R. v. R.H., 2013 SKPC 8

• Judge: Whelan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: January 07, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKPC 8;(2013), 411 Sask.R. 155 (PC)

R. v. R.H. (2013), 411 Sask.R. 155 (PC)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JA.025

Her Majesty the Queen v. R.H.

(Information Nos. 30902291; 32712533; 44305169; 37292332; 46423890; 46423891; 36654942; 2013 SKPC 8)

Indexed As: R. v. R.H.

Saskatchewan Provincial Court

Youth Justice Court

Whelan, P.C.J.

January 7, 2013.

Summary:

Thirteen year old R.H. came before the court for sentencing under the Youth Criminal Justice Act for the following offences: mischief; break and enter dwelling house and commit abduction; break and enter dwelling house; breach of undertaking (curfew); break and enter dwelling house and commit theft; theft; robbery; breach of undertaking (curfew); with intent to commit an indictable offence wear face mask; and possession of cannabis marijuana.

The Saskatchewan Provincial Court considered that R.H. had spent at least 38 days in pre-sentence custody. That was the equivalent of 76 days. Having taken that into account, with respect to the break and enter dwelling house and commit abduction, the court imposed a further sentence of eight months open custody and four months community supervision, followed by four months' probation. All other dispositions would be for a concurrent probation order of four months.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - [See Criminal Law - Topic 8806 ].

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 8806 ].

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - [See Criminal Law - Topic 8806 ].

Criminal Law - Topic 8804

Young offenders - Decisions (incl. punishments) - Sentencing - Pre-disposition report (incl. risk assessment) - R.H. was before the court for sentencing under the Youth Criminal Justice Act (YCJA) for various offences - One issue was what weight could be given to the risk assessments addressed in the pre-sentence report and psychological assessment - The Saskatchewan Provincial Court summarized its discussion as follows: "i. It is the responsibility of counsel to address the appropriate information to be conveyed to those asked to prepare reports for the court. If a dispute arises then it may be addressed in court. It is not the responsibility of the authors of such reports to verify the information so conveyed. ii. Material and prejudicial facts that are disputed must be proven beyond a reasonable doubt or not relied upon for any purpose and should not thereafter be distributed by the Crown. ... iii. All reports which become part of the record should be scrutinized for accuracy and corrected where needed, given the reliance upon such reports by institutions and individuals charged with the supervision, care and treatment of young persons. iv. Caution must be exercised when relying upon second hand material or impressions in a pre-sentence or other report. However, given the relaxation of the rules of evidence in sentencing proceedings, unless counsel take issue with material in a report, the court may consider it in weighing the information presented. v. An important balance must be struck when considering background information about a young person, having regard to the sentencing principles and direction under the YCJA. Risk assessment conclusions and the supporting information inform the court but it must be careful to weigh the information for relevance and reliability and not sentence a young person for what he or she might do, but rather for the offences for which he or she is being sentenced. vi. Information gathered under the YCJA must not be shared with educational institutions unless authorized under the Act" - See paragraph 49.

Criminal Law - Topic 8806

Young offenders - Decisions (incl. punishments) - Sentencing considerations - Thirteen year old R.H. came before the court for sentencing for the following offences: mischief; break and enter dwelling house and commit abduction; break and enter dwelling house; breach of undertaking (curfew); break and enter dwelling house and commit theft; theft; robbery; breach of undertaking (curfew); with intent to commit an indictable offence wear face mask; and possession of cannabis marijuana - R.H. was from the Peter Ballantyne First Nation - He had no prior record - He was only 12 at the time he committed the most serious offence, the break and enter and abduction - The circumstances of that offence were that the accused had entered the home of an aunt and removed her 20 month daughter - The child was returned later the same day - The Saskatchewan Provincial Court stated, inter alia, that "i. Sentencing under the [Youth Criminal Justice Act] YCJA must reflect the reduced moral blameworthiness of a young person. ii. There has been insufficient information and consideration of Gladue factors and alternatives in the pre-sentence report. iii. There has been an inadequate examination of the alternatives to custody. iv. R.H. is at a crucial point in his development; he requires intensive supervision and assistance, and he is vulnerable to the influences of older more sophisticated offenders found in a custodial setting, particularly closed custody. v. Having reached the conclusion that only a custodial sentence is appropriate, an open custody disposition is most appropriate having regard to the underlying circumstances of the offences and this young person and his treatment needs" - R.H. had spent at least 38 days in pre-sentence custody - That was the equivalent of 76 days - Having taken that into account, with respect to the break and enter dwelling house and commit abduction, the court imposed a further sentence of eight months open custody and four months community supervision, followed by four months' probation - All other dispositions would be for a concurrent probation order of four months - See paragraphs 71 to 88.

