Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION

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1 Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION Citation: J.J.C. (a young offender) v. R PESCAD 26 Date: Docket: S1-AD-0987 Registry: Charlottetown Publication Ban BETWEEN: AND: J.J.C. (a young offender) HER MAJESTY THE QUEEN APPELLANT RESPONDENT Before: The Honourable Chief Justice G.E. Mitchell The Honourable Mr. Justice J.A. McQuaid The Honourable Madam Justice L.K. Webber Appearances: W. Kent Brown, Q.C., Counsel for the Appellant Darrell E. Coombs, Counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island September 9, 2003 Charlottetown, Prince Edward Island October 20, 2003 Written Reasons by: The Honourable Madam Justice L.K. Webber Concurred in by:

2 Page: 2 The Honourable Chief Justice G.E. Mitchell The Honourable Mr. Justice J.A. McQuaid YOUNG OFFENDER - Appeal of sentence - Violent offences Appeal of sentence by young offender after sentencing under Young Offenders Act. Sentencing appeal must consider the sentence in light of the provisions of the new Youth Criminal Justice Act. Authorities Cited: CASES CONSIDERED: R. v. Dunn, [1995] 1. S.C.R. 226 (SCC); R. v. D.L.C., [2003] N.J. No. 94 (Nfld.&Lab. Prov.Ct.); R. v. R.A.R., [2000] 1 S.C.R. 163 (SCC); R. v. Olah (1997), 33 O.R. (3d) 385 (Ont.C.A.); R. v. W.J.A., [1996] P.E.I.J. No. 95 (PEISCTD); N.A.J. v. R., 2003 PESCTD 60 (PESCTD); R. v. M.D.B., [2003] NWTJ No. 41, 2003 NWTCA 8; R. v. P.L.D., [2000] P.E.I.J. No. 123 (P.E.I.S.C.T.D.); R. v. McCraw, [1991] 3 S.C.R. 72 (SCC) STATUTES CONSIDERED: Youth Criminal Justice Act, S.C. 2002, c. 1, s.39.(1), s.39(1)(a); s.44(e), s.158, s.159, s.161(1); Young Offenders Act, R.S.C. 1985, c. Y-1; Criminal Code, R.S.C. 1985, Chap. C-46, s.687, s.722; Interpretation Act, R.S.C. 1985, c. I-21, s.44(e) Reasons for judgment: WEBBER J.A.: [1] A youth, who pled guilty to one indictable and six summary conviction offences after a night spent inflicting considerable damage to the property of several Mount Stewart residents, causing a disturbance on another night and a breach of an undertaking to the court, appeals the custodial aspect of the sentence imposed by the trial judge. The first argument raised by counsel for the appellant is that the law requires this court on appeal to apply the provisions of the new Youth Criminal Justice Act, S.C. 2002, c. 1. He argues that even if the trial judge were correct at the time she imposed a custodial sentence under the Young Offenders Act, R.S.C. 1985, c. Y-1, the new law prohibits a judge from ordering a custodial sentence on the facts of this case and the new law must apply to this appeal. In the alternative, the appellant argues that the sentence was excessive and not in line with other sentences for similar offenders. BACKGROUND

3 Page: 3 [2] The facts surrounding the appellant s convictions were set out in his factum as follows: The cause disturbance [sic] on December 14, 2002 was the first charge in the sequence [of] offences. In that matter the appellant attended a dance at Morell High School in a highly intoxicated condition. He engaged in a verbal confrontation with school officials and damaged school property by kicking a door. He was detained by the school principal and turned over [to] the RCMP who lodged him overnight in custody. 4. The next offences were on the night of December 28, 2002, the appellant and the two others entered a residence in their community in search of car keys. When the occupant awoke, they fled the scene taking the occupant s jacket and an item of his property. From there, they proceeded to steal three cars which were damaged in the course of being driven. One of the vehicles was driven into the gas pumps at Mount Stewart Irving causing substantial damage. At the sentencing hearing the total damages from the night s events was listed at approximately $16, The appellant s prior record consisted of one alternative measures for theft in June The appellant was residing with his parents, who were supportive. His school reports indicated that he was having some difficulties, both behavioural and academic. Peer associations and alcohol abuse were the focus of concern in the Predisposition Report. The appellant s employment record was positive. [3] Following these events, the appellant was charged under the Young Offenders Act that he did commit the following offences, at or near Mount Stewart and Morell, Prince Edward Island, between December 13, 2002 and January 10, 2003: Indictable Offence Code Section Case Number a. Break and enter dwelling s.348(1)(b) P-1-FC

