R. v. C., J.

R. v. C., J. Collection Decisions of the Court of Appeal Date 2000-02-28 Docket numbers C32641 Judges Doherty, David H.; Feldman, Kathryn N.; O’Connor, Dennis Subject Criminal Decision Content DATE: 20000228 DOCKET: C32641 COURT OF APPEAL FOR ONTARIO DOHERTY, FELDMAN and O'CONNOR JJ.A. BETWEEN: ) ) Randy Schwartz HER MAJESTY THE QUEEN ) for the appellant ) (Applicant) ) ) - and - ) David Gibson ) for the respondent J. C. (A YOUNG PERSON) ) ) (Respondent) ) ) Heard: January 26, 2000 On appeal from the order of Madam Justice Little dated July 7, 1999.* DOHERTY J.A.: I [1] The respondent is charged with first degree murder. He was one month short of his eighteenth birthday when the alleged offence occurred (August 2, 1998). Under the terms of s. 16(1.01) of the Young Offenders Act, R.S.C. 1985, c. Y-1, as amended, 1992 c.11, s.2; 1995 c. 19, s. 8 (the Act), the respondent must be tried in ordinary court unless, upon application to a youth court judge, he is ordered tried in youth court. He made that application and on July 7, 1999, Justice Little ordered the respondent tried in youth court. The Crown seeks a review of that order pursuant to s. 16(9) of the Act. [2] Pending this review, the matter has proceeded in youth court. The respondent elected trial by judge and jury and was committed for trial on the charge of first degree murder after a preliminary inquiry. No trial date has been set. [3] This is a difficult case. After anxious consideration, I would confirm the order made by Little J. II [4] The homicide occurred in Big Trout Lake, a remote First Nations community of approximately 1,200 people located some 400 km. north of Sioux Lookout. Big Trout Lake is accessible only by air. The respondent had lived in Big Trout Lake most of his life, although he had been away from the community for a brief time shortly before the homicide. The victim, Darren Sainnawap, was eighteen years old. He and the respondent had been longtime friends, but in the months prior to the homicide their friendship had soured. [5] The respondent has acknowledged from the outset that he shot and killed the victim. He claims that the gun discharged accidentally. Before this court, his counsel submitted that even on the respondent’s version of events he was engaged in an unlawful act when the gun discharged and was, therefore, guilty of manslaughter. [6] The Crown contends that the discharge of the gun was no accident, but rather the end product of a decision made some hours earlier by the respondent to kill the victim. The Crown submits that this was a planned and deliberate murder. [7] The respondent, the victim, and many other young people attended a “home brew” party that started the night before the homicide. The party carried on at different locations over several hours. The respondent and victim were both drinking “home brew.” During the party, the victim and the respondent quarreled. It seems that there were two reasons for the animosity that had developed between them. First, the respondent had recently found out that the person he believed to be his father was not his father, and his real father was the victim’s father. Their father had suggested to the victim that he was “spoiled rotten” compared to the respondent. Second, the respondent’s former girlfriend, for whom he had strong feelings, was, at the time of the homicide, the girlfriend of the victim. [8] The victim was the aggressor in the arguments with the respondent at the party. The evidence suggested that the respondent was not anxious to fight with the victim and went so far as to suggest that they fight the following Monday when, if things went according to his plan, the respondent would have left Big Trout Lake. [9] The respondent left the party at about 5:00 a.m. He was seen about two hours later walking along a causeway armed with a rifle. He fired a shot into the ground in front of him. Shortly before 8:00 a.m., the respondent encountered the victim walking along a boardwalk. They quarreled and the respondent shot and killed the victim. There were three witnesses who were within several feet of the homicide. Their descriptions of the homicide varied, although it would appear that the respondent and the victim were standing about two feet apart arguing when the victim grabbed the barrel of the gun. The respondent fired the gun, shooting the victim in the chest. He also hit the victim in the face with the gun before the victim fell to the ground. There was evidence from which it could be inferred that the respondent loaded the rifle immediately before shooting the victim. [10] The respondent walked away from the scene and threw the rifle into a bush near the boardwalk. Within moments, he encountered Fred Sainnawap, a First Nations Constable, driving his vehicle towards the boardwalk. The Constable was unaware of the shooting. The respondent flagged down the police car, entered the vehicle and immediately told Constable Sainnawap that he had killed the victim. The Constable detected an odour of “home brew” coming from the respondent, and observed that he was glassy eyed. The Constable believed, however, that the respondent was not intoxicated. He was not staggering, had no difficulty communicating with the Constable, and seemed calm. [11] The police investigation indicated that after leaving the party, the respondent had walked to the home of David Hudson, where he was staying. He had taken one of Hudson’s rifles, sawed off the butt, obtained some ammunition for the rifle from Hudson’s home, and walked back toward the location of the party. He encountered the victim on the boardwalk on his way back to the party. [12] There was an indication in the predisposition report that the respondent had some loose connection to aboriginal youth gangs in the community. The police were never able to substantiate any connection between the respondent and these gangs. There was no allegation that the shooting was gang related. [13] The investigating officer agreed during cross-examination that there was no evidence that the respondent was “hunting” the victim when he came across him on the boardwalk. The officer agreed that the respondent would have had no way of knowing that the victim would be on the boardwalk at that