Criminal Law - Topic 8815

Young offenders - Decisions (incl. punishments) - Open custody - [See Criminal Law - Topic 8806 ].

Criminal Law - Topic 8817.4

Young offenders - Decisions (incl. punishments) - Custody - Violent offences - Thirteen year old R.H. was before the court for sentencing for various offences, including break and enter and commit abduction - The circumstances of that offence were that R.H. had entered the home of an aunt and removed her 20 month old daughter - R.H. was apparently motivated by a desire to scare or extract revenge upon the aunt who had refused to allow him into her home - R.H. said that initially he planned to commit a property offence in order to frighten his aunt - When the infant awoke and began crying, he panicked and to avoid discovery decided to take the infant from the house - He later left her on the ground and ran off when she continued to cry - He returned after running a couple of blocks - In the meantime, his mother had found the baby who was wet (it had been raining) - The baby was returned to her home - The Saskatchewan Provincial Court held that the break, enter and commit abduction offence met the gateway for a custodial sentence within the meaning of s. 39(1)(a) of the Youth Criminal Justice Act as a violent offence - See paragraphs 50 to 60.

Criminal Law - Topic 8817.4

Young offenders - Decisions (incl. punishments) - Custody - Violent offences - Thirteen year old R.H. was before the court for sentencing for various offences, including robbery - One issue was whether the robbery met the gateway for a custodial sentence within the meaning of s. 39(1)(a) of the Youth Criminal Justice Act - R.H. had committed the robbery together with two teenage girls - He wore a neck-warmer over his face - The complainant had been walking home from work in the early evening when she was confronted by the three - One of the females was described as being the most aggressive of the three; she made demands for the complainant's belongings - Someone grabbed the complainant's headphones from her face - There was some pushing - R.H. tried to take the complainant's backpack - She resisted, pushing back - She yelled for help and ran away - Nothing was taken and the complainant received no lasting injuries - The Saskatchewan Provincial Court stated that "The facts concerning the robbery do not support a finding of bodily harm. While it is relatively close to the line, there are insufficient indicia of harm of either a physical or psychological nature to amount to bodily harm" - See paragraphs 61 to 65.

Criminal Law - Topic 8817.4

Young offenders - Decisions (incl. punishments) - Custody - Violent offences - Thirteen year old R.H. was before the court for sentencing under the Youth Criminal Justice Act (YCJA) for various offences, including break and enter and commit abduction and robbery - The Crown sought a lengthy custodial sentence - R.H.'s counsel argued that (i) the Crown had to prove beyond a reasonable doubt that a custodial sentence was required, and ii) the role of the individual had to be examined in determining if an offence was a violent offence - The Saskatchewan Provincial Court stated that "the Crown must prove beyond a reasonable doubt those disputed facts upon which it relies with respect to a decision as to whether an offence is a violent offence. Beyond that, there is ample direction in the YCJA to the sentencing court regarding the considerations to be reached before imposing a custodial sentence. This is not a matter of further onus on the Crown. While role is always important in sentencing proceedings, it is not required that the role of the individual be examined in determining whether the young person has committed a violent offence; rather he may be found to have committed a violent offence having regard to the actions of the group, as a party or otherwise. Having concluded that a young person has committed a violent offence, the court is still required to look at role before finding that a custodial sentence is appropriate" - See paragraphs 25 to 32.