4 Page: 4 house Summary Conviction Offences Code Section Case Number b. Damage to property s. 430(1)(a) P-1-FC s. 430(4)(b) c. Take MV without consent s. 335(1) P-1-FC d. Take MV without consent s. 335(1) P-1-FC e. Take MV without consent s. 335(1) P-1-FC f. Cause disturbance by s.175(1)(a)(ii) P-1-FC Drunk g. Failure to comply with s. 145(5.5) P-1-FC undertaking He pled guilty to these offences and on each count was sentenced under the Young Offenders Act to three months secure custody followed by 21 months probation. DISPOSITION [4] I would allow the appeal and sentence the appellant to 24 months probation for each offence on the same conditions as those set by the Youth Court judge. REASONS [5] As the appellant correctly points out, the Supreme Court of Canada in R. v. Dunn, [1995] 1 S.C.R. 226 by majority found that s-s. 44(e) of the Interpretation Act. R.S.C. 1985, c. I-21 applies to an appeal as well as to a trial. Subsection 44(e) states: 44. Where an enactment, in this section called the former enactment, is repealed and another enactment, in this section called the new enactment, is substituted therefor,.....

5 Page: 5 (e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly; The Supreme Court found that an appeal court s function comes within the meaning of adjudged. Therefore, states the appellant, the benefits of the provisions of the new Youth Criminal Justice Act in particular the prohibition against custodial sentences set out in s.39 should be applied to his situation. [6] Specifically, the appellant refers to s-s.39(1) of the Youth Criminal Justice Act: 39.(1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless (a) the young person has committed a violent offence; (b) the young person has failed to comply with noncustodial sentences; (c) (d) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or 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. [7] The appellant s position is that his circumstances do not fall within any of the subclauses of s-s.39(1), so he shall not be committed into custody. [8] The respondent suggested that the transitional provisions of s.159 of the Youth Criminal Justice Act could be interpreted so as to avoid the application of R. v. Dunn. Section 159 states: 159.(1) Subject to section 161, where, before the coming into force of this

6 Page: 6 section, proceedings are commenced under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 in respect of an offence within the meaning of that Act alleged to have been committed by a person who was at the time of the offence a young person within the meaning of that Act, the proceedings and all related matters shall be dealt with in all respects as if this Act had not come into force. (2) Subject to section 161, where, before the coming into force of this section, proceedings are commenced under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, in respect of a delinquency within the meaning of that Act alleged to have been committed by a person who was at the time of the delinquency a child as defined in that Act, the proceedings and all related matters shall be dealt with under this Act as if the delinquency were an offence that occurred after the coming into force of this section. [9] The relevant portion of section 161 referred to in s.159 states: 161.(1) A person referred to in section 159 who is found guilty of an offence or delinquency, other than a person convicted of an offence in ordinary court, as defined in subsection 2(1) of the Young Offenders Act, Chapter Y-1 of the Revised Statutes of Canada, 1985, shall be sentenced under this Act, except that (a) paragraph 110(2)(b) does not apply in respect of the offence or delinquency; and (b) paragraph 42(2)(r) applies in respect of the offence or delinquency only if the young person consents to its application. The provisions of this Act applicable to sentences imposed under section 42 apply in respect of the sentence. It is suggested that these sections could be read so as to place appeals within the category of related matters to be dealt with as if the new Act had not come into force (s-s.159(1)). [10] The findings of R. v. Dunn have been applied by the Supreme Court in subsequent cases, e.g. R. v. R.A.R., [2000] 1 S.C.R. 163 involving the application of the then new conditional sentencing provisions, as well as by other courts, e.g. R. v. Olah (1997), 33 O.R. (3d) 385 (Ont.C.A.) dealing with changes to parole eligibility. [11] In this province R. v. Dunn has been followed by this court in R. v. W.J.A., [1996] P.E.I.J. No. 95, considering new conditional sentence options, and more recently by the trial division in N.A.J. v. R., 2003 PESCTD 60. In the latter case, DesRoches C.J.T.D., was

