R v KBP, 2012 ABQB 135

Court of Queen ’ s Bench of Alberta Citation: R v KBP, 2012 ABQB 135 Date: 20120229 Docket: 101442325Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - K.B.P. and R.T.T. Accused Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the accused as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act, s. 75(3) . By Court Order, information that may identify the person or persons described in this judgment as the witness or witnesses may not be published, broadcast, or transmitted in any manner.

There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.5. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice B.E. Romaine _______________________________________________________

I. Introduction [ 1 ] The primary issue in this hearing under the Youth Criminal Justice Act was whether two young offenders found guilty of charges arising from a home invasion robbery should be sentenced as adults or as youth. II. Serious Violent Offences [ 2 ] On October 12, 2011, K.B.P. and R.T.T. were found guilty of a number of charges arising from a home invasion robbery: R v KBP , 2011 ABQB 627 . [ 3 ] As permittted by Section 42(9) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“YCJA”), the Crown applied for a judicial determination that all of the offences of which Mr. P. and Mr. T.

T. were found guilty were “serious violent offences”. [ 4 ] A serious violent offence under the YCJA is defined as “an offence in the commission of which a young person causes or attempts to cause serious bodily harm”. The Supreme Court of Canada found “serious bodily harm” for the purpose of this definition to mean “any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant”: R. v.

D.(C.) , 2005 SCC 78 at para. 20 . [ 5 ] Neither of the young offenders contested the issue of whether these offences were serious violent offences. I found them to be so. [ 6 ] The victims of these offences suffered both physical and psychological injury that meets the test outlined by the Supreme Court of Canada. The specifics of those injuries are set out in my reasons on conviction and were given in evidence at the trial. The victims were vulnerable and, in the case of Mr. T. and Ms. H., frail and elderly. This was a home invasion robbery with the attendant implications of trauma and terror for the victims.

While R.T.T. was a party rather than a principal actor to some of the offences, s. 21 of the Criminal Code of Canada is available to support a serious violent offence designation for offenders who are found to have committed offences as parties: R v. C(K) , 2011 ONCA 257 at paras 58-59 . III. Disposition with respect to Mr. T.T. [ 7 ] After evidence was called, the Crown abandoned its application to have Mr. T.T. sentenced as an adult. The Crown and defence made a joint submission on sentencing. After considering the declaration of principle set out in

section 3 of the YCJA and the purpose and principles of youth sentencing set out in sections 38 and 39 , I found the joint submission acceptable. [ 8 ] Mr. T.T. was sentenced to the maximum youth custodial sentence of three years, and given credit for one year served in remand. Thus, he had two years left to serve pursuant to a custody and supervision order under subparagraph (

n) of section 42(2) of the YCJA , 16 months in custody followed by 8 months of community supervision. He received a 5-year weapons prohibition, was subject to a DNA order, and the mandatory conditions set out under s. 97 of the YCJA . I also ordered additional conditions as follows: - reporting to probation; - no intoxicants; - no contact with the complainants or Mr. P., unless required by the CYOC with respect to programming; - either maintaining schooling or seeking employment;

- residing as directed by a probation officer; and - counselling as directed by a probation officer. IV. K.B.P. A. Evidence at the Hearing [ 9 ] Mr. P. is now 17. He was 15 when the offences were committed. [ 10 ] During the last four years, Mr. P. has developed an extensive history with the youth criminal justice system. His first finding of guilt as a young offender occurred when he was just shy of his 14th birthday. He has now been convicted of seventeen offences on seven different occasions. Prior offences include assault, robbery, possession of drugs, carrying a concealed weapon and obstruction.

They also include failures to comply and breaches of recognizance. He comes to this hearing having spent approximately two years and one month in custody, predominantly on remand status but also serving custodial sentences, with a few relatively short periods of release. It was during one of those periods of release under community supervision that the offences before me were committed. [ 11 ] It is apparent that Mr. P. joined the FOB criminal organization sometime prior to July of 2009. It is suggested from prior pre- sentence interviews in 2009 that Mr.

P. was bullied during his elementary years and during Grade 7. In the opinion of a youth worker with the Newcomers Community Resource Group, who has known Mr. P. for a period of time and apparently has developed a rapport and connection with him, Mr. P. was the subject of gang recruitment from the time he was about 11 years of age. [ 12 ] Mr. P. began acting out in school in about Grade 8, and was suspended in December, 2008 for bullying. By then involved in the youth system, he was directed to alternative programs and new schools, but finally expelled from his last regular school in March, 2009.

He ran away from home in April, 2009, and, although he returned to live with his parents, he has never again been part of the regular school system. [ 13 ] Mr. P. has a supportive family with whom he lives during his rare periods of release. His parents are employed and were active in their church until Mr. P.’s problems with the police began. He has a younger sister who he was close to prior to this extended period in custody. Mr. P.’s parents have continued to visit him through his period in custody, including the extensive period of time he was in the Edmonton Young Offenders Centre, and Mr.

P. phones them daily. Mr. P.’s father spoke on behalf of his son during the hearing, asking that the court give him one more chance, and reading from a letter Mr. P. had written to his grandparents in mid-2011 apologizing for the pain his conduct has caused the family. [ 14 ] Mr. P.’s record of behaviour in custody has been marked with behavioural problems of increasing intensity. [ 15 ] His first short stay on remand in early June, 2009 was uneventful. His second stay on remand, for approximately a month, was marked by two incidents of disruptive behaviour.

