J. 2003 SKPC 139 INFORMATION #37201666, 39841185, 40484796, 40484175, 39840902 IN THE PROVINCIAL COURT FOR SASKATCHEWAN YOUTH CRIMINAL JUSTICE COURT SASKATOON, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN S. T. T. M. Gray For the Crown K. Healy For the Accused REASONS FOR DECISION RENDERED: S.P. WHELAN, PCJ October 6, 2003 Introduction [1] This was an application by the Provincial Director pursuant to s. 98 of the Youth Criminal Justice Act for continuation of the custody portion of a custody and supervision sentence made pursuant to s. 42(2)(n). [2] The application, dated October 3rd, came to the attention of the Court on October 3rd during the youth docket. understood that the custody portion of the young person’s sentence would run out before the next court date, on Monday, October 5th. The Young Person was unrepresented and he, Crown counsel and the Court had no prior notice of this application such that we might address the issues in docket court that day. remanded S. T. T. to appear before me on Monday, October 6th. On that date ruled that he be released pending full hearing of the application. indicated then that would provide written reasons for my decision. This decision addresses the procedure as well as the substance of the application. [3] The Court was provided with Review (Progress) Report in support of the application. This in turn referred to psychological assessments and access was had to the Young Person’s file, specifically: psychological assessment dated April 2, 2003 and the Pre-Sentence Report prepared for this sentencing, dated April 9, 2003. The Crown filed record. [4] S. T. T. was born on February 12, 1985 and was 18 years of age when he appeared on this application. He was sentenced on April 9, 2003 to 180 days open custody followed by 90 days in the community, concurrent. The custody portion of the sentence expired October 5th and the community portion expires January 3rd, 2004. The offences, together with their occurrence dates are listed as follows: Sept 25/02 aggravated assault s. 268(1) designated serious violent offence. Oct 30/02 assault s. 266 Aug 1/02 breach of probation curfew s. 26 YOA Aug 14/02 breach of undertaking curfew s. 145(3) Aug 26/02 breach of undertaking failure to attend court s. 145(2)(a) Jan 6/03 breach of undertaking curfew s. 145(3) [5] He has record of previous findings of guilt as follows: Jan 22/01 sentenced to probation for year 70 hrs community service work for: possession of stolen credit card s. 342(1)(c) break, enter theft s. 348(1)(b) take motor vehicle without consent s. 335 May 10/01 sentenced to 42 days open custody year probation for: counts of break, enter theft possession of stolen property, under s. 355(b) assault s. 266 failure to comply with disposition s. 26 YOA Oct 2/01 sentenced to mos open custody mos probation for: robbery s. 344(b) failure to comply with disposition s. 26 YOA Dec 5/01 sentenced to time served for: prowl by night s. 177 Feb 27/02 sentenced to mos probation for: failures to comply with disposition s. 26 June 26/02 sentenced to 10 hours community service work for: failure to comply with disposition s. 26 Mar 11/03 sentenced to time served for: breach of undertaking s. 145(3) [6] This Young Person is serving sentence for two offences involving violence, one of which was designated serious violent offence and the record includes crimes of violence. He was convicted of assault in May of 2001 and of robbery in October of 2001. These offences are, more so than the other entries on his record, relevant to this application as they involve violence; however the Crown did not provide particulars of these offences. [7] He has not been charged with any new offences since the sentence was imposed on April 9, 2003. His last conviction was for an offence occurring January 6, 2003. [8] It is difficult to revisit the facts of offences for which someone has already been sentenced; however the aggravated assault and domestic assault for which he is serving remain relevant to this application. [9] The September 25, 2002 aggravated assault was committed when the Young Person was intoxicated due to alcohol. He had dispute with the Complainant over the sum of $10.00 and the purchase of cigarettes. According to the Pre-sentence Report and the Crown he hit the Complainant over the left eye with beer bottle. The Complainant chased him and he retreated into house. They confronted each other again and he stabbed the Complainant with knife, injuring him just below nipple. According to the hospital report the Complainant was punched and kicked numerous times and surgery was required to repair the knife wound but this aspect of the assault was not addressed in the submissions on this application. [10] The October 30, 2002 assault was upon his girlfriend who was, to his knowledge, pregnant at the time. He punched her twice about the head and face. This occurred in the presence of her year old child and while he was heavily under the influence of alcohol and cocaine. [11] Essentially this application was brought because the case plan for community reintegration broke down. It broke down due to perceived lack of commitment or compliance with the plan on the part of S. T. T. As understand the position of the Provincial Director, the concern was that as he had not followed through with his treatment needs, he presented as high risk to re-offend in violent way. [12] The author of the Review (Progress) Report advised that serious consideration was given to making an application for continuation on August 18th due to lack of commitment or compliance with case planning. However as S. T. T. made the necessary