R. v. A.A., 2011 ABQB 598

Court of Queen ’ s Bench of Alberta Citation: R. v. A.A., 2011 ABQB 598 Date: 20110929 Docket: 080125131Q1 Registry: Edmonton Between: Her Majesty the Queen - and - A.A. Accused Restriction on Publication: No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act , s. 110(1) . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person. See the Youth Criminal Justice Act , s. 111(1) .

Corrected judgment: A corrigendum was issued on October 4, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. ______________________________________________________ Sentencing Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ Introduction [ 1 ] A.A. was convicted of the first degree murder of his uncle in the early hours of December 1, 2007. Reasons for decision

[ 1 ] A.A. was convicted of the first degree murder of his uncle in the early hours of December 1, 2007. Reasons for decision were issued on October 30, 2009 ( 2009 ABQB 621 ) and the matter was set over for preparation of various reports and a full sentence hearing. Following three days of evidence in June 2010, the hearing was further adjourned to dates in December, July and August 2011 for completion of all submissions.

While the Court is concerned by this piecemeal process, I am nonetheless satisfied that both Crown and Defence have exercised due diligence in preparation and presentation of this phase of the proceedings.

A vast amount of information has been gathered, including volumes of exhibits and oral testimony from a number of witnesses. [ 2 ] The focus of these proceedings has been whether or not the Court should impose a youth sentence for the presumptive offence of first degree murder, as sought by the Defence pursuant to s. 63 of the Youth Criminal Justice Act , S.C. 2002, c.1 [the “ YCJA ”]. [ 3 ] The Crown, who opposes the application for a youth sentence, bears the onus of establishing that a youth sentence would be insufficient to hold A.A. accountable for first degree murder based on the specific facts in this case: R. v.

B.(D.) , 2008 SCC 25 , [2008] 2 S.C.R. 3. [ 4 ] The Court must consider a mosaic of principles and objectives prescribed in the YCJA in reaching a full and fair disposition of the matter. I have carefully considered the full text of the YCJA and the Criminal Code in reaching a decision, but will reference only those provisions that most directly inform my assessment. Legislative Framework [ 5 ] The framework for consideration of whether a youth sentence is appropriate under the YCJA has been well set out in various other cases: see R. v.

D.D.T. , 2009 ABQB 362 , 467 A.R. 341, aff’d 2010 ABCA 365 , 493 A.R. 167, leave denied [2011] S.C.C.A. No. 50; R. v. C.H.C. , 2009 ABQB 125 , 465 A.R. 240; R. v. Bird , 2008 ABQB 327 , 435 A.R. 313, rev’d (first degree substituted for manslaughter) 2009 SCC 60 , [2009] 3 S.C.R. 638. [ 6 ] The legislative

preamble emphasizes a multi-disciplinary approach, the ultimate goals being “... to prevent youth crime by addressing its underlying causes, to respond to the needs of young persons, and to provide guidance and support to those at risk of committing crimes...” [ 7 ] The YCJA recognizes the challenge of sentencing in various sections which must be reviewed carefully against the specifics of this case.

Among other criteria, s. 72 requires that, when entertaining a defence request for a youth sentence in connection with a presumptive offence: 72 ...the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and (

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. [ 8 ] Turning to the specific sections that are referenced in s. 72: 1. Section 3(1)(b)(ii) emphasizes, in the context of the separation of the justice system for youths from adults “fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity”.

10. Section 38(1) provides that the purpose of youth sentencing is “to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public”. 11. Section 38(2) sets out a number of sentencing principles, to be interpreted liberally as contemplated by the language of s. 3: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. 12. Section 38(3) then lists six factors to be taken into account: (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[9] In addition, s. 42(2)(

q) mandates in the case of a youth sentence for first-degree murder a period of 10 years comprised of: (

A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody),exceed six years from the date of committal, and (

B) a placement under conditional supervision to be served in the community in accordance with

section 105... [10] The Alberta Court of Appeal has noted that s. 72 refers back to the general principles of sentencing in s. 38, and sub-paragraph3(1)(b)(ii), which focuses on “fair and proportionate accountability that is consistent with the greater dependency of young persons andtheir reduced level of maturity”. The Court held that personal accountability of the young offender is therefore identified as having amore specific role under s. 72 than it might in other sentencing decisions: R. v. Williams, 2008 ABCA 317, 437 A.R. 325 at para. 6. [11] The Ontario Court of Appeal in R. v.

A.O., 2007 ONCA 144, 84 O.R. (3d) 561 stated that the combined effect of ss. 72, 3 and38 is to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adultsentence on a young person. This is achieved through the imposition of meaningful consequences for the offender and sanctions thatpromote his or her rehabilitation and reintegration into society. The Court noted that the purpose of accountability in this contextexcludes accountability to society in any larger sense or any notion of deterrence.

The Court explained: 45 Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation andreintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration.Parliament has used the different terms and is presumed to have intended different meanings... 46 In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by LamerC.J.C. in R. v.

M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.) at paras. 80 and 81: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothingmore. ...

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blame-worthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law... 47 In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributivesentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender's conduct"...

We see no other rational way for measuringaccountability. [12] Courts must be careful to order an adult sentence only when necessary to fulfill the objectives of the YCJA: A.O. at para. 38.As noted above, neither specific nor general deterrence is a factor to be considered in determining the appropriate sentence.

[ 13 ] The onus is on the Crown is to “satisfy” the youth justice. Previous decisions have characterized the Crown’s overall onus or burden as to an adult or youth sentence as a “persuasive” one, because the YCJA speaks to the court’s “opinion” without specific reference to a criminal or civil standard of proof: D.D.T. and cases cited at para. 15. [ 14 ] The test is not a heavy one, and the possibility of an adult sentence must be considered in light of the YCJA principles and the s. 72(1) criteria.

When considering whether or not a youth sentence would be sufficient to hold a young person accountable under s. 72, the youth sentence must be long enough to reflect the seriousness of the offence before the court and the accused's role in it: R. v. Estacio , 2010 ABCA 69 , 474 A.R. 360 at para. 13 . It must also be long enough to provide some reasonable assurance of the accused's rehabilitation to the point where he can be safely be reintegrated into society: R. v.

M.(J.) , 2004 ONCJ 100, 62 W.C.B. (2d) 404 , approved in Estacio at para. 15 . [ 15 ] Certain Criminal Code provisions have a bearing on sentencing in these situations.

Section 745.1(

b) provides that where a person was 16 or 17 years of age at the time of committing first degree murder, an adult sentence shall provide for a 10 year period of parole ineligibility.

Section 746.1(3) precludes the following privileges until the expiration of all but one fifth of the period of imprisonment to be served without eligibility for parole: day parole under the Corrections and Conditional Release Act ; absence without escort under that Act or the Prisons and Reformatories Act ; and absence with escort otherwise than for medical reasons, to attend judicial proceedings or a coroner’s inquest, except with the approval of the National Parole Board. [ 16 ] Of perhaps overarching concern to the Defence is that if A.A. is sentenced as an adult, the life sentence continues to attach even after parole eligibility (set in these circumstances at 10 years pursuant to s. 745.1(b)).