7 Page: 7 considering the application of the provisions of the Youth Criminal Justice Act in a situation very similar to the case before this court - a youth sentenced while the Young Offenders Act was the law whose summary conviction appeal was being heard after the Youth Criminal Justice Act came into effect. In considering the appeal from sentence DesRoches C.J.T.D. applied the provisions of the Youth Criminal Justice Act, as a result of R. v. Dunn and without needing to find error by the judge of first instance. [12] Interpreting the law in a different way, the Court in R. v. M.D.B., [2003] NWTJ No. 41, 2003 NWTCA 8 came to a different conclusion about the applicability of the Youth Criminal Justice Act to a sentence appeal where the sentence was handed down while the Young Offenders Act was law. That court stated: [8] In contrast to R. v. Dunn, [1995] 1 S.C.R. 226, there are specific transitional provisions in the Youth Criminal Justice Act. Moreover, we are not persuaded that s. 44(e) of the Interpretation Act, R.S.C. 1985, c. I-21 is meant to govern this situation, namely, an entirely new statute replacing a previous one. Were this otherwise, any sentences imposed before April 1, 2003, but argued in an appeal court after that date, would have to be returned to the sentencing judge so that all the provisions in the new Act could be taken into account in crafting a sentence. We do not believe this was Parliament s intention, as it could result in great administrative uncertainty and complexity. With respect, I am unable to agree with these comments. [13] The fact the Youth Criminal Justice Act is an entirely new statute would not appear to provide any basis for suggesting the reasoning in R. v. Dunn regarding s-s. 44(e) of the Interpretation Act, R.S.C. 1985, c. I-21 would not apply. That section specifically refers to the repeal of a former enactment and its replacement by another enactment called the new enactment. This is exactly the position we are in with the new Youth Criminal Justice Act which replaces the repealed Young Offenders Act. [14] As for the administrative problems created by including appeals within the meaning of adjudged in s-s. 44(e), these were recognized in the discussion of policy consideration by L Heureux-Dubé J. in her dissent in R. v. Dunn. Finally, given the appeal court s mandate in s.687 of the Criminal Code, R.S.C. 1985, Chap. C-46, there does not appear to be any basis for any matter being sent back to the sentencing judge: 687.(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,

8 Page: 8 (a) (b) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or dismiss the appeal. (2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court. [Emphasis added] There has been no suggestion that sentences imposed under the Young Offenders Act were sentences fixed by law. Youth Court sentences, which have always contained a large discretionary element, would appear to be anything but fixed by law. As a result of s.687, this leaves the responsibility for sentencing in the hands of those hearing the appeal. [15] While it is true that the Youth Criminal Justice Act contains transitional provisions in ss , these provisions do not specifically address the impact of s-s.44(e) of the Interpretation Act. Section 159 of the Youth Criminal Justice Act does not state that appeals from sentence during the transition period shall be an exception to s-s.44(e) of the Interpretation Act. An appeal continues to be a proceeding encompassed by the word adjudged in s-s.44(e). Given the consistent application of that law since R. v. Dunn was decided in 1995, I am not prepared to read in or assume any intent to change the law. I am bound by the findings of R. v. Dunn. [16] There is no question that the punishment which may now be imposed on a young person pursuant to the provisions of the Youth Criminal Justice Act is reduced or mitigated from the punishment which could have been imposed under the provisions of the Young Offenders Act, repealed. Accordingly, pursuant to s-s. 44(e) of the Interpretation Act and following R. v. Dunn, the appellant is entitled to receive the benefit of the sentencing provisions of the Youth Criminal Justice Act, without any need to find that the Youth court judge committed an error in sentencing. [17] The Youth Criminal Justice Act prohibits custodial sentences unless the provisions of s-s.39(1), cited above, apply. Furthermore, even if the circumstances of the young person fit within s-s.39(1), custody is not mandatory because of the operation of s-s.39(2) which provides as follows: 39. (2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in