time. III [14] Before addressing the principles governing the transfer application and considering the evidence in some detail, it is helpful to describe this court’s function on this appeal. Section 16(9) of the Act provides: An order made in respect of a young person under this section … shall, on application of the … Attorney General … made within thirty days after the decision of the youth court, be reviewed by the court of appeal, and that court may, in its discretion, confirm or reverse the decision of the youth court. [Emphasis added.] [15] The appellate court must consider the applicable statutory principles and make its own evaluation of the merits of the application. In doing so, the appellate court will accept any credibility assessments and findings of fact made by the judge hearing the application unless those findings are unreasonable or are based on a misapprehension of the evidence or a failure to consider relevant evidence: R. v. M.(S.H.) (1989), 50 C.C.C. (3d) 503 at 548-49 (S.C.C.); R. v. C.(D.) (1993), 85 C.C.C. (3d) 547 at 558 (Ont. C.A.), leave to appeal to S.C.C. refused (1994), 86 C.C.C. (3d) vii. IV [16] As indicated earlier in these reasons, a 17 year-old charged with murder will be tried in ordinary court unless on application to the youth court, the young person is ordered tried in youth court. The test to be applied in deciding whether a transfer order should be made is found in s. 16(1.1) of the Act. It provides that the youth court: … shall consider the interest of society, which includes the objectives of affording protection to the public and rehabilitation of the young person, and determine whether those objectives can be reconciled by the youth being under the jurisdiction of the youth court … [17] If the youth court is satisfied that the two objectives referred to in s. 16(1.1) can be reconciled in youth court proceedings, the young person must be tried in that court. If they cannot be reconciled, the protection of the public is paramount and the youth must be tried in ordinary court (s. 16(1.1)(a),(b)). The onus to establish that the objectives can be reconciled falls on the party bringing the transfer application (s. 16(1.11)). [18] Section 16(1.1) provides a more focused test for the determination of transfer applications than the predecessor legislation. It looks exclusively to the objectives of the protection of the public and the rehabilitation of the youth. As Osborne J.A. observed in R. v. C.(D.), supra, at p. 557: Although I agree that the interest of society includes more than protection of the public and rehabilitation, the provisions of s. 16(1.1) are clear in their identification of only two elements of the interests of society - public protection and rehabilitation. It is protection of the public, on the one hand, and rehabilitation, on the other, which must be assessed with a view to determining whether those objectives can be reconciled within the youth court system. [19] Section 16(2) of the Act sets out the factors which the youth court must consider in determining whether the objectives of protection of the public and rehabilitation of the young person can be reconciled within the youth court system: 16(2) In making the determination referred to in subsection (1) or (1.03) in respect of a young person, a youth court shall take into account (a) the seriousness of the alleged offence and the circumstances in which it was allegedly committed; (b) the age, maturity, character and background of the young person and any record or summary of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt under this Act or any other Act of Parliament or any regulation made thereunder; (c) the adequacy of this Act, and the adequacy of the Criminal Code or any other Act of Parliament that would apply in respect of the young person if an order were made under this section, to meet the circumstances of the case; (d) the availability of treatment or correctional resources; (e) any representations made to the court by or on behalf of the young person or by the Attorney General or his agent; and (f) any other factors that the court considers relevant. [20] The factors identified in that section are applied in conjunction with the broad principles underlying the Act: see R. v. M.(S.H.), supra, at pp. 541-42. Section 3 of the Act lays down those principles: 3(1) It is hereby recognized and declared that (a) crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi- disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future; (a.1) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions; (b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour; (c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance; (c.1) the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences, and rehabilitation is best achieved by addressing the needs and circumstances of a young person that are relevant to the young person’s offending behaviour; (d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences; (e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms; (f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families; (g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and (h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate. (2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1). [21] The statutory framework to be addressed on a transfer application is complex and refers to broad principles, some of which seem almost irreconcilable. Stripped to its essentials, however, the scheme directs that the judge hearing the application accept that the primary concern is the protection of the public, and that he or she consider whether the rehabilitation of the young person can be achieved without compromising the protection of the public. As long as the young person poses a danger to the public, removal from the community affords the only adequate protection for the public. The long- term protection of the public is, however, best served by the rehabilitation of the young person so that he ceases to pose a danger to the public. It is, therefore, necessary to contemplate a sentence or disposition which promotes the rehabilitation of the young person, while at the same time protecting society as long as the young person remains a danger. The