R. v. A.O.

R. v. A.O. Collection Decisions of the Court of Appeal Date 2007-03-06 Neutral citation 2007 ONCA 144 Docket numbers C44866 Judges O’Connor, Dennis; Rosenberg, Marc; Cronk, Eleanore Ann Subject Criminal Decision Content CITATION: R. v. A.O., 2007 ONCA 144 DATE: 20070306 COURT OF APPEAL FOR ONTARIO O’CONNOR, A.C.J.O., ROSENBERG and CRONK, JJ.A. B E T W E E N : C44866 HER MAJESTY THE QUEEN (Respondent) Leslie Maunder, for the appellant A.O. - and - A.O. (Appellant) Gillian Roberts and Daniel Guttman, for the respondent - and - C44921 HER MAJESTY THE QUEEN (Respondent) Sam Scratch, for the appellant J.M. - and - J.M. (Appellant) Gillian Roberts and Daniel Guttman, for the respondent Heard: October 31, 2006 and November 2, 2006 On appeal from the adult sentencing decision of Justice David Salmers of the Superior Court of Justice, sitting in youth justice court, dated November 17, 2005, and from the sentences imposed by Justice Salmers on November 24, 2005 and the placement decision of Justice Salmers dated March 24, 2006. BY THE COURT: I. OVERVIEW [1] We are concerned in these appeals with the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”) that permit the sentencing of young persons as adults and that require, in certain circumstances, the placement of young persons in penitentiaries or provincial correctional facilities for adults to serve their sentences. [2] The appellants A.O. and J.M. were charged on a sixty-five count indictment with a series of armed robberies of convenience stores. Following a preliminary inquiry, they were committed to stand trial on sixteen convenience store robberies and one robbery of a delivery person. They subsequently pled guilty to six of the convenience store robberies and the remaining counts were withdrawn. [3] Although the appellants were only sixteen years of age when the robberies were committed in the spring of 2003, by the time of their arrests on the predicate offences, both appellants had significant youth records and were subject to multiple probation orders. [4] The Crown applied under s. 72 of the YCJA to have the appellants sentenced as adults. On November 17, 2005, Salmers J. of the Superior Court of Justice, sitting in youth justice court, granted the Crown’s applications. On November 24, 2005, he imposed sentences of five years imprisonment on each appellant, after giving them three years credit for approximately two and a half years spent in pre-sentence custody. Subsequently, on March 24, 2006, the youth court judge directed that the appellants serve their sentences in the penitentiary. [5] The appellants appeal from the youth court judge’s decision to sentence them as adults, from the length of the sentences imposed, and from the decision that they should serve their sentences in the penitentiary. The appellant A.O. also seeks to challenge the constitutionality of s. 110(2)(a) of the YCJA, which provides that the publication ban established by s. 110(1) of the YCJA does not apply to a young person who receives an adult sentence. [6] This was one of the first cases under the YCJA in which the Crown sought to have young persons sentenced as adults. The record indicates that the youth court judge and trial counsel approached the issues and procedures in this case with considerable care. In particular, the youth court judge’s reasons are comprehensive and reflect thoughtful attention to the requisite factors to be balanced under the YCJA. [7] With one exception, we see no basis to interfere with the youth court judge’s decisions. For the reasons that follow, we conclude that the youth court judge erred in his assessment of certain of the expert evidence relevant to the determination of whether A.O. should serve his sentence in the penitentiary. As a result, his placement decision concerning A.O. cannot stand, and a new placement hearing for this appellant is required. Accordingly, both A.O. and J.M. are granted leave to appeal. A.O.’s appeal is allowed in part and J.M.’s appeal is dismissed in its entirety. II. FACTS (1) Circumstances of the Offences [8] Four of the six robberies were recorded on video security tapes maintained in the convenience stores. We viewed parts of these tapes. We agree with the youth court judge that the robberies were well-planned, violent and terrifying. They were carried out by the appellants and an adult accomplice late at night, when only one store clerk was on duty in each of the stores and no customers were present. The appellants and their accomplice dressed entirely in black and wore balaclavas, hoods and gloves. In five of the robberies, one of the robbers used a knife and, in the sixth robbery, an imitation firearm was employed to threaten, intimidate and control the convenience store clerk. Neither appellant could be identified as the robber who wielded the knife or the imitation gun. [9] Each of the store clerks was traumatized and four of them sustained serious knife wounds. In one instance, the store clerk was severely beaten and stabbed. Several clerks now suffer from permanent injuries arising from the robberies. All six clerks remain fearful of working at night. They all experienced financial losses due to their injuries and consequent loss of work. [10] We agree with the following description by the youth court judge of the nature of the offences: The offences of [A.O.] and [J.M.] involved planning, dis-guises, weapons, and gratuitous violence. They committed their offences while on probation and breaching terms that placed them on a curfew and ordered them to stay apart. The victims were vulnerable – alone at night. Several of the clerks were immigrants to this country, working in a vulnerable situation in one of the few jobs available to them as they strived to get ahead in this country. These hard-working men suffered physical, financial, and psychological damage. Considering all of these factors, I find that the offences of [A.O.] and [J.M.] were extremely serious. (2) Circumstances of the Offenders [11] At the adult sentencing hearing, detailed evidence of the appellants’ personal circumstances was admitted, including psychological and psychiatric evidence. Written reports from Dr. Peter Marshall, a psychologist, and Dr. Richard Meen, a psychiatrist, were filed. Both of these experts testified about their assessments of the appellants. In addition, various social workers, probation officers and youth service workers testified as to the progress and conduct of the appellants while in custody, and as to their future prospects. (i) Circumstances of A.O. [12] On the evidence of these witnesses, A.O. is not without admirable traits that bespeak some hope for his future. He was described by Drs. Marshall and Meen as an intelligent young person for whom a university education is a realistic possibility. Following his arrest on the predicate offences and while he was detained at youth custody facilities, A.O. successfully completed his high school diploma. [13] A.O. informed the youth court judge that after his release from custody, he wishes to work part-time, take university business classes, start his own business, help his family and continue counselling for his problems. These are responsible goals that the experts regarded as achievable by A.O. [14] The evidence also established that A.O.’s peers tend to see him as a leader and that he is an independent decision-maker. The youth court judge concluded that A.O. is “very street-wise” and that he had the maturity of an adult when he committed the offences in issue. [15] However, other evidence at the adult sentencing hearing depicted A.O. in a dif-ferent and disturbing light. The experts indicated that A.O. has a high risk of recidivism, that considerable time will be necessary to reduce this risk, that A.O. has a history of manipulative and deceitful conduct, and that he exhibits entrenched antisocial attitudes and behaviours. Dr. Meen was of the view that A.O. suffers from a conduct disorder exemplified by his lack of remorse and empathy for his victims. The experts, among other witnesses, agreed that there is no “quick fix” for A.O. and that he still requires significant treatment. The youth court judge concluded: The best type of programs for him are functional or skills-based programs that involve educational and vocational training. …Based on his past behaviour after release from custody, and the apparent inability of his parents to influence and control him, I am not satisfied that he would pursue the necessary treatment and programs upon his release from secure custody. If he did not pursue the necessary treatment and programs, I find that he would relapse into a criminal lifestyle. [16] A.O. also has a significant youth court record dating from February 2002. It includes findings of guilt on charges of robbery, assault, obstructing police, carrying a concealed weapon, and breach of probation. The predicate offences were committed while A.O. was subject to three separate probation orders. A.O.’s record suggests that he first became involved in criminal activity when he was twelve or thirteen years old and that, since that time, he has often been in custody and almost continuously on probation. [17] After his arrest in