9 Page: 9 accordance with the purpose and principles set out in section 38. Also, as noted by DesRoches C.J.T.D. in N.A.J. v. R., supra and R. v. P.L.D., [2000] P.E.I.J. No. 123, when applying the provisions of s.39, in some circumstances it may even be an error of law to impose a custodial sentence on a first-time offender. [18] In considering whether the appellant should receive a custodial sentence, the only issue is whether the offences he committed were violent offences within the meaning of s-s.39(1)(a) of the Youth Criminal Justice Act. It is agreed that s-s.39(1)(b) to (d) are not applicable to the appellant. [19] While violent offence is not defined in the Youth Criminal Justice Act or the Criminal Code, the respondent cited case authority supporting an interpretation of that phrase that does not require the application or attempted application of physical force to another person; psychological or other trauma could also be the basis for finding that an offence was violent (See: R. v. D.L.C., [2003] N.J. No. 94 (Nfld. & Lab. Prov.Ct.)). In particular the respondent refers to the break and entry into the home of a Mt. Stewart resident. Home invasions have always been considered to be the most serious forms of break and enter offences; there is a great potential for physical harm to the person in residence, and it is a violation of the homeowner s sense of security. This is recognized by Parliament s imposition of liability to imprisonment for life for a break and enter committed in relation to a dwelling house, as opposed to the usual maximum of ten years for the indictable offence of break and enter under s.348 of the Criminal Code. [20] On the other hand, counsel for the appellant takes the position that violent offence in the Youth Criminal Justice Act refers primarily to offences against the person and none of the offences in this case are found in Part VIII of the Criminal Code entitled Offences Against the Person, citing in support of this position N.A.J. v. R., supra. [21] While violent offence is not defined in the Youth Criminal Justice Act, serious violent offence is defined as an offence in the commission of which a young person causes or attempts to cause serious bodily harm. A reasonable analogy can therefore be made that violent offence refers to one in which bodily harm has been caused to the victim albeit not serious bodily harm. In the Criminal Code bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature. [Emphasis added.] This latter definition has been interpreted as referring to more than the physical battery of a person. In R. v. McCraw, [1991] 3 S.C.R. 72, the Supreme Court of Canada dealt with the question of whether or not the threat to rape contained in letters written by the accused constituted a threat to cause serious bodily harm. In the course of his analysis, Cory J. writing for the court stated:

10 Page: 10 [22] Does the phrase encompass psychological harm? I think that it must. The term "bodily harm" referred to in s. 267 is defined as "any hurt or injury". Those words are clearly broad enough to include psychological harm. Since s refers to any "serious" hurt or injury then any serious or substantial psychological harm must come within its purview. So long as the psychological harm substantially interferes with the health or well-being of the complainant, it properly comes within the scope of the phrase "serious bodily harm". There can be no doubt that psychological harm may often be more pervasive and permanent in its effect than any physical harm. I can see no principle of interpretation nor any policy reason for excluding psychological harm from the scope of s (1)(a) of the Code. Therefore, where there is evidence of a significant impact upon the emotional or mental health of a person, the offence is, indeed, a violent one. [22] In most cases involving crimes the facts must be proven or admitted to support a conviction; in the case of bodily assaults, those facts will contain within them the factual circumstances that establish the assault and thus the bodily harm. However, not all convictions come after such facts are proven or admitted. [23] The respondent s position is essentially an argument that irrespective of the proven facts surrounding a crime, the court should be prepared to classify certain crimes as inherently violent and thus falling within the ambit of paragraph 39(1)(a). In the instant case this involves deciding first, whether or not a home invasion is also an inherently violent offence irrespective of any proof of bodily harm at trial and, second, whether or not the evidence at trial was sufficient to bring the other crimes to which the appellant pleaded guilty within the category of violent offence. [24] While it is true that some crimes, such as murder, are inherently violent offences, I hesitate to categorize a home invasion as a violent offence within the meaning of paragraph 39(1)(a). As others have noted, the Youth Criminal Justice Act has an overall approach that encourages sentencing options other than incarceration. Therefore, where alternative interpretations are reasonable, it seems prudent to avoid interpretations that place a youth in the position where incarceration is authorized. Unless an offence is, like murder, inherently violent and thus one where bodily harm must be assumed, the evidence presented at trial must prove the existence of bodily harm of a more than transient or trifling nature in order to give rise to the applicability of paragraph 39(1)(a). Where the Crown wants to argue the commission of a violent offence where such violence has not been proven at trial and cannot necessarily be inferred (as in a case

