R. v. Smith (M.), (2012) 315 N.S.R.(2d) 257 (CA)

• Judge: Saunders, Hamilton and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 11, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 315 N.S.R.(2d) 257 (CA);2012 NSCA 37

R. v. Smith (M.) (2012), 315 N.S.R.(2d) 257 (CA);

    998 A.P.R. 257

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. AP.017

Mykel Smith (appellant) v. Her Majesty The Queen (respondent)

(CAC 337898; 2012 NSCA 37)

Indexed As: R. v. Smith (M.)

Nova Scotia Court of Appeal

Saunders, Hamilton and Beveridge, JJ.A.

April 11, 2012.

Summary:

A 17.5 year old youth walked up to a stranger and inexplicably shot him in the chest at point blank range. The stranger was paralysed for life. The youth was now 19 years of age. The youth was convicted of, inter alia, attempted murder. The Crown applied to have the youth subjected to an adult sentence on the ground that a sentence under the Youth Criminal Justice Act (YCJA) would not be of sufficient length to hold the youth accountable.

The Nova Scotia Provincial Court, in a judgment reported (2010), 293 N.S.R.(2d) 341; 928 A.P.R. 341, allowed the application and imposed an adult sentence of 14 years' imprisonment, less one to one credit for 469 days of pre-trial custody. The maximum sentence of three years' imprisonment under the YCJA was not of sufficient length to hold the youth accountable. The youth appealed the length of the adult sentence imposed.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 8817.8 ].

Criminal Law - Topic 8806

Young offenders - Decisions (incl. punishments) - Sentencing considerations - A 19 year old youth, who committed attempted murder at the age of 17.5, was sentenced to an adult sentence - The trial judge discussed the application of the sentencing provisions of both the Youth Criminal Justice Act (YCJA) and the Criminal Code - The judge noted that "even when an adult sentence is imposed it is imposed under the YCJA and it remains a sentence under the YCJA. That brings into consideration the adult sentencing provisions of s. 718, such as deterrence, but does not exclude the application of principles applicable to youth sentencing, particularly those found in s. 3 of the Act" - The judge referred to divergent authority that provided that in imposing an adult sentence, the principles of the Criminal Code, not the YCJA, applied - The judge stated that "how adult sentencing principles and youth sentencing principles interact should depend on the circumstances of each case. In some cases, despite the imposition of an adult sentence, youth justice principles may have application. In others, the balance may tip more toward the application of adult principles." - The Nova Scotia Court of Appeal agreed that this was a "proper statement of the law" - See paragraphs 23 to 25.

Criminal Law - Topic 8817.8

Young offenders - Decisions (incl. punishments) - Adult sentence (incl. place of custody) - A 17.5 year old youth inexplicably and callously walked up to and shot a stranger in the chest, rendering him a quadriplegic - The youth was convicted of, inter alia, attempted murder - The youth, now 19, was described as being self-absorbed, narcissistic, arrogant, superficial, dysfunctionally mature, criminally precocious, and lacking empathy and remorse - The youth was not mentally ill and had no drug or alcohol addictions - Expert testimony opined that the youth would likely develop anti-social personality disorder and, given his resistance to change, would require lengthy imprisonment to permit completion of a group based cognitive behaviour program that was not available in a youth facility - The youth's personality made him devoid of moral restraint or inhibition, allowing him to commit violent offences without any emotional arousal - The youth had 14 prior convictions, including the stabbing of a cab driver for no other purpose than to prove that he could and would stab someone - The youth's response to the stabbing was that he was not going to beat himself up over it - The fact that the youth was a model prisoner on remand showed an ability to control his behaviour and showed that "sometimes, he just doesn't want to" - The trial judge allowed the Crown's application to have an adult sentence imposed - The maximum sentence under the Youth Criminal Justice Act (three years) was not of sufficient length to hold the youth accountable - The youth was sentenced to 14 years' imprisonment for attempted murder, less one to one credit for 469 days of pre-trial custody - The youth appealed the length of the adult sentence, arguing that the judge overemphasized the adult sentencing principles of deterrence and denunciation, objectified him as the personification of evil and imposed a manifestly unfit sentence - The Nova Scotia Court of Appeal dismissed the appeal - The judge did not overemphasize denunciation and deterrence - The nature of the offence "called for strong denunciation and deterrence" - There was nothing wrong with the judge calling the youth's offence "evil" - The judge did not objectify the youth as the personification of evil - Finally, the sentence imposed was not manifestly unfit.

Cases Noticed:

R. v. A.A.B. (2006), 241 N.S.R.(2d) 108; 767 A.P.R. 108; 2006 NSPC 4, refd to. [para. 17].

R. v. Pratt (D.D.) (2007), 239 B.C.A.C. 161; 396 W.A.C. 161 (C.A.), refd to. [para. 17].

R. v. B.C.F. (2009), 343 Sask.R. 57; 472 W.A.C. 57; 2009 SKCA 136, refd to. [para. 17].

R. v. E.M.W. (2011), 308 N.S.R.(2d) 15; 976 A.P.R. 15; 2011 NSCA 87, refd to. [para. 22].

R. v. Kenworthy (C.J.) (2009), 269 B.C.A.C. 235; 453 W.A.C. 235; 2009 BCCA 197, refd to. [para. 33].

R. v. D.A.I. - see R. v. D.I.

R. v. D.I. (2012), 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 35].

R. v. Ferreira (W.), [1997] O.A.C. Uned. 109 (C.A.), refd to. [para. 39].

R. v. J.B., [2009] O.A.C. Uned. 420 (C.A.), refd to. [para. 39].

R. v. Thiara (J.), [2008] B.C.T.C. Uned. C74; 2008 BCSC 1414, refd to. [para. 39].

R. v. Cuthbert (R.B.) (2007), 249 B.C.A.C. 60; 414 W.A.C. 60; 54 C.R.(6th) 99; 2007 BCCA 585, refd to. [para. 40].

R. v. Chevers (C.) (2011), 282 O.A.C. 388; 2011 ONCA 569, refd to. [para. 40].

R. v. Smith (D.) (2010), 260 O.A.C. 180; 2010 ONCA 229, refd to. [para. 40].

R. v. Tan (C.) (2008), 268 O.A.C. 385; 2008 ONCA 574, refd to. [para. 40].

R. v. Quintana (E.) (2009), 268 B.C.A.C. 159; 452 W.A.C. 159 (C.A.), refd to. [para. 41].

R. v. Bagga (H.S.) (1991), 2 B.C.A.C. 171; 5 W.A.C. 171 (C.A.), refd to. [para. 44].

R. v. Siu (H.K.M.) (1998), 114 B.C.A.C. 115; 186 W.A.C. 115 (C.A.), refd to. [para. 44].

R. v. LeBlanc (J.A.) (2011), 305 N.S.R.(2d) 188; 966 A.P.R. 188; 2011 NSCA 60, refd to. [para. 44].

R. v. Gordon (M.A.) (2009), 246 O.A.C. 239; 2009 ONCA 170, refd to. [para. 48].

R. v. Marriott (A.G.), [2011] N.S.R.(2d) Uned. 250; 2011 NSSC 414, refd to. [para. 48].

Counsel:

Roger A. Burrill, for the appellant;

Mark Scott, for the respondent.

This appeal was heard on January 25, 2012, at Halifax, N.S., before Saunders, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On April 11, 2012, Hamilton, J.A., delivered the following judgment for the Court of Appeal.