May 2003, A.O. was detained primarily at Brookside Youth Centre. While at that facility, he was involved in a disciplinary incident that concerned an attempt by him, together with J.M., to bring marijuana to a scheduled court appear-ance. Subsequently, after an unrelated incident in which A.O. was attacked by other youths at Brookside, A.O. was transferred to the Hamilton-Wentworth Detention Centre, Youth Unit, where he was detained at the time of his adult sentencing hearing. (ii) Circumstances of J.M. [18] The evidence concerning J.M. at the adult sentencing hearing established some similarities, but also several important differences, between J.M. and A.O. [19] J.M. appears to have engaged in a criminal lifestyle and drug use since he was about thirteen years old. J.M.’s mother moved her family from the Jane and Finch corridor in Toronto to Pickering, in an effort to remove J.M. from negative peer influences. J.M., however, returned to the Jane and Finch area to engage in drug trafficking. [20] Like A.O., J.M. has a serious youth court record dating from the spring of 2002. It includes findings of guilt for assault, robbery, drug possession and breach of probation. The commission of at least two of these offences (the assault and the breach of probation) included A.O.’s involvement. Also like A.O., J.M. breached a subsisting probation order when he committed the predicate offences. [21] J.M. was detained at Brookside after his arrest on the predicate offences. As we have said, while J.M. was in custody, he and A.O. were involved in an attempt to transport marijuana to a scheduled court appearance. Subsequently, in mid-December 2005, when his placement hearing was pending, J.M. and two other youths attacked and beat a third youth at Brookside (the “Brookside Incident”). The victim required medical attention for head injuries sustained in this attack. As a result of this altercation, J.M. was transferred to Sprucedale Youth Centre. [22] Dr. Marshall described J.M. as having limited intellectual skills and a grade five literacy level. Dr. Meen testified that J.M. has a history of “significant ambivalent attachment disorder”, leading to the development of an antisocial lifestyle “aligned with conduct disordered peers”. This assessment was supported by the evidence of other witnesses, including J.M.’s social worker and the author of his pre-sentence report. Moreover, several witnesses testified that J.M. lacks both remorse for his offences and genuine empathy for his victims. [23] Psychological testing of J.M. indicated that he has an “above average” risk of recidivism. The youth court judge accepted that since J.M.’s arrest in 2003 and throughout his detention, he has maintained contact with “undesirable friends”. [24] In contrast to A.O., J.M. has a history of academic and other problems in school. He struggled academically and dropped out of high school before the predicate offences were committed. He resumed his schooling only when incarcerated. His goals, ex-pressed to the youth court judge, are to finish high school, get a job in the construction industry, and continue with various vocational and counselling programs. The youth court judge regarded J.M.’s employment aspirations as realistic and attainable. [25] The youth court judge found that J.M. engages in his own decision-making and, in that regard and in his attitude towards certain of his family members, he exhibits some mature characteristics. The youth court judge also found that, like A.O., J.M. is “very street-wise” and had the maturity of an adult when he engaged in the convenience store robberies. However, he also concluded that J.M. is immature intellectually and, in some respects, behaviourally. III. ISSUES [26] The issues in these appeals may be framed as follows: (1) In concluding that the appellants should be sentenced as adults, did the youth court judge err: (i) by applying the wrong onus of proof; (ii) in his approach to accountability; and/or (iii) in his approach to rehabilitation and in his assessment of the evidence about the appellants’ rehabilitative potential? (2) Did the youth court judge err in sentencing the appellants: (i) by failing to afford adequate credit for the appellants’ pre-sentence custody; (ii) by over-emphasizing general deterrence; and/or (iii) by imposing unfit sentences? (3) In concluding that the appellants should serve their sentences in the penitentiary, did the youth court judge err in his treatment of certain of the expert evidence relevant to his placement decision? (4) Is s. 110(2)(a) of the YCJA unconstitutional? IV. ANALYSIS (1) Adult Sentencing Decision [27] A preliminary issue arises in this case because of the appellants’ lengthy (two and a half years) pre-sentence custody. Before the youth court judge, counsel for the appellants conceded that an additional period of time in custody was appropriate. In fact, they urged the judge to impose the maximum youth sentence (two years custody and one year community supervision). The Crown submits that it would not have been open to the youth court judge to impose a three-year youth sentence, in light of the pre-sentence custody. She relies upon the Supreme Court of Canada’s decision in R. v. Fice (2005), 196 C.C.C. (3d) 97 where the court held that a conditional sentence under s. 742.1 of the Criminal Code, R.S.C. 1985, c. C-46 was not available where, together with the pre-sentence custody, the effect would be the imposition of a penitentiary sentence. We need not decide this difficult issue because we are satisfied that the maximum youth sentence, even in addition to the substantial pre-sentence custody, would not be sufficient to hold the appellants accountable for their offending behaviour. (i) Onus of Proof [28] Section 72(1)(b) of the Act sets out the criteria that a youth justice court must consider and the test it must apply when determining if an adult sentence is required for a young person. The section reads as follows: 72.(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and … (b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. [29] Pursuant to s. 72(2), when the Crown seeks to have a youth justice court impose an adult sentence on a young person, it bears the onus of “satisfying” the court as to the matters referred to in subsection 1(b). [30] In considering whether to impose an adult sentence in this case, the youth court judge held that there was “a very heavy onus” on the Crown to satisfy him that a youth sentence would not have sufficient length to hold A.O. and J.M. accountable for their offending behaviour. [31] J.M. argues that the youth court judge erred by applying an onus of proof that was too low. He argues that a youth justice court can impose an adult sentence only if the Crown proves beyond a reasonable doubt that one is required under s. 72(1)(b). [32] We do not accept J.M.’s submission. The normal meaning of the language of ss. 72(1)(b) and 72(2) does not require proof beyond a reasonable doubt. Section 72(1)(b) requires a youth justice court to impose an adult sentence “if it is of the opinion” that a youth sentence is insufficient. The phrase “is of the opinion” does not equate to the level of certainty that attaches to a requirement for proof beyond a reasonable doubt. [33] Section 72(2) refers to an onus of “satisfying” the youth justice court of the matters necessary for the imposition of an adult sentence. This wording tracks the language considered by the Supreme Court of Canada in R. v. M. (S.H.) (1989), 50 C.C.C. (3d) 503 at 546-8 when it assessed the nature of the onus on a party seeking a transfer to adult court under the Young Offenders Act, R.S.C. 1985, c. Y-1, as rep. by S.C. 2002, c.1, s. 199 (the pre-1995 provisions). Justice McLachlin, as she then was, distinguished an onus “to satisfy” from the criminal onus of proof beyond a reasonable doubt. Speaking for the majority, she said: Parliament set out in detail the factors which must be weighed and balanced, and stipulated that if after considering them the court was satisfied that it was in the interests of society and the needs of the young person that he or she should be transferred, the order should be made. Nor do I find it helpful to cast the issue in terms of civil or criminal standard of proof. Those concepts are typically concerned with establishing whether something took place. It makes sense to speak of negligence being established “on a balance of probabilities”, or to talk of the commission of a crime being proved “beyond a reasonable doubt”. But it is less helpful to ask oneself whether a young person should be tried in ordinary court “on a balance of probabilities”. One is not talking about something which is probable or improbable when one enters into the exercise of balancing the factors and considerations set out in s. 16(1) and (2) of the Young Offenders Act. The question rather is whether one is satisfied, after weighing and balancing all the relevant considerations, that the case should be transferred to ordinary court. [Emphasis added.] [34] Section 72(1)(b) requires the youth justice court to weigh and balance the enumerated factors and then to decide whether a youth sentence is sufficiently long to hold