Crown acknowledges that a central consideration in assessing accountability is whether the seriousness of this crime requires imposition of parole for life in the best interests of A.A. and the public. Reports [ 17 ] A.A. was first referred to Alberta Hospital Edmonton post conviction in 2009 for a psychiatric and psychological assessment to determine eligibility and appropriateness of a sentence of intensive rehabilitative custody supervision (IRCS). Based on the Report of Dr. Gupta as the consultant adolescent forensic psychiatrist, the Provincial Director concluded pursuant to s. 42(7) (

d) of the YCJA that participation in the IRCS programme was not appropriate, and Defence counsel takes no issue with that conclusion. [ 18 ] Defence counsel does, however, seriously object to a number of components in the Gupta Reports upon which the Crown relies in support of its position that an adult sentence is required. Dr. Gupta’s principal report of March 22, 2010 identifies nearly 20 sources of information including extensive interviews and testing with A.A.

Included in the materials reviewed were the files and charts from the date of arrest in December 2007, notes from interviews conducted with family members, as well as team consultations in preparation of the report and recommendations. Dr. Gupta provided an update and

summary for the court dated June 18, 2010. [ 19 ] One of the initial reports relied upon by Dr. Gupta was a psychological report dated April 8, 2010 and cosigned by Ms. Morin and Dr. Faltin. Much transpired in respect of that report as relates to the attribution of the report to Ms. Morin as the primary author. Ultimately, the Crown arranged for a further s. 34 assessment to be done by Dr. R.C. Day, RPsych. Dr. Gupta then re-examined the new information contained in Dr. Day’s psychological report dated March 31, 2011 and provided an additional report.

I have reviewed those two reports in full detail because both Crown and Defence have pointed to opposite conclusions available to the Court as relates in particular to the risk of recidivism. [ 20 ] Additional reports filed with the Court include the pretrial assessment of February 8, 2008 signed by Dr. Oskin, as well as a pre-sentence report filed April 12, 2010 by probation officer Janet Sacuta.

The Crown also submitted the Young Offender File, the records from Alberta Hospital for A.A., as well as materials dealing with the provincial and federal incarceration regimes. [ 21 ] Cumulatively, these reports form most of the Court’s source information for assessment of accountability. I will summarize pertinent observations and opinions shortly as they inform whether a youth or adult sentence is more appropriate. However, the risk of recidivism was a topic of considerable attention in this hearing. As such, I will first examine the Report and Addendum of Dr. Gupta and his oral evidence in relation to Dr.

Day’s input. Dr. Gupta

[ 22 ] Dr. Gupta’s credentials as the Chief Adolescent and Forensic Psychiatrist in charge of the Turningpoint Program in Edmonton have been acknowledged. His initial 34 page report dated March 22, 2010 sets out the extensive assessment of A.A. under s. 42.7 of the YCJA . He personally had seven sessions with A.A. totalling over seven hours, in addition to telephone interviews with various professional and family contacts in Edmonton, Calgary and elsewhere. [ 23 ] Dr. Gupta outlined a sustained history of domestic violence, drug and alcohol abuse as well as pervasive criminal activity in A.A.’s family.

He contrasted this negative influence with the relatively stable environment provided to A.A. by the victim’s sister, A.A.’s aunt N.A., following apprehension of at least some of the children by Child and Family Services in 1999. There was some indication of earlier involvement of Child and Family Services from the time A.A. was two years of age. [ 24 ] N.A., who also cared for A.A.’s younger siblings at times, acted as guardian for A.A. from the time he was 9½ years old until he left, apparently with her approval, to live with his uncle, and the victim of this crime, in 2006.

During this period of over five years with N.A., A.A. did reasonably well, although Dr. Gupta expressed concern that N.A. was never made aware of A.A.’s involvement in setting fires and stealing. [ 25 ] Dr. Gupta also referred to educational and employment records as part of his historical review. School records disclosed a four day suspension in 2003 (Grade 7) for jumping another student from behind in the hallway and punching him in the face and body. In 2007, A.A. was expelled for making death threats to teachers. He left some jobs due to boredom and was fired from others for stealing.

Latterly, he worked briefly as a framer at a job which his uncle had arranged for him. [ 26 ] Dr. Gupta’s first Report also referred to incidents during custody at EYOC including threats against his accomplice D.B., tying bed sheets to his ankles and other pseudo-suicide attempts, and manipulating access to medication.

There were also vague references to borderline histrionics and narcissistic tendencies (including a perceived lack of empathy for his mother’s lung cancer), a gang he reported to have formed called “Twisted”, his ability to access weapons, and concerns about conflicting stories to different interviewers or at different times. [ 27 ] During examination in chief, Dr. Gupta emphasized these negative components as evidence of an antisocial personality disorder with psychopathic traits.

Taken in combination with self-confidence, attraction to his deceased uncle’s criminal lifestyle, alleged manipulation of the health team, limited empathy or remorse and sexist attitudes towards women, among other factors, Dr. Gupta opined that A.A. posed a significant risk to re-offend even after 2½ years in a structured, secure setting. [ 28 ] Only in cross-examination did Dr. Gupta acknowledge that the Progress Report from Calgary Young Offenders Centre, where A.A. spent most of his custody time, was remarkably positive. Although not a model student, he had taken a number of courses since his detention. Dr.

Gupta also acknowledged that in 2010 there had been changes in A.A. including a new interest in religion, an apology expressing shame to his parents in May of 2008, and some ambition to be a doctor (perhaps unrealistic, but expressed as a positive motivation). [ 29 ] In his testimony and initial report, Dr. Gupta shared a number of important observations and cautions in relation to the risks associated with A.A.’s background and behaviour.

Of particular concern are notations of situational depressive moods with occasional references to self-harm, the lack of empathy for the victim and family and some sustained attraction to criminal activity. The references to hoarding of medications, threats to harm his accomplice D.B., gang involvement and other topics were not unequivocally supported by the evidence. His

summary report prepared just in advance of testifying in June 2010 concludes rather summarily: Based on the historical evidence and his stay while at CYOC and EYOC, it appears that [A.A.] has made little or no change since the index offence and does not appear to have any motivation to do so. He presents as a significant risk of re-offending with little regard for the consequences or the victims of his offence. He is a young man who presents with lack of attachment or bonding, lack of remorse or guilt and lack of empathy.

He also does not appear to be motivated to change and his amenability to treatment appears poor at this stage. In view of this, it appears that [A.A.] is likely to respond better to a lengthier sentence as he may resort to antisocial behaviours in the absence of any restrictions or strict boundaries being imposed on him. [ 30 ] Dr. Gupta prepared an Addendum dated June 20, 2011 with commentary on the test results included in Dr. Day’s report, but I

must address that specialist’s evidence to provide important context to Dr. Gupta’s further opinion. Dr. Day [ 31 ] As a Ph.D psychologist in the Forensic Adolescent Program with Alberta Health Services in Calgary, Dr. Day’s credentials fully supported the Court’s recognition of his authority to testify as an expert in forensic adolescent psychology. His report was derived from four clinical interviews and two evaluation sessions totalling 18 hours, and a full review of numerous listed reports. Additional testing was conducted by others in whom Dr. Day expressed full confidence.

