R. v. Smith (M.), (2010) 293 N.S.R.(2d) 341 (PC)

• Judge: Campbell, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: August 24, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 293 N.S.R.(2d) 341 (PC);2010 NSPC 53

R. v. Smith (M.) (2010), 293 N.S.R.(2d) 341 (PC);

    928 A.P.R. 341

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. AU.036

Her Majesty The Queen v. Mykel Smith, a young person

(2022905 to 2022911; 2010 NSPC 53)

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

Nova Scotia Provincial Court

Campbell, P.C.J.

August 24, 2010.

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 attempted murder and also dangerous operation of a motor vehicle, leaving the scene of an accident, robbery, theft and possession of stolen property. 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 allowed the appeal 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.

Criminal Law - Topic 5831

Sentencing - Considerations on imposing sentence - Retribution or punishment - The Nova Scotia Provincial Court stated that "retribution is not vengeance. Vengeance is driven by emotion. Retribution is restrained by law. It is 'an objective, reasoned, and measured determination of an appropriate sentence which properly reflects the moral culpability of the offender'" - See paragraph 16.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See second 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 Nova Scotia Provincial Court discussed the application of the sentencing provisions of both the Youth Criminal Justice Act and the Criminal Code - The court 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 court referred to divergent authority that provide that in imposing an adult sentence, the principles of the Criminal Code, not the YCJA, applied - The court 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." - See paragraphs 120 to 126.

Criminal Law - Topic 8817.8

Young offenders - Decisions (incl. punishments) - Adult sentence (incl. place of custody) - The Nova Scotia Provincial Court stated that "when considering whether an adult sentence should be imposed a 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 bearing in mind that the offender involved is a young person. That determination is made very much on youth justice principles. Accountability is the purpose to be considered. That does not include a consideration of deterrence or denunciation. In other words, if a youth sentence would be sufficient but for the elements of deterrence or denunciation a youth sentence must be imposed. The idea of 'sending a message' to the community that gun violence will not be tolerated has no place in deciding whether a young person should be sentenced to a youth sentence or an adult sentence." - See paragraph 19.

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 attempted murder and also dangerous operation of a motor vehicle, leaving the scene of an accident, robbery, theft and possession of stolen property - The youth, now 19, was described as being self-absorbed, narcissistic arrogant, superficial, dysfunctionally mature, criminally precocious, and lacked 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 Nova Scotia Provincial Court 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, with one to one credit for 469 days of pre-trial custody.

Cases Noticed:

R. v. Steeves (T.) (2010), 360 N.B.R.(2d) 88; 930 A.P.R. 88; 2010 NBCA 57, refd to. [para. 7].

R. v. G.D.S. (2009), 274 N.S.R.(2d) 200; 874 A.P.R. 200; 2009 NSCA 8, refd to. [para. 15].

R. v. A.O. et al. (2007), 222 O.A.C. 38; 2007 ONCA 144, refd to. [para. 15].

R. v. C.A.M. (1996), 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327 (S.C.C.), refd to. [para. 16].

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. 18].

R. v. C.S. (2008), 265 N.S.R.(2d) 235; 848 A.P.R. 235; 2008 NSPC 22, refd to. [para. 27].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 89].

R. v. I.C., [2010] O.T.C. Uned. 3359 (Sup. Ct.), refd to. [para. 94].

R. v. Casavant (L.M.) (2009), 484 A.R. 103 (Q.B.), refd to. [para. 95].

R. v. B.C.F. (2008), 326 Sask.R. 77 (Prov. Ct.), varied (2009), 343 Sask.R. 57; 472 W.A.C. 57 (C.A.), refd to. [para. 96].

R. v. Quintana (E.), [2008] B.C.J. No. 212 (Prov. Ct.), varied (2009), 268 B.C.A.C. 159; 452 W.A.C. 159 (C.A.), refd to. [para. 97].

R. v. Kenworthy (C.J.) (2009), 269 B.C.A.C. 235; 453 W.A.C. 235 (C.A.), refd to. [para. 98].

R. v. Turcotte (N.R.) (2008), 328 Sask.R. 89 (Q.B.), refd to. [para. 99].

R. v. J.M., [2004] O.J. No. 2796 (C.J.), refd to. [para. 100].

R. v. N.H. (2009), 280 N.S.R.(2d) 148; 891 A.P.R. 148; 2009 NSPC 36, dist. [para. 103].

R. v. A.J.D. (2009), 275 N.S.R.(2d) 308; 877 A.P.R. 308 (S.C.), dist. [para. 104].

R. v. T.P.D. (2009), 284 N.S.R.(2d) 19; 901 A.P.R. 19 (S.C.), dist. [para. 105].

R. v. A.A.B. (2006), 241 N.S.R.(2d) 108; 767 A.P.R. 108; 2006 NSPC 4, refd to. [para. 106].

R. v. Pratt (D.D.) (2007), 239 B.C.A.C. 161; 396 W.A.C. 161 (C.A.), refd to. [para. 120].

R. v. Mann (T.) (2000), 133 O.A.C. 169 (C.A.), refd to. [para. 129].

R. v. Yeung, [1988] B.C.J. No. 1885 (S.C.), refd to. [para. 130].

R. v. Bagga (H.S.) (1991), 2 B.C.A.C. 171; 5 W.A.C. 171 (C.A.), refd to. [para. 131].

R. v. Situ, [2006] O.J. No. 1990 (C.J.), refd to. [para. 132].

R. v. Siu (H.K.M.) et al. (1998), 114 B.C.A.C. 115; 186 W.A.C. 115 (C.A.), refd to. [para. 133].

R. v. Achemfour, [2005] Q.J. No. 5933 (Sup. Ct.), refd to. [para. 134].

R. v. Ferreira (P.), [1994] O.J. No. 2291 (C.J.), varied [1997] O.A.C. Uned. 482 (C.A.), refd to. [para. 135].

Counsel:

Terry M. Nickerson and Mark Hereema, for the Crown;

Eugene Tan, for the defence.

This application was heard on August 3, 4, 20 and 24, 2010, at Halifax, N.S., before Campbell, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on August 24, 2010.