R. v. O.B., 2022 ONCJ 413
This Ontario Court of Justice case explores a concept known as the gateway to custody in youth criminal case. This case dealt with a youth offender who was convicted of several offences. The offence for which the Crown sought a period of imprisonment was possession of drugs for the purpose of trafficking. Section 39(1)(d) of the YCJA allows for a prison sentence to be issued for some non-violent offences due to the seriousness of a given offence and its exceptional nature. It was revealed that the offender had been trafficking fentanyl and had tried to dispose of the evidence when stopped by police. It was also determined that he had been trafficking since the age of 12 and was on bail at the time of the offence at issue.
The defence contended that the offender’s behaviour was due in part to his exposure to poverty and violence at home, along with severe mental health challenges and a learning disability. It was also relevant that the offender had begun taking steps to rehabilitate himself. These factors were considered, but the determining element for sentencing was that the police had violated the offender’s rights by neglecting to inform him of the right to counsel. This violation required a remedy, and in addition to the existing context, the judge found a custodial sentence was not necessary. He was given two years of probation with a $60 fine among other conditions. This sentence meant that the offender was being held accountable for his actions, while imposing accountability on the justice system to reinforce the principle that youth offenders are entitled to enhanced protections in the criminal process.
R. v. R.D., 2019 ONSC 4468
This Ontario Superior Court of Justice is an example of a case where an adult sentence to a youth offender. Here, the offender was a 16-year-old male who pled guilty to several offences related to the robbery of multiple jewelry stores. The robberies were planned out, deliberate, and caused injury to a victim. Given the context for this offence, the Crown sought for the offender to be sentenced under the Criminal Code.
For youth offenders, there is typically a presumption that they are less morally blameworthy for criminal actions because of a lack of development and maturity. However, that presumption can be set aside in some cases when some offenders are close to adulthood. The Crown was able to point to evidence that the accused willingly participated in the offence, that he did not suffer from any mental or physical health challenges that impaired his judgement, and that he had violated his bail conditions while awaiting trial. Despite the offender’s commitment to his own rehabilitation, the judge found that only an adult sentence would represent meaningful consequences for these serious offences. He was given a total sentence of seven years imprisonment along with a DNA order and a lifetime weapons ban.
R. v. K.M., 2019 ONCJ 428
This matter before the Ontario Court of Justice reviews some of the aspects of pre-trial release in youth cases. The accused here was seeking to change the conditions of his undertaking on release in connection with sexual assault with a weapon and assault with a weapon charges. The original terms of the undertaking prevented the accused from communicating with eight people connected to the charge. Six were witnesses in the accused’s grade at school and two were victims in a grade below. Both the Crown and defence agreed that the condition on not contacting the witnesses was unnecessary. This was because it was not required for public safety and could overly impact the accused’s access to education and social development.
Prior to a trial all accused persons enjoy the right to innocence until they are proven guilty. Release and bail conditions are restrictions on an accused’s life that do not amount to criminal penalties. They are meant to protect society and the victims of crime while infringing on the accused’s life as little as possible. These conditions are meant to be complied with it should not be difficult for the accused to do so. This is true even with the enhanced protections and procedures requiring consideration of both the accused and victims’ circumstances in youth cases. A direct impact on education and the kind of social development the YCJA looks to promote is too onerous for a valid release condition.