Youth Justice Court
Decision Information
Decision information:
Abstract: Transcript of the oral reasons for sentence
Decision Content
2006 NWTTC 17
Y-1-YO-2006000195/Y-1-YO-2006000196/Y-1-YO-2006000197
Y-1-YO-2006000198/Y-2-YO-2006000129/Y-2-YO-2006000130
IN THE YOUTH JUSTICE COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- and -
P.G. (A Young Person)
_____________________________________________________
Transcript of the Oral Reasons for Sentence delivered
by the Honourable Judge R.D. Gorin, sitting at
Yellowknife, in the Northwest Territories, on
September 29th, A.D. 2006.
_____________________________________________________
APPEARANCES:
Mr. B. Hubley: Counsel for the Crown
Mr. M. Hansen Amicus Curiae
(Charges under s.145(5.1) X 3, 348(1)(b) X 7 CC, 137 YCJA)
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1 THE COURT: In the case before me the
2 young person, P.G., has pleaded guilty to and
3 been found guilty of a number of serious
4 offences. These findings of guilt include a
5 finding of guilt for wilfully failing or refusing
6 to comply with a non-custodial sentence imposed
7 under the Youth Criminal Justice Act contrary to
8 section 137 of the Act.
9 The young person has a short criminal
10 record. The record contains one previous finding
11 of guilt for an offence contrary to section 137
12 of the Act. The finding of guilt contrary to
13 section 137 which I have before me for sentencing
14 is a breach of a different non-custodial sentence
15 than that which led to the prior finding of guilt
16 on the young person's criminal record.
17 In the case before me, the Crown submits
18 that given the young person's record and the
19 findings of guilt presently before me for
20 sentencing this Court has the jurisdiction to
21 impose custody.
22 The young person's original counsel took no
23 position, although Mr. Hansen, who has appeared
24 today as amicus curiae, has ably argued that the
25 Court does not have the jurisdiction to impose
26 custody. He further takes the position that none
27 of the statutory gateways to custody provided for
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1 through section 39 of the Act have been opened.
2 Clearly, I must have the jurisdiction to impose
3 custody before doing so.
4 The issue which I must first determine is:
5 Does section 39(1)(b) of the Youth Criminal
6 Justice Act require prior findings of guilt for
7 offences entailing breaches of non-custodial
8 sentences before custody can be imposed?
9 The issue can alternatively be put as: Is
10 the statutory gateway to custody provided for
11 under section 39(1)(b) opened where the
12 "findings" of guilt for offences entailing
13 breaches of different non-custodial sentences
14 include those which are before the Court for
15 sentencing? This question has been the topic of
16 significant debate.
17 Section 39(1) of the Act provides:
18 "A youth justice court shall not
19 commit a young person to custody
20 under section 42 (youth sentences)
21 unless
22 (a) the young person has committed a
23 violent offence;
24 (b) the young person has failed to
25 comply with non-custodial sentences;
26 (c) the young person has committed
27 an indictable offence for which an
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1 adult would be liable to
2 imprisonment for a term of more than
3 two years and has a history that
4 indicates a pattern of findings of
5 guilt under this Act or the Young
6 Offenders Act, chapter Y-1 of the
7 Revised Statutes of Canada, 1985; or
8 (d) in exceptional cases where the
9 young person has committed an
10 indictable offence, the aggravating
11 circumstances of the offence are
12 such that the imposition of a
13 non-custodial sentence would be
14 inconsistent with the purpose and
15 principles set out in section 38.
16
17 In order to decide the issue I have before
18 me, I must attempt to determine the intention of
19 Parliament contained in section 39(1)(b). I
20 remind myself that the rule of law requires that
21 I not be overly creative in my interpretation.
22 Section 39(1)(b), as well as the rest of the
23 Youth Criminal Justice Act, reflects the will of
24 a democratically elected government. I, as a
25 Judge who has received my office through
26 appointment, am not to interpret the statute in a
27 manner inconsistent with the will of Parliament.