crucial questions on transfer applications become: Is the young person presently a danger to the public? Can the young person be rehabilitated so that he or she ceases to pose a danger to the public? Can the rehabilitation be achieved within the disposition scheme established under the Act? Can the public be adequately protected through the disposition scheme established under the Act during the rehabilitative process? [22] If the answer to the first question is “no”, the young person will be tried in youth court. If, however, the court is not satisfied that the young person is not a present danger, the young person will be tried in ordinary court unless, where the young person has the onus, as is the case here, he or she can satisfy the youth court that the answer to the last three questions is “yes.” [23] Answers to these three questions require that the court look well into the future and measure concerns and prospects that are inherently difficult to gauge with any certainty. The young person cannot be expected to convince the court to a certainty that each question can be answered in the affirmative. A young person seeking transfer to youth court must demonstrate that it is likely that he or she can be rehabilitated; that it is also likely that, by the termination of any disposition imposed under the Act, the young person will be sufficiently rehabilitated so as to no longer pose a danger to the public; and that it is likely that the public can be adequately protected under the disposition scheme established under the Act during the rehabilitative process: R. v. W.(B.) (1997), 121 C.C.C. (3d) 419 at 423 (Ont. C.A.). [24] Until recently, the duration of dispositions available under the Act was not sufficiently long to protect the public during the lengthy rehabilitative process needed in most cases where young persons were charged with the offence of murder. A trial in youth court was, therefore, often not a viable option. Recent amendments have significantly extended the potential duration of dispositions imposed under the Act. Under s. 20(1)(k.1) and s. 26.1 of the Act, a young person convicted of first degree murder in youth court may be subject to a disposition which extends for 10 years. The young person may be required to serve the entire 10 years in a secure setting.1 Although the dispositions available under the Act can stretch forward 10 years from the date of disposition, there can be no restriction on the young person’s liberty when the disposition is complete. The young person must be released upon completion of the disposition, regardless of the danger he may present to the public. [25] While the dispositions now available under the Act are more suitable to young persons convicted of murder than those previously available under the Act, there are still significant differences between potential dispositions under the Act and the sentence imposed on a young person convicted of first degree murder in ordinary court. A 17 year-old young person convicted of first degree murder in ordinary court is sentenced to life imprisonment. He is eligible for parole after 10 years.2 He may, however, remain incarcerated beyond that time and perhaps for the rest of his life. Even if released on parole, the young person remains subject to the restrictions imposed by the parole conditions for the rest of his life: Criminal Code, s. 745.1. [26] In addition to the potential duration of any disposition imposed on the young person if he is tried in youth court, the availability of treatment to assist in the rehabilitation of the young person must be considered. Here, too, recent amendments to the Act and the Criminal Code have eliminated many of the distinctions which formerly existed between young persons processed through the youth court and those dealt with in ordinary court. If the respondent is convicted either in youth court or in ordinary court, the court may, under s. 16.2 of the Act, direct that the sentence or disposition be served in the youth facility or in an adult facility. Furthermore, since the respondent will be 20 years old in September, he will serve his disposition or sentence in an adult facility from that point forward: Young Offenders Act, s. 24.5; Criminal Code, s. 743.4. If the respondent is convicted of murder, the placement options available to the court are not significantly different whether the respondent is proceeded against in ordinary court or in youth court. The same can be said for the treatment services which may be available to assist in the rehabilitation of the respondent. As Crown counsel put it in his factum: … regardless of whether a young person is tried in ordinary court or youth court, similar placement options are available to the court to meet the young person’s needs and the circumstances of the case. [27] Given the disposition options available under the Act, Little J. had to decide whether she was satisfied that the respondent would likely not pose a danger to the public upon his release if held in a secure setting for up to 10 years (but not a day longer), where he could receive the benefit of services and programs intended to further his rehabilitation. To make this decision, Little J. had to consider the circumstances of the alleged offence and the respondent’s background and character. V [28] A young person charged with murder who makes an application to be tried in youth court has, of course, not been found guilty of any offence and is still protected by the constitutionally entrenched presumption of innocence. The concepts of the protection of the public and the rehabilitation of a young person referred to in s. 16(1.1) of the Act, however, have meaning only if the young person has committed the alleged crime. A transfer application with its relaxed rules of evidence is no place to engage in a full blown trial or to make determinations of culpability. In my view, the judge hearing the transfer application can only properly address the issues raised by s. 16(1.1) if he or she assumes that the Crown will prove the allegation made against the young person. Section 16(2)(a) of the Act, which requires a judge to consider the seriousness of the “alleged” offence and the circumstances in which it was “allegedly