He identified that his conclusions were complicated by the impediment of legal advice to A.A. not to discuss the index offence as relates to assessment of issues such as degree of planning, role, contrition and remorse. [ 32 ] Dr. Day was persuaded in consultation with Checklist author Dr. Forth that an adult Risk Assessment tool would be more reliable in assessing recidivism than the youth test that was previously administered, given A.A.’s current age and the potential period of custody.

The score derived from prescribed criteria under an Historical Scale, Clinical Items and Risk Management came to 15 out of 40, which placed A.A. at a low to moderate risk for future violent offending. Since most of the scores were derived from historical factors that are not susceptible to change, treatment would not change those items. The fact that A.A. is also in custody makes it difficult to determine whether certain risk factors are absent or deferred and it must be emphasized that the estimate of recidivism is strictly time limited, being reliable for not more than one year. Dr.

Day did conclude that A.A. was not at imminent risk to commit a violent offence in an institutional setting over the next year to two years. He added that future testing should be repeated at regular intervals. [ 33 ] From test results, Dr. Day was able advise that A.A. does not fit a psychopathy profile, having scored just 12 out of 40 on a Psychopathy Checklist Revised (PCL-

R) assessment, far short of the level for concern of 30 or higher. Moreover, he could find no evidence of any major mental illness or behavioural disturbance although he noted that A.A. would benefit from short-term supportive therapy to help him through acute periods of transient stress. [ 34 ] In general, A.A.’s behaviour over the past year at CYOC was exemplary, entitling him to a high level of institutional privileges. He has completed all programmes that he has been asked to attend, and has not acted out in the stress of a custodial setting. [ 35 ] Dr.

Day expressed caution in reporting A.A.’s explanations of some matters included in earlier reports that A.A. alleged were misrepresented: 1. The collecting of medication which the offender stated was because of sleep difficulties due to anxiety and stress from his legal matters - not to get high but to cope. 2. The history of carrying weapons dating back to high school which he stated was for “protection” from verbal and physical bullying and later in connection with trafficking drugs for his uncle, which he denied was directly tied to the business and never used as a threat. 3.

The extent of drug use which was expressed to have been more social or experimental than is reported from prior interviews and suicidal ideations were over-stated. 4. In previous interviews he was “young and thought he had to act tough” and may have acted inappropriately flirtatious with female staff at Alberta Hospital Edmonton at that time. 5. In contrast to earlier statements that he was still attracted to the benefits derived from illegal activities, he now desires to follow a clean lifestyle. [ 36 ] Dr. Day acknowledged that A.A. would have seen how prior interactions with professionals had been interpreted.

Because of that, it was possible that differences in current presentation may be “related to an attempt at impression management and may not be

reflective of actual changes to his character”. However, that risk needs to be weighed in the total context of all reported factors that have affected A.A. and which cannot be manipulated in retrospect. Dr. Day noted the chaotic family environment, steeped in criminality, reaction to strict rules in N.A.’s home and involvement in his uncle’s lucrative drug trafficking as non-exonerating factors leading up to the index offence. [ 37 ] While doubts persist about the degree of substance abuse and other behaviours, Dr. Day concludes that the prior diagnosis of Antisocial Personality Disorder is not now warranted.

Antisocial symptoms as an adolescent may well have been part of a Conduct Disorder which may be more situational rather than characterlogical; he may have received consequences from such behaviour which then deterred future such behaviour, but he may also have made normal developmental/maturational gains. As stated in Dr.

Day’s report: While this writer concedes the possibility that [A.A.’s] seemingly improved behaviour is an artefact of impression management, this was not the general impression of this writer during the assessment nor does it account for his good behaviour while at CYOC across various circumstances over an extended period of time. Dr. Day testified that he is alert to attempts by a person to dupe him, and he did not sense that in his interactions with A.A. [ 38 ] Overall, Dr. Day stated that A.A. is bright compared to the general inmate population and average in the general population.

He is older and more mature than almost everyone at CYOC. However, the risk assessment is most affected by the inability to explore the index offence including the level of planning, his emotions about killing a member of his own family whom he appears to have admired, his emotions about the rest of the family and the feelings of guilt, remorse and acceptance of responsibility. Without this information it is hard to assess current status and what treatment may be appropriate over what period of time.

As he stated in his report: ...The author of this report is significantly limited in his ability to judge many personality characteristics deemed critical for the completion of a risk assessment as A.A. was advised by his lawyer not to discuss the events leading up to, during, and immediately following the index offence.

Consequently, I am limited in my ability to comment about: whether A.A. currently expresses appropriate guilt/remorse for his actions and empathy for the victim of his crime, as well as other potentially important/meaningful areas (e.g. the extent to which the crimes were premeditated, the extent to which he thought through the consequences of his actions, the extent to which he takes responsibility for his actions, etc.). [ 39 ] While he rated A.A. as being at low to moderate risk for violent recidivism, he indicated that it is difficult to determine whether or not absent risk factors are “truly absent” or merely an artefact of A.A. having lived in a controlled environment for three years.

Gupta Addendum [ 40 ] Having attended court to hear Dr. Day’s evidence and having read the new s. 34 psychological report, Dr. Gupta remained basically of the same opinion previously expressed including the risk of recidivism. The attempts by A.A. to correct prior observations and statements was seen by Dr. Gupta to have been manipulative. [ 41 ] Remarkably, he attributed very little significance to no longer being able to rely on the extensive report of Ms. Morin. That earlier report contained a number of highly judgmental opinions not found in other materials.

While other documents may have sufficiently supported his opinion, Ms. Morin’s input was a significant component underpinning his initial opinion, and I found him to be somewhat dismissive of the suggestion that its exclusion might affect his views. [ 42 ] Fundamentally, Dr. Gupta disagreed with Dr. Day’s scoring of a number of items used to assess the profile of A.A. using the PCL-R. Dr. Gupta emphasized a number of observations in his follow up testimony: 1. Mr.

A.’s score on the PCL-R profile discloses elevated interpersonal and affective symptoms including callousness, remorselessness and exploited use of others.

2. With respect to the results of the violence risk assessment in measuring behaviour and treatment strategies, there is a need to factor in results from March 2010 testing with the result that the risk of future violent offending is moderate to high. Dr. Gupta’s own valuation score for A.A. was 25.9, over twice that of Dr. Day but still below the threshold of 30 for traditional diagnoses for psychopathy. 3. As expressed by Dr. Gupta, “Mr.

A. is strongly influenced by a collection of stable and dynamic factors including antisocial/psychopathic personality traits, drug abuse, and lack of empathy or remorse”. [ 43 ] Dr. Gupta testified that he had no opportunity to speak with Dr. Day about the PCL-R test results in any detail although they spoke once briefly. Dr. Day has a different recollection of two phone calls, the second of which reviewed specific matters from the testing. It is difficult to reconcile the recollections of these two professionals as to their versions of the scope of a discussion in mid-April when Dr.