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1 In determining the intention of Parliament,
2 the primary rule of interpretation is that of
3 literal construction. This rule of construction
4 is, "to intend the legislature to have meant what
5 it has actually expressed": R. v. Branbury
6 (Inhabitants) (1834) as per Parker, C.J., page
7 142.
8 There are other rules of statutory
9 interpretation which some have argued as having
10 applicability to the correct interpretation of
11 section 39(1)(b). One such rule provides that a
12 statute is to be read as a whole. The rule
13 requires that the interpreter, "... make
14 construction on all the parts together and not of
15 one part only by itself": Case of Lincoln
16 College (1595) 3 Co. Rep. 58b, at 58b.
17
18 Every clause of a statute must, "be construed
19 with reference to the context and other clauses
20 of the Act so far as possible to make a
21 consistent enactment of the whole statute":
22 Canada Sugar Refining Co., Ltd. v. R. [1898] A.C.
23 735 per Lord Davey at p. 741.
24
25 Another applicable rule of construction is
26 the "consequences to be considered" principle of
27 statutory interpretation. This principle simply
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1 provides that before adopting any proposed
2 construction of a passage susceptible of more
3 than one meaning it is important to consider the
4 effects or consequences which would result from
5 that construction.
6 In Gartside v. I.R.C. [1968] A.C. 553, at
7 p. 612 Lord Reid stated:
8 "It is always proper to construe an
9 ambiguous word or phrase in light of
10 the mischief which the provision is
11 obviously designed to prevent and in
12 light of the reasonableness of the
13 consequences which follow from
14 giving it a particular
15 construction."
16
17 As one of the statutory gateways to custody,
18 subsection 39(1)(b) requires that before custody
19 can be imposed it must be the case that the young
20 person, "has failed to comply with non-custodial
21 sentences." What the wording requires is simply
22 a failure to comply with separate non-custodial
23 sentences. The subsection does not require prior
24 findings of guilt. Although it is true that the
25 wording, "has failed to comply," clearly
26 contemplates past events, the past event required
27 is simply a failure to comply with non-custodial
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1 sentences and not a prior finding or findings of
2 guilt for offences entailing breaches of
3 non-custodial sentences. Since it only requires
4 a past failure to comply with non-custodial
5 sentences and not a past finding of guilt, the
6 statutory gateway to custody set out in
7 subsection 39(1)(b) would be available in this
8 case under that section's plain wording.
9 I find that the contrasting language used in
10 other parts of subsection 39(1) bolsters the
11 argument in favour of the literal interpretation
12 I have set out in the foregoing paragraph.
13 Section 39(1)(a) requires, "the young person has
14 committed a violent offence."* (emphasis mine)
15 Subsection 39(1)(c) also sets out a separate
16 gateway to custody which requires that the young
17 person, "has committed an indictable offence,"*
18 punishable in adult court by more than two years'
19 imprisonment and, "has a history that indicates a
20 pattern of findings of guilt."* (emphasis mine.)
21 Clearly, the wording of section 39(1)(a) of
22 the Act, "has committed a violent offence," is
23 speaking of the matter before the Court for
24 sentencing. Equally clear is that the wording of
25 subsection 39(1)(c), "has committed an indictable
26 offence," is speaking of the matter presently
27 before the Court for sentencing and not an
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1 earlier finding of guilt.
2 It follows that where subsection 39(1)(b)
3 uses the wording, "has failed to comply with
4 non-custodial sentences," the words, "has
5 failed," cover either a matter presently before
6 the Court for sentencing or past finding of guilt
7 entailing such a failure.
8 As well, it is also clear that subsection
9 39(1)(c) requires past findings of guilt where it
10 states, "and has a history that indicates a
11 pattern of findings of guilt." Surely if
12 Parliament had wished subsection 39(1)(b) to
13 require prior findings of guilt entailing
14 failures to comply with non-custodial sentences,
15 it would have clearly referred to, "findings of
16 guilt," in the same manner that it has in section
17 39(1)(c).