a young person accountable for his or her offending behaviour. That type of evaluative decision – making an informed judgment – does not lend itself to proof beyond a reasonable doubt. As McLachlin J. explained in R. v. M. (S.H.), supra, the court is not being asked to make findings of fact about past events nor to make a determination of whether a crime has been committed, which are the types of decisions for which proof beyond a reasonable doubt is normally required. [35] In arguing that the proper onus is proof beyond a reasonable doubt, J.M. relies upon this court’s decision in R. v. B. (D.) (2006), 206 C.C.C. (3d) 289. In particular, J.M. refers to Goudge J.A.’s statement at para. 63: [I]n sentencing, the Crown must assume the burden of demonstrating beyond a reasonable doubt that there are aggravating circumstances in the commission of the offence that warrant a more severe penalty. [36] In our view, this passage does not support J.M.’s argument. In the quoted passage, Goudge J.A. was not referring to the youth justice court’s decision whether to impose an adult sentence. Rather, he was referring to the proof of aggravating circumstances relating to the offence itself. Clearly, the Crown bears the onus of proving beyond a reasonable doubt the factual circumstances that are relevant to the court’s decision-making process when considering whether to impose an adult sentence. The requirement of proof beyond a reasonable doubt does not, however, extend to the ultimate decision called for under s. 72(1)(b). [37] In the result, we do not accept J.M.’s argument that the youth court judge imposed an improperly low burden of proof upon the Crown. That said, we recognize that the decision to impose an adult sentence upon a young person is a very serious one and should only be taken after careful consideration of all the relevant factors. As the youth court judge pointed out, the imposition of an adult sentence can lead to very severe consequences for the young person. [38] The youth court judge reasoned that in order to ensure that the most serious interventions are reserved for the most serious crimes, as mandated by the preamble to the YCJA, the burden of proof is not mere satisfaction, but rather “a very heavy onus to satisfy”, as he put it. With respect, we would not describe the onus in those terms. Section 72(2) imposes an onus of satisfying the court, nothing more. However, in applying that onus, it is important that a youth justice court bear in mind the very serious consequences of an adult sentence for the young person, so as to only order an adult sentence when necessary to fulfil the objectives of the YCJA. (ii) Approach to Accountability [39] The appellants submit that the youth court judge erred in several respects in his interpretation of the test for imposing an adult sentence. In particular, they submit that he erred in his appreciation of accountability, which is the central feature of the decision whether to impose an adult sentence. [40] To appreciate the appellants’ argument, it is necessary to set out the relevant provisions of the YCJA. The starting place is s. 72, which establishes the test for im-posing an adult sentence. For convenience, we again set out s. 72 in full: 72. (1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and (a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. [41] As can be seen, s. 72 directs the sentencing judge back to the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 of the Act: 3. (1) The following principles apply in this Act: … (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: … (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity[.] [Emphasis added.] …. 38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [Emphasis added.] (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles: (a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (e) subject to paragraph (c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. (3) In determining a youth sentence, the youth justice court shall take into account (a) the degree of participation by the young person in the commission of the offence; (b) the harm done to victims and whether it was intentional or reasonably foreseeable; (c) any reparation made by the young person to the victim or the community; (d) the time spent in detention by the young person as a result of the offence; (e) the previous findings of guilt of the young person; and (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [42] The combined effect of ss. 72, 3 and 38 is to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence. [43] This view of accountability is consistent with the “offender-centric” nature of a youth sentencing decision identified by the Supreme Court of Canada in R. v. P. (B.W.); R. v. N. (B.V.) (2006), 209 C.C.C. (3d) 97. In that case, the court held that general deterrence is not a factor in youth sentencing. Speaking for the court at para. 33, Charron J. said the following: In the same way, when the statute speaks of “accountability” or requires that “meaningful consequences” be imposed, the language expressly targets the young offender before the court: “ensure that a young person is subject to meaningful consequences” (s. 3(1)(a)(iii)); “accountability that is consis-tent with the greater dependency of young persons and their reduced level of maturity” (s. 3(1)(b)(ii)); “be meaningful for the individual young person given his or her needs and level of development” (s. 3(1)(c)(iii)). Parliament has made it equally clear in the French version that these principles are offender-centric and not aimed at the general public[.] [Emphasis in original.] [44] While s. 38 sets out principles of sentencing that could have individual as well as societal purposes, these must be read in light of the purposes of sentencing in the youth justice context. Thus, for example, s. 38(2)(c) sets out as a principle of sentencing that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence. In the context of the YCJA, proportionality must be seen as providing an upper limit on the sentence that can be imposed on the offender. In other words, even if a long sentence were deemed necessary to rehabilitate the offender and hold him or her accountable, the sentence still must not be longer than what would be proportionate to the seriousness of the offence and the offender’s degree of responsibility. That is not a concern in this case. The offences in this case are so serious that an upper limit fixed by the principle of proportionality would not be less than what might be necessary to hold the offenders accountable. [45] Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation and reintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration. Parliament has used the different terms and is presumed to have intended different meanings. See for example, R. v. Barnier, [1980] 1 S.C.R. 1124 at 1135-36; Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625 at para. 134. [46] In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer C.J.C. in R. v. M. (C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at paras. 80 and 81: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incor-porates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. … Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blame-worthiness of that particular offender. The objective of denunciation mandates that a sentence should also commun-icate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. [Underlining in original, italics added.] [47] In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct”. [Underlining omitted.] We see no other rational way for measuring account-ability. [48] The need to consider the normative character of an offender’s behaviour necessarily requires the court to consider societal values. But what the court cannot do is add on to a youth sentence an element of general deterrence or denunciation. This concept of accountability is consistent with this court’s decision in R. v. W. (R.E.) (2006), 205 C.C.C. (3d) 183 at paras. 