Day’s report was clearly available but may not have been read fully by Dr. Gupta. Nonetheless, I am satisfied that Dr. Gupta was aware in at least one discussion with Dr. Day that they had differing views as to the presence of an antisocial personality disorder. That discussion and the fact that Dr. Gupta was going to testify again led Dr. Gupta to conduct his own PCL-R scoring without further interviews. [ 44 ] I must assess the overall reliability of all of the evidence. Two qualified professionals called by the Crown have presented rather different

interpretations of the character profile and risk of recidivism for A.A. While I recognize that Dr. Gupta was trying to reconcile a number of mixed signals from the offender and a variety of source interviews, I was impressed by the objectivity of the opinions expressed by Dr. Day. Although his scoring on the PCL-R was somewhat generous, I found Dr. Day openly cognizant of the foibles of testing, especially for a young adult under stress - much of it of A.A.’s own making. Dr.

Day’s answers were measured in terms which reflected possible manipulation but probed the contrasts of current and prior observations as possibly part of a maturing process that needs to be carefully measured. He ruled out any antisocial personality disorder since age 18 and described A.A. as a low to moderate risk to re-offend in the next year or two in an institutional setting. [ 45 ] Dr.

Day was unable to explore with A.A. the murder, including the level of planning, his emotions about killing a member of his own family whom he appears to have admired, his emotions about the rest of the family and the feelings of guilt, remorse and acceptance of responsibility. Again, Dr.

Day expressly cautioned that he was significantly limited in his ability to complete a risk assessment, and that his rating of low to moderate risk for violent recidivism was qualified by the difficulty in determining whether risk factors were truly absent or merely an artefact of A.A.’s controlled environment over three years. [ 46 ] I do not reject the opinions of Dr. Gupta as to the assessment of risk but it does concern me that he gave such limited credence to Dr. Day’s opinion that A.A. may have matured somewhat and that his exemplary behaviour has been sustained despite obvious institutional stress.

Equally troubling, Dr. Gupta made very few adjustments to his opinion once advised that Ms. Morin’s extensive accounts could not be taken as legally reliable. A number of her disclosures were not found in other reports.

I hasten to add, however, that her report must remain available on file as historical information in order to assist the dynamics of assessing A.A.’s circumstances on a go forward basis. [ 47 ] With those overarching comments about the opinions of these two experts, I am able to rely on aspects from both reports as informing the Court’s determination of character, commitment and fault as components of the type of sentence required to hold this offender accountable for a most vile crime.

I find from all of the evidence that A.A.’s intellect and verbal comprehension fall within the average range and his memory ranking varies from an average to superior range of ability depending on the use of different senses. [ 48 ] As to the personality profile, I rely primarily on Dr. Day’s opinion that A.A. does not have a clinical disturbance as serious as an Antisocial Personality Disorder. This, of course, is subject to Dr. Day’s caution regarding his inability to explore A.A.’s thoughts in relation to the crime.

A.A. does still suffer from anxiety, depressed moods with indicators of situational/transient stress that may benefit from supportive therapy. His ability to manipulate circumstances is apparent but not sophisticated. [ 49 ] As to the risk of recidivism, although complicated by various factors including points noted in prior test results, I am comfortable that the current measure of the risk of recidivism is likely between the two scores presented of 15 and 25.9, still well below the threshold of serious concern. The lower score is subject to Dr.

Day’s qualification that it was difficulty for him to assess risk of recidivism outside of a controlled environment. It will need to be fully reassessed once the offender is able to speak freely about the full circumstances of this crime and any subsequent programs, treatment, conditions, supervision and monitoring tailored accordingly.

[ 50 ] From the other reports, the following points are most relevant to this disposition hearing: 1.

From the PSR there is confirmation of a chaotic upbringing with Child Welfare involvement in respect of A.A. and his two brothers; rebellion against the rules of a more stable form of parenting from N.A.; uttering a threat toward a female teacher; jumping and attacking another student at school; bringing a baseball bat to school with the intent “to go after someone”; failure to stick with legal employment; alcohol and drug consumption which came to include cocaine after moving in with his uncle in 2007; drug trafficking, including assembling his own gang of youth to work for him in distributing drugs. 2.

From Custodial Progress reports there appears to be overall positive behaviour; no major issues of negative interaction with peers or staff despite some horseplay and a verbal altercation; bouts of depression and perhaps some suicidal ideation since being taken into custody; over the extended period he has taken various courses and started to address some of his issues through counselling, treatment, programs and ongoing schooling. 3. From Dr.

Oskin with Turningpoint, there are concerns that the offender provides different versions of background events; in turn this makes it difficult to assess future risk, rated in the low-moderate range in February 2008 - perhaps higher if A.A.’s assertion of access to an automatic weapon with a few phone calls can be believed; A.A. stated more latterly that he would talk and act tough earlier but made no specific reference to this point in clarifying that he did carry weapons for “protection” while trafficking for his uncle. [ 51 ] Finally, relevant material was provided in connection with the sentencing of D.B., the co-participant in this murder, on whose testimony during trial I was unable to place much weight.

The reports of Dr. Das provide two accounts of D.B.’s direct role in the murder that were prepared within two months of arrest. These accounts confirm my concerns as to his reliability. D.B. admitted to lying initially, but his revised version still includes a number of inconsistencies. In the end from these reports, a few points are worth noting at this stage regarding D.B. 13. Although D.B. appeared to be part of a closely knit nuclear family, there were parental conflicts and possible issues with discipline. 14.

He is noted to have a deficiency in calculating risk and I note the following from the assessment of Dr. Roth: “the inadequate personality structure may default to others, even those with antisocial values to guide his directions and actions”. 15. There are various references to poor self-esteem, lack of assertiveness and immaturity. [ 52 ] D.B. did give evidence of hesitation or doubts by A.A. leading up to the shooting, and it is impossible to know to what extent the two may have relied on each other to carry through with this brutal slaying.

What is clear is that D.B. entered a plea relatively early and the recommendation for an IRCS disposition was accepted by the court without the benefit of later forensic testing for gun powder, the evidence of Ms. Simms and other matters of evidence which render difficult the attribution of roles and responsibilities between these two felons. Positions of the Parties [ 53 ] The Crown asserts that A.A. can only be held accountable by an adult sentence. The murder was cold-blooded, for profit, greed and perhaps in anger or retaliation for recent punishment.

It was aggravated by the betrayal of family trust, ambush at the uncle’s own residence, and ongoing planning that involved prior elimination strategies, recruitment of others and key leadership in obtaining the weapon and setting the stage for the murder. [ 54 ] Crown also emphasizes that, despite A.A.’s lack of a criminal record, his prior acts of violence, theft, drug use and lack of empathy expose a character attracted to this lifestyle who poses a risk that can only be managed by lengthy incarceration.

The Court must consider his blame of others for his problems and that his behaviour at CYOC is part of a manipulation to minimize the consequences of this crime and reflects awareness that adverse conduct in an institutional setting results in consequences that are both swift and certain.