18 I find that there is no ambiguity in the
19 wording of subsection 39(1)(b). Therefore, the
20 "Consequences to be Considered" principle of
21 statutory interpretation does not apply.
22 Certainly it cannot be said that a literal
23 interpretation of subsection 39(1)(b) leads to an
24 absurd result.
25 In my view, it is quite apparent that in
26 enacting subsection 39(1)(b) of the Youth
27 Criminal Justice Act it was Parliament's
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1 intention to not necessarily require past
2 findings of guilt entailing breaches of
3 non-custodial sentences in order to open the
4 statutory gateway to custody provided through
5 that subsection. Parliament intended that the
6 findings of guilt for offences entailing a
7 failure to comply with non-custodial sentences
8 could be those presently before the Court for
9 sentencing in order for custody to be available
10 as a sentence.
11 In arriving at this conclusion, I have
12 carefully considered the cases I have found which
13 deal with the issue. In the case of R. v. J.H.
14 [2004] O.J. No. 5151, the Ontario Court of
15 Justice, sitting as a Youth Justice Court, came
16 to a conclusion which is opposite to mine. The
17 judgment sets out the arguments often referred to
18 by those who maintain that section 39(1)(b)
19 requires two or more past findings of guilt for
20 offences entailing breaches of non-custodial
21 sentences imposed under the Act before custody is
22 available.
23 In J.H. the young person had pleaded guilty
24 to three breaches of two probation orders. The
25 Court was presented with a joint submission for a
26 90-day custody and supervision order. The
27 custody was to be divided into 60 days of open
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1 custody and 30 days of community supervision.
2 The sentencing Judge in J.H. rejected the joint
3 submission, holding that none of the statutory
4 gateways to custody had been opened.
5 In J.H. it was held, in my view correctly,
6 that whether or not a young person has failed to
7 comply with the same non-custodial sentence on
8 one or several occasions was irrelevant when
9 considering whether section 39(1)(b) was
10 triggered. The Court held that the language of
11 section 39(1)(b) is unequivocal in requiring
12 non-compliances of more than one non-custodial
13 sentence. Once again, I agree. However,
14 beginning at paragraph 19 the Court in J.H. held:
15 "The more critical question for
16 J.H., however, remains whether the
17 non-compliance(s) with the sentence
18 imposed November 5th, 2002, that is,
19 whether the finding of guilt on each
20 of the breach offences presently
21 before the court, count for purposes
22 of section 39(1)(b) YCJA. My view
23 is that these do not. For a
24 non-compliance of a non-custodial
25 sentence to count for purposes of
26 section 39(1)(b), the non-compliance
27 must be other than the one that is
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1 the basis for, or arising out of,
2 the offence currently before the
3 Court for sentencing. My view is
4 that these do not. For a
5 non-compliance of a non-custodial
6 sentence to count for the purpose of
7 section 39(1)(b) the non-compliance
8 must be other than the one that is
9 the basis for or arising out of the
10 offence currently before the Court
11 for sentencing. It should be noted
12 at the outset that this view is
13 simply a matter of judicial
14 interpretation of statutory wording
15 that is equivocal. It could be
16 taken either way."
17
18 J.H. held that there had to be two prior
19 findings of guilt for offences each entailing a
20 failure to comply with a separate non-custodial
21 sentence in order for custody to be available
22 under section 39(1)(b). In requiring the two
23 prior findings of guilt for offences entailing
24 breaches, J.H. held that the "equivocal" language
25 of the legislators in section 39(1)(b) reasonably
26 permitted either interpretation. At paragraph 29
27 the Court went on to say:
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1 "Fourthly, is the consideration of
2 why clause (b) exists in s. 39(1)
3 YCJA. An analysis of the YCJA
4 plainly shows a bias in favour of
5 dealing with youth crime by
6 sanctions that are non-custodial, by
7 requiring the court to first
8 consider all possible reasonable
9 alternatives to custody and
10 rejecting them, and by reserving
11 custodial sentences for the most
12 serious offences and those involving
13 violence. How does the criterion
14 for custody contained in section
15 39(1)(b) reconcile with such an
16 anti-custody bias in the YCJA?"
