Philip's Case — Aggravated Assault — Sentenced

Between
Her Majesty the Queen, and
Philip K.

Proceedings under the Youth Criminal Justice Act

Ontario Youth Court
Newmarket, Ontario
Justice Tetley

Probation Imposed:  23 February 2004
(77 paras.)

¶ 1     MR. ST. MICHAEL:  Your Honour we have the matters of Philip K., which have been traversed to us from 203 Court. I believe Mr. K. wishes to enter a plea of guilty to the offence of aggravated assault.

¶ 2     MR. PENNEY:  Before we begin, Madam Clerk is there anything attached to the information in terms of reports? No, I don’t see anything. Then that’s fine. Your Honour has the only two reports?

¶ 3     COURT CLERK:  That is right. Did you want them back?

¶ 4     THE COURT:  I think there were copies. I have the one from the D*** [the treatment facility] that you filed and I have a copy of the clinical consultation report.

¶ 5     MR. PENNEY:  I just want to ensure that, because at the end of this process I am going to ask for an order that these reports be sealed. Your Honour still has two reports, correct?

¶ 6     THE COURT:  I have the original that you provided to me, the D*** report, during our pretrial discussions, and I have a copy of Dr. Quek’s report that is dated December 30, 2003.

¶ 7     MR. PENNEY:  Okay.

¶ 8     THE COURT:  It is not the original of that report, but it is a copy.

¶ 9     MR. PENNEY:  No, that’s all I have.

¶ 10     THE COURT:  All right.

¶ 11     MR. PENNEY:  I am ready to proceed, Your Honour.

¶ 12     THE COURT:  All right. Thank you. Mr. K., just before you enter the proposed plea I am obligated by virtue of the provisions of the Criminal Code and the Youth Criminal Justice Act to make certain enquiries, just to confirm your understand of what you are about to do. You realize that by entering this plea, you are relieving the Crown of their obligation to prove this allegation. You are under no obligation to enter this plea, but by doing so you are relieving the Crown of the obligation they have to prove this charge on the basis of proof beyond a reasonable doubt. Do you understand that? If you could just speak a little louder, the response was, “I do. Yes.”

¶ 13    PHILIP:  Yes.

¶ 14     THE COURT:  Next, that you are entering this plea of your own free will, free from any influence or pressure from anyone else. I appreciate you will have reviewed this matter with your father. You will have spoken to your lawyer, Mr. Penney, and you may have consulted others, but this plea is entered without pressure or influence from anyone else. Is that correct?

¶ 15    PHILIP:  Yes.

¶ 16     THE COURT:  By your plea you are acknowledging that on or about the 11th of August last year, 2003, at the Town of Markham, you were involved in an aggravated assault against Tim P. Do you acknowledge those facts?

¶ 17     PHILIP:  Yes.

¶ 18     THE COURT:  All right. As far as the matter of disposition is concerned or what should happen to you in terms of sentence, there have been pretrial discussions conducted before me in your absence. I gather, Mr. Penney, your client is content to proceed and to enter this plea before me, in spite of the fact that I have pre-tried the matter?

¶ 19     MR. PENNEY:  Yes, of course, Your Honour.

¶ 20     THE COURT:  There has been a joint recommendation, in terms of disposition. Both the Crown, Mr. St. Michael here today, and your counsel, Mr. Penney, have agreed as to what the appropriate disposition should be. I have indicated in the pretrial discussions that the proposed resolution is acceptable to me. I believe that it meets your best interests and is not contrary to the public interest and I have indicated a willingness to impose that disposition. I am assuming that all of these discussions and the content of the resolution of your case has been communicated to you by Mr. Penney.

¶ 21      PHILIP:  Yes.

¶ 22     THE COURT:  You understand what is about to happen to you following your plea to this offence, correct?

¶ 23      PHILIP:  Yes.

¶ 24     THE COURT:  All right. If we could proceed with the arraignment, please?

¶ 25     COURT CLERK:  Philip K., a young person within the meaning of the Youth Criminal Justice Act, stands charged on or about the 11th day of August 2003 at the Town of Markham in the Regional Municipality of York and elsewhere in the Province of Ontario did endanger the life of Tim P. thereby committing an aggravated assault contrary to the Criminal Code Section 268. On February 23, 2004 the Crown elected to proceed by indictment. How do you plea to the charges read sir? Guilty or not guilty?

¶ 26     PHILIP:  Guilty, Your Honour.

¶ 27     COURT CLERK:  Thank you. You may have a seat if you wish.

¶ 28     THE COURT:  You may have a seat, Mr. K. The facts, Mr. St. Michael?

