R. v. S.J.A., 2010 SKPC: Are Mandatory Minimum Sentences for Adult Offenders Creeping Into the YCJA’s “Accountability” Requirement?

The concept of mandatory minimum sentences has been the subject of considerable debate. As a concept, many commentators believe that mandatory minimums run counter to the general principles of judicial discretion and a justice system focused on individual circumstances.  The concept ignores individuated justice and ignores extenuating circumstances.

When the Youth Criminal Justice Act (YCJA) was first implemented, it was thought by many to be a step in the right direction in an attempt to reduce the number of young offenders being placed in custody.  The YCJA has not, however, ended the controversy over the appropriate legal responses to youth crime. It is, in many respects, the “most individualized” legislation in Canada, focusing not so much on the crime, but on the young person.

The old Young Offenders Act was often criticized for having “no teeth”, especially in cases dealing with serious violent offenders. Coffee shop talkers across Canada debate the shocking headlines depicting “punk kids” getting nothing more than a “slap on the wrist”.

While I appreciate the passion our coffee drinking citizens have for newspaper headlines, collectively, we cannot lose focus on the fact that while custody is appropriate for some young offenders, it is a very expensive response to crime, and one that too often leads to a cycle of further offending as youths are corrupted by negative influences in custody. These negative influences are magnified when youth are sentenced to adult sentences.

Continuing the debate as to the appropriate response to youth crime, the question the Saskatoon Provincial Court was recently faced with dealt with this very debate in the context of adult sentences for a young person.

I.          YCJA: Basic Principles

The Youth Criminal Justice Act provides that in some circumstances a young person may be sentenced to according to sentencing principles applicable to adults and for a time in prison that is longer than the time otherwise permitted under the YCJA. In such cases the onus of proving an adult sentence is appropriate is upon the Crown.

The determination of whether an adult sentence is appropriate is considered under the provisions of s. 72 of the Youth Criminal Justice Act. That section requires that in making the decision a youth justice court has to consider the following:

(a)    the seriousness and circumstances of the offence;

(b)   the age;

(c)    maturity;

(d)   character;

(e)    background;

(f)    previous record of young person; and

(g)   any other factors that the court considers relevant.

The language of accountability is found in statements of the YCJA’s basic purposes. The YCJA’s preamble makes clear that, along with reducing the use of custodial sentences for all but the most serious offences, one of the Youth Criminal Justice Act’s central purposes is to hold young people “accountable” for their wrongdoing.

The issue faced by sentencing judges is that accountability for young people, is not the same as accountability for adults. The YCJA clearly states that youth are more dependent and less mature and should be treated that way by the law.  Accountability is something that the youth court judge has to consider in deciding whether a youth sentence or an adult sentence should be imposed. Accountability is not the same as denunciation. It is not the same as deterrence. Therefore, it does not appear to include those larger societal considerations.

When considering whether an adult sentence should be imposed, a sentencing judge has to consider whether a sentence imposed under the Youth Criminal Justice Act will be long enough to serve the purpose of retribution and long enough to provide for rehabilitation. If a youth sentence would be sufficient, but for the elements of deterrence or denunciation, a youth sentence must be imposed.

The law is not changed by an emotional reaction to the offence or the consequences of the offence. It is not changed by concerns anger or fear. The issue of whether a youth sentence is sufficient is based strictly on the considerations set out in the YCJA.
Are you confused yet?

II.           R. v. S.J.A., 2010 SKPC

In R. v. S.J.A., 2010 SKPC 112 the Saskatoon Provincial Court dealt with the above analysis. In that case, the youth person entered a guilty plea to a charge that he discharged a firearm at two persons with intent to wound them contrary to ss. 244(1) and 244(2)(b) of the Criminal Code. Evidence was called on a sentencing hearing where it was found that on December 19, 2008, the accused was at his apartment with roommates having drinks and smoking marihuana.  Later in the evening other individuals came to the party and after a while the atmosphere became hostile.  Two of the late arriving males robbed the accused and his roommate.  A third male remained in the kitchen and did not participate in the robbery.  The accused went to his bedroom, loaded a firearm and took pursuit.  He fired a round which struck the third male in the shoulder and caused him to fall down stairs.  The accused followed, stepped over the victim and fired a second round through a door at an individual who was in the basement hallway.  After the shots were fired the accused returned to his apartment, complained to his roommates that he had been pepper sprayed and admitted that he had “clipped” someone with his gun.