commitments at that time the application was not pursued. [13] The timing of the application was apparently determined when subsequently, it was learned that S. T. T.’s job had been terminated and he failed to report this and left the facility for two successive evenings, under the pretence of reporting to work. On the morning of October 1st he returned in condition where it was believed he was under the influence of an illicit drug. [14] The case plan included drug and alcohol treatment, parenting classes, anger management and personal counselling and in particular an alternatives to violence program for domestic violence. His participation did not meet the expectations of the Provincial Director. [15] S. T. T. was referred by his addictions counsellor to treatment centre for admission at the end of May, 2003. He declined to attend so arrangements were made for him to receive outpatient treatment on one-to-one basis with his addictions counsellor. He was tested positive for cannabiniods while in open custody on occasions between June 17th and October 1st. Four of these positive tests occurred during re-integration leaves. He opted to attend basketball camp rather than attend parenting classes and was unwilling to attend recommended counselling services outside his contact with Elder Duquette. His reluctance to participate in the treatment programs was at least in part based upon his desire to maintain his employment. According to his July 5th letter, attached to the Progress (Review) Report he wanted to have the ability to pay support for his son. [16] August 18th case conference was called and with S. T. T.’s commitment revised case plan was developed. He agreed to: attend Alternatives to Violence, reside apart from the victim to the assault, his girlfriend, until he completed the Alternatives to Violence programs, continue employment, and continue meeting with his addictions counsellor. [17] When in September he tested positive times during re-integration leaves, the leaves were discontinued and it was resolved that he would complete his sentence custody at the open custody facility. The planned post custody residential placement broke down as consequence. [18] S. T. T. has achieved some success while in custody. He maintained job at Mitchell’s Gourmet Foods for over months. S. .T. says that it broke down when he injured his back and misunderstanding grew out of that. He attended one to one addictions counselling. He had consistent contact with an Elder who counselled him and he played basketball in the Huskie’s summer League. He incurred no new offences in the 180 days that he was in open custody or indeed since his March 10th remand. He consistently paid child support for his son in the amount of $200.00 per month and saved approximately $1500.00 from his employment. Up to the point when Dr. Vandergoot examined him in late March, 2003, his was adapting very well to the routine at the remand facility and was not seen to be violent or aggressive by facility staff. [19] The psychological assessment on file was prepared by Dr. Vandergoot in April of 2003, at the request of the Court in preparation for sentencing. She said that he expressed remorse but exhibited somewhat limited empathy. He also tended to minimize the seriousness of his offending and attempted to shift blame onto others. He expressed desire to cut down on his use of drugs and alcohol but did not think he had an addiction problem. He denied having problem with anger or aggression. He had positive aspirations which included playing basketball, obtaining his grade 12 and playing role in parenting his son. [20] Cognitive testing revealed that overall he functions in the average range of intellectual functioning. Despite history of school attendance problems his academic achievement was fairly solid; his various skills ranged in capability from grades to 12. [21] Dr. Vandergoot found that his substance use was significant criminogenic factor and that there was pattern of anti-social and criminal behaviour. She observed that his pattern of compliance indicated more success in custody than in the community. Intensive supervision during the community portion of his sentence was recommended. [22] Regarding the risk of re-offending, Dr. Vandergoot stated on page 11 of her report: “Based on this youth’s past re-offending, the seriousness of the current offenses, the repeated use of knives in his offences, his minimization and rationalization of his offences, his non-compliance with probation orders, his substance abuse, and his difficulty accepting structure and supervision in his life, he will be at risk for violent re-offending in the community.” Counsel were unable to explain the reference to “repeated use of knives”. [23] It is important to stress that the Youth Criminal Justice Act presents marked departure, procedurally, from our previous experience under the Young Offenders Act. While the new Act has been in place for over months this was the first experience with an application of this nature in Saskatoon. It’s my intention that discussion of the procedure be helpful and instructive for future applications. Where the liberty of an individual is at issue, it’s important that the new procedures under the Youth Criminal Justice Act be well understood and followed carefully. [24] It is instructive to refer to the relevant portions of the Youth Criminal Justice Act, sections 98 and 99: Application for continuation of custody (1) Within reasonable time before the expiry of the custodial portion of young person's youth sentence, the Attorney General or the provincial director may apply to the youth justice court