17
18 At paragraph 31 the Court in J.H. also stated:
19 "In other words, section 39(1)(b)
20 represents the attitude that "enough
21 is enough" with some offenders. For
22 some offenders, sanctions that do
23 not take away their freedom don't
24 work. Some just thumb their noses
25 at non-custodial sanctions, and some
26 ignore the conditions of their
27 sentences. For such offenders the
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1 availability of a custodial sanction
2 is essential to meet the objectives
3 of the YCJA. Without a custodial
4 sanction for such offenders, the
5 youth justice system cannot fully
6 impose meaningful consequences. It
7 cannot adequately emphasize fair and
8 proportionate accountability. It
9 will fail in the rehabilitation of
10 such offenders, and reinforce for
11 them that they can disobey and
12 ignore court imposed sanctions with
13 relative impunity."
14
15 However, at paragraph 35 and paragraph 36
16 the Court in J.H. concluded its interpretation of
17 subsection 39(1)(b) stating:
18 "It seems inappropriately low to set
19 the minimum threshold for custody at
20 one prior instance of non-compliance
21 with a non-custodial sentence apart
22 from any non-compliance which might
23 be inferred from the facts of the
24 offence that is before the court.
25 This is hardly a history at all. It
26 seems to open the door to custody
27 too readily when one considers the
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1 bias against custody contained in
2 the YCJA. For me, one single prior
3 non-compliance is not enough. There
4 should be a minimum of two separate
5 non-compliances. Two separate
6 sentences before custody becomes a
7 possibility on any subsequent
8 offence.
9 What section 39(1)(b) does is simply
10 set a threshold. I interpret
11 section 39(1)(b) YCJA as a three
12 strikes rule. A young person is
13 still in the game with two strikes
14 against him or her. The third
15 strike is what may result in
16 custodial consequences under this
17 rule."
18
19 J.H. was considered by the Newfoundland and
20 Labrador Provincial Court in the case of
21 R. v. M.S. (2005), N.J. No. 199. In that case
22 the conclusion reached in J.H. was specifically
23 rejected. In coming to a conclusion contrary to
24 that set out in J.H., Gorman, Prov. Ct. J., held
25 that:
26 "The practical effect of J.H. is the
27 redrafting of section 39(1)(b) so
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1 that it reads as follows:
2 The young person has on two
3 previous occasions failed to
4 comply with non-custodial
5 sentences."
6
7 I would go further. In my view, the
8 practical effect of J.H. is a redrafting of
9 section 39(1)(b) in the following or similar
10 language:
11 "The young person has on two
12 previous occasions been found guilty
13 of an offence entailing a failure to
14 comply with separate non-custodial
15 sentences."
16
17 However, Parliament did not use the
18 foregoing or similar wording. For reasons I have
19 already provided, I agree completely with Judge
20 Gorman where he states at paragraph 23 of M.S.:
21 "There is, however, no need to add
22 such artificial prerequisites to the
23 application of section 39(1)(b) as
24 the words used in that section of
25 the YCJA are clear and unambiguous.
26 Two breaches of section 137 of the
27 YCJA, regardless of when they
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1 occurred, constitutes a failure to
2 comply with non-custodial sentences
3 if they relate to separate probation
4 orders."
5
6 Because of the lack of ambiguity in what I
7 view to be the clearly expressed intention of
8 Parliament, I conclude that the approach taken by
9 the Court in J.H. is unduly constructive.