[ 55 ] As to the matter of parity between participants, Crown notes that it is only one factor and cannot dominate consideration of accountability, particularly as it is not even an enumerated factor under s. 72. To the extent that the Court does consider the disposition of D.B. as a convicted murderer, the relative blameworthiness is distinguished by A.A.’s betrayal of family trust, his level of leadership, obtaining and carriage of the weapon, and the differential assessment of risk to re-offend.

By contrast, D.B. was contrite, disarmingly cooperative, and presented as amenable to intensive rehabilitation. [ 56 ] Fundamentally, the Crown points to the significant benefit derived for the community and arguably for A.A. in the supervisory aspect of life parole under an adult sentence.

A youth sentence in these circumstances would not reinforce respect for societal values and the harm to the community affected by this level of callous violence. [ 57 ] Defence urges that the Crown has failed to meet the onus to show that a youth sentence will not hold A.A. accountable and that it is fully open to the Court to impose an appropriate sanction under the YCJA . In particular, the Court is able to impose a sentence of incarceration up to six full years without remission, followed by four years of community supervision. In addition, as reflected in R. v.

D.D.T. , the Court has discretion not to reduce a youth sentence by any portion of the pre-disposition custody, and this is relevant to the determination of whether the length of a youth sentence would hold A.A. accountable for this crime. [ 58 ] Defence urges the Court to consider carefully the importance of relative parity as among participants in the same crime. Any youth sentence for A.A. will amount to a 10 year mix of custody and conditional supervision, which will be more onerous than the sentence of three and three imposed on D.B. (even factoring in D.B.’s 13​ months pre-sentence custody).

After adjusting for the guilty plea and assessment of personal circumstances, the uncertainty as to who fired the weapon and the unreliability of D.B.’s evidence do not support the vast difference between an IRCS versus a mandatory life- 10 sentence as an adult. Parity is clearly one of the other factors contemplated in s. 72 in assessing whether the length of a sentence under the YCJA will hold this offender accountable for this crime. [ 59 ] Defence argues that an adult sentence would ignore the evidence of Dr. Day, the concurrence by Ms.

Sacuta with instructors at CYOC that A.A. has been a “model student”, and the mitigating circumstances of a tragic upbringing that has distorted the efforts of N.A. who did her best to counter the influences of parents and family with dysfunctional criminal lifestyles. Although some incidents reported early during his custody may present concerns, there is no evidence that more time is required than would be available under a youth sentence in order to hold A.A. accountable and enable him to rehabilitate and reconcile his role in this crime once the legal proceedings are complete.

Analysis [ 60 ] The fundamental issue at this point is whether the Crown has established that A.A. cannot be held accountable for his crime by a sentence imposed under the YCJA . I turn then to the various criteria to be addressed in assessing what type of sentence is required to hold A.A. properly accountable in all the circumstances. Seriousness of the Offence [ 61 ] First degree murder is one of the most serious offences known to Canadian criminal law. Only high treason and first degree murder carry, for adult offenders, a mandatory sentence of life imprisonment with a parole ineligibility period of 25 years.

It is similarly treated as most serious in the YCJA regime. Accordingly, the moral culpability - based solely on the offence - is extreme. [ 62 ] The murder was planned and deliberate, and therefore the intentional risk-taking was extremely high. [ 63 ] The motive for the murder was revenge at being excluded from the deceased’s drug trafficking operation, or personal gain, or both. No aspect of these motives reduces the moral culpability associated with first degree murder. [ 64 ] The consequential irreversible harm caused by A.A. was the loss of a life. That loss undoubtedly caused pain to A.A.’s family

- grief not only at the loss of a family member, but also at the extent to which A.A. had embraced criminality. Circumstances of the Offence [ 65 ] The following account is a distillation of the evidence from the Conviction Decision ( 2009 ABQB 629 ) which provides context for the purpose of determining the appropriate sentencing regime. The

summary is not intended in any way to reassess the evidence upon which that verdict was reached. [ 66 ] The circumstances of the murder are both crudely violent and crassly mercenary. They are very serious. As described more fully in the earlier decision, A.A. was 17 years old at the time of the murder of his uncle, a major cocaine dealer. A.A. lived with and assisted his uncle by chopping bulk cocaine into smaller quantities at the uncle’s residence in downtown Edmonton.

A few weeks prior to the murder, the uncle accused A.A. of stealing some drugs from him and kicked him out. [ 67 ] A.A. stayed in the home of a friend, D.B., who was then 16 years old. During this period of time, A.A. and D.B. discussed a variety of ideas, along with another friend. In their discussions, they considered how to take over the drug business from the uncle.

They made an ill-conceived call to Crime Stoppers in an unsuccessful attempt to get the uncle arrested, and then developed a plan to kill the uncle. [ 68 ] In the evening leading up to the murder, A.A. and D.B. removed a substantial quantity of drugs and cash from the uncle’s residence, along with the keys and a pass code to a storage shed rented by the uncle. The two later returned to the residence with A.A. carrying a duffel bag with an SKS–D rifle taken from the storage shed. [ 69 ] They then awaited the return of the uncle for over 2½ hours.

A.A. called the uncle’s cell phone but did not respond when the uncle called back. Both A.A. and D.B. were present when seven shots were fired at the uncle or through the door of his residence, three of which hit his body and killed him. Degree of Participation [ 70 ] A.A.’s role has also of course been detailed in the Conviction Decision [paras. 34-42]. It remains impossible to state which of the youths actually pulled the trigger of the powerful weapon used to kill the uncle. What is clear is that A.A. had various discussions with two friends, including D.B., about how to get rid of his uncle.

Their ideas may have reflected collective and individual immaturity; nonetheless, there was a highly sustained commitment to take over the drug business for their own purposes. [ 71 ] During the evening leading up to the murder, A.A. spoke briefly with his uncle at a restaurant to arrange to chop cocaine at the uncle’s downtown suite. He continued to involve D.B. without the approval of the uncle. I have no explanation for why A.A. went ahead without involving his other friend with whom he had a longer relationship and whom the uncle had approved to be involved from time to time.

As previously noted, A.A. knew how to obtain the rifle, took the keys and the access code to the storage locker. They also removed a bag of drugs and money from the suite. [ 72 ] Only an hour before the shooting, A.A. called his uncle at the suite but declined to answer two return calls just minutes before the uncle was shot as he opened his door at 3:35 a.m. A.A. held the bag of drugs and cash from the suite, which he hid and later provided to police. He was a fully active party to the planning and the murder. Intention and Harm

[ 73 ] Once again, the Conviction Decision sets out the evidence and conclusions on intent as well as the degree of planning [paras. 45 - 62]. Nothing in the evidence at this sentencing hearing derogates in the least from the obvious intent and harm inflicted by A.A. and D.B. acting together in this murder. [ 74 ] This highly serious offence carries evidence of two powerful motives: 1. Profit — by taking over the drug trafficking operation, as pathetically naïve as that may have been; 2.

Revenge — in response to being kicked out of a suite paid for by the uncle after being accused of taking 2 ounces of cocaine without approval and stealing money. Reparation to Community [ 75 ] The evidence does not support any efforts at reparation to the community, since the offender has remained in custody since his arrest and under instruction from counsel not to communicate with anyone regarding the index offence. As a result, the uncle’s family has not had the opportunity to come to grips with A.A.’s role in this murder. A.A. has expressed some limited regret to his parents.