An application was made pursuant to s. 64(1) for an order that the young person be liable to an adult sentence.

While mandatory minimum sentences do not exist under the YCJA, notably section 244 of the Criminal Code says everyone who discharges a firearm at another with intent to wound, maim or disfigure or endangers the life of a person, is guilty of an indictable offence and liable to imprisonment for a minimum of four years and a maximum of 14 years.  If the firearm used is proven to be a prohibited or restricted firearm, the minimum sentence is five years.

Under the YCJA, the maximum sentence is two years of custody and supervision.

In this specific case the Crown sought a term of imprisonment of 6 years, while the young person’s counsel sought the maximum youth sentence.

In the course of her analysis, Judge Gray made the following remarks:

The actions of the accused were intentional and deliberate; the risk of grave harm was clearly foreseeable.  His course of conduct could have been abandoned at any stage between going to the bedroom to retrieve the firearm, loading it, pursuing the victim and discharging the firearm.  Rather, he chose to fire a second shot at another individual who was never identified.  The degree of moral culpability is high.

Further comments were made respecting the Accused’s level of maturity, and Judge Gray notes that at the time of the offence, the youth lived like an adult – settling himself in an apartment with roommates – obtaiing a job to provide for himself. 

Judge Gray also remarked on the youth person’s criminal record, noting the following entries:

September 14, 2005 – Saskatoon, SK

145 CCC (x3)             Failure to Appear

430(4) CCC                Mischief

145(3) CCC (x6)         Failure to Comply

348(1)(b) CCC            Break and Enter

344(b) CCC                Theft under $5,000

137 YCJA                   Breach Youth Court Disposition

Sentence:                     Ten (10) months probation

January 19, 2006 – Saskatoon, SK

137 YCJA                  Breach of probation

Sentence:                    Time served

September 11, 2006 – Saskatoon, SK

137 YCJA (x4)           Breach of probation

334(b) CCC (x2)        Theft under $5,000

Sentence:                     Ten (10) months probation

July 8, 2009 – Saskatoon, SK

5(2) CDSA (x2)          Possession for purpose of trafficking

145(3) CCC (x3)         Failure to comply

355(b) CCC               Possess proceeds of crime

91(1) CCC                  Unauthorized possession of a firearm

Sentence:                     300 days secure custody and supervision

In conclusion, the Court noted that the Criminal Code mandates a minimum sentence of four years incarceration in this instance.   She found the following factors to be aggravating:

1. the severe impact on the victim;

2. the offender was unlawfully at large at the time of the offence;

3. the offender was prohibited by court order from possessing a firearm;

4. the offence was one of retaliation;

5. having clearly wounded one individual, he continued this risky conduct by firing a second round;

6. this occurred in an occupied apartment building; and

7. the accused has a prior criminal youth record for serious offences, including the                          unauthorized possession of a firearm.

In mitigation, the following were taken into account:

1. this accused is a very young man;

2. he is facing his first adult sentence;

3. he has no prior convictions for offences of violence;

4. there are no intellectual impediments to his rehabilitation and potential exists for his reintegration into society; and

5. he has entered a guilty plea.

In the end, after considering the principles in the YCJA, as well as the factors listed, the Judge concluded that a fit sentence was one of five years incarceration.

III.       Conclusion

While the S.J.A. case itself is unremarkable, in that some 200 written decisions exist on the subject of adult sentences in youth court, it does direct readers to a potential “seeping” of adult mandatory minimums into the YCJA and Youth Sentencing Court. Consideration as to whether a youth sentence “would have sufficient length to hold the young person accountable for his or her offending behaviour” may consider like sentences for like offences – even for adults. In this case, the Court, having remarked as to the mandatory minimum sentence, considered Parliament’s view of the gravity of the offence and appeared to consider a lengthier sentence as relevant to assessing proportionality of the Youth Sentence.

Section 50(1) of the YCJA specifically states certain adult sentencing provisions of the Criminal Code do not apply to the sentencing of young offenders. But is this case proof that mandatory minimums have become the “back door” for considering the concepts of deterrence and denunciation? Is the Court considering Parliament’s “statement” with mandatory minimums as a factor in consideration of the concept of “accountability”?  Counsel ought to be aware of mandatory minimums when facing a Crown application for an adult sentence.