Nova Scotia·In Depth

Colour of Justice Part 2: The Prosecution

Nova Scotia Judge Anne Derrick recently had to make a potentially groundbreaking decision. A young man stood convicted of the attempted murder of another teenager. Should the fact that he's African Nova Scotian be a mitigating factor when she decided to sentence him?

'Personal circumstances of the offender are key. That's really what it’s all about'

Jon Tattrie · CBC News · Posted: Mar 09, 2015 6:20 AM EDT | Last Updated: March 10, 2015

This basketball court was the scene of an April 15, 2013, shooting in North Preston. (CBC)

Nova Scotia Judge Anne Derrick recently had to make a potentially groundbreaking decision. A young man (called X in court documents) stood convicted of the attempted murder of another teenager (called Y). Should the fact that X is African Nova Scotian be a mitigating factor when she decided to sentence X as an adult, or as a youth?

Part 2: The Prosecution

On a cold November evening in 2008, 17-year-old Mykel Smith got a call from his friend Sergio Bowers. Bowers had a dispute with a Middle Sackville man called Michael Patriquen. Bowers told Smith to get a gun and "f--k [Patriquen] up."

Smith grabbed a gun, stole his grandfather's truck, drove to Patriquen's house and rang the doorbell. Patriquen came to the door. Smith shot him in the stomach. The two men had never met before.

Crown attorney Terry Nickerson prosecuted the case and Smith was convicted of attempted murder. Nickerson asked Judge Jamie Campbell to sentence Smith as an adult for the crime that left Patriquen paralyzed.

"The young man with a loaded gun is sometimes not a scared, messed-up kid but an arrogant, cold and criminally sophisticated teenager," the judge said in his ruling. He sentenced Smith as an adult, giving him 14 years in a federal prison.

Nickerson prosecuted X, too, and saw him convicted of attempted murder. He told Judge Anne Derrick the two cases had strong parallels, and that X's crime "was of an even more egregious character, justifying not only the application to have X sentenced as an adult, but the imposition of a sentence of life imprisonment," according to court documents.

The Crown lawyer declined to be interviewed for this story, but court documents from X's sentencing hearing show Nickerson's case. He applied to have X sentenced as an adult, which could mean a life sentence with at least seven years in prison, including time in an adult prison.

Not the first crime

Spending three years at the Nova Scotia Youth Facility at Waterville would not be enough, Nickerson argued.

X planned to murder Y and hoped to get away with it — that's why he covered his face when he shot his 15-year-old cousin on a busy basketball court, Nickerson said.

The attempted murder wasn't X's first crime. In 2011, at 14, he punched a man in the face, knocking him to the ground, kicking him as other young people joined the attack. The victim suffered a broken nose and a concussion.

Another time, X stole a smartphone from a woman at a bus terminal.

Later that year, X and two accomplices followed a woman off a bus, pushed her from behind to the ground, kicked her and stole her tablet computer, wallet and other items.

In 2013, X got 12 months probation for assaulting a police officer. Police were arresting two robbery suspects when X intervened. He said one suspect was his brother and opened the police car door to free him. Police detained the suspect and arrested X, who then shoved the officer in the chest, earning the assault conviction.

'Active fantasy life'

The Crown pointed to Stephen Gouthro's Section 34 psychological assessment of X after the attempted murder.

"X is likely to be exploitative, self-centred, and indifferent to the welfare of others," Gouthro wrote. X lacked empathy and the profile described "a young man with a sense of omnipotence who may readily exploit and manipulate others to enhance and indulge himself."

X engages in an "active fantasy life," has a major drug problem but "enjoys a health self-esteem," Gouthro concluded.

His violence was "instrumental and goal directed." His likelihood to commit another crime was in the high range compared to other youth in the general population, and moderate compared to incarcerated youth.

Gouthro viewed the maximum youth sentence of three years as insufficient to reduce that risk and concluded X needed a long sentence where he would be "inconvenienced" into thinking "there has to be another way."

The Crown rejected Robert Wright's testimony about the impact of growing up African Nova Scotian in a marginalized, criminalized community.

Nickerson argued X's attempted murder occupied the same class of crime as Mykel Smith's attempted murder of Michael Patriquen. Like Smith, X should be treated as an adult and given a life sentence, he said.