10 However, while I have rejected the ultimate
11 interpretation reached in J.H., I am of the view
12 that much of what is said in other parts of the
13 judgment has considerable merit. The Court in
14 J.H. is correct in pointing out that the Youth
15 Criminal Justice Act contains a number of
16 provisions which demonstrate that custody should
17 only be imposed as a last resort. However, I am
18 of the view that the provisions in question, in
19 particular those contained in sections 3 and 38
20 of the Act, do not permit an interpretation of
21 section 39(1)(b) which is inconsistent with its
22 clear and unambiguous wording.
23 I also agree completely with the judgment in
24 J.H. where it states that if one of the four
25 conditions precedent in section 39(1) of the Act
26 are present, custody will not necessarily result
27 and that the Court still retains a discretion as
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1 to whether or not custody is imposed. In fact, I
2 would go somewhat further and state that even
3 where one or more of the gateways to custody
4 contained in section 39(1) are open, it may well
5 be the case that upon consideration of other
6 provisions of the Act, including sections 3 and
7 38, it will become apparent that custody is still
8 not available as a fit sentence.
9 Even where one or more of the gateways are
10 open, there remains the question of fitness.
11 Clearly, the Act's "Declaration of Principle" and
12 the purpose and principles of sentencing set out
13 in the Act must be taken into account when
14 arriving at a proper sentence and in determining
15 whether a given sentence is fit. The
16 satisfaction of one of the conditions precedent
17 contained in section 39(1) simply removes one of
18 the barriers to custody which would otherwise
19 exist. It may well be the case that even with
20 that barrier removed the Court still lacks the
21 "discretion" to impose custody as part of a fit
22 sentence.
23 Finally, I agree with the Court in J.H.
24 where it states that section 39(1)(b),
25 "represents the attitude that enough is enough,"
26 and that there will be cases where it will be
27 necessary to impose custody on offenders who have
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1 repeatedly demonstrated that their behaviour is
2 ungovernable through anything less than a
3 custodial sentence. However, the clear wording
4 of section 39(1)(b) is measured in its approach
5 by simply requiring that two or more
6 non-custodial sentences have been previously
7 imposed and breached before custody is imposed.
8 Like the Court in M.S., I conclude that the
9 wording of section 39(1)(b) of the Youth Criminal
10 Justice Act is clear and unambiguous. A finding
11 or findings of guilt entailing a failure to
12 comply with non-custodial sentences which are
13 presently before the Court for sentencing is
14 enough to open the statutory gateway to custody
15 provided for in section 39(1)(b) so long as
16 different non-custodial sentences have been
17 breached.
18 The next question I have to ask myself is
19 whether custody is available as a fit sentence in
20 this case. For the reasons I have given, it is
21 clear that the gateway to custody provided for
22 under section 39(1)(b) is open in this case.
23 However, as I have said, before I can impose
24 custody I must be satisfied that a sentence which
25 includes custody would be fit under all of the
26 circumstances.
27 I do not intend to review all of the
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1 relevant provisions, including sections 3 and 38
2 of the Act at this point. However, I will point
3 out rehabilitation and reintegration into society
4 are the primary sentencing principles which I
5 have to address. As well, the sentence cannot be
6 disparate from other sentences imposed in the
7 Northwest Territories on similar young persons
8 found guilty of the same offence or offences as
9 Mr. G. in similar circumstances. The principle
10 of proportionality has to be considered, although
11 section 3(b)(ii) provides that in addressing
12 proportionality the Court must take into account
13 the greater dependency of young persons and their
14 reduced level of maturity.
15 Of particular importance is subsection
16 38(2)(d) and (e). Subsection 38(2)(d) requires
17 that:
18 "all available sanctions other than
19 custody that are reasonable in the
20 circumstances should be considered
21 for all young persons, with
22 particular attention to the
23 circumstances of Aboriginal young
24 persons.