for an order that the young person remain in custody for period not exceeding the remainder of the youth sentence. Continuation of custody (2) If the hearing for an application under subsection (1) cannot be completed before the expiry of the custodial portion of the youth sentence, the court may order that the young person remain in custody pending the determination of the application if the court is satisfied that the application was made in reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody. (3) The youth justice court may, after giving both parties and parent of the young person an opportunity to be heard, order that young person remain in custody for period not exceeding the remainder of the youth sentence, if it is satisfied that there are reasonable grounds to believe that (a) the young person is likely to commit serious violent offence before the expiry of the youth sentence he or she is then serving; and (b) the conditions that would be imposed on the young person if he or she were to serve portion of the youth sentence in the community would not be adequate to prevent the commission of the offence. (4) For the purpose of determining an application under subsection (1), the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including (a) evidence of pattern of persistent violent behaviour and, in particular, (i) the number of offences committed by the young person that caused physical or psychological harm to any other person, (ii) the young person's difficulties in controlling violent impulses to the point of endangering the safety of any other person, (iii) the use of weapons in the commission of any offence, (iv) explicit threats of violence, (v) behaviour of brutal nature associated with the commission of any offence, and (vi) substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person's behaviour; (b) psychiatric or psychological evidence that physical or mental illness or disorder of the young person is of such nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving; (e) whether the young person is more likely to reoffend if he or she serves his or her youth sentence entirely in custody without the benefits of serving portion of the youth sentence in the community under supervision; and (f) evidence of pattern of committing violent offences while he or she was serving portion of youth sentence in the community under supervision. (1) For the purpose of determining an application under section 98 (application for continuation of custody), the youth justice court shall require the provincial director to cause to be prepared, and to submit to the youth justice court, report setting out any information of which the provincial director is aware with respect to the factors set out in subsection 98(4) that may be of assistance to the court. Written or oral report (2) report referred to in subsection (1) shall be in writing unless it cannot reasonably be committed to writing, in which case it may, with leave of the youth justice court, be submitted orally in court. Provisions apply (3) Subsections 40(4) to (10) (procedures respecting pre‑sentence reports) apply, with any modifications that the circumstances require, in respect of report referred to in subsection (1). Notice of hearing (4) When an application is made under section 98 (application for continuation of custody) in respect of young person, the provincial director shall cause to be given, to the young person and to parent of the young person, at least five clear days notice of the hearing in writing. Statement of right to counsel (5) Any notice given to parent under subsection (4) shall include statement that the young person has the right to be represented by counsel. Service of notice (6) notice under subsection (4) may be served personally or may be sent by confirmed delivery service. When notice not given (7) When notice under subsection (4) is not given in accordance with this section, the youth justice court may (a) adjourn the hearing and order that the notice be given in any manner and to any person that it directs; or (b) dispense with the giving of the notice if, in the opinion of the youth justice court, having regard to the circumstances, the giving of the notice may be dispensed with. [25] The first notice of this application was contained in document described as “Review (Progress) Report”. The purpose of the Report was not clear until the last page when under Summary and Recommendations the report recommended s. 98 continuation of custody. When the Young Person appeared in the dock, he didn’t know why he was there and had not received the Report. [26] Section 99(4) to (6) provides for at least days notice in writing to the young person and his/her parent. It’s to contain advice regarding the right to counsel and is to be served personally or by confirmed delivery. Section 99(7) provides that in the absence of the required notice, the Court may adjourn or dispense with notice. In this case, on the adjourned date, Defence Counsel indicated that he was ready to proceed. These notice provisions must be read and understood in the context of the requirements of s. 98(2). [27] Section 98(2) provides that an application for continuation is to be brought within reasonable time before the expiry of the custody portion of the sentence. If the application can’t be completed before the expiry of the custody portion, the Court may order that the young person remain in custody pending the determination of the application if the court is satisfied that the application was made in reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody. [28] It is recommended that when an application