committed”, supports the view that the judge must proceed on the basis that the offence was committed by the young person. [29] In this case, Little J. was required to accept that the Crown would establish that the respondent committed a planned and deliberate murder. She did so when she said: For the purpose of this application, I believe I must accept the theory offered by the Crown. [30] I do not, however, agree that the judge must accept all of the evidence offered by the Crown touching on the circumstances of the alleged offence or the young person’s culpability for that offence. The judge has a fact finding responsibility and cannot abdicate that function by simply accepting as fact all of the evidence tendered by the Crown. If the Crown leads evidence that it claims supports factual findings relevant to the circumstances of the alleged offence or the young person’s conduct in relation to the offence, the judge must weigh the credibility and reliability of that evidence before accepting it. In performing this task, I do not suggest that the judge must test the evidence in the way he or she would on a trial. The judge should accept as fact evidence tendered by the Crown if that evidence is reasonably capable of belief and also reasonably capable of supporting the finding of fact urged by the Crown. [31] Authorities from this court are consistent with the position outlined above. In R. v. S.(G.) (1991), 5 O.R. (3d) 97 (C.A.), leave to appeal to S.C.C. refused (1992), 6 O.R. (3d) xiii, two competing versions of the homicide were advanced. On the Crown’s version, the homicide was committed in the course of a vicious robbery. On the young person’s version (advanced through a psychiatric report admitted as fresh evidence on the appeal), the young person killed the victim in a panicked response to a homosexual advance made by the victim. [32] Carthy J.A., in dissent, at p. 102, opined that the decision on the transfer application “must be made without presuming which version might be accepted by a judge or jury.” [33] Goodman J.A., for the majority, took a different view. He observed that the circumstances surrounding the alleged offence were an important consideration in determining where the young person should be tried. Consequently, the judge hearing the application had to make findings with respect to the relevant circumstances. In describing the approach to be taken to that fact-finding function, Goodman J.A. said, at p. 112: … where there is conflicting evidence placed before the court considering an application under s. 16 of the Act, with respect to the manner in which the alleged offence was committed, such court is entitled to proceed on the basis of the evidence most damaging to the alleged offender, assuming that it is evidence capable of belief and not merely trifling in nature or amounting to no more than mere conjecture. [34] Goodman J.A. considered the competing versions of events placed before the Court of Appeal and concluded that the more inculpatory version of events provided by the young person in his initial statement should be preferred over the exculpatory version given to the psychiatrist many months later. [35] The approach favoured by Goodman J.A. is consistent with that followed in R. v. R.(S.) (1991), 1 O.R. (3d) 785 at 789 (C.A.) where this court said: … even though there were inconsistencies in the evidence presented at the hearing with respect to the nature of the participation of the applicant in the murder, the youth court judge was entitled to take into account under s. 16(2)(a) of the Act, as proven for the purposes of the application, not only that the applicant had committed first degree murder as alleged but also the circumstances as alleged, that is to say, the manner in which it was committed. [36] Other provincial courts have taken the same view of the fact finding role of a judge on a transfer application: see R. v. B.(R.V.) (1994), 145 A.R. 384 at 387 (C.A.); R. v. G.(W.P.) (1999), 119 B.C.A.C. 145 at 152 (C.A.). [37] The distinction between assuming that the Crown will prove the allegation and accepting as fact all of the evidence led by the Crown is of some significance in this case. In addition to evidence from which it could be inferred that the respondent murdered the victim and that the murder was planned and deliberate, the Crown led evidence of an alleged threat made by the respondent against Priscilla McKay some six months after his arrest. Ms. McKay was the victim’s girlfriend when he was killed and had previously been the respondent’s girlfriend. The threat was allegedly made while the respondent was in jail and was passed on to Ms. McKay by a cell mate. If accepted as fact, this threat may be evidence on the charge and, more importantly on the s. 16 application is significant evidence that the respondent was an ongoing danger to the public as of January 1999. [38] The evidence of the threat came through the investigating police officer. He testified that he spoke to Ms. McKay who said she had spoken to the cell mate of the respondent who told her that the respondent intended to kill her when he was released from jail. The police officer then spoke to the cell mate and was advised: … Jeffrey Winter [the cell mate] had contacted Priscilla McKay [the girlfriend] and put J.C. [the respondent] on the phone at one point, had no idea what in fact J.C. had said and he had – Jeffrey Winter also indicated that Priscilla had better be careful, I believe, something might happen to her from J.C. [39] The police officer’s evidence considered in its totality could not reasonably support the inference that the respondent had threatened Ms. McKay. It went no further than to indicate that the cell mate believed Ms. McKay should be concerned about her safety, told her so, and that Ms. McKay took this to be a threat from the respondent. Little J. did not refer to this evidence in her reasons. I take this to mean that she did not give it any weight. If I am correct that Little J. gave this evidence no weight, I accept her assessment. If her silence indicates that she failed to consider the evidence, I do so now and would not give it any weight. [40] Although I would not give any weight to the alleged threat made by the respondent against Ms. McKay, the nature of the charge and the circumstances surrounding the alleged murder raise very serious concerns that the respondent poses a significant risk to the community. Indeed, accepting the Crown’s theory, there can be no doubt but that he was a danger to the public as of August 1998. The respondent’s age (17 years 11 months) also tells against a transfer to youth court: R. v. S.