¶ 29     MR. ST. MICHAEL:  Your Honour, there are three individuals involved in this incident. First of all we have of course Philip K., who is before the Court. We have his friend Gary R., and we have the victim Mr. Tim P. Tim is a friend of Gary’s, known at the time August 11, 2003 only casually by Philip. Tim apparently is someone who, at least on a part time basis, deals in marijuana. Gary, in discussions with Philip while they were consuming some alcohol on August 11, 2003, proposed a plan whereby the two of them, that is to say Gary and Philip, would go to the victim's house, smoke some marijuana, kill Tim and then take his marijuana and money, as well as subsequently taking over his drug territory.

¶ 30     So, in furtherance of that plan, it was proposed by Gary and agreed to by Philip, they went to the victim's house, which is in Markham on August 11, 2003. In fact, they did socialize with him as planned and at a certain moment, pursuant to a signal given to Philip by Gary, Philip went, took a knife and stabbed the victim a number of times. I can site from the police synopsis that the stabbing resulted in a lacerated liver, stab wounds to the diaphragm and stomach, as well as some other wounds. Of course, these wounds required surgical intervention and stitches, but in fact fortunately the victim did recover.

¶ 31     In any event, while the stabbing was being undertaken by Philip, Gary was going through the victim's possessions and suddenly the doorbell rang. Gary made his way towards the back door, Philip followed suit and they left the premises and left the victim behind.

¶ 32     Subsequently Philip., who was very shaken and much concerned about what he had done, told his sister exactly what had happened and apparently he was crying and shaking and advised her that he regretted very much having done what he did. The next day, that is August 12, 2003, he went with his father to the police and he was arrested. Those are the facts, Your Honour.

¶ 33     MR. PENNEY:  I have reviewed those facts extensively, Your Honour, from time to time in the past six months with Philip. I am in a position to admit those facts as being true. There are a couple of facts there that I can only admit on the basis that the Crown would be able to prove them; for example, exactly what Gary was doing as the stabbing was going on. I do know from what Philip says and what the witnesses say that Gary in fact did run upstairs and commence to search the victim’s bedroom. So, on that basis, yes I can admit those additional facts and I am asking Your Honour to find him guilty of the aggravated assault.

¶ 34     THE COURT:  All right. Would you stand please, Philip? Based on your plea and the acknowledged facts, there will be a finding of guilt. You may have a seat while we deal with the matter of disposition.

[REPORTER'S NOTE:  At this time, submissions were made by counsel.]

¶ 35     THE COURT:  You know, in many respects, you are a fortunate young man. I reflected on this earlier in another case where a young person, who had a much more difficult time in his formative years than you have, was supported here today by the presence of both his natural mother and adoptive parents. One can only imagine how distressing this circumstance must have been and must be for your father, who has not only had to cope with the loss of your mother, his wife, but with the serious charges that you have faced since last year. Maybe you should think about that. Maybe you have, now that you have had some time to engage in some self-assessment in the D*** program.

¶ 36     You know, life is cheap and crimes like this really reflect that fact. We have had people in cases before this Court killed for as little as $10, and here you were willing to kill someone for what? A small amount of marijuana and the opportunity for some financial gain that would probably have been visited upon Gary, without any benefit to yourself that I could see. Just because someone thought it was a good idea? Someone older was able to persuade you that this was a way to prove yourself, this was a way to win their friendship. Just think what a different proceeding this would have been had the victim died. We would not be talking about a period of probation here. There might well have been consideration of a transfer of your case to adult Court with the visitation of an adult sentence. Do you know what that sentence would be, or could be?

¶ 37     PHILIP:  Yes, Your Honour.

¶ 38     THE COURT:  It would be an extended period in jail. I have read these reports and I am mindful of what has transpired, particularly since the death of your mother. I have some personal experience with that type of loss because, while my mother did not pass away when I was young, I was only ten when my father died. I have some understanding, I think, gained from that difficult experience as to what that loss feels like. I think it perhaps even more difficult if it is your mother who passes, because in most families mothers are the glue that holds the fabric of the family together.

¶ 39     I note that both you and your sister, your sister who is here I gather, have had some difficulty sorting yourselves out since that time. You have turned to alcohol and drugs and affiliation with older, less than desirable peer influences. You have let your school go by the wayside. You have tried to ease your pain by resorting to intoxicants, particularly marijuana. You have let your anger be displayed by involving yourself in fights. I suspect a lot of that has to do with the fact that you are angry and upset about the loss. I know what that feels like. You have let yourself come under the influence of someone like Gary R., who effectively directs you to commit what might have turned out to be the most serious criminal offence that we have in this book of criminal offences we call the Criminal Code.