40-42, where the court noted the focus of the YCJA on the best interests of the young person, and at para. 43, in which it considered the exceptional circumstances in which a court can impose a custodial disposition under s. 39(1)(d) of the Act: The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where the circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values. It seems to me that one example of an exceptional case is when the circumstances of the offence are shocking to the community. [49] This view of the meaning of accountability is also consistent with the other principles of sentencing to which the youth court judge is directed under s. 38, especially those set out in ss. 38(3)(a) and (b): degree of participation, harm to the victim and whether the harm was intentional or reasonably foreseeable. These principles speak to retribution as defined by Chief Justice Lamer in R. v. M. ( C.A. ), supra. [50] Youth court judges have reached similar conclusions as to the meaning of account-ability in s. 72. As Blacklock J. said in R. v. J.M., [2004] O.J. No. 2796 (C. J.) at para. 26, the sentence must “be long enough to reflect the seriousness of the offence before the Court and the accused’s role in it”, even taking into account the offender’s increased dependence and decreased maturity. We read this as recognition of the need to take into account the normative character of the offender’s conduct. And in R. v. Ferriman, [2006] O.J. No. 3950 (S.C.J.) at para. 38, McCombs J. said that for a sentence to hold a young person accountable it must achieve two objectives: It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. If the Crown proves that a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed. [Footnote omitted.] [51] The appellants submit that the youth court judge erred when he, in effect, included an element of denunciation in the concept of accountability. The impugned passage from the youth court judge’s reasons on the adult sentence application is as follows: Society in general expects an element of punishment or retribution in almost every sentence for crimes, including for offending behaviour of young persons. The YCJA also acknowledges retribution as a factor in the youth criminal justice system – see various subsections of sections 3 and 38. Accordingly, while the protection of the public through effective rehabilitation and reintegration into society is the most important element when considering young persons’ accountability to society in general, it is not the only consideration. The court must also consider whether society in general would view the sentence as providing appropriate punishment or retribution for the young person’s offending behaviour. It is this approach to accountability that I have applied in considering the Crown’s application for adult sentences for [A.O.] and [J.M.]. [52] This passage could be read as invoking a notion of accountability to society that might include an element of denunciation. However, we do not consider that the youth court judge made a reversible error in the circumstances of this case. Some of the language in this passage would better have been avoided. Nonetheless, we think that the youth court judge principally had in mind the normative character of the appellants’ conduct when he was considering how society might view the sentences and when he adverted to accountability to society in general. On that scale, the available youth sentence would not be adequate to hold these offenders accountable. These offences were carried out with such brutality and recklessness as to the consequences to the victims that only lengthy sentences of imprisonment would properly represent meaningful consequences for these youths. (iii) Approach to Rehabilitation and Assessment of Evidence About Rehabilitative Potential [53] The appellants also submit that the youth court judge erred in his approach to rehabilitation. They argue, in effect, that he misapprehended the requirements of the YCJA and the Crown’s onus concerning rehabilitation at an adult sentencing hearing. Specifically, A.O. maintains that the youth court judge erred by concluding that under the scheme of the YCJA, the sentence imposed on a young person must be sufficient to “secure” his or her rehabilitation. J.M. contends that in order for a young person to be sentenced as an adult, it is incumbent on the Crown to establish that the young person “cannot be rehabilitated by a youth sentence”. [54] We reject these submissions. We agree with the Crown that the youth court judge’s approach to rehabilitation was consistent with the purposes and principles of sentencing under the YCJA and that he did not err in his appreciation of the Crown’s onus regarding rehabilitation. [55] At the beginning of his reasons in support of his adult sentencing decision, the youth court judge explicitly acknowledged that the Crown bore the onus under s. 72(1)(b) of the YCJA to satisfy him “that a youth sentence, imposed in accordance with the purpose and principles of the YCJA, would not have sufficient length to hold [the appellants] accountable for their offences”. Thus, from the outset, the youth court judge correctly identified the Crown’s burden and focused on the accountability assessment required by the YCJA. [56] The youth court judge then instructed himself that the purposes and principles of the YCJA stress that “young persons are to be held accountable through sentences that have meaningful consequences for the young person and promote rehabilitation and reintegration into society, thereby protecting the public in the long term”. This instruction conforms with s. 38(1) of the YCJA and is also consistent with the object of the YCJA set out in s. 3(1). [57] The youth court judge next considered the evidence in the case and evaluated the appellants’ prospects for rehabilitation in the context of assessing whether a youth sen-tence would be sufficient to hold the appellants accountable for their offences. This approach properly treated rehabilitation as one, but only one, of the important factors that are integral to the accountability inquiry mandated by ss. 72(1)(b) and 38(1) of the YCJA. [58] Contrary to A.O.’s submission, in so doing, the youth court judge did not hold that a youth sentence must be sufficient to “secure” the rehabilitation of a youthful offender, in the sense of ensuring that outcome. As acknowledged by A.O., in most cases, this would be virtually impossible to predict. There is no guarantee that any sentence, however skilfully fashioned, will ensure the rehabilitation of an offender. What is required under the YCJA is that the sentence imposed has meaningful consequences for the affected young person and that it promotes his or her rehabilitation and reintegration into society. The youth court judge directed himself to this requirement. [59] We also do not accept J.M.’s contention that the Crown’s burden on an adult sentencing application extends to proof that a young person cannot be rehabilitated by a youth sentence. The Crown’s burden under s. 72(1)(b) of the YCJA is to satisfy the youth court judge, on consideration of all relevant factors, that a youth sentence would be of insufficient length to meet the base requirement of accountability that drives the entire YCJA sentencing regime. [60] The appellants also argue that the youth court judge erred in his assessment of the evidence about their rehabilitative potential. A.O. attacks, on various grounds, the youth court judge’s conclusion that he lacked the capacity or commitment to be “effectively rehabilitated during the length of a youth sentence that could be imposed under the YCJA”. A.O. submits that the youth court judge erred by seeking to fashion a sentence that would ensure, rather than promote, A.O.’s rehabilitation, by misconstruing or ignoring Dr. Meen’s evidence of A.O.’s capacity to change, by failing to address the possibility that A.O. had progressed and begun to change his thinking during his lengthy pre-sentence custody, and by taking an unduly pessimistic view of A.O.’s progress based on his conduct in custody. [61] We would not give effect to these submissions. The youth court judge’s reference to the “effective” rehabilitation of A.O. does not constitute reversible error. Read in context, we take this reference to reflect nothing more than the youth court judge’s view, based on the evidence of A.O.’s needs, condition and circumstances, that the length of time that could be afforded by the imposition of a youth sentence was insufficient to foster A.O.’s rehabilitation in a meaningful and realistic fashion. In effect, the youth court judge concluded that a youth sentence would not sufficiently promote A.O.’s rehabilitation to meet the requirement of accountability established by the YCJA. [62] We are also not persuaded that the youth court judge erred in his appreciation of Dr. Meen’s evidence of A.O.’s capacity and commitment to change. While it is true that Dr. Meen testified that A.O. “without question…has the capacity for change”, he qualified this statement by saying, “[t]he issue is whether he will realize it or not.” By this statement, Dr. Meen questioned the likelihood of the realization of such change in the future. This was consistent with Dr. Meen’s concerns, prompted by his perception of A.O.’s glibness and history of manipulation, that A.O.’s conduct potentially might reflect only “superficial” compliance. Thus, Dr. Meen expressed reservations about the genuineness of A.O.’s commitment to real change. This was confirmed by Dr. Meen later in his evidence when he said that without further extensive assessment of A.O., he could not determine whether A.O. “was really able to make the necessary changes in his thinking”. [63] Nor do we accept that the youth court judge erred by failing to have regard to A.O.’s progress in detention, or by adopting an unduly pessimistic perspective on A.O.’s rehabilitative progress. In his reasons, the youth court judge adverted to many of A.O.’s accomplishments and positive behaviour while in custody, especially at Brookside. He expressly found that A.O. had made progress towards rehabilitation while he resided at that facility. The youth court judge, however, assessed the significance of this progress in the context of other important factors that called into question A.O.’s capacity for and commitment to the changes required