Criminal Law - Topic 8817.9

Young offenders - Decisions (incl. punishments) - Custody - Exceptional cases - Thirteen year old R.H. was before the court for sentencing for various offences, including break and enter and commit abduction - One issue was whether the break, enter and commit abduction met the gateway for custody within the meaning of s. 39(1)(d) of the Youth Criminal Justice Act as an exceptional case - The circumstances of that offence were that R.H. had entered the home of an aunt and removed her 20 month old daughter - R.H. was apparently motivated by a desire to scare or extract revenge upon the aunt who had refused to allow him into her home - The baby was returned to her home later that day - The Saskatchewan Provincial Court stated that "If I should be found to be in error in my reasoning with respect to the inferences of harm and a finding that the break and enter dwelling house and abduction was a violent offence as contemplated by. s. 39(1)(a), then I would impose a custodial sentence pursuant to s. 39(1)(d). I say this reluctantly as this subsection should not be invoked as an alternative to a finding of a violent offence pursuant to s. 39(1)(a) in these circumstances. Great caution should be used before imposing custody pursuant to this subsection where there are found to be insufficient indicia of harm in an otherwise violent offence. The gravamen of the abduction, perhaps any abduction, barring other aggravating circumstances, must be the psychological harm to the person. However, the break and enter dwelling house and abduction raises serious concerns, and the circumstances of the offence are so aggravating, that having regard to the purpose and principles of sentencing set out in s. 38, they warrant the imposition of a custodial sentence" - See paragraphs 66 to 70.

Criminal Law - Topic 8843

Young offenders - Evidence and proof - Burden of proof - [See third Criminal Law - Topic 8817.4 ].

Cases Noticed:

R. v. J.L.M. (2005), 265 Sask.R. 84; 2005 SKPC 28, refd to. [para. 26].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 27].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 27].

R. v. K.C. (2011), 276 O.A.C. 267 (C.A.), refd to. [para. 28].

R. v. M.E., 2008 ONCJ 99, refd to. [para. 29].

R. v. H.T.N. (2006), 224 B.C.A.C. 315; 370 W.A.C. 315; 2006 BCCA 218, refd to. [para. 31].

R. v. Sharrow (C.L.) (1999), 117 O.A.C. 267; 43 O.R.(3d) 143 (C.A.), refd to. [para. 45].

Saskatchewan (Attorney General) v. K.Q. et al. (2007), 304 Sask.R. 78; 413 W.A.C. 78; 2007 SKCA 120, refd to. [para. 47].

R. v. H.W.G. (2003), 236 Sask.R. 209 (Prov. Ct.), refd to. [para. 48].

R. v. M.D.D. (2004), 253 Sask.R. 109 (Prov. Ct.), refd to. [para. 48].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 51].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 52].

R. v. J.S. (2006), 213 O.A.C. 274 (C.A.), refd to. [para. 53].

R. v. Campeau (D.J.) et al. (2009), 320 Sask.R. 132; 444 W.A.C. 132; 2009 SKCA 3, refd to. [para. 54].

R. v. K.I. (2011), 268 Man.R.(2d) 1; 520 W.A.C. 1; 2011 MBCA 11, refd to. [para. 56].

R. v. J.R., [2010] O.J. No. 2813 (C.J.), refd to. [para. 57].

R. v. Stuckless (G.) (1998), 111 O.A.C. 357; 127 C.C.C.(3d) 225 (C.A.), refd to. [para. 58].

R. v. R.E.W. (2006), 207 O.A.C. 184; 205 C.C.C.(3d) 183 (C.A.), refd to. [para. 67].

R. v. S.T. (2009), 273 B.C.A.C. 90; 461 W.A.C. 90; 2009 BCCA 274, refd to. [para. 69].

R. v. T.D.P., [2004] 3 C.N.L.R. 318; 250 Sask.R. 3 (Prov. Ct.), refd to. [para. 78].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 78].

R. v. Ipeelee (M.) (2012), 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1 (S.C.C.), refd to. [para. 79].

Statutes Noticed:

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 39(1), sect. 39(2) [para. 30].

Authors and Works Noticed:

Bala, Nicholas, Youth Criminal Justice Law (2003), pp. 3, 4 [para. 73].

Counsel:

D. Stahl, for the Crown;

T. Talbot, for the defence.

This matter was heard at Saskatoon, Saskatchewan, before Whelan, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on January 7, 2013.