for continuation of custody is brought pursuant to s. 98 that there be simple one page notice, prepared in language which is understandable to the young person. The notice should include some of the following basic information: advice that an application is being brought for continuation of custody (to date not beyond the community portion of the sentence now being served) pursuant to s. 98 of the Youth Criminal Justice Act and the date of the application, advice that he/she is entitled to representation by lawyer, name, DOB and location of the young person, the sentence being served with conviction, and custody and community expiry sentence dates, brief statement of the reasons for the application, the possible outcomes of the application, the name and position of the person authorized to make the application, and advice that should the application not be heard prior to the expiration of the custody portion of the sentence that the Court may be asked to remand the young person in custody until hearing and decision is made. [29] This notice, together with the required notice to parent, with proof of service should be filed with the Court before the hearing. The report may be filed at the time of the application but in any event should be filed after service upon the young person, within reasonable time prior to the hearing date. The report may be made orally, but this is not provision which should be relied upon frequently as the young person and his/her counsel will likely require the report in order to prepare for the hearing. Every effort should be made to make application and comply with the notice requirements, well in advance of the expiry of the custody portion of the sentence so that hearing date may be set in that time frame. [30] It may be difficult at times for the Attorney General or the provincial director to decide when to bring the application. Pursuant to s. 99(4) there must be minimum of clear days notice of the application but that does not mean to say that the application can or should be left to the last day of the custody portion of the sentence. The young person will require time to retain and instruct counsel and prepare for hearing which may proceed in summary fashion in youth docket court or it may require that trial court time be set aside. The reasonableness of the timing will depend upon many factors including the length of the sentence, the reasons for bringing the application and when the events which form the basis of those reasons arose and came to be known. The Court may in proper circumstances adjourn for proper notice or dispense with notice but this is provision that should not be relied upon. The safest course would be to bring the application at the earliest possible date. Release or Remand pending Hearing [31] The Court will ultimately be guided by the provisions of s. 98(2), (3) and (4) of the Act. Section 98(2) provides for the event when the hearing cannot be heard prior to the expiry of the custody portion of the sentence. In my view it directs the Court to consider the merits of the application on prima facie basis. The Court may order that the young person remain in custody pending the hearing, if satisfied that the application has been made within reasonable time having regard to the circumstances and provided there are compelling reasons for keeping the young person in custody. Section 98 would seem to permit an application to continue to hearing although the Court has declined to hold the young person in custody. [32] At the time of my decision on October 6th, reasoned that this matter might be adjourned for the hearing, notwithstanding that was of the view that the application had not been brought within reasonable time. At the time took this to be defect that was not fatal to my decision regard remand or release pending the hearing. [33] Section s. 98(3) provides the criteria for the decision to order that the young person continue in custody until the expiry of the community portion of the sentence and must be considered when answering the question, “Are there compelling reasons for keeping the young person in custody?” pending the hearing of the application. [34] At first blush the test for continuation of custody does not appear too stringent as the Court need only be satisfied on reasonable grounds of the governing criteria for continuation. However the criteria in section s. 98(3), itself is really quite limiting. [35] The 1st criteria (s. 98(3)(a)): is the young person is likely to commit serious violent offence before the expiry of the youth sentence being served? This can be relatively short period of time where the application is brought near the end of the custody portion of sentence. This young person had served 180 days in custody and had only 90 days remaining for the community supervision portion. The issue is not whether the young person is likely to re-offend in violent way but that he or she may do so within the time remaining in the sentence being served. It is very immediate limitation. “Serious violent offence” has been defined in s. of the Act to mean, “an offence in the commission of which young person causes or attempts to cause serious bodily harm.” The Court must find that this likely event. These limitations indicate that it was intended that an order for continuation of custody be step that is taken rarely. [36] The factors listed in s. 98(4) are an important guide to decision to be made at this stage of the proceedings. The Court must necessarily look to these factors to determine whether there are compelling reasons to hold the young person pending hearing. will consider these factors in