to become rehabilitated and reintegrated into society. It was entirely appropriate for the youth court judge to weigh the evidence of A.O.’s rehabilitative prospects in this fashion. [64] We also reject J.M.’s argument that the youth court judge misapprehended J.M.’s prospects for rehabilitation. The record simply does not support this contention. [65] The errors alleged by J.M. fall into two categories. First, he submits that the youth court judge erred by concluding that the length of time required for J.M.’s rehabilitation would exceed three years. J.M. maintains that only Dr. Meen testified about the length of time required for J.M.’s rehabilitation and that his evidence does not support the youth court judge’s conclusion that a youth sentence would be of insufficient length to meet the purposes and principles of sentencing outlined in the YCJA. [66] This is inaccurate. Both Drs. Marshall and Meen testified that J.M.’s personality and behavioural problems are deeply ingrained. Given J.M.’s problems, Dr. Marshall said that it could take years to effect his rehabilitation. Dr. Meen agreed that J.M.’s rehabilitation “could obviously take more than two years”. He said that although J.M. is capable of change “with reliable supports in the community”, there is “no quick fix” for J.M. given the antisocial components of his personality. In addition, these witnesses and others indicated that J.M. still requires significant counselling, treatment, educational and vocational training. Finally, as observed by the youth court judge, J.M.’s own proposed plan for his future treatment, counselling and programming “would take years to complete”. We see no error in the trial judge’s appreciation of this evidence. [67] Second, in an appendix to his factum filed with this court, J.M. listed a series of alleged errors by the youth court judge in his assessment of the evidence, which J.M. claims constitute either errors in principle or a failure to give proper effect to the evi-dence concerning J.M.’s rehabilitative potential. [68] Again, we disagree. In respect of each of the errors asserted by J.M., there was either evidence to support the impugned finding by the youth court judge or the evidence relied upon by J.M. to demonstrate the alleged error is actually consistent with the finding in issue. In respect of some of the alleged errors, there is no basis in the youth court judge’s reasons upon which to conclude that he ignored or otherwise failed to consider the evidence relied upon by J.M. The youth court judge simply assessed the evidence on the disputed issues differently than the manner contended for by J.M. It was open to him to do so. [69] Distilled to its core, the appellants’ challenge to the youth court judge’s assess-ment of the evidence of their prospects for rehabilitation is really an attack on his factual findings concerning the appellants’ rehabilitative potential. Absent palpable and over-riding error, those findings attract great deference from this court, especially where, as here, they form part of a youth court judge’s reasoning in support of the decision to sentence a young person as an adult. We are satisfied that the appellants have not met the exacting standard required for appellate intervention with the impugned findings. [70] Finally, we reject without hesitation J.M.’s complaint that the youth court judge’s adult sentencing ruling falls short of the standard for sufficiency of reasons established by R. v. Sheppard (2002), 162 C.C.C. (3d) 298 (S.C.C.) and related cases. There is no basis for this assertion. As we observed at the outset, the youth court judge’s reasons are commendably detailed and thoughtful. They amply reveal his reasoning process and permit meaningful appellate review. This ground of appeal has no merit. (2) Sentences Imposed [71] The youth court judge sentenced each of the appellants to a total of eight years imprisonment. He gave three years credit for the two and a half years they had served in pre-sentence custody. As a result, each appellant was sentenced to an additional five years imprisonment. [72] The appellants appeal the length of their sentences. They argue that the youth court judge erred by failing to give them adequate credit for pre-sentence custody. They also argue that he erred by relying too heavily on general deterrence and that the totality of their sentences – eight years – is outside the appropriate range for these types of cases. [73] In our view, the sentences imposed were fit having regard to the seriousness of the offences and the circumstances of the appellants. The youth court judge carefully considered all the appropriate sentencing factors and we see no basis to interfere with the sentences that he imposed. [74] We turn first to the issue of pre-sentence custody. The youth court judge gave the appellants credit on a ratio of 1.2:1. [75] The rationales for giving enhanced credit for pre-trial and pre-sentence custody are well established. In R. v. Francis (2006), 207 C.C.C. (3d) 536 at para. 14, this court summarized the relevant considerations as follows: 1. Other than for life sentences, legislative provisions for parole eligibility and statutory release do not take into account time spent in pre-sentence custody; 2. There are few rehabilitative, educational or retraining programs available in detention centres; and 3. Conditions in detention facilities are often more crowded and more onerous than in correctional facilities. [76] While fairness requires that a sentencing judge should not deny credit for pre-sentence custody without good reason, a sentencing judge has broad discretion regarding how much credit to give. The courts have resisted mandating a fixed ratio or multiplier to pre-trial custody, preferring to leave this to the discretion of the sentencing judge who can assess what would be fair in the circumstances: R. v. Wust (2000), 143 C.C.C. (3d) 129 (S.C.C.) and R. v. Francis, supra, at paras. 23-25. [77] In this case, we are satisfied that it was within the youth court judge’s discretion to give three years credit for the two and a half years the appellants spent in pre-sentence custody. The youth court judge carefully explained the reasons for his decision. He noted that the appellants had been detained in youth facilities where the conditions were not harsh as they are in many adult detention facilities. He also noted that the facilities in which the appellants were held had excellent treatment, counselling, educational and vocational programs and that the appellants had taken advantage of many of those programs. [78] Significantly, two of the factors referred to in Francis, supra, that warrant enhanced credit – namely, the absence of rehabilitative programs and the relatively onerous conditions – were not present in this case. In our view, the factors considered by the youth court judge were appropriate. We see no error in his decision to give credit for pre-sentence custody on a 1.2:1 basis. [79] As to general deterrence, while this is not a factor in imposing a youth sentence, it is a factor when imposing an adult sentence on a young person.[1] In this case, the youth court judge properly took into account the very serious circumstances of the six offences for which the appellants were convicted and attached appropriate weight to the need to deter others from committing similar offences in the future. It is well established that the proprietors of small businesses, such as variety stores, that are open late at night are particularly vulnerable to the types of violent crimes committed by the appellants. As a result, they deserve special protection by the courts. In addition, deterrence is important when sentencing individuals who have perpetrated violence in groups. As the youth court judge pointed out, general deterrence was important in this case given the prevalence of these types of crimes in the community. [80] Although general deterrence was an important consideration in this case, the youth court judge appropriately balanced it with the appellants’ youth, their decreased maturity and their rehabilitative potential. He engaged in a lengthy and thorough examination of the appellants’ pre-sentence reports and other psychological evidence and considered their individual needs and circumstances. He also reviewed their behaviour since arrest, including their involvement in incidents requiring disciplinary action at their correctional facility. He noted that the appellants had attempted to bring marijuana in the vehicle transporting them to the courthouse. Given all this evidence, the youth court judge concluded that the appellants lacked “the capacity or commitment to be effectively rehab-ilitated during the length of a youth sentence”. The sentences he imposed were the shortest possible sentences to accomplish all the appropriate sentencing objectives. We see no error in the youth court judge’s reasoning or in his approach to sentencing the appellants. [81] Finally, we are of the view that the sentences totalling eight years fall within the appropriate range for these types of offences and offenders. [82] Accordingly, there is no basis on which to interfere with the sentences imposed. (3) Placement Decision [83] Section 76(1) of the YCJA provides that when a young person who is subject to an adult sentence concerning an offence is sentenced to a term of imprisonment for the offence, for the purpose of serving any portion of his or her imprisonment, the young person shall be placed in (i) a youth custody facility separate and apart from adults held in custody or detained, (ii) a provincial correctional facility for adults, or (iii) where the sentence imposed is two years or more, a penitentiary. [84] Section 76(2)(b), in turn, requires that a young person serve his or her sentence in a provincial correctional facility for adults or in a penitentiary, in certain circumstances. It provides: 76.