not chosen at random. A.R., amongst others, knew that two long guns and ammunition were stored there. A.R. and one of the two other young persons entered the home. They removed two .22 calibre long guns and a quantity of ammunition from the home. After removing the items, A.R. and the same young person hid them in the nearby bushes. The third young person kept watch outside throughout the incident.

 

The following day, the two other young persons retrieved the items from the bushes, concealing them in a guitar case, and brought them to A.R.’s home. While there, the three planned to saw off the barrel of one of the guns. One of the other young persons retrieved a hacksaw from his home and returned to A.R.’s residence at which time the barrel was sawed off, thereby creating what, in law, is a prohibited weapon. Digital photos of the firearms were taken. The items were ultimately moved from A.R.’s home.

 

In July 2006, the photographs were discovered by A.R.’s father and reported to the police. An investigation ensued. On July 26, 2006, the police executed a search warrant at a location connected indirectly to one of the co-accused in the matter. At that residence, they located the sawed off .22 calibre Canadian Industries rifle. The serial number had been filed off. The police also located a .22 calibre bolt action rifle with no serial number. In addition, they found 26 rounds of .22 calibre rim fire ammunition and a starter’s pistol. All items had been stolen from the [address deleted] residence. At the material time, A.R. did not possess a firearms acquisition certificate or a permit with the Canadian Firearms Registry.

 

Circumstances of the Offender:

 

At the time A.R. committed these offences, he had no youth court record. I have been advised that in August 2006, he received a conditional discharge for one count of assault the terms of which applied for six months. That assault involved A.R. and another youth cutting the hair of a peer just off school property. He is now 15 and was that age at the time of the offences before the court. I have had the benefit of reading a Pre-Sentence Report the content of which has been most helpful in providing background information about this young person.

 

A.R. comes from a supportive family that has taken steps to identify the challenges that he faces and assist him in coping with them. I understand that he is comfortable discussing problems with his mother, in particular. I have not been made aware of any criminal antecedents and, by all accounts, Mr. and Mrs. R. present as hard-working, caring, and responsible parents. I have appreciated their ongoing attendance in court and their input at this sentencing. Their role in their son’s life bodes well for his future prospects.

 

A.R. is currently enrolled in grade 10 at [name of school deleted] as part of the Safe Schools programme. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Attention Deficit Disorder (ADD) and is on medication to assist him cope with the behaviour that is typical of these conditions. He has been identified as working with a learning disability and, as a result, has been placed on an Individual Education Plan which targets his various areas of need. In 1999 he was the subject of a psychological evaluation which I have now briefly reviewed, but also does appear in his Ontario School Record. In 2005 Dr. [name deleted], a paediatrician who specializes in developmental and behavioural problems in children, saw A.R. and he has follow-up meetings with this doctor every six months. His present teachers describe him as well spoken, but as still having some difficulties staying focused and getting motivated. The author of the PSR observed at page 4 of the report that “A. benefits from well-structured school programs and clear and consistent boundaries and discipline”.

 

By way of extracurricular activities, A.R. is involved in Scouts under the supervision of his [relationship deleted]. As it was put in the PSR, his involvement in this organization “may serve as a protective factor as it aids youth with making more pro-social friends”. Since November 2006, A.R. has worked at a local Dominion grocery store and has also been working with his father at the latter’s own business by the name of Air Equipment Company. I understand that A.R. aspires to take over his father’s business some day.

 

On the issue of substance abuse, A.R. reported that at one point, he smoked marijuana two to three times per week. The PSR indicates that substance abuse does not appear to be an area of concern at present and certainly there is no indication of any nexus between substance abuse and the offences before the court. Having said that, substance experimentation is often connected to peer vulnerability and there is every indication of a connection between the instant offences and A.R.’s vulnerability to peer pressure.

 

Having regard to the challenges that A.R. faces, it is not surprising that he is susceptible to peer pressure. The author of the PSR describes that vulnerability as follows at page 4 of the report:

 

…A.’s main issue appears to relate to his antisocial peers. They have had a great influence on him and as such guided his involvement in criminal activities. When with these peers A. to be a follower and does not think of the consequences of his actions. Most everyone interviewed for this report related that A. was involved with a “bad crowd” and that he needs to choose his friends better.