¶ 40     I think Mr. Penney is correct when he indicates the D*** experience seems to be tailor-made for someone like you, someone with low self-esteem, with a lot of anger, with a deep sense of loss. While there is a legitimate basis for your anger, your response to your loss is inappropriate. You know, there are more positive ways to direct that feeling of loss. I gather your dad, to a large extent, directed himself to his work. That is one way of coping. It is a necessary way of coping because you and your sister had to eat and you had to have a place to live. One of the consequences of that response is that sometimes those that need each other the most kind of lose each other. That seems to be what has happened in your family. I am pleased to read that everyone seems to be on the rebound. Time has that effect. I can tell you that, as I have indicated, from hard-earned personal experience.

¶ 41     I hope, and I have a lot of faith in Mr. St. Michael and your counsel, that they are correct in terms of the disposition that is proposed. I hope we do not see you here again. I hope that when you finish the program at D*** that you have your eyes opened and perhaps can look and think for yourself without the undue influence of the Gary’s of this world. If you don’t, you will end up back here, not in this particular Court room but one just like it. The focus in that Court room will not be on rehabilitation and assisting you to assist yourself, it will be on punishment and protection of the public. Generally that means consideration of extended periods of incarceration.

¶ 42     I believe the D*** program has already proven itself to be of benefit to you. Essentially, you have been there on a voluntary basis. I gather you have complied with all of the rules and restrictions that are part and parcel of that program. You could have left at any time, from what I understand. You have benefited from the fact that some of the decisions that were left up to you in the past have been made for you.

¶ 43     Your day is structured. I gather from the report I am reading, which references an outline of the nature of the program and the obligations within it, that within this environment you seem to be coming to grips with some of the difficulties that have plagued you, particularly since your mother’s death. It seems, at least in the assessment of Dr. Quek who prepared this clinical consultation report, to be benefiting you in three particular ways, which I think are self evident from the report from the D*** project itself.

¶ 44     The strict and regimented structure and minimal outside contact has been to your benefit. It has removed you from the influences such as that of Gary and the life you were leading before. Compulsory attendance at school and the acquisition of life skills has been to your benefit. Before, I gather, you weren’t paying much attention to school. You were skipping school, hanging around the mall, and you know where that has led. In your case it has led to a significant act of criminality. You have benefited from the group counselling and psychiatric help available through that program.

¶ 45     I am pleased to read in particular that you have expressed a desire to continue in the program as long as you need to, even after the 25-month period that is proposed has expired. That suggests to me that you have gained some insight into the limitations of your own personality at this point and the seriousness of the conduct that brings you here today.

¶ 46     I am going to accept the joint submission. I think it is appropriate in all of the circumstances. I think it meets your best interests. I think it will assist you in the long term in your dealings with your father and your sister. I think it will, hopefully, equip you to be a contributing member of society and to put behind you the anger and sense of loss that has dominated your actions in my estimation to date, and was probably a primary contributing factor to your willingness to be guided by someone like Gary.

¶ 47     I think it should, if you put your mind to it over the course of the next two years, equip you to put this behind you from a psychological perspective. It will provide you with the necessary ingredients to enable you to look ahead in a positive way, rather than to reflect on what you have lost. All of us have to do that, because if you dwell on the past and dwell on what might have been or your own limitations, you can’t move forward. I am pleased that that is part of the program offered by the D*** project.

¶ 48     The sentence will be reflected in the period of two years probation. We will note for the purposes of the official Court record the six months of residential treatment that will be treated as pretrial custody and reflected in the entry on the youth Court record as same. There will be a two-year period of probation on the following terms. You are to be bound by the statutory terms, which require you to keep the peace and be of good behaviour, which means not get in any further conflict with the police or involvement with the criminal justice system while subject to the probation order.

¶ 49     You will appear before a youth Court justice when required to do so.

¶ 50     You will reside at one of the facilities that the D*** project operates and not leave that facility except with an adult representative from the D*** project, or except with the written permission of the D*** director or case manager, and I will add your probation officer to that equation.

¶ 51     You will attend and complete the 25-month D*** residential treatment program that you commenced in September 2003 and you will not discontinue your involvement in that residential treatment program without the expressed written permission of your probation officer, in consultation with the D*** director or case manager, and you will continue individual, family, and group counselling with Dr. Timothy Quek as directed by Dr. Timothy Quek.

¶ 52     You are going to report to the probation officer forthwith and thereafter as he or she may direct.

¶ 53     You will, I suppose it goes without saying, but I will add the term, you will abide by such terms and conditions of the residence as directed by the D*** director or case manager.