25
26 Subsection 38(2)(e) requires that subject to the
27 principle of proportionality set out in
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1 subsection 38(2)(c) the sentence must:
2 "(i) be the least restrictive
3 sentence that is capable of
4 achieving the purpose set out in
5 subsection (1),
6 (ii) be the one that is most likely
7 to rehabilitate the young person and
8 reintegrate him or her into society,
9 and
10 (iii) promote a sense of
11 responsibility in the young person
12 and an acknowledgement of the harm
13 done to victims and the community.
14
15 Subsection 38(3) provides that:
16 "In determining a youth sentence,
17 the youth justice court shall take
18 into account
19 (a) the degree of participation by
20 the young person in the commission
21 of the offence;
22 (b) the harm done to victims and
23 whether it was intentional or
24 reasonably foreseeable;
25 (c) any reparation made by the young
26 person to the victim or the
27 community;
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1 (d) the time spent in detention by
2 the young person as a result of the
3 offence;
4 (e) the previous findings of guilt
5 of the young person; and
6 (f) any other aggravating and
7 mitigating circumstances related to
8 the young person or the offence that
9 are relevant to the purpose and
10 principles set out in this section.
11
12 I am not allowed to take into account a
13 number of things. I am not allowed to take into
14 account protection of the public in the narrow
15 sense. I am not allowed to impose custody for
16 the purpose of protecting the public by
17 warehousing a young person for an extended period
18 of time.
19 Also, in the decision of
20 R. v. C.D., R. v. C.D.K. [2005] S.C.C. 668, the
21 Supreme Court of Canada made it clear that since
22 deterrence is not referred to as a sentencing
23 principle in the Youth Criminal Justice Act,
24 neither general deterrence nor specific
25 deterrence in the narrow sense are a valid
26 purpose when sentencing a young person. However,
27 the Supreme Court allowed that proper sentences
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1 imposed for valid reasons might well have a
2 deterrent effect.
3 In the case before me, P.G. has a record for
4 a number of findings of guilt. There is a
5 finding of guilt for assault which was entered in
6 August, 2005 for which he received five months'
7 probation as a sentence. In February of 2006 he
8 was found guilty of wilfully failing or refusing
9 to comply with the probation order previously
10 imposed and was sentenced to a community service
11 order requiring that he perform 60 hours of
12 community service work.
13 He has pleaded guilty to and been found
14 guilty of a number of offences on which I will
15 shortly impose sentence. The following is a
16 summary of those findings of guilt:
17 1) Wilfully failing to comply with a Youth
18 Court sentence contrary to section 137 of the
19 Youth Criminal Justice Act. Mr. G. has admitted
20 that he did none of the community service hours
21 which were ordered by Judge Schmaltz on February
22 the 21st of this year prior to the expiration of
23 that order.
24 2) Breaking and entering into the Fort
25 Providence Hamlet office on May 18th and
26 committing theft therein contrary to section
27 348(1)(b) of the Criminal Code. Mr. G. admits
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1 that he participated in a break and enter where
2 stationery, food and a digital camera were
3 stolen.
4 3) Breaking and entering into the Snowstar
5 Mechanical Garage on June the 16th and committing
6 theft therein contrary to section 348(1)(b) of
7 the Criminal Code. He admits that he
8 participated in the break and enter and the theft
9 of a compact disc player and eight or nine beers
10 which were taken from a refrigerator inside that
11 garage.
12 4) Breaking and entering the Northern Store
13 warehouse on or between July 18 and 19 and
14 committing the indictable offence of theft not
15 exceeding $5,000 contrary to section 348(1)(b) of
16 the Criminal Code. He admits he participated in
17 the break and enter and the theft of five pellet
18 handguns and several bags of potato chips. The
19 total amount of property taken amounts to
20 $287.45. Four individuals participated in this
21 break and enter.
22 5) Breaking and entering a private garage on
23 July the 20th and committing theft contrary to
24 section 348(1)(b) of the Criminal Code. He
25 participated in the break and enter by using a
26 pry bar to get into the garage and stealing keys
27 once inside the garage.