(2) The youth justice court that sentences a young person under subsection (1) shall, unless it is satisfied that to do so would not be in the best interests of the young person or would jeopardize the safety of others, … (b) if the young person is eighteen years old or older at the time that he or she is sentenced, order that he or she not be placed in a youth custody facility and order that any portion of the sentence be served in a provincial correctional facility for adults or, if the sentence is two years or more, in a penitentiary. [85] By the combined effect of ss. 76(1) and 76(2)(b), where a young person who is eighteen years of age or over is sentenced as an adult and receives a term of imprison-ment of two or more years as part of his or her sentence, the sentence presumptively must be served in a penitentiary or a provincial correctional facility for adults. [86] However, this placement disposition is not mandatory in all circumstances. It does not apply where the youth justice court is satisfied either that such placement would not be in the best interests of the young person, or that it would jeopardize the safety of others. [87] In this case, both A.O. and J.M. were eighteen years or older at the time of sentencing and both were sentenced to more than two years imprisonment. Thus, the placement of both appellants in a penitentiary or a provincial correctional facility for adults was obligatory unless the youth court judge was persuaded that one or both of the exceptions under s. 76(2) applied. [88] The youth court judge concluded that neither exception was made out on the evidence in respect of the appellants. Because no evidence was led before him regarding provincial correctional facilities for adults, including about whether placement in those facilities might be in the best interests of either appellant, the youth court judge directed that the appellants serve their sentences in the penitentiary. [89] The appellants do not contest the youth court judge’s articulation of the placement test under s. 76. Rather, they argue that in considering the “best interests” and “safety of others” exceptions under s. 76(2), the youth court judge erred in his treatment of the expert evidence at the placement hearing of Marc Levine, the Provincial Co-ordinator of Assessment, Placement and Transfer for the Youth Justice Services Division of the Ontario Ministry of Children and Youth Services. [90] The youth court judge ruled that all the evidence heard on the Crown’s adult sentencing application and at the sentencing hearing was admissible at the placement hearing. In addition, two witnesses testified at the placement hearing: Marc Levine and Greg Slaght, the Unit Manager at Sprucedale. Documentary evidence was also filed at the hearing, including written placement reports concerning both appellants prepared by Mr. Levine pursuant to s. 76(4) of the YCJA, and various institutional reports and other documents regarding the conduct and progress of the appellants during their pre-sentence detention in youth custody facilities. [91] In his placement reports, Mr. Levine recommended that A.O. remain in a youth custody facility. In contrast, he recommended that J.M. serve his sentence in the adult penitentiary system. [92] A.O. submits that the youth court judge improperly discounted Mr. Levine’s recommendation that A.O. be kept in a youth custody facility. J.M. argues that the youth court judge erred by failing to take into account a “significant modification” by Mr. Levine to his original opinion concerning the appropriate placement for J.M., and by failing to exercise “appropriate care” in rejecting Mr. Levine’s evidence and that of youth custody corrections staff concerning the appropriate placement for J.M. [93] We agree that the youth court judge erred in his approach to A.O.’s placement by failing to evaluate Mr. Levine’s evidence concerning an appropriate placement for A.O. We see no error, however, in his consideration of Mr. Levine’s evidence regarding J.M.’s placement. (i) A.O.’s Placement [94] The youth court judge’s analysis of an appropriate placement disposition for the appellants focused on the circumstances of each offender, including their progress in custody, their educational, vocational and counselling needs, their ages, and the length of their sentences. [95] In respect of A.O., and in stark contrast to J.M., the youth court judge found that this youth has pursued his goals and rehabilitation and has exhibited maturity in his conduct while detained in youth custody facilities. The youth court judge indicated that A.O. “seems to be motivated and [is] making genuine progress towards rehabilitation and reintegration into society”. While these positive factors may have attested to the benefits of the youth custody system for A.O., ultimately the youth court judge was not satisfied on the evidence that requiring A.O. to serve his sentence in the penitentiary would not be in his best interests. [96] In connection with Mr. Levine’s evidence, the youth court judge acknowledged that Mr. Levine was “very knowledgeable and experienced in the youth custody system” and that his reports and his testimony “fully examined the effect on each offender’s best interests should that offender be placed in a youth custody facility”. [97] However, the youth court judge regarded Mr. Levine’s evidence as being of limited assistance to the court because Mr. Levine had “very little knowledge of the provincial adult correctional system or the penitentiary system”. The youth court judge put it this way: [Mr. Levine’s] placement reports only assisted the court about whether, and the degree to which, a youth custody facility was capable of addressing the best interests of each offender. The placement reports do not assist the court in deciding the issue of whether, or to what degree, the adult provincial or penitentiary systems address the best interests of each offen-der. [98] Later in his placement ruling, the youth court judge reiterated this concern and, consequently, his approach to Mr. Levine’s evidence in relation to A.O.: As stated earlier, the usefulness of and the weight to be given to Mr. Levine’s placement report and testimony, is limited by Mr. Levine’s admitted lack of knowledge about the provincial adult and the penitentiary systems. At best, Mr. Levine’s evidence and recommendation are limited to asses-sing the effectiveness of the youth custody system to address the best interests of [A.O.]. [99] It is apparent that the youth court judge regarded the usefulness of Mr. Levine’s evidence as seriously undermined by his admitted lack of personal experience with and knowledge about the federal penitentiary system. We agree that this was a proper consideration in assessing the weight to be afforded to Mr. Levine’s evidence. However, the youth court judge’s reasons contain no evaluation of Mr. Levine’s placement recommendation for A.O., nor any mention of the basis for that recommendation as outlined by Mr. Levine in his report and testimony. [100] With respect, this was an error. While the limitation on Mr. Levine’s expertise identified by the youth court judge was a legitimate consideration in weighing his evi-dence, this factor did not justify discounting almost entirely his evidence regarding A.O. We say this for the following reasons. [101] First, as the youth court judge recognized, evidence of the federal penitentiary system relevant to the placement of A.O. was available from sources other than Mr. Levine. This included an information pamphlet from Corrections Services Canada that outlined the programming available at federal penitentiaries, admitted during the testimony of Tom Windebank (Mr. Levine’s predecessor), and the evidence of Maurice White, a parole supervisor with Corrections Services Canada, at the adult sentencing hearing. Thus, any gap in Mr. Levine’s knowledge concerning the penitentiary system was met by other admissible evidence. Mr. Levine’s inability to offer this evidence did not detract from the value of his evidence concerning the benefits of the youth custody system for A.O. [102] Second, Mr. Levine’s evidence was highly relevant to A.O.’s prospects within the youth custody system for rehabilitation and reintegration into society and, hence, to the central issue of whether his interests would best be served if he were to remain within that system. [103] Mr. Levine listed fifteen factors in his placement report in support of his recommendation that A.O. serve his sentence in