 

The PSR further indicates, “He gets along well with his peers and teachers and is also described as a follower not a leader.” At page 5 of the report , the author quotes A.R.’s uncle as saying, “he also states that A. is ‘easily led’. He states that A. can be influenced by his peers.” Finally, this issue is well-summarised at page 7 as follows:

 

A.’s parents describe that from the period beginning January 2006 to about June of 2006, A. had been associating with a negative peer group. As a result of this association A. found himself involved in the Criminal Justice System. The most common theme this writer heard in the preparation of this report overwhelmingly was that A. had been associating with a bad group of friends. Interestingly enough Detective Constable Chad Giesche stated much the same…

 

It has also been drawn to my attention that A.R. has very recently experienced a number of grand mal seizures associated with epilepsy. He is currently under the care of a neurologist.

 

Victim Impact:

 

I have not been provided with any victim impact specific to the homeowner at [address deleted]. It is, however, reasonable to assume that he or she found the incident intrusive and disruptive to his or her life.

 

Positions of the Parties:

 

It is the position of Ms. Harowitz on behalf of the Crown that A.R.’s offences ought to attract a custody and supervision order. She argues that these offences would qualify for possible custody within the “exceptional circumstances” gateway contemplated by paragraph 39(1)(d) of the YCJA. She argues that the circumstances of the offence, combined with the circumstances of the offender, are such that a custodial sentence is, indeed, appropriate. In the alternative, she argues that if I find that the circumstances of A.R. are so mitigating that a custody and supervision order is not the least restrictive means to meet the principles and purpose of sentencing under the YCJA, she urges me to impose a six-month deferred custody and supervision order. In addition, she suggests that I impose a one-year period of probation to be served consecutive to the first portion of the recommended sentence.

 

Mr. Hamalengwa on behalf of the defence argues that the circumstances of the offence are not such to qualify within the “exceptional circumstances” gateway. It is his position that the principles and purpose of sentencing can be adequately met through the imposition of a lengthy period of probation.

 

Both parties appear to agree on the terms of any probation order imposed.

 

Sentencing Principles & Objectives

 

There are two issues for me to resolve in this sentencing:

 

(1) Are the offences committed by A.R. eligible, in law, for a custodial sentence?; and

 

(2) If so, can the principles and purpose of sentencing under the YCJA be achieved by imposing an alternative to custody?

 

Issue 1

 

Crown counsel concedes that the only possible gateway to a custodial sentence in this case is through paragraph 39(1)(d) of the YCJA. That paragraph reads:

 

39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

 

                                      ……

 

         (d) in exceptional cases where the young person has       committed an indictable offence, the aggravating          circumstances of the offence are such that the imposition    of non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

 

The YCJA provides limited guidance as to how this paragraph is to be interpreted or applied. In particular, the Act does not define “exceptional circumstances”. However, the relatively recent decision of the Ontario Court of Appeal in R. v. R.E.W., [2006] O.J. No. 265 (C.A.) does provide me with an analytical framework for interpreting this paragraph. The following excerpt from that case summarizes this framework. Commencing at paragraph 41, Rosenberg J.A. states:

 

         It seems to me that the notion of exceptional cases will be justified on the basis of the accountability purpose in s. 38(1) and the proportionality principles in s. 3(1)(b)(ii) and s. 38(2)(c), which provide respectively as follows:

 

                  s. 3(1)(b)(ii): fair and proportionate accountability                         that is consistent with the greater dependency of                         young persons and their reduced level of maturity.

 

                  s. 38(2)(c): the sentence must be proportionate to                      the seriousness of the offence and the degree of                            responsibility of the young person for that offence;

 

         The application of the proportionality principles must also be read in light of s. 3(1)(c) and, in particular, the clauses:

 

                  (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,

 

Thus, the circumstances of the offence must be aggravating indeed that would justify a court putting aside those objects and principles in favour of a disposition driven solely by the circumstances of the offence.

 

         The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where the circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values. It seems to me that one example of an exceptional case is when the circumstances of the offence are shocking to the community.

 

         (vi) Conclusion on the interpretation of s. 39(1)(d)

 

         I draw the following conclusions respecting the interpretation of s. 39(1)(d):

 

•        The object and scheme of the YCJA and Parliament’s intention indicate that the Act was designed to reduce the over-reliance on custodial sentences that was the experience under the YOA. See R. v. C.D.; R. v. C.D.K., supra, at para. 50.