Of at least theoretical benefit to the community, he may have drawn closer to his parents, although they have been less than effective role models. Time in Detention [ 76 ] A.A. was charged on December 2, 2007 and has remained in custody now for a period of 3 years and 9 months. During that time in custody, served mostly at the Calgary Young Offenders Centre (from May 2008), he has advanced his education and taken at least 12 ancillary courses with counselling that may be of assistance in dealing with a variety of personal issues. Personal Circumstances [ 77 ] A.A. comes from a troubled background.

His mother has pursued a lifestyle of risk in a tumultuous relationship with his father who has a serious criminal record dating back to 1989. Attempts by N.A. to provide a stable home for A.A. (later including his brothers), at the request of their father or police, were regularly disrupted as the parents would variously reunite and pick up the children. [ 78 ] Despite this troubled background, A.A. has no prior criminal record. He does, however, acknowledge involvement in the sale of illegal drugs in high school and uttering a threat towards a female teacher.

There is also some evidence that A.A. had other difficulties in school in the past, including a violent attack on a fellow student, and has been involved in setting fires, stealing, death threats regarding D.B., has failed to stick with legal employment, has consumed alcohol and drugs (including cocaine), has had gang leader aspirations, and has been involved in drug trafficking. [ 79 ] According to the father, A.A. went to live with his uncle in early 2007, after an incident in which his mother attacked her son for trying to prevent her from driving while intoxicated.

A.A. provides mixed signals as to his feelings towards his parents and whether he may ever be able to rely on them. It is difficult to see how either parent will at any time be able to provide any real, positive support for their son, having totally failed in that regard up to this point in time. The PSR further notes limited suitable alternative supports available to A.A. when he returns to the community; he himself states that some of his relatives “probably want to kill me...I’m cool with that”.

Whether as a matter of protection, lifestyle or otherwise, his expressed intention at one point was to live with his father - the victim’s brother and a convicted felon. [ 80 ] A.A. was 17 at the time he committed the offence. This is very close to the age at which he would be deemed to be mature enough to be tried and sentenced as an adult. However, there has been evidence that he is immature.

[ 81 ] A.A. is now 21 years old and still working on credits to complete his High School diploma. He is described by one instructor as well motivated, mature and overall “a responsible student who is always respectful and grateful of the efforts made by school staff.” He has limited job experience and lacks any form of special training.

Reintegration into the community appears likely to be a significant challenge, especially given what will probably be almost a total lack of family support. [ 82 ] In terms of personality, A.A. is noted to be very self-confident but has a history of depression and anxiety as referenced earlier. Aggravating and Mitigating Factors [ 83 ] The level of violence, the motives of greed and perhaps revenge, the use of a firearm, as well as the location of the murder all aggravate the nature of this execution style killing. [ 84 ] The relationship between A.A. and his uncle is an aggravating factor.

The family ties and history of the relationship between the uncle and A.A. would support some level of personal trust to allow for A.A.: 1) to know of the existence, location and contents of the storage locker as well as the security code and keys to access it; 2) to be able to renew his participation with his uncle despite accusations of taking 2 oz. of drugs from him; and 3) to be reasonably confident his uncle would open his door for him at 3:35 a.m.

On the other hand, A.A. was brought into this illegal operation by his uncle as a 16 year old and exposed to a level of temptation that might not otherwise have existed in the absence of such family ties. [ 85 ] The evidence of A.A.’s hesitation before the killing is neither clear nor reliable enough to amount in any sense to a mitigating factor. If any hesitation did occur, it would be attributable to the best efforts, albeit unsuccessful, of the victim’s sister to provide a structure for A.A. against which he eventually rebelled.

None of this discloses a compelling answer to the threshold question of accountability but it is all part of my assessment. Other Factors [ 86 ] Other considerations affect the Court’s opinion of how best to meet the responsibility to impose a fit and proper sentence. While they are not per se responsive only to the question of whether the offender can be held properly accountable, they are, nonetheless well recognized principles and require careful consideration in the context of this case. A.

Proportionality [ 87 ] On this aspect, the Court must address whether a youth or an adult sentence is capable of more properly responding to the circumstances having regard to cases reflecting roughly similar circumstances. The cases which have been submitted do reflect an individualized response to the facts presented on first degree murder convictions of persons who were youths at the time of the offence. There is no formula for weighing the degree of planning, the extent of violence, attributions of motive or expressions of remorse as referenced in the following Alberta cases. [ 88 ] In R. v.

Cassavant, 2009 ABQB 672 , 484 A.R. 103 Cassavant pled guilty to first degree murder. Burrows J. imposed an adult

sentence on Cassavant, who was paid over $7,000 to kill a dial-a-dope drug dealer. He was 17½ years old at the time of the offence. Herode his bicycle up to the victim’s car and fired a gun twice into the victim’s head, killing him. In the face of a guilty plea, the Courtfound a youth sentence would not hold the accused accountable for the most serious crime a person can commit.

Having regard to thelevel of maturity, motive of greed, prior record, brazen after-offence conduct, a hair-trigger temper, and lack of remorse, the Court wasconvinced that a maximum youth sentence would not be sufficient to promote rehabilitation and reintegration into society. [89] In R. v. D.E., 2008 ABPC 231, aff’d 2010 ABCA 69 (Estacio), the offender was sentenced as an adult. He was 17 years oldwhen he committed second degree murder, stabbing the victim during an argument.

He was a member of a youth gang and a drug dealer,had expressed no sincere or meaningful remorse, and was reluctant to give up his gang affiliations and criminal lifestyle. [90] In R. v. C.H.C., 2009 ABQB 125, 465 A.R. 240, Moreau J. imposed a youth sentence for second degree murder. The victimfronted cocaine to C.H.C. who was a heavy user at the time. When C.H.C. did not pay his drug debt, the deceased threatened to killC.H.C.'s family. C.H.C., who was a few months shy of 18 years old, shot the victim in the head with a shot gun while the victim waslying on a sofa unarmed in his own trailer. He was remorseful.

Moreau J. noted that the deceased was not innocent in his dealings withC.H.C., given the earlier kidnapping of C.H.C. by his fiancée and threats made against C.H.C. and his family. While the Court foundprior threats and setting the trailer on fire were not unequivocal proof of pre-planning, the second degree murder was described by theCourt as a pre-emptive strike with a very high level of moral culpability.

Noting offences pre and post detention and serious drugaddiction and anger issues with a high risk of re-offending, the Court after a full review of all relevant factors concluded that a youthsentence, without any credit for pre-sentence custody, would be sufficient to hold the offender accountable. [91] The consequences in first degree murder are invariably fatal and here the moral blameworthiness is very high and aggravatedby family ties. However, the decision in C.H.C. merits consideration. B. Parity [92] One of the sentencing principles under s. 38(2)(

b) to which s. 72 refers is that the sentence must be similar to the sentencesimposed in the region on similar young persons found guilty of the same offence committed in similar circumstances. Defence counselargued that an adult sentence cannot be justified for A.A., having regard to the IRCS sentence imposed on D.B. in 2009. [93] Crown argues that the leniency of a sentence for a participant in the same crime does not oblige this Court to do likewise. [94] First degree murder convictions of youth in Alberta are exceedingly rare.