(G.), supra, at 109. VI [41] The respondent attempted to counter the inference of dangerousness raised by the allegation and the circumstances of the alleged offence with evidence that he was not a violent person and did not suffer from any psychiatric illness which would render him an ongoing danger to the public for some indefinite time. Counsel for the respondent acknowledged that the respondent had significant social and psychological problems, but contended that those could be addressed and rectified within the youth court system and within the 10-year time period during which he could be held in a secure setting. Counsel relied on the predisposition report and the report and testimony of Dr. Sheppard, a psychiatrist. [42] The respondent was born on September 7, 1980. He is the eldest of four brothers. He was raised by his mother and father and his material needs were met during his childhood. His childhood was, however, marred by physical and verbal abuse within the family. Both parents drank too much and the respondent’s father physically abused the children. The respondent’s mother stopped drinking when he was about 11 years old and his father learned to control his substance abuse over time. As of the date of the transfer application, the respondent’s parents were divorced but both were very concerned about the respondent’s well-being and offered whatever support they could for him. [43] The respondent began to use alcohol and other drugs when he was 13 years old. He associated with a peer group in the community that regularly took drugs, drank too much and engaged in anti-social conduct while under the influence of alcohol and drugs. The respondent’s substance abuse worsened so that by the time he was 17 years old he had a very serious problem with alcohol and drug abuse. That abuse had a negative effect on his school work, employment history and his relationship with his parents. [44] The respondent also manifested signs of depression and developed a suicidal ideation. His depression was exacerbated by the suicide of a girlfriend. The respondent reportedly attempted suicide on one occasion. [45] The respondent’s teachers and employers described him as a quiet worker, polite and respectful. He appears to have been an average student, although as his drug abuse worsened, his performance at school and in various jobs deteriorated significantly. [46] The respondent was found guilty of impaired driving in April 1998 and was on probation at the time of the alleged murder. He had completed a portion of the community service order made as a part of the probation order. [47] By August 1998, the respondent was very much a part of the “partying scene” in Big Trout Lake. He was reportedly part of a group of young people who were involved in fighting, stealing and other reckless behaviour. The local police did not, however, regard the respondent as violent or overly aggressive. He had not been charged with any criminal offence other than the impaired driving conviction in April 1998. [48] The four or five months leading up to the homicide was a very difficult time for the respondent. He revealed for the first time that he had been sexually abused as a child; he was trying to come to grips with the realization that the man he had always thought of as his father was not his father; his lifelong friendship with the victim had ended; his relationship with Ms. McKay had ended and she was now seeing the victim; his substance abuse continued to escalate; and his relationship with his family continued to deteriorate. [49] In June 1998, the respondent took part in a one-week family counselling session aimed in part at helping him overcome his substance abuse. He was not motivated to continue that counselling. The respondent also left Big Trout Lake and went to live with his grandmother in an effort to get away from the negative influences in that community. He returned to Big Trout Lake shortly before the alleged murder and rejoined the “partying scene.” He moved out of his parents’ home and into the home of a friend. [50] The respondent became involved in the educational, recreational and counselling programs available to him in the institutions after his arrest in August 1998. He was cooperative, compliant and had not been involved in any inappropriate conduct or received any reprimands. He tended to isolate himself from other residents who had a tendency to incite questionable or challenging behaviour. Although transfers to various correctional institutions had interfered somewhat with the respondent’s programs, he was able to attend school and was working at a grade 9 level. He had strong writing abilities and was capable of working at or above a grade 9 level. His teacher described him as polite, cooperative, and appropriately assertive. The respondent has expressed a desire to continue his education. [51] The author of the predisposition report identified the respondent’s substance abuse as a key negative feature of his background and a considerable impediment to his psychological and social development. He summarized his interaction with the respondent as follows: … the subject presented himself in a cooperative, relatively articulate and polite fashion, offering unsolicited insights into his behaviour and an acceptance of responsibility for the circumstances in which he now finds himself. … [52] In addition to the information provided in the predisposition report, Little J. had an assessment prepared under s. 13 of the Act by a psychiatrist, Dr. Sheppard. Dr. Sheppard interviewed the respondent on two occasions, reviewed his medical records, clinical records from a brief counselling session in 1998, a previous psychiatric report, information relating to the circumstances of the crime, witness statements, and the results of certain psychological testing performed after the