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1 6) Breaking and entering into the Snowstar
2 Mechanical Garage and committing theft on July
3 20th, once again, contrary to section 348(1)(b)
4 of the Criminal Code. Mr. G. admits that he
5 participated in a break and enter where the keys
6 stolen earlier that day were used to get into the
7 Snowstar Mechanical Garage once again where pop
8 and a DVD movie were taken.
9 7) Failing to comply with an undertaking
10 entered into before a peace officer in charge
11 contrary to section 145(5.1) of the Criminal
12 Code. Mr. G. admits that on July the 17th he was
13 placed on an undertaking by a peace officer. One
14 of the conditions of the undertaking was to have
15 no contact with a certain named individual and he
16 breached that condition on the date charged.
17
18 For the reasons which I have already
19 provided, the statutory gateway to custody
20 contained in section 39(1)(b) is opened. Mr. G.
21 is now 17 years old. He was 16 throughout the
22 time that he committed the offences on which he
23 has been found guilty. He has been in pre-trial
24 detention since July 27th, a period of two
25 months.
26 The pre-sentence report which has been
27 prepared and filed is of assistance. It points
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1 out that a custodial disposition would place Mr.
2 G. in a well supervised setting with a required
3 education program. His behaviour would be
4 monitored and he would be given the opportunity
5 to participate in programs offered by the
6 receiving facility. The author of the report
7 appears to recommend custody, given Mr. G.'s
8 escalation in crimes, lack of parental support
9 and lack of services within the community of Fort
10 Providence. However, the report also advises
11 that Mr. G., at least at the time immediately
12 prior to the report, was not doing well in
13 custody.
14 In any event, I have to take into account
15 the fact that the Youth Criminal Justice Act
16 provides that sentencing under the Act is not to
17 be a substitute for child protection proceedings.
18 In this case I am taking into account the
19 fact that the break and enter offences were into
20 places other than dwelling houses. I am taking
21 into account the fact that it appears that
22 neither the value of the items stolen nor the
23 harm suffered by Mr. G.'s victims appears to have
24 been great. I am taking into account the fact
25 that there are no prior property related findings
26 of guilt indicated on the criminal record.
27 However, in relation to the present finding
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1 of guilt contrary to section 137 of the Act and
2 the finding of guilt contrary to section 145(5.1)
3 of the Criminal Code, I am taking into account
4 the single prior entry which was entered in
5 February of this year when Mr. G. breached the
6 probation order he was previously under. I am
7 taking into account the fact that he has never
8 received a custodial sentence before and I am
9 taking into account the fair and appropriate
10 position of the Crown, as well as what has been
11 said on Mr. G.'s behalf by Mr. Hansen as amicus
12 curiae in his able submissions.
13 Finally, I am taking into account all of the
14 statutory provisions and the case law dealing
15 with the sentencing of young persons which I have
16 already referred to.
17 Mr. G., stand up. Is there anything you
18 would like to say at this particular point?
19 THE YOUNG PERSON: No.
20 THE COURT: All right. Sit down. In my
21 view, given P.G.'s age and the lack of any
22 previous custodial sentences, there have already
23 been meaningful consequences imposed on Mr. G. as
24 a result of his criminal behaviour and nothing
25 more of a punitive nature need be imposed at this
26 particular point in time.
27 There will be a probation order. It will be
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1 for a period of nine months on all of the
2 findings of guilt presently before the Court.