a youth custody facility. These included: · Since entering HWDC [Hamilton-Wentworth Deten-tion Centre] he has been attacked on two occasions, once by a youth who attacked and stabbed [A.O.] with a homemade weapon, and recently he was “swarmed” by 7 youths. In both situations [A.O.] only defended himself and did not fight back or retaliate. … · This past November, [A.O.] graduated from high school, obtaining most of his credits while in deten-tion. · Concern that placement in either of the adult correc-tional systems will expose [A.O.] to negative influen-ces of serious adult offenders and as a result under-mine rehabilitative programming. · The lack of age-appropriate programming in the youth custody system for young persons age 18 or more, will be a challenge to the youth system. Thus far, [A.O.] appears to be a positive influence on younger youth in HWDC. His Social Worker describes him as a role model in the “day room”, who also volunteers for extra work and goes to school regularly. · That [A.O.] sees himself as a calm young person who understands the importance of an education. If he remained in the youth system, he would concentrate on improving his grades (most are 70’s and 80’s), and attempt to gain access to University correspondence courses. He ultimately would like to help troubled youths as part of his future. …. · In a positive way, [A.O.] has really taken advantage of his stay in detention. Aside from his education successes, [A.O.] has completed the 7 Step Program, attended counselling, learnt “self-help” techniques, was a Duke of Edinborough [sic] participant, acquired his propane licence, and was successful in a Brick and Stone Pre-Apprentice program. [Emphasis in original.] [104] Mr. Levine’s final written recommendation regarding A.O.’s placement was expressed in these terms: Recommendation: It is obvious to the writer that [A.O.] has made many gains while in detention. His Social Worker at HWDC indicates that [A.O.] enjoys good relationships while at HWDC. He is well behaved, respectful to women, attends programs, keeps a clean cell, stays away from negative behaviour, demonstrates positive leadership, is kind, humorous and intelligent and has shown he can control his impulses. His Probation Officer and Social Worker feel [A.O.] would still benefit from remaining in the youth system, as [A.O.] has proven he does not pose a threat to other individuals. Considering all of the above, it is suggested that [A.O.] should remain in the youth system and not be transferred to the adult system. He can continue with his academic goals as well as have the opportunity to receive clinical and other supports while in the youth system. By his positive actions while in detention the past two plus years, [A.O.] has proven that he has all of the ability to succeed, and continues to benefit from the internal supports that the youth system has and can continue to offer him. At the same time, he needs to persist and build on his successes or else he will have failed more than himself. [105] During his testimony, Mr. Levine elaborated upon these views. He said that A.O. was regarded by authorities at Hamilton-Wentworth as a “model prisoner” and a role model for other young persons in detention; that A.O.’s graduation from high school while in detention was a “quite rare” event in a youth centre; that A.O. exhibited “great restraint and great maturity” when confronted with violent or aggressive behaviour by others; and that A.O.’s behaviour while in custody was non-violent and non-threatening. Mr. Levine also outlined the nature of the educational and counselling programming and supports available to A.O. in the youth custody system. [106] In addition, Mr. Levine addressed the issue of A.O.’s age and its implications if A.O. remained in a youth custody facility. In response to questioning by the youth court judge, Mr. Levine offered the opinion that it was appropriate for A.O. to remain in a youth custody facility for his full sentence, as long as his behaviour remained positive and he was gaining from the programs offered by the youth custody facility, even though this would mean that A.O. would reside, over time, with much younger offenders. Indeed, in Mr. Levine’s view, A.O.’s placement in a youth custody facility would both favour A.O.’s rehabilitation and permit him to continue to act as a role model for younger residents. [107] This important evidence by Mr. Levine, which supported A.O.’s placement in a youth custody facility, required assessment by the youth court judge. Although the youth court judge’s placement ruling regarding A.O. reflects sensitivity to A.O.’s circumstances and the requirements of the YCJA, the requisite evaluation of Mr. Levine’s recommendation about A.O.’s placement and his reasons for that recommendation was not undertaken. [108] Third, the youth court judge’s treatment of Mr. Levine’s evidence about A.O. stands in marked contrast to his treatment of Mr. Levine’s evidence regarding J.M.’s placement. In respect of J.M., the youth court judge noted Mr. Levine’s testimony that the influence on J.M. of negative peers was a concern if J.M. were to be placed in the penitentiary. He went on to expressly address Mr. Levine’s placement recommendation for J.M., including what the youth court judge described as a “major basis of this recommendation”, namely, Mr. Levine’s fear for the safety of others if J.M. were to be placed in a youth facility. The youth court judge then stated: The fact that a person like Mr. Levine, that is, a person very knowledgeable and very experienced in the youth custody system, did not recommend the youth custody system for [J.M.], even with the lessened safety concerns [due to J.M.’s good behaviour after the Brookside Incident], is a significant factor to consider when determining if the youth custody system is capable of addressing [J.M.’s] best interests, es-pecially effective rehabilitation and reintegration into society. [109] We agree with the youth court judge that Mr. Levine’s recommendation regarding J.M.’s placement was an important consideration. But, Mr. Levine’s recommendation about A.O.’s placement was no less significant. [110] In the circumstances, on the basis of his ruling concerning A.O., we cannot be satisfied that proper regard was had by the youth court judge to Mr. Levine’s evidence concerning an appropriate placement for A.O. Because this was important and highly relevant evidence bearing upon the placement decision for A.O., the youth court judge’s placement ruling concerning A.O. cannot stand. [111] On the new placement hearing concerning A.O. that we conclude is necessary, updated evidence regarding his conduct and progress in the youth custody system and additional focused information about the suitability of the federal penitentiary system for his placement may well be available. It will be for the youth justice court to determine on the whole of the evidence adduced at that hearing whether it is not in A.O.’s best interests to serve his sentence in the penitentiary. [112] A.O. recently turned twenty years of age.[2] Since we would allow his appeal to the extent of ordering a new placement hearing under s. 76, the youth justice court will need to consider subsection (9) of that section. This subsection provides that no young person shall remain in a youth custody facility after he attains the age of twenty years unless the youth court judge is satisfied that remaining in such a facility is in the best interests of the young person and would not jeopardize the safety of others. This will be a factor for the youth justice court to consider on the new placement hearing. We note that in R. v. M.(J.), supra and R. v. Ferriman, supra the youth justice court ordered, pursuant to s. 76(9), that the offenders serve their adult sentences in youth custody facilities although they would reach the age of twenty years during the currency of their sentences. Even if the judge makes an order under s. 76(9), an application to review that decision can be brought at some future time pursuant to s. 76(6). (ii) J.M.’s Placement [113] In contrast to our conclusion regarding the youth court judge’s treatment of Mr. Levine’s evidence concerning A.O., we do not accept that the youth court judge misap-prehended or erred in his approach to Mr. Levine’s evidence about J.M.’s placement. [114] As we have said, J.M.’s involvement in the Brookside Incident in December 2005 led to his transfer to Sprucedale. In his placement report regarding J.M., Mr. Levine provided this description of the Brookside Incident: [T]here is recent information to suggest [J.M.] has again jeopardized the safety of other youth[s] in custody. There was a fight in mid December/05, a 3 person on 1, that [J.M.] was involved in. An internal investigation showed that conflict was likely to continue, with [J.M.] at the forefront. [J.M.] was eventually transferred to Sprucedale Youth Centre. The victim was treated in the hospital for head injuries and charges were considered. [J.M.] maintains that his involve-ment was a result of a misunderstanding. [115] Mr. Levine also commented in his report, “[w]hile in Sprucedale Youth Centre in the last month, [J.M.] has been very