light of the evidence that has been provided to the Court, referring to s. 98(4) (a) to (f) in turn: [37] (a) evidence of pattern of persistent violent behaviour and, in particular, (i) the number of offences committed by the young person that caused physical or psychological harm to any other person, (ii) the young person's difficulties in controlling violent impulses to the point of endangering the safety of any other person, (iii) the use of weapons in the commission of any offence, (iv) explicit threats of violence, (v) behaviour of brutal nature associated with the commission of any offence, and (vi) substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person's behaviour; The Court did not receive particulars of the robbery and assault on his record. However the information provided with respect to the aggravated assault and assault for which S. T. T. is serving confirms in my mind that physical and likely psychological harm was caused in both cases. There is no evidence that he has difficulty controlling violent impulses. We know that weapon was used in the commission of the aggravated assault. He has no convictions for uttering threats. The information available does not suggest “brutal behaviour” in the commission of an offence. Nor is there evidence of substantial degree of indifference. The previous assault and robbery convictions occurred in 2001 and while the current offences occurred within one month of each other, there are extensive periods where there is no evidence of violent behaviour. There is some suggestion in the psychological assessment that there has been pattern of violence in the relationship between this youth and his girlfriend, but as there are no convictions, am not in position to draw any conclusions, even on balance of probabilities, about this alleged behaviour. In conclusion, while there is evidence of pattern of violent behaviour, would not classify it as persistent. [38] b) psychiatric or psychological evidence that physical or mental illness or disorder of the young person is of such nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; This young person has not been diagnosed with physical or mental illness or disorder. [39] (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, serious violent offence; There is no evidence of planning to commit serious violent offence. [40] (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving; Some inquiry was made about the degree of supervision that was planned for this young person. It was intended that he live in room and board situation. The Court recommended that greater degree of supervision be considered. This points to some awkwardness in the legislation because the conditions for supervision in custody and supervision sentence are determined by the provincial director. At full hearing of this matter the availability of supervision programs in the community would need to be fully canvassed. By way of illustration, the Court is aware that, dependant upon risk assessment information, more intensive supervision may be provided, including reporting to the youth worker every 48 hours. The Court was not provided with the risk assessment information although the Review (Progress) Report referred to one having been conducted with no change in the risk. [41] (e) whether the young person is more likely to reoffend if he or she serves his or her youth sentence entirely in custody without the benefits of serving portion of the youth sentence in the community under supervision; and There was no evidence in this regard. [42] (f) evidence of pattern of committing violent offences while he or she was serving portion of youth sentence in the community under supervision. There was no evidence in this regard. [43] The 2nd criteria (s. 98(3)(b)) requires consideration of the conditions that would be imposed and whether they would be adequate to prevent the commission of serious violent offence. It is my understanding that following my decision on October 6th that there was meeting to discuss the conditions of his supervision in the community. In the discussion before me, this was not fully canvassed. The representatives of the Provincial Director had yet to consider conditions of supervision in light of this latest decision to make application for continuation. Clearly there are number of alternatives short of continuing open custody which can increase the level of supervision and these may be canvassed at the hearing of this matter. Decision on the merits of the application [44] Each case be decided on its own merits. However the Youth Criminal Justice Act has provided considerable guidance insofar as the decision to be made on an application for continuation. This Court concerned itself with the question of release pending the hearing of the application, alone. This was done, over the request from Defence Counsel to decide the application on the merits at that time. This aspect of the legislation was new to Counsel and believe the first application of its kind in the province, hence it seemed appropriate to proceed slowly, despite the Court’s obvious view of the merits. There was likely relevant information which was not provided to me. [45] It is important when considering an application pursuant to s. 98 that we not lose sight of the principles in the Youth Criminal Justice Act. In this application the Declaration of Principle found in s. 3, the Purpose and Principles of Sentencing found in s. 38(1) and the Purpose and Principles applicable to custody and Supervision, found in section 83 of the Act are all instructive. Perhaps the principles most applicable to consideration of this application are as follows: Declaration of Principle Section 3.