3 The terms of the probation order, in addition to
4 the statutory term, one of which, I should point
5 out, requires that he keep the peace and be of
6 good behaviour, will be as follows: He is to
7 report to his youth worker forthwith - I see that
8 she is here present in the courtroom - and he is
9 to report to her or whoever is assigned to his
10 case thereafter as directed. He is to take all
11 counselling as directed by his youth worker, and
12 that counselling will include, but is not limited
13 to, counselling for alcohol abuse and counselling
14 for marijuana abuse. He is to reside at the home
15 of his sister, A.G., in Fort Providence. He is
16 not to be outside the residence of A.G. between
17 the hours of 10 p.m. and 7 a.m. each and every
18 day throughout the duration of the probation
19 order except in the company of either A.G. or
20 G.B.?
21 MR. HANSEN: Yes, sir.
22 THE COURT: Or with the written permission
23 of either of those two individuals. He is to
24 attend school each and every day that school is
25 held unless Mr. G. is too ill to attend school.
26 Now, Mr. G., you indicated to the author of
27 the pre-sentence report that one of the reasons
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1 you have committed all of the crimes that I am
2 sentencing you on here today is because you have
3 friends that persuade you to do bad things. Is
4 that right?
5 THE YOUNG PERSON: (No verbal response).
6 THE COURT: Well, you are 17 years old
7 now. You are a big boy. You are going to have
8 to be careful who you hang around with. Do you
9 understand that?
10 THE YOUNG PERSON: Yeah.
11 THE COURT: You are also on probation. If
12 you breach this probation order by committing a
13 further crime or not doing any of the things that
14 I have ordered that you do, you can expect that
15 there will be a real likelihood that you will go
16 back to custody. Do you understand that?
17 THE YOUNG PERSON: Yeah.
18 THE COURT: All right. I am not going to
19 make any order of restitution at this particular
20 point, Mr. Hubley. From what I have observed of
21 Mr. G., I don't really see the point.
22 MR. HUBLEY: That's correct, Your Honour.
23 THE COURT: Anything else?
24 MR. HUBLEY: There were three individuals
25 who these crimes were committed with. I'm not
26 sure --
27 THE COURT: I don't have the names of
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1 those individuals. If you could give them to me.
2 MR. HUBLEY: I have the names here, Your
3 Honour.
4 THE COURT: Yes.
5 MR. HUBLEY: The first individual is C.L.,
6 S.P. and K.B., K. spelled with a K. As Your
7 Honour is no doubt aware, S.P. was one of the
8 individuals who he was to remain away from under
9 the second 145 finding of guilt.
10 MR. HANSEN: Sir, perhaps added to the
11 list, P. has indicated that one of the primary
12 motivators in these matters was a young person by
13 the name of A.J.E. So perhaps no contact with
14 him either.
15 THE COURT: What is the first name?
16 THE YOUNG PERSON: A.
17 MR. HANSEN: A. He goes by A.J.
18 THE COURT: A. is fine. E.?
19 MR. HANSEN: Yes.
20 THE COURT: All right. There will be a
21 term in the probation order that Mr. G. have no
22 contact whatsoever either directly or indirectly
23 with any of those named individuals; A.E., C.L.,
24 S.P., K.B.
25 MR. HUBLEY: Your Honour, if I may, I am
26 not sure about those youths, whether or not
27 they're attending the same school. Perhaps a
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1 condition that unless absolutely necessary if
2 they are going to school.
3 THE COURT: Well, I am not saying that it
4 is a bad suggestion, Mr. Hubley, but whenever it
5 comes to terms on a probation order one can think
6 of a million and one possible exceptions if you
7 turn your mind to it. I could think of many. In
8 fact, I could be here until next Monday thinking
9 up all of the possible exceptions one might want
10 to ideally impose. I am going to leave it to the
11 discretion of the police on whether to charge him
12 in case any of these conditions are breached
13 where breaches are practicably unavoidable, and I
14 will leave it to your office in the case such a
15 charge is laid on whether or not to actually
16 prosecute. How does that sound?
17 MR. HUBLEY: That is a great idea, Your
18 Honour.
19 .....................................
20
21
22 Certified to be a true and
accurate transcript pursuant
23 to Rules 723 and 724 of the
Supreme Court Rules.
24
25
______________________________
26
Jill MacDonald, CSR(A), RPR
27 Court Reporter
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You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.