Cassavant is a recent example of a case where theCourt imposed an adult sentence for first degree execution style murder in the drug sub-culture. In Estacio, an adult sentence wasimposed for a second degree stabbing murder in the same sub-culture. [95]

Section 718.2(

b) of the Criminal Code also provides that like offences and offenders should be treated similarly. Crown citesR. v. Choquette, 2010 ONCA 327, 266 O.A.C. 348. In that case a 38 year old offender was convicted of five charges including extortion,conspiracy and kidnapping for which a concurrent sentence of four years was imposed. The pawn broker for whom he was working was50 years old and pled guilty to unlawful confinement, uttering threats and a weapons offence for which an 8 month CSO was imposed. [96] The case law in relation to s. 718.2(

b) establishes that in applying the parity principle, it is an error to impose a sentence whichrepresents a substantial and marked departure from sentences customarily imposed on similar offenders for committing similar crimes: R.v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 92. The courts strive for an approach whereby sentences for similaroffences committed by similar offenders in similar circumstances are understandable when viewed together, particularly in casesinvolving joint ventures, even where one sentencing proceeded on the basis of a joint submission: R. v.

Christie, 2004 ABCA 287, 357A.R. 47 at para. 43. In R. v. Cardinal, 2007 ABCA 46, 404 A.R. 3, the co-accused both pled guilty to assault with a weapon and assaultcausing bodily harm during a fight with the victim.

The Court of Appeal did not find any distinctive aggravating factors on the record,and adjusted the longer sentence, applying parity as the guiding principle in that particular case. [97] Nevertheless, courts have held that disparity in sentences imposed on co-accused may be acceptable if the convictions are fordifferent offences arising from the same transaction, or the court is not aware of all of the circumstances concerning the other sentence

and the reasoning of the sentencing judge. A judge who is not fully apprised of all the circumstances concerning the sentencing of theco-accused who was sentenced earlier is at a distinct disadvantage in relying on that first sentence for parity purposes: R. v. LeSarge(1975), (ON CA), 26 C.C.C. (2d) 388, [1975] O.J. No. 390 (C.A.); R. v. Phan, 2002 SKCA 8, (2002), 161 C.C.C.(3d) 557; R. v. M (C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28; R. v. Gauvin (1997), (NB CA), 187 N.B.R. (2d) 262, [1997] N.B.J. No. 125 (C.A.), leave denied [1997] S.C.C.A.

No. 267. [98] Further, the imposition of an excessively lenient sentence on a co-accused by one trial court will not bind another trial court insentencing a second co-accused. If a sentences imposed by one court is too lenient, it should be disregarded: R. v. Isaza (1993), (BC CA), 86 C.C.C. (3d) 19, [1993] B.C.J. No. 2166 (C.A.); R. v. Roche, [1990] N.J. No. 134 (C.A.); R. v. Johnston,[1990] B.C.J. No. 693 (C.A.); R. v. Hunter (1970), (ON CA), 16 C.R.N.S. 12, [1970] O.J. No. 927 (C.A.); R. v.Gauvin (1997), (NB CA), 187 N.B.R. (2d) 262, [1997] N.B.J. No. 125 (C.A.), leave denied [1997] S.C.C.A.

No. 267. [99] I find the following points to be relevant to the issue of parity: 1. D.B. entered a relatively early guilty plea to one charge of first degree murder. He was cooperative with the police. The guiltyplea was made early based on a confession of D.B.’s role, his expression of remorse, and his commitment to change, upon which theCourt was able to express faith. 2.

According to the agreed facts before the judge who sentenced D.B., A.A. offered $5,000 to D.B. to assist him in killing his uncleand D.B. participated in a plan orchestrated by A.A. and facilitated by A.A.’s access to the uncle and the uncle’s weapons; with respect tothe killing itself, D.B. was not the main actor, but knocked on the uncle’s door and ran. 3. D.B. was younger, smaller and lived with both his parents in what appeared to be part of a closely knit family, despite parentalconflict and possible issues with discipline. 4. D.B. had no significant history of antisocial conduct.

His past history, as disclosed by the material relating to his sentencing, wasunremarkable until 2007 when he apparently began to associate more with a peer group involved in gang and antisocial activities. He wasdetermined to be more of a follower than a leader, with poor self-esteem and lack of assertiveness; he was immature for his age and hadlittle direction in life. 5. There was no evidence that D.B. had a negative history with the uncle whereas A.A. had been kicked out and accused of stealingshortly before the crime.

D.B.’s evidence at A.A.’s trial was that he was to be paid for his involvement in the killing. Another witnessalso spoke of promises of payment for his participation. 6. D.B. was not approved by the uncle to help A.A. cut cocaine. He was aware of this status and was entirely beholden to A.A. forthe opportunity to participate at all in this lucrative illegal behaviour. As such, he would not likely have known or been able toindependently acquire details regarding the uncle’s whereabouts or routine.

He had no independent access to the storage locker (moneyor weapons), nor the residence, in order to either await return of the uncle or to anticipate that the door would be opened at 3:35 a.m. 7. Although there was no conclusive evidence as to who pulled the trigger, there was no reliable evidence that D.B. instigated orconcocted the plan to kill the uncle and enlisted the help of A.A. to do so. 8. Because of D.B.’s limited involvement in the drug trafficking operation, his ability to benefit from any plan to “take over” thatoperation would logically depend on A.A.’s initiative. 9.

I found during A.A.’s trial that D.B. was unreliable and had changed his story a number of times. I also could not definitivelydetermine based on the evidence who it was who pulled the trigger, nor who initiated the plan; 10. The treating team at Alberta Hospital Edmonton strongly recommended an IRCS sentence for D.B. The Crown did not oppose therequest for an IRCS order. In making the order, the judge was satisfied that D.B. was suffering from a psychological disorder. She wassatisfied that a plan of treatment and intensive supervision had been developed for D.B., and that there were reasonable grounds to

believe that the plan might reduce the risk of D.B. repeating the offence or committing a serious violent offence. The material presented at D.B.’s sentencing indicated that based on the clinical assessment and his personality type, D.B.’s ability to own responsibility for his role in the offence, his remorse and his empathy all pointed to a positive prognosis with some cautions; the Court noted a willingness and commitment by D.B. and his family to respond to interventions. 11.

In the case of A.A., the Provincial Director concluded that participation in the IRCS programme was not appropriate and Defence counsel took no issue with that conclusion. A.A. is consistently described as self-confident, and a leader. No one has ever been able to adequately determine A.A.’s acceptance of responsibility, remorse or empathy in relation to the victim due to A.A.’s position that he was instructed by counsel not to discuss the offence. 12.

In terms of community support on release, A.A. comes from a largely dysfunctional family steeped in crime, some of whom A.A. opined probably want to kill him. [ 100 ] While I am dealing with two youths of roughly the same age and without records, the above factors offer ample basis for differential treatment. It is noteworthy that Dr. Gupta expresses the opinion that A.A. is not a suitable candidate for treatment under the auspices of IRCS, and Defence counsel takes no issue with that position.