•        An expansive definition of “exceptional cases” would frustrate Parliament’s intention to reduce the  over-reliance on custodial sentences.

•        Section 39(1)(d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or the offender’s history.

•        Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out in s. 39. Put another way, s. 39(1)(d) is intended to describe the rare non-violent cases where applying the general rule against a custodial disposition would undermine the purpose of the YCJA.

•        Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can be justified.

•        One example of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared community values.

 

In R.E.W., supra, the Court of Appeal concluded that a case involving two counts of accessory after the fact to murder could qualify for a custodial sentence under the “exceptional circumstances” gateway. In that case, the young person watched as an adult by the name of Moore cut up the bodies of two individuals whom he had murdered. W. assisted Moore in disposing of the body parts. The case was particularly egregious as W. had misled Moore into believing that those whom he had murdered had previously stolen money and drugs from him. In truth, it was W. who had stolen the items. W. told no one of the murders and made full use of the stolen drugs and money. In determining that the offences could attract a custodial sentence, the Court of Appeal considered the level of the objective gravity of the offence, the accused’s role in the case and the overall quality of the facts underlying the offence.

 

I have looked for cases decided since R.E.W., supra, in Ontario for additional guidance as to what factual scenarios could qualify for custody under this paragraph. There are very few reported decisions of this nature. In R. v. K.K., [2006] O.J. No. 933 (Ct. Just.), Feldman J. considered the offence of dangerous driving in relation to which the accused, in an attempt to evade police, drove directly at a police cruiser three times “while being recklessly indifferent to the consequences to others clearly at risk of serious harm”. In that case, one of the officers suffered psychological harm, requiring counseling and resulting in a diminishment of his ability to undertake similar responsibilities. In concluding that such an offence was ineligible for a custodial sentence, Feldman J. said the following at para. 25 of his decision:

 

         However, the Crown is not assisted in its advocacy for a custodial sentence by the application of “exceptional circumstances” in s. 39(1)(d). In R. v. R.E.W., [2006] O.J. No. 655, Ont. C.A., unreported Jan. 26, 2006, Rosenberg J.A. applied a narrow interpretation of this subsection in a case in which the young person was found guilty of being an accessory after the fact to murder. In the sentencing analysis, he focused solely on the circumstances of the offence and the best interests of the accused in the context of the least restrictive measures and last resort principles contained in s. 38. He concluded that the “exceptional case gateway” could only be utilized in those very rare cases where the circumstances of the crime were so extreme that anything less than custody would fail to reflect societal values and be shocking to the community. This is not the case. [emphasis added]

 

In R.v. P.T.B., [2006] O.J. No. 2327 (Ct. Just.), Scully J. concluded and, indeed, the defence had conceded, that the offence of trafficking in half an ounce of heroin could attract a custodial sentence. In support of this conclusion, Scully J. stated the following, commencing at para. 21:

 

         Indeed, trafficking in heroin, because of the consequences to the community and to the society at large and the misery inflicted upon those that become addicted to it and, indeed, the lethal nature of the drug, is such that I find that trafficking in heroin does amount to a case that must come under the exception category in Section 39(1)(d).

 

         It would indeed shock societal values, truly shock societal values, for an individual who traffics in half an ounce of heroin not to be considered for a custodial sentence.

 

Finally, in R. v. S.L., et al., [2006] O.J. No. 3609 (Ct. Just.), Cole J. found that committing perjury while giving a statement under oath to the police and while testifying during a preliminary inquiry in relation to an allegation of first degree murder fell within the category of exceptional circumstances, thereby exposing the youth in that case to a possible custodial sentence. The youth in question had reported a confession to murder that each knew to be false. Cole J. held at para. 573 of his decision:

 

…In light of the concession made by counsel on behalf of S.L., the same concession mostly made by counsel on behalf of Z.M., I agree with all counsel that the R.E.W. case supports the proposition that in this case the custody threshold has been crossed and that custody is available to both as a potential disposition and one which should apply in this case.