respondent was incarcerated on this charge.3 [53] In his report, Dr. Sheppard indicated that the respondent did not suffer from any identifiable psychiatric illness. There was nothing to suggest that he suffered from any mental disorder that would affect his criminal responsibility. Dr. Sheppard also wrote that the respondent had significant psychological and social problems. Most prominent amongst these was his alcohol and drug abuse which were ongoing since the age of 13. Dr. Sheppard indicated that the respondent had experienced difficulties with mood instability. There were indications of previous bouts of depression and problems with anger control. Neither were, however, in the forefront when the respondent was interviewed and evaluated by Dr. Sheppard. The respondent did not require treatment for depression and difficulties with anger control had not manifested themselves since his incarceration. [54] Dr. Sheppard also observed that the respondent’s overall I.Q. level was in the normal range. There was, however, a large discrepancy between his verbal and performance skills. The former was low whereas the latter was in the high average or superior range. Dr. Sheppard explained that the difference was possibly attributable to a head injury the respondent had suffered as a 13 year old. Dr. Sheppard could not, however, find any evidence of any ongoing effect from that injury and could not come to any conclusion as to what impact, if any, the injury had on the respondent’s intellectual and psychological functioning. [55] Dr. Sheppard referred to a number of destabilizing events in the respondent’s life: his parents were divorced; he had been physically and sexually abused as a child; a girlfriend had committed suicide about two years before the alleged offence; and his relationship with a subsequent girlfriend (Ms. McKay) was a difficult one. The respondent also found himself part of a peer group in which substance abuse and physical altercations were more the norm than the exception. These events contributed to his mood instability and substance abuse. [56] Dr. Sheppard summarized his findings and opinions in these terms: To summarize briefly, [the Respondent] does not suffer from an identifiable psychiatric illness. He has however been prone to significant problems with substance abuse and he will require professional assistance in this area. He has also been traumatized to some extent in his childhood, and counselling in this area may be of benefit to him as well. He has been prone to a certain amount of psychological and behavioural instability, presumably on account of characterological vulnerabilities which may stem from his unstable childhood. He has had problems with both depression and anger control in the past, although these are not prominent at present. Finally, the possibility that [the Respondent] has suffered from an acquired brain injury in the past could be further investigated in the future. The prognosis is difficult to estimate with certainty at this time. There are however some favourable prognostic signs. [The Respondent] has responded positively to institutional residence over these past few months. His mood has appeared to be stable and his attitude has been generally constructive. He has been willing to accept some responsibility for his problems, he has verbalized some insight into his problems with alcohol and drug abuse, and he has expressed a willingness to attend a residential treatment program. Despite his history of antisocial behaviour in the past similar behavioural patterns have not surfaced in the institutional setting which, again, might be regarded as a favourable prognostic sign in that it tends to confirm the absence of entrenched characterological pathology. [The Respondent] has shown the ability to benefit from involvement in a therapeutic institutional milieu, and this is a favourable sign. On the other hand, [the Respondent’s] psychological and behavioural problems have been quite longstanding and persistent. Although he has been in a therapeutic environment he has not been involved in treatment, and his actual ability to benefit from treatment interventions remains unknown. In the past he has been unwilling to follow treatment recommendations although, as indicated, his attitude appears to be more constructive at this time. [The Respondent’s] actual prognosis will depend partly on his consistent willingness to apply himself during the course of his treatment and rehabilitation which will no doubt be a reasonably long-term proposition. [57] Dr. Sheppard also testified on the transfer application. He had considerable experience with aboriginal clients and was familiar with the Big Trout Lake community. [58] He described the respondent as having a level of maturity which was consistent with his age. He said that the respondent was cooperative, volunteered information and did not appear overly defensive or resistant to the assessment. Dr. Sheppard believed that the respondent demonstrated various psychological vulnerabilities as manifested by his depression, anger and poor self-esteem. These vulnerabilities had a negative effect on his ability to cope with the many problems he had encountered in his life. His substance abuse was a manifestation of his inability to cope in an appropriate manner with problems that he encountered. The one effort to counsel the respondent with respect to substance abuse had proved ineffective because the respondent was not prepared to cooperate. He felt that he was being forced to participate in the counselling and preferred to handle things his own way. Dr. Sheppard, however, perceived that the respondent’s attitude toward obtaining help for his problems had changed since his incarceration. [59] Dr. Sheppard was of the view that the psychological vulnerabilities demonstrated by the respondent were the product of instability in his upbringing, peer group pressures, and the physical and sexual abuse he suffered as a child. [60] Dr. Sheppard testified that he saw no evidence of a sustained pattern of behaviour which he would describe as anti- social in nature. He would not diagnose the respondent as having a personality disorder or its adolescent equivalent, a conduct disorder. He said: … I don’t