The objection is taken against the stark disparity between IRCS and an adult sentence including probation for life. [ 101 ] As A.A. is not eligible for an IRCS order, there will necessarily be a significant difference between the sentence imposed upon A.A. and that imposed on D.B. I am nevertheless mindful that in spite of the distinctions outlined above, there is a profound difference between an IRCS order for D.B. and sentencing as an adult for A.A. C. Residual Factors [ 102 ] The exercise of discretion in sentencing is often well informed by analyses conducted in other cases.

One such case which raises a compelling approach is R. v. D.D.T. in which the Alberta Court of Appeal supported a liberal

interpretation of the potential interrelationship between accountability and the consideration of pre-disposition custody. Specifically, the Court’s decision confirms that s. 38(3) (

d) of the YCJA “must be interpreted to permit a discretion to take into account the period of pre-disposition custody in ways other than by granting a reduction in the custodial period to be served...”: para. 33.

The Court noted further that the principles of the YCJA “are arguably best met by a sentence giving no credit for pre-disposition custody where that is what is required to keep a young person within the youth court sentencing régime in circumstances where to do so best meets the goals of the legislation”: para. 46. [ 103 ] This approach leaves open the possibility that accountability is measurable not only in terms of the length or severity of the sentence as a retributive response to moral blame for the crime; the Court may also examine the challenges and messages of the sentence as the major framework for rehabilitation that may enable reintegration into the community.

It is for the offender to make that commitment and he will be held accountable for all that is necessary to make that happen. [ 104 ] R. v. D.D.T. has already sanctioned such treatment of pre-disposition time in assessing how best to achieve the sentencing objectives. This approach is not appropriate in all cases, particularly if the offender has done little to avail himself of the opportunities for treatment or to advance his education.

Persons near the age of majority ought not to be lulled into any sense that their youthful status accords a licence to commit serious offences with less severe consequences than they would attract a short period thereafter. [ 105 ] In the case of a person who is nearly an adult, involved in a very serious crime with high moral blameworthiness, but who afterward begins to make progress over a sustained period, a discount of the typical credit for prior time spent in custody does provide sentencing flexibility.

It enhances the ability of the system to balance the objective of rehabilitation while maintaining a strong message of denunciation. [ 106 ] Here, as I have noted, the period of detention now exceeds 3​years and I am satisfied that none of it was an intended consequence of the delays in completing the hearing; in this matter all adjournments during the sentencing have been in the legitimate best interests of completing a full and fair hearing. Had it been otherwise, I would certainly have little inclination to entertain Defence counsel’s proposal.

[ 107 ] The maximum custodial sentence available in this case under the youth sentencing regime is six years (which counsel agree would be served in a federal penitentiary due to A.A.’s current age) with no credit for pre-sentencing custody, or a total of 9​ years in custody, and a further four years under terms of supervision. If sentenced as an adult, A.A. will be ineligible for parole for at least 10 years, but the pre-sentence time served is to be credited under s.746.

As an adult he will remain subject to parole for life. [ 108 ] I am satisfied, for all of the reasons stated above, that only a lengthy sentence can fulfill the objectives of the YCJA in the circumstances.

The question for this Court is whether the youth sentencing regime under which the potential maximum sentence of a total of up to 9​ years of combined pre and post sentencing custody, followed by four years of supervision, provides a framework within which the Court can fashion a sentence of sufficient duration to hold A.A. accountable for this first degree murder. [ 109 ] The planned shooting of A.A.’s uncle in his own home is both senseless and horrific. I re-emphasize the background of the offender, and the obvious irrational and immature stupidity of his plan.

In addition, the response to incarceration to date, while not consistently laudable, does speak to some reasonable prospects of rehabilitation. I am concerned about the importance of remorse as a key element in dealing with rehabilitation.

I am also mindful that the early reports of some sustained interest in criminal behaviour would, if reliable, represent a material risk of recidivism. [ 110 ] Having carefully considered the circumstances and all of the sentencing submissions, I conclude that A.A. can be held accountable for the consequences of this first degree murder within the terms of the youth sentencing regime. Although I recognize that the onus on the Crown as to an adult sentence is not an onerous one, an adult sentence is warranted only when necessary to fulfill the objectives of the YCJA .

I am satisfied that a sentence can be fashioned under the youth sentencing regime which would be long enough to reflect the seriousness of the offence before the Court and A.A.’s role in it, and would constitute meaningful consequences.

In light of A.A.’s recent best efforts, an appropriate sentence under that regime would be long enough to provide some reasonable assurance of his rehabilitation to the point where he can be safely be reintegrated into society. [ 111 ] In the event of any future involvement by A.A. with the judicial system, A.A.’s criminal record will disclose this decision as an exceptional exercise of discretion. Convicted murderers who re-offend in any way may reasonably expect that the most severe legal consequences will be deemed paramount in order to protect the best interests of the community.

Conclusion [ 112 ] I am satisfied in all of the circumstances that a youth sentence can constitute a period of sufficient duration to hold A.A. accountable for this first degree murder. [ 113 ] In view of the disposition of this application, the ban on publication of the name of the offender must continue. Heard on the 22 nd to the 25 th days of June, 2010, the 21 st and 22 nd days of December 2010 ; the 5 th and 6 th days of July, 2011, the 18 th and 31 st days of August 2011. Dated at the City of Edmonton, Alberta this 28 th day of September 2011.

S.D. Hillier J.C.Q.B.A. Appearances: Robert Beck for the Crown Peter Royal, Q.C. for the Accused _______________________________________________________ Corrigendum of the Sentencing Decision of The Honourable Mr. Justice S.D. Hillier _______________________________________________________ Please note corrections have been made to the following paragraphs: [16] Of perhaps overarching concern to the Defence is that if A.A. is sentenced as an adult, the life sentence continues to attach even after parole eligibility (set in these circumstances at 10 years pursuant to s. 745.1(b)).

Crown acknowledges that a central consideration in assessing accountability is whether the seriousness of this crime requires imposition of parole for life in the best interests of A.A. and the public. [57] Defence urges that the Crown has failed to meet the onus to show that a youth sentence will not hold A.A. accountable and that it is fully open to the Court to impose an appropriate sanction under the YCJA . In particular, the Court is able to impose a sentence of incarceration up to six full years without remission, followed by four years of community supervision. In addition, as reflected in R. v.

D.D.T. , the Court has discretion not to reduce a youth sentence by any portion of the pre-disposition custody, and this is relevant to the determination of whether the length of a youth sentence would hold A.A. accountable for this crime. [107] The maximum custodial sentence available in this case under the youth sentencing regime is six years (which counsel agree would be served in a federal penitentiary due to A.A.’s current age) with no credit for pre-sentencing custody, or a total of 9​ years in custody, and a further four years under terms of supervision.

If sentenced as an adult, A.A. will be ineligible for parole for at least 10 years, but the pre-sentence time served is to be credited under s.746. As an adult he will remain subject to parole for life.