(1) The following principles apply in this Act: (a) the youth criminal justice system is intended to (ii) rehabilitate young persons who commit offences and reintegrate them into society, (b) the criminal justice system emphasize the following: (i) rehabilitation and reintegration,. (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,. (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. Sentencing Purpose and Principles Section 38. (1) The purpose of sentencing under section 42 is to hold 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. Custody and Supervision (1) The purpose of the youth custody and supervision system is to contribute to the protection of society by (a) carrying out sentences imposed by courts through the safe, fair and humane custody and supervision of young persons; and (b) assisting young persons to be rehabilitated and reintegrated into the community as law‑abiding citizens, by providing effective programs to young persons in custody and while under supervision in the community. Principles to be used (2) In addition to the principles set out in section 3, the following principles are to be used in achieving that purpose: (a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used; (b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as consequence of sentence under this Act or another Act of Parliament; (c) that the youth custody and supervision system facilitate the involvement of the families of young persons and members of the public; (d) that custody and supervision decisions be made in forthright, fair and timely manner, and that young persons have access to an effective review procedure; and (e) that placements of young persons where they are treated as adults not disadvantage them with respect to their eligibility for and conditions of release. [46] On October 6th, dealt only with the decision pursuant to s. 98(2) and declined to hold the young person in custody pending the hearing of the application for continuation. It was adjourned to later date at the option of the Crown for the hearing of the application. This decision was made having regard to the applicable purposes and principles under the Youth Criminal Justice Act, the circumstances underlying this application and the test and factors governing an application for continuation of custody pursuant to s. 98, discussed above. As this was novel step for the Provincial Director and the Crown, it seemed best to proceed in step by step process. [47] With regard to my decision, make the following pointed observations: Notice and application within reasonable time [48] The application was not brought in a reasonable time having regard to all of the circumstances. It had been under consideration as early as August 18th and might have been brought at that time. When the calendar is running the Provincial Director must be decisive and put the young person on notice that the application is being made. It’s preferable to discontinue an application because of change in circumstances, rather than wait to the last minute to bring the application. [49] The young person did not receive days clear notice and there was no reason to waive notice. He was not advised of his right to counsel. There was no notice to parent. The day notice requirement would have taken the application outside the custody period. The Provincial Director proceeded, not with form of notice, but with the report that might be ordered by the Court pursuant to s. 99(3) and as such the “notice” was not in good format which should contain information as outlined in paragraph [28] above. [50] The early preparation of the Review (Progress) Report did facilitate early consideration of this application and it is a good practice to prepare it in anticipation of it being ordered by the Court (s.99(2)), especially having regard to the importance of conducting the hearing prior to the expiry of the custody portion of the sentence and it should be available at the earliest date possible. It represents a form of disclosure for the young person and as such should be available well in advance of the hearing date. [51] The application was brought, not because of the loss of employment, or even the failure to be accountable for the two nights that he pretended to be at work. This was just the last event that signalled lack of commitment on the part of S. T. T. Rather the application was brought due to failure to follow through with treatment plans. Compelling reasons to keep the young person in custody [52] This decision, made pursuant to s. 98(2) was guided by the test in s. 98(3) and the factors outlined in s. 98(4). In this case the Young Person has serious history of violence but there is nothing in the information presented which even suggests that he is likely to commit serious violent offence within the remaining 90 days of his sentence. While his risk to re-offend has not improved since he was sentenced and he has not followed through with all of the treatment plans and expectations, he held job in the community for over months, and made some personal strides. There was no suggestion of violence following the occurrence of the assault on October 30th, in the community or in custody, having been remanded March 10th, 2003. have discussed the factors and their application to these facts in more detail above. The application lacked compelling reasons to keep the Young Person in custody. Procedure on an application for continuation of custody [53] This application should proceed typically in summary fashion, where counsel agree at the outset that the Court may make decision