think I would have diagnosed a conduct disorder based on the information I had with respect to his, his behaviour as a child and adolescent. I think that there were some areas where his behaviour was certainly unhealthy and I’ve described it as maladaptive in some ways, but it didn’t seem to be extreme or outside what you might expect considering the sort of psychosocial environment in which he was living. That is, it’s, he was involved with a peer group, for example, that was, I think, demonstrating many of the same sorts of behaviours that he was and you know, measured against that sort of a, a standard, I don’t think his behaviour would’ve been seen as that unusual so I would not have diagnosed a conduct disorder in his case. [61] Dr. Sheppard testified that the respondent needed treatment for his substance abuse and psychological counselling. He indicated that both should occur initially in an institutional setting and continue after the respondent was returned to the community. Dr. Sheppard indicated that the time needed to treat the respondent’s substance abuse in an institutional setting could range from four months to two years. He also testified that the psychological counselling should be directed at assisting the respondent in coming to grips with unresolved problems and helping him to develop mature and socially acceptable coping mechanisms. Dr. Sheppard was of the view that this counselling could be a “fairly long term proposition” and should begin with intensive treatment in an institutional setting followed by long term out-patient counselling. [62] Dr. Sheppard was careful to indicate that it was very difficult to predict how anyone would respond to the treatments he suggested. He indicated that the effectiveness of any treatment depended in large measure on the person’s willingness to apply himself to the treatment. This variable could not be measured until after the treatment was well underway. [63] It became apparent during Dr. Sheppard’s evidence that he had based his opinions in part on the version of the relevant events given to him by the respondent. According to that version, the respondent had obtained the rifle to intimidate those people who had been threatening him during the evening. He felt he had to show them that they could not “mess with him.” The victim was not one of these people. The respondent said that he encountered the victim on the boardwalk and that the victim challenged him. They struggled over the gun and it went off by accident when the respondent slipped. [64] Counsel for the respondent, no doubt anticipating that Little J. would accept the Crown’s allegation that the respondent had committed a planned and deliberate murder, asked Dr. Sheppard whether his opinion and prognosis would be different if the Crown’s version of events was accepted. Dr. Sheppard was unable to give a definitive answer. He said that the Crown’s version of events was inconsistent with the profile he had developed of the respondent’s character and that he would have to “talk to him again and find out what really happened.” [65] Dr. Sheppard testified that the allegations of the Crown were indicative of a seriously anti-social act. He suggested that the Crown’s version of events could indicate that, contrary to his present opinion, the respondent did fit the anti-social personality profile. That version could also indicate that the respondent had suffered a “temporary overwhelming of his coping abilities” as a result of the numerous difficulties he had encountered in the months prior to, and on the evening of the homicide. Dr. Sheppard expressed the opinion that if the homicide was the product of a “temporary overwhelming of coping abilities” the treatments he had described earlier in his evidence would be appropriate. He said: He would still have these, these psychological issues that should be looked at. I guess what it would do is indicate a greater precariousness, if you like, or sort of a more extreme fragility in the sense that one, you’d be forced to accept that his behaviour under certain circumstances could become extremely abhorrent and dangerous indeed so, but as to whether or not that would be, indicate a different issue that needed treatment, not necessarily. I mean, likely not, in fact. [66] Dr. Sheppard agreed with the Crown in cross-examination that if the respondent had lied to him about the circumstances of the offence, those lies suggested a deviousness and a refusal to accept responsibility which do not augur well for effective treatment of the respondent. [67] Crown counsel also pressed Dr. Sheppard on his view that the appellant did not demonstrate an anti-social personality disorder or a conduct disorder. Dr. Sheppard agreed that the respondent had engaged in anti-social behaviour, but opined that it had not reached the degree or the repetitiveness necessary to permit the diagnosis of a conduct disorder. Dr. Sheppard referred to the numerous reports from various sources ranging over a number of years that described the respondent as pleasant, easygoing, polite and cooperative. He said these characteristics were inconsistent with a person suffering from a conduct disorder. VII [68] The determination of whether the respondent could likely be rehabilitated in the youth court system during the tenure of a disposition available under that system turned in large measure on the nature of his psychological and social problems. If those problems were rooted in a conduct disorder, the respondent’s rehabilitative prospects were significantly reduced as were the chances that his rehabilitation could be affected within a fixed period of time. Little J. concluded that the respondent did not suffer from a conduct disorder. [69] Mr. Schwartz, for the Crown, in his able and even handed submissions, argues that this conclusion was not open on the evidence. He submits that Dr. Sheppard’s opinion that the respondent did not have a conduct disorder was based on Dr. Sheppard’s acceptance of the respondent’s version of events. Dr. Sheppard could not exclude the possibility of a conduct disorder if the Crown’s version of the relevant events was true. Mr. Schwartz argues that since Little J. accepted the Crown’s version of events for the purposes of