well behaved and described as a model resident. No apparent clinical issues. Very motivated to achieve in school.” And, “[t]he writer has no doubt that [J.M.] has made many gains while in detention.” [116] Mr. Levine also acknowledged in his report that J.M.’s probation officer was of the view that J.M. should remain in the youth system and that his social worker “expressed concerns an adult sentence will only serve to harden [J.M.] as he still grav-itates to negative influences”. Mr. Levine, however, did not share these opinions. Based on the Brookside Incident, Mr. Levine was concerned for the safety of others within the youth system should J.M. serve his sentence at a youth custody facility. In his report, he stated, “[o]f significant concern to the writer is [J.M.]’s most recent involvement in a violent and physical altercation, part of a 3 on 1, peer on peer assault.” [117] During his testimony, Mr. Levine indicated that notwithstanding J.M.’s positive behaviour at Sprucedale and the fact that his conduct had not deteriorated at that facility after learning of Mr. Levine’s adverse placement recommendation, Mr. Levine remained concerned that J.M. had chosen to involve himself in a serious altercation at Brookside in which another youth was beaten at a time when the determination of J.M.’s future place-ment was pending before the court. [118] Read in its entirety, Mr. Levine’s evidence confirms that his placement recommendation concerning J.M. remained unchanged at the hearing, although he recognized and credited J.M. for his recent favourable conduct at Sprucedale. The final exchange between Mr. Levine and J.M.’s counsel at the placement hearing captures the main thrust of Mr. Levine’s evidence on this issue: Q. Okay. I guess to conclude and to go back to, I think, the initial question I asked you, you obviously have some safety concerns still in terms of [J.M.]’s threat to others within a youth facility because of the December incident [the Brookside Incident]. Correct? A. Correct. Q. But those concerns, I guess, have lessened. Is that a fair characterization, because of his behaviour since that point? A. I think there’s – I think it’s fair to say I think it’s still out there. Q. Right. A. But I’m certainly – he’s impressed me that he, he seems to have made a real commitment to stay out of trouble and, and when he knew what my recommendation was, he could have been very negative as a result and he’s chosen to go the other route instead of trouble and be that role model which is something we would want him to be. Q. Right. And the, the, the staff at Sprucedale have an awareness of this December incident as far as you know? A. They would have. Yes. Q. And they’ve indicated that they believe that they can deal with any security concerns that [J.M.] presents? A. Absolutely. They conveyed to me that they’re willing to work with him and, and if he’s given a – if he’s sent to a youth centre. Q. Thank you. Those are my questions. [Emphasis added.] [119] In these circumstances, in our view, the youth court judge did not err by con-cluding that J.M.’s continued contact with negative peers and his disciplinary problems while in custody demonstrated “that he is not yet learning from his arrest and time in custody”. Nor did he err when he characterized the essence of Mr. Levine’s evidence this way: In his placement report, Mr. Levine recommended that [J.M.] serve his sentence in a penitentiary. A major basis of this recommendation was the fact that, based on the mid-December 2005 fight, Mr. Levine feared for the safety of others if [J.M.] were to be placed in a youth facility. Mr. Levine did not go so far as to change his recommendation, even when he acknowledged that [J.M.]’s good behaviour, since the fight, lessened the safety concern for other inmates. [Emphasis added.] [120] The youth court judge was entitled to reject the placement recommendation of J.M.’s probation officer and, having taken the evidence of J.M.’s social worker, Mr. Levine and others into account, to conclude on all the evidence that J.M. should serve his sentence in the penitentiary. We see no error in the youth court judge’s approach to or assessment of the evidence relevant to J.M.’s placement. (4) A.O.’s Constitutional Challenge [121] It remains to consider A.O.’s challenge to the constitutionality of s. 110(2)(a) of the YCJA. Section 110(1) of the YCJA states: Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. [122] The protection of privacy afforded by the publication ban established by s. 110(1) is not absolute. Section 110(2)(a) provides that the ban does not apply “in a case where the information relates to a young person who has received an adult sentence”. Thus, the ban is intended to extend only to those young persons to whom the youth corrections system applies. [123] After the youth court judge decided to sentence A.O. as an adult, but before he imposed sentence, counsel for A.O. sought an order protecting A.O.’s identity or, in the alternative, allowing A.O. to challenge the constitutionality of s. 110(2)(a). The youth court judge declined both requests. In respect of the constitutional issue, he ruled: The offenders further submitted that there are constitutional problems because s. 110 of the YCJA may impose a reverse onus. I disagree. There is no notice of constitutional ques-tion served or filed in this matter. Further, under s. 110 of the [YCJA], the publication ban is automatically terminated after imposition of the adult sentence. To be successful in an application for an adult sentence the Crown bears a very heavy onus, as I outlined in my November 17th reasons on the adult sentence applications. At that time, I found that in this case, the Crown had met that very heavy onus. Therefore, I disagree with the offenders’ submission on the constitutional issue. [124] Before this court, A.O. again seeks to argue that s. 110(2)(a) is unconstitutional because it provides for the automatic lifting of the ban under s. 110(1) where a young person is sentenced as an adult pursuant to the YCJA. For two reasons, we agree with the Crown that this court should decline to address this issue in this case. [125] First, although A.O. raised this issue before the youth court judge at the beginning of his sentencing hearing, A.O. failed to serve the requisite notice of a constitutional question on either the provincial or the federal Attorney General. Consequently, neither Attorney was provided with proper notice of A.O.’s constitutional challenge. Nor was any adjournment of A.O.’s sentencing hearing sought to permit the service of the requisite notices. [126] Second, because the required notices of a constitutional question were not delivered, neither Attorney was furnished with an adequate or timely opportunity to lead evidence in defence of the constitutionality of the impugned section of the YCJA. In the result, no evidentiary foundation for A.O.’s constitutional challenge was established before the youth court judge. Moreover, this court does not have the benefit of the youth court judge’s reasoning on the issue. [127] In these circumstances, where the evidentiary record before this court is insufficient to permit adjudication on the constitutional issue raised, where inadequate notice of the issue was provided to the applicable authorities, and where the youth court judge’s reasoning on the question is unavailable, we decline to exercise our discretion to consider this issue on the merits. See R. v. Rees (1994), 19 O.R. (3d) 122 ( C.A. ) at 134-5; Mackay v. Manitoba , [1989] 2 S.C.R. 357 at 361; Danson v. Ontario (Attorney General) , [1990] 2 S.C.R. 1086 at 1099. V. DISPOSITION [128] A.O. and J.M. are granted leave to appeal. For the reasons given, A.O.’s appeal is allowed in part, the youth court judge’s placement decision concerning A.O. is set aside, and a new placement hearing for A.O. is ordered. In all other respects, A.O.’s appeal is dismissed. J.M.’s appeal is dismissed in its entirety. RELEASED: “MR” “Dennis O’Connor A.C.J.O.” “MAR -6 2007” “M. Rosenberg J.A.” “E.A. Cronk J.A.” [1] Section 74(1) of the YCJA provides that Part XXIII of the Criminal Code (sentencing) applies to a young person in respect of whom the youth justice court has ordered that an adult sentence be imposed. [2] On April 21, 2006, a panel of this court stayed the placement decision of the youth court judge concerning A.O. pending the hearing of his appeal and ordered that A.O. be returned to the youth facility. This stay was extended pending the release of our reasons for judgment, but the stay was to expire on A.O.’s twentieth birthday in view of s. 93 of the YCJA, which provides that when a young person attains the age of twenty years he is to be transferred to the provincial correctional facility for adults to serve the remainder of the youth sentence unless the provincial director orders otherwise. In December of 2006, while the case was still under appeal, A.O. applied for a further stay of the placement decision although he was about to turn twenty years of age. The Crown agreed that this court had jurisdiction to make that order and fairly did not oppose the making of that order. A.O. has thus remained in the youth facility.