11 Page: 11 of murder), facts in support of this argument will need to be proven at the time of sentencing. [25] There is no evidence of bodily harm in the agreed-upon facts of this case. While the damage to property has a violent aspect to it, that violence does not consist of physical harm to persons. [26] This is not to say that offences such as the ones in the instant case could not result in bodily harm and in those circumstances be classified as violent offences. For example, if as a result of an offender s actions the owner of the properties involved suffered psychological or emotional trauma, the crimes could be considered violent offences. [27] There seems little doubt that victim impact statements can be used to provide the court with the information it requires for such an assessment. While those statements are not sworn and so not proven as would be other evidence, Parliament has given those statements special status essentially equivalent to evidence at a sentencing hearing: 722.(1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. (2) A statement referred to in sub section (1) must be (a) prepared in writing in the form and in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction; and (b) filed with the court. (2.1) The court shall, on the request of a victim, permit the victim to read a statement prepared and filed in accordance with subsection (2), or to present the statements in any other manner that the court considers appropriate.

12 Page: 12 (3) Whether or not a statement has been prepared and filed in accordance with subsection (2), the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730. [emphasis added] (4) For the purposes of this section and section 722.2, victim, in relation to an offence, (a) means a person to whom harm was done or who suffered physical or emotional loss as a result of the commission of the offence; and (b) where the person described in paragraph (a) is dead, ill or otherwise incapable of making a statement referred to in subsection (1), includes the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person. [28] Two victim impact statements were filed in this case. One victim noted it was scary to get a telephone call from the R.C.M.P. early in the morning and that person dreaded going to see the damage done to the car. This person no longer feels comfortable leaving her children where the appellant might be present within the community and the children are more watchful after the incident. The other victim impact statement referred to anger, hurt and inconvenience, while expressing the hope that the appellant received help to prevent this from happening again. [29] While these statements indicate that the actions of the appellant had an impact upon the comfort level of the victims, I cannot conclude from what is said in those statements that these people were harmed to the extent required for these crimes to be considered violent offences. The overall thrust of the Youth Criminal Justice Act suggests that the exceptions to the noncustodial rule in sentencing relate to situations of a nature that stand out for more extreme punishment. An assessment must be made. Without in any way diminishing the impact of any crime upon a victim, it is necessary for the court to interpret all provisions in a manner that reflects Parliament s intent as far as possible. In my view, the evidence regarding these crimes in the instant case does not meet the test required to prove they were violent offences within the meaning of paragraph 39(1)(a).

13 Page: 13 [30] During the appeal the Predisposition Report presented at trial was updated by Brooke Mitchell of Probation Services. She advised the court that while the appellant was awaiting his appeal, having been released on an undertaking with certain conditions, he breached those conditions, was fined $400. for that breach, was charged with additional offences and at the time of the appeal was in custody. [31] All of this does not give this court any different sentencing options under the Youth Criminal Justice Act because those actions still do not fit within the requirements of s-s.39(1). The breach of an undertaking is not in law a breach of a non-custodial sentence, so an argument under paragraph 39(1)(b) does not arise. [32] Therefore, a custodial sentence is not an option available to this court in the sentencing of the appellant. [33] The evidence before the court is that the appellant has no prior record of offences. However, his behaviour at school has been problematic, his parents cannot control him, and he appears to have addictions problems. The update on the appellant s predisposition report also indicated that in June he was suspended from school for five days for being under the influence of alcohol; he received no credits for his year s work; and the school was resistant to having him back. On August 8 th the appellant breached the curfew imposed as part of his undertaking. For this breach he was fined $400. At the same time, he was charged with resisting arrest. He has been in custody since and the update indicated he was doing well while in custody. He had paid $205. towards restitution, done 125 hours of community service, and reported as required. [34] Given the evident needs of the appellant for close supervision, I order the appellant placed on probation for a period of 24 months for each offence. This is the maximum period allowed and appears appropriate given the serious nature of the offences and the particular problems facing the appellant, as outlined in the predisposition report. [35] As for the terms of the probation, the terms set by the Youth Court judge at trial were quite thorough and stringent. These included restitution, barring the appellant s contact with the others involved in the offence, barring him from the premises of the victims, requiring community service work, requiring an apology to each victim, and requiring counselling and treatment where it is found necessary. I find the conditions set by the Youth Court judge reasonable considering the offences and the youth involved. Therefore, for each offence, I order the appellant placed on probation for a period of 24 months on the same conditions as set by the Youth Court judge.

14 Page: 14 The Honourable Madam Justice L.K. Webber I AGREE: The Honourable Chief Justice G.E. Mitchell I AGREE: The Honourable Mr. Justice J.A. McQuaid