 

Neither counsel has brought a factually analogous case to my attention and I have found none on my own. I have instructed myself in accordance with the analytical framework set out in R.E.W., supra, and for the following three reasons, have concluded that the circumstances of this offence are exceptional and could support a custodial sentence:

 

(1) While the offences in and of themselves would not necessarily constitute exceptional circumstances, the particular facts underlying the offences do render the case exceptional. This case involves more than the theft of two firearms and a quantity of ammunition. It involves the conversion of an otherwise legal firearm into a prohibited weapon. While the Crown has not alleged that A.R. and his co-accused were attempting to market the stolen items, or that they had an intention to use them, I cannot think of any innocent purpose for which they could possibly photograph and possess them.

 

(2) The offence was not spontaneous in nature. It involved a degree of planning, first by identifying a source of the long guns and, secondly, by taking steps to convert the one long gun into a prohibited weapon.

 

(3) While it is not alleged that A.R. was the ring leader of this series of events, he did play an active and essential role in its execution. He was prepared to enter the residence on [address deleted] and remove the firearms. In addition, A.R. was prepared to allow the guns to be brought into his own home where one of them was converted into a prohibited weapon. I also note that having participated in its creation, A.R. did nothing to warn anyone of the prohibited weapon’s existence once he no longer had possession of it. It is very fortunate for the community that the sawed off long gun, a high-powered firearm designed to be concealable, did not make its way onto the streets and into dangerous hands.

 

To adopt the language of Rosenberg J.A. in R.E.W., supra, in my respectful view the community would find it shocking that a 15-year-old would participate in the theft of firearms and the conversion of one of them into a prohibited weapon, together with the planning of those activities. To borrow the language of Scully J. in P.T.B., supra, in my view the community would find it equally shocking that such offences could not attract a custodial sentence.

 

Issue 2

 

Having concluded that the circumstances of the offences are such that they could attract a custodial sentence, I must now determine whether they ought to do so. At this stage of the analysis I take into consideration not only the circumstances of the offences, but also the circumstances of A.R..

 

There are many factors specific to A.R.’s background and prospects for rehabilitation that weigh in his favour. Those mitigating factors may be summarized as follows:

 

(1) A.R. has accepted responsibility for his offences. That acceptance has manifested itself as follows:

         (a) he co-operated with the police during the course of their       investigation in this matter and provided a statement to them         acknowledging his role in the matter;

         (b) he pleaded guilty to the instant offences prior to any trial      date being set, thereby relieving the home owner of any further       victimization by having to testify to the incident in court;

         (c) he expressed remorse for his actions to the author of the    PSR. The author notes at page 6 of the report that “A. has       expressed his regret for his involvement in the offence before the courts. He realizes the consequences of his actions and          does accept responsibility for his conduct. He admits that some          friends have a negative influence on him, however A. never attempted to defer all the blame on his co-accused.”

 

(2) at the time of the instant offences, A.R. had had no previous contact with the criminal law;

 

(3) he comes from a pro-social supportive background. His parents have identified his strengths and weaknesses and have taken steps to ensure that his behavioural and learning difficulties have been accurately diagnosed. In addition, they are following through on the recommended strategies to address these issues;

 

(4) He has responded well to community supervision in the past. He was subject to the terms of a conditional discharge for six months between August 2006 and February 2007. The PSR reflects at page 5 that “Ministry records indicate that [the] youth was compliant with all conditions of his order and has never breached any court orders.” The report goes on to indicate that “Overall response to supervision and conditions to date has been excellent”. This bodes well for his future supervisability in the community.

 

(5) A.R.’s parents report that his behaviour since his arrest in this matter has been excellent. I am advised that he has abided by his terms of release which, for a period of time, included a form of house arrest, and has been amenable to the rules imposed by his parents. It is worthwhile to repeat the observation noted at page 4 of the PSR that “It appears that A. benefits from well-structured school programmes and clear and consistent boundaries and discipline”.

 

(6) While A.R. did play a necessary role in the commission of these offences, as noted above, he was not the ring leader in this incident. Indeed, the PSR indicates at page 7 that Detective “Constable Giesche [whom I understand is the officer-in-charge of this case] stated that A. played a lesser role in committing these offences”.

 

(7) A.R.’s criminal conduct is, in part, related to his vulnerability to peer pressure and his episodic association with a negative peer group. That vulnerability may very well be connected to his learning disability and his conditions of ADD and ADHD.