¶ 54     You will not associate with anyone specifically disapproved of by your probation officer. In this regard there will be a specific non-association term with respect to Gary.

¶ 55     You will have no contact or association either directly or indirectly with the victim in this manner, and you will not attend within 500 meters of his residence, place of employment or place of education.

¶ 56     During the period of probation you will not possess any firearms, crossbow, prohibited weapons, restricted weapons, prohibited device, ammunition, prohibited ammunition, or explosive device.

¶ 57     You will abstain absolutely from the use, purchase or possession of alcoholic beverages and/or non-prescribed drugs. I gather from reading about the D*** program that abstinence from alcohol is not part of the project. I see smoking apparently can take place. I am going to assume that it is a drug and alcohol free residential program, so this shouldn’t visit a hardship on you.

¶ 58     You will not possess or apply for any authorization, license or registration relating to any of the weapons that I have indicated.

¶ 59     In addition there will be a section 51(1) specific firearms prohibition order for a period of five years and you will provide a D.N.A. sample for profiling purposes. We can fix a date, Mr. Penney, which is convenient to your client. Those profiles are secured at One District, York Regional Police Service any afternoon, from 1:00 p.m. to 5:00 p.m. We will fix a date following the consultation with...

¶ 60     MR. PENNEY:  Probation, perhaps?

¶ 61     THE COURT:  Well, I was thinking more that he has to get there so it would probably be with the D*** people, I would think. It cannot be done today.

¶ 62     MR. PENNEY:  No, I understand that it can’t be done today, but he is subject to probation today.

¶ 63     THE COURT:  Yes.

¶ 64     MR. PENNEY:  They might be able to provide the D*** people that are here today with some contact numbers, or that will be done later?

¶ 65     THE COURT:  We have a form that sets out the location. I will fix a date if you just want to briefly consult with the D*** people now, if there is a day of the week that is more convenient.

¶ 66     MR. PENNEY:  The gentleman from D*** indicates that they are back here on Wednesday, so the convenient time would be on Wednesday.

¶ 67     THE COURT:  All right. We will note the D.N.A. profile then to be completed on this Wednesday, which is the 25th of February 2004, between the hours of 1:00 p.m. and 5:00 p.m.

¶ 68     I can indicate to you Mr. K., that this disposition is unusual and both Mr. St. Michael for the Crown and Mr. Penney have referenced that it is being accorded to you in large measure because there is no applicable appropriate disposition available within the Youth Criminal Justice Act, in the nature of a conditional sentence, which would otherwise be applicable. Well, it may not have been applicable, quite frankly, given the seriousness of the offence, but it would have been another sentencing option were you an adult.

¶ 69     I am persuaded to accept the joint submission, in large measure based on your plea of guilty. Your cooperation with the authorities after the fact shows a significant degree of remorse. The fact that you evidenced remorse almost immediately after committing this offence is reflected in the facts as they have been relayed to me: you told your sister, your father immediately took the appropriate actions, you surrendered yourself and in due course you have provided a statement, which may assist the authorities in subsequent prosecutions.

¶ 70     I am also persuaded by the fact that you have performed well, essentially on a voluntary basis, in the D*** program. You could have left that setting at any time and yet you have chosen to remain. I think that reflects well on you and the project itself. It has obviously been beneficial to you. That is reflected in Dr. Quek’s psychological report that was of significant assistance in these proceedings.

¶ 71     This was an event, I probably don’t have to tell you this because I am sure you have reflected on it many times over the past number of months, that could have permanently altered your future. I don’t think there was much doubt about that, had the individual that you assaulted died. That is not what happened here. That is fortunate both for you and for the complainant, obviously.

¶ 72     I am hoping that with the assistance of the D*** project and the continued involvement and support of your father and your sister, you will be able to put some of the difficulties that have plagued you, particularly since the passing of your mother, behind you. I also hope this will be a first and last, albeit a most significant appearance, in a Court such as this. Is there anything further, Mr. St. Michael?

¶ 73     MR. ST. MICHAEL:  I would just ask that the attempt murder count be withdrawn please, Your Honour.

¶ 74     THE COURT:  All right. The other charge will be noted withdrawn. I think I have reflected all of the terms, Mr. Penney, that were referenced.

¶ 75     MR. PENNEY:  I think so, Your Honour.

¶ 76     THE COURT:  There will be a document for you to sign, Mr. K., before you meet with probation. All right, sir, I wish you good luck and good luck to your father and sister.

¶ 77     MR. PENNEY:  I thank you for accommodating us, Your Honour, on such short notice today.

BACK TO PHILIP'S 2ND CASE