the transfer application, Dr. Sheppard’s evidence could not support a finding that the appellant did not suffer from a conduct disorder. It is Mr. Schwartz’s position that on the evidence there is no explanation for the respondent’s conduct and no informed assessment of his rehabilitative potential can be made at this time. Consequently, he argues that the respondent failed to discharge the onus on him and Little J. should have refused to make the transfer order. [70] Little J. referred to this submission in her reasons. She clearly did not accept it. Even though Dr. Sheppard’s opinion that the respondent did not suffer from a conduct disorder had to be qualified, given the acceptance of the Crown’s version of events, I think it was open to Little J. to find that the respondent did not suffer from a conduct disorder. Dr. Sheppard made it clear that the diagnosis of a conduct disorder must be based on a course of conduct and not on a single event. On the record before Little J., there was little, if anything, in the respondent’s history prior to the homicide or in his conduct subsequent to the homicide, that could support a finding that he suffered from a conduct disorder. In fact, as Dr. Sheppard pointed out, the numerous descriptions of the respondent’s personality drawn from various sources over many years were inconsistent with the diagnosis of a conduct disorder. [71] Dr. Sheppard’s suggestion that the respondent’s conduct as described in the Crown’s version of events could be explained by “a temporary overwhelming of coping abilities” had great force when considered in the context of the events leading up to the killing. The respondent, who was psychologically very vulnerable to begin with, was operating in a very negative environment and had been beset by a series of psychological blows in the months prior to the killing. He had also been subjected to physical and verbal abuse from his peer group on the night of the killing. He was under the influence of alcohol. In my view, these events offer strong support for a finding that the respondent’s conduct was the product of “a temporary overwhelming of his coping abilities.” Dr. Sheppard had testified that if the murder was planned and deliberate but was the product of situational stress which overwhelmed the respondent’s coping mechanisms, then in all likelihood the treatment of the respondent would be the same as that outlined by Dr. Sheppard in his initial opinion. [72] The respondent’s behaviour in the year and a half since his incarceration also offers good reason to conclude that he can be successfully rehabilitated within the time periods allowed for under dispositions imposed under the Act. His removal from the negative influence of the peer group he associated with, combined with access to educational and counselling programs within the institutions, have already benefited the respondent considerably. The record indicates that the respondent is now motivated to improve his lot in life and that he has gained some insight into his problems, including his substance abuse problem. His positive interaction with teachers and others, his desire to further his education, and his intelligence all suggest that the respondent has the means and the inclination needed to turn his life around over the next 10 years. The respondent’s failure to take advantage of an earlier counselling opportunity is cause for concern, but the circumstances are now so different that the respondent’s prior rejection of counselling is of little assistance in gauging his potential reaction to more intensive future efforts to assist him within an institutional setting. I think his conduct since his incarceration in August 1998 is a much better predictor of his rehabilitative potential. VIII [73] There is an understandable tendency to rely heavily on psychiatric opinions when assessing rehabilitative potential and potential dangerousness. A more definitive opinion from Dr. Sheppard based on an acceptance of the Crown’s allegations would have assisted Little J. Unfortunately, Dr. Sheppard could not provide a more definitive opinion. Little J. was still required to assess the totality of the evidence and make the determination required under the Act. Even if Dr. Sheppard could not put a specific medical label on the respondent’s problem, state with certainty what caused the problem, or predict with certainty the outcome of the course of treatment, Little J. had to decide whether the rehabilitation of the respondent and the protection of the public could be reconciled if the respondent was tried in youth court. She decided that those objectives could be reconciled. When I address the questions posed above in paragraph 21 in the context of this record, I come to the same conclusion. [74] I would dismiss the appeal. Released: February 28, 2000 “DD” “Doherty J.A.” “I agree K. Feldman J.A.” “I agree Dennis O’Connor J.A.” _______________________________ * A publication ban under s. 38 of the Young Offenders Act was made by Little J. and remains in effect. 1 The 10-year duration runs from the date of disposition and does not take into account pre-trial custody. In this case where the respondent has been in custody since his arrest, and it is likely that his trial will not take place until almost two years after his arrest, he could be subject to a period of confinement of almost 12 years. 2 The period of parole ineligibility runs from the time of confinement. Consequently, this respondent, if convicted of first degree murder, would be eligible for full parole 10 years after his arrest (August 2008). He would also be eligible for some form of partial release 8 years after his arrest. 3 In his factum, Crown counsel suggested that because most of this information was not before the court, the factual foundation of Dr. Sheppard’s opinion had not been proven. Whatever the merits, if any, of this contention in a trial setting, I am satisfied that it had no effect on Dr. Sheppard’s opinion for the purposes of the s. 16 application. The strict rules of evidence do not apply. There is also no suggestion that the Crown did not have this information available to it and could not have, had it seen any benefit in doing so, placed this material before the court.