 

The purpose and principles of sentencing are set out in s. 38 of the YCJA. Any sentence I fashion must be one that can hold A.R. accountable for his acts through the imposition of just sanctions that have meaningful consequences and promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. In addition to the purpose and principles of sentencing set out in s. 38 of the YCJA, I must also bear in mind the principles set out in s. 3 of the Act. I am required to consider all available sanctions other than custody that are reasonable in the circumstances and I must impose the least restrictive sentence that is capable of achieving the purpose set out in s-s. 38(1) of the YCJA. Having regard to the various aggravating and mitigating factors that I have set out above, I am of the view that some form of custodial sentence is necessary to bring home to A.R. the seriousness of his actions. A sentence of mere probation, as suggested by the defence, is an inadequate vehicle in the circumstances of this case which, in part, involve the making of a prohibited weapon, to promote his rehabilitation and reintegration into society. However, the mitigating factors that I have enumerated have persuaded me that a six-month deferred custody and supervision order would provide A.R. with a meaningful consequence for his actions and that it is the least restrictive sentence capable of promoting a sense of responsibility in him and an acknowledgement of the harm done to the community.

 

A.R., I am sentencing you as follows:

 

For the next six months you will be serving a deferred custody and supervision order in the community according to the following terms:

 

(A) mandatory terms;

 

(B) Terms specific to this Order:

 

(1) reside with your parents and be amenable to the rules of the home;

 

(2) attend school, each and every day, each and every class and/or seek and maintain suitable employment;

 

(3) remain within your place of residence between the hours of 9:00 pm and 7:00 am, unless in the company of one of your parents or an adult designated in writing by either of your parents for a purpose approved of in advance by your deferred custody and supervision supervisor;

 

(4) not to associate with anyone known to you to have a youth court or criminal record, except (a) for the purposes of the Education Act or (b) for the purposes of complying with a youth court sentence;

 

(5) not to associate with your co-accused;

 

(6) not to possess a weapon as defined by the Criminal Code or a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;

 

(7) not to have contact directly or indirectly with the victim, except for the purposes of writing a letter of apology, the delivery of which will be facilitated by your deferred custody and supervision order supervisor;

 

(8) not to go within 200 m of [address deleted];

 

(9) attend and participate in any assessment, treatment or counseling as recommended by your probation officer in consultation with your parents, and sign the necessary releases to allow your probation officer to monitor your progress in these programmes;

 

(10) not to purchase, possess or consume any controlled drug or substance as defined by the Controlled Drugs and Substances Act;

 

If you breach any of these conditions, you risk serving some or all that remains of the sentence at the time of the breach in a custodial facility.

 

Following the completion of that portion of your sentence, you will be placed on probation for a period of 12 months on the following terms:

 

(1) mandatory terms;

 

(2) report to a probation officer within 72 hours of the completion of your deferred custody and supervision order and thereafter as required;

 

(3) reside with your parents and be amenable to the rules of the household;

 

(4) attend school, each and every day, each and every class and/or seek and maintain suitable employment;

 

(5) not to associate with anyone known to you to have a youth court or criminal record, except (a) for the purposes of the Education Act or (b) for the purposes of complying with a youth court sentence;

 

(6) not to associate with your co-accused or the victim;

 

(7) not to go within 200 m of [address deleted];

 

(8) not to possess a weapon as defined by the Criminal Code or a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;

 

(9) attend and participate in any assessment, treatment or counseling as recommended by your probation officer in consultation with your parents and sign the necessary releases to allow your probation officer to monitor your progress in these programmes;

 

(10) not to purchase, possess or consume any non-medically prescribed drugs as defined by the Controlled Drugs and Substances Act.

 

In addition, as a result of the loss incurred by the victim in this matter, I am ordering you to perform 40 hours of community service, to commence by October 5, 2007 and to be completed at a rate of not less than 5 hours per month.

 

Finally, I will exercise my discretion under section 51(3) of the YCJA and prohibit you from possessing a firearm, etc. for a period of two years.

 

The probation order and community service order will run concurrently and consecutive to the deferred custody and supervision order. The entire sentence is concurrent on each count. VFS is waived.