based on materials filed and argument. In some circumstances it may be appropriate to set the matter for hearing at later date for viva voce testimony, especially where there are factual issues in dispute. The burden of the application lays with the applicant. As the Crown conducts the application typically, there needs to be coordination between the provincial director and the Crown in advance of such applications so that the Crown will be ready to proceed. The Crown will be expected to proceed with little notice and will be guided largely by the time remaining in the custodial portion of the sentence. For many reasons It is not desirable that the hearing take place once the community portion of the sentence has commenced. The merits of an application for continuation of custody [54] This decision is governed most specifically by s. 98(3) and (4). The test in s. 98(3) is restricted to the likelihood that serious violent offence might be committed within time remaining in the sentence being served. While the factors listed in s. 98(4) are not exhaustive, it seems apparent from these factors and the test in s. 98(3) that an application for continuation of custody is designed to deal with relatively rare circumstances. One must be careful not to use such an application to revisit the wisdom of the sentence originally imposed. Nor should it be used specifically to influence cooperation in the rehabilitation and reintegration plans of the provincial director. In some cases failure to follow through with treatment plans may be sufficient for such an application but the backdrop to the application must necessarily focus upon the factors in s. 98(4) and compelling evidence of the following: i) likelihood that serious violent offence will be committed within short time. ii) while serving the custody portion of the sentence, actual or planned violence, aggression, or threats of violence. iii) history of pattern of violence which is particularly disturbing for its lack of remorse, indifference and cruelty. iv) psychological or other evidence of physical or mental disorder or propensity which places the concern for violent re-offending into category, requiring psychiatric or psychological treatment and supervision such as may only be provided in custodial setting. v) history which indicates an inability to remain violence free in the community for anything but short period. vi) degree of certainty that protection and supervision concerns override the benefits of rehabilitation and reintegration. Rights of the young person [55] Having considered the nature of this application in some depth, it is important to reinforce the importance of focussing on the young person’s rights when such applications are contemplated. These rights have been emphasized in s. 3(1)(d)(i) of the Declaration of Principles applicable to the Act as whole, which provides: (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, This emphasis on rights is found again in the Principles applicable to Custody and Supervision, found at s. 83(2) (b) and (d) which provide: (b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as consequence of sentence under this Act or another Act of Parliament; (d) that custody and supervision decisions be made in forthright, fair and timely manner, and that young persons have access to an effective review procedure; [56] The Attorney General and provincial director must be mindful of the rights of the young person in any decision-making process which affects the liberty of young person. Such is the case in the event of an application for continuation pursuant to s. 98. The application should be communicated clearly and in timely fashion. The young person must be advised of his right to consult with and be represented to lawyer on the application. The notice of the application should be served in reasonable time prior to the expiry of the custody portion of the sentence. It should clearly and concisely provide the young person with sufficient information so that he/she knows what is at stake so that reasoned decision may be made in response. Parliament has developed scheme which calls for community reintegration period in any sentence. In the relatively rare circumstances when an application for continuation of custody is brought, the applicant, the Attorney General and/or the provincial director, will bear the burden of establishing the appropriateness of continuing the custody portion of the sentence and should expect to be held to the procedure and guiding principles in the Youth Criminal Justice Act. [57] These then are the reasons for my decision rendered October 6th and referred to in paragraph [2] above. Dated at Saskatoon, Saskatchewan this 14th day of October, 2003. S. P. Whelan
The Provincial Director applied pursuant to s. 98 of the Youth Criminal Justice Act for continuance of the custody portion of a custody and supervision sentence made pursuant to s. 42(2)(n). The Provincial Director was concerned that, because S.T.T. had not followed through with his treatment, he was at a high risk to offend again. HELD: The application lacked compelling reasons to keep the young person in custody.  1) This was the first experience with an application of this nature in Saskatoon and the Court provided a detailed discussion of the procedure for the benefit of future applications. 2) The application was not brought in a reasonable time having regard to all of the circumstances. The young person must be put on notice that the application is being made. 3) The Review (Progress) Report is a form of disclosure for the young person and should be available well in advance of the hearing.