He was released on a deferred custody and supervision order, which was suspended within two days. He was apprehended roughly a month later and sentenced to 12 days open custody followed by 9 days of community supervision. [ 16 ] During that period of closed custody, there was only one disruptive incident. However, when he was released to community supervision, that supervision was suspended a day later and he was charged with new offences, and put back into custody for 14 days, with no incidents recorded. [ 17 ] On October 29, 2009, Mr. P. was released on bail.

He was briefly brought back into custody in mid-December, and then released again. On February 5, 2010, he was re-admitted on remand, and there were 10 disruptive incidents recorded in the period between February 21 and April 8, 2010. Attempts to alter his behaviour with an individual behavioural plan were ineffective. He was then released on April 12, 2010 to serve a 4 month deferred custody and supervision order.

[ 18 ] Mr. P. was re-admitted on April 16, 2010 due to a suspension of the deferred custody order, which was converted to 74 days open custody followed by 38 days community supervision. There were a couple of incidents at CYOC and he was then transferred to Catholic Social Services in Edmonton to serve his open custody. Within four days of this transfer, on May 23, 2010, he was transferred to the Edmonton Young Offender Centre after bringing a bag of marijuana to the open custody program.

He was transferred back to CSS briefly, but re-admitted to EYOC on June 12, 2010 after he assaulted another youth in the program. On June 16, 2010, he was transferred back to CYOC since community placement with the CSS was not working, and placed in Blackstone, the Behaviour Adaptation Unit. [ 19 ] Mr. P. was briefly released on July 4, 2010 to commence a period of community supervision. The incident that led to the present convictions occurred on July 9, 2010, and he was re-admitted to CYOC to the Blackstone Unit on July 22, 2010, as his community supervision was suspended.

Before he was released again on September 10, 2010, there were three disruptive incidents, including a fight with another youth during a recreation program. [ 20 ] Mr. P. was re-admitted to CYOC one day after his release on September 10, 2010, charged with new offences. He has not left the CYOC or the EYOC since other than a period at Alberta Hospital Edmonton for a psychiatric assessment. [ 21 ] During the roughly seventeen months of this last period in custody, Mr. P. has been involved in at least 32 incidents of prohibited behaviour, mutual fights, unprovoked assaults towards peers and staff, and inciting.

He assaulted a staff member on October 25, 2010, giving rise to a new charge. He was transferred to EYOC, but continued to have difficulties. He was found to be in possession of gang-related material, and many, but not all, of his peer-related assaults and threatened assaults related to gang affiliations. Four of the months of this period were served as a sentence in secured custody, and the rest on remand, including for these charges. [ 22 ] During the period after he was convicted of these charges in October, 2011, Mr. P.’s behaviour escalated.

In January, 2012, he began to conspire with peers on the Blackstone Behaviour Adaptation Unit to cause a riot, and on February 5, 2012, with one week remaining before this hearing, he and three peers on the unit attempted to incite a riot. The other ten young offenders did not participate and were transferred off the unit. Over the next six hours, staff negotiated with the remaining four, and two agreed to leave the units voluntarily. Mr. P. and another young offender finally had to be extracted from their rooms by a police tactical team approximately 26 hours after the incident began.

This was the first time in over seventeen years that this had been necessary at the CYOC. [ 23 ] Despite this discouraging report of misbehaviour and aggression, Mr. P. has made considerable progress in schooling while at the CYOC and the EYOC, completing all of the core subjects of Grades 10 and 11 and some other one credit courses and currently working and doing well on another academic course, with marks averaging 79%. He has indicated a wish to graduate from high school and pursue post-secondary education. [ 24 ] Mr. P. has received individual psychological counselling from time to time.

He has also been afforded the opportunity to engage in other programs to address anger management, and peer interactions. He participated in some programs, as discussed later. However, given his violent behaviour and poor compliance with staff direction, he was often placed in the Behaviour Modification and Behaviour Adaptation Units of EYOC and CYOC. These units have programs in which he was enrolled, but which he has been unable to complete. The goal of these units and programs is to enable the young offender to transition into regular programming and a more open unit. Mr.

P. has spent his time since June, 2010 primarily on the Blackstone Unit and its equivalent at EYOC until the February, 2012 incident, after which he was placed in the most restrictive segregated unit of the CYOC, Kitchener, on a special management plan. [ 25 ] The staff of the CYOC in a written report on Mr. P.’s behaviour dated February 8, 2012, had the following comments in

summary: K. P. is currently residing at CYOC, . . . remanded in custody, pending his court appearance on February 13, 2012. During his first four (4) admissions to CYOC, the young person’s behavior was overall positive. His behavioral difficulties began when he was 15, . . ., and have continued to persist with an increasing intensity. Since then, the young person has presented high risk to peers and staff, which prevented him from reintegration to the general population. During the reviewed period of time, [June 6, 2009 to February 8, 2012] there have been 57 incidents that required staff intervention.

Currently, there have been 15 residents identified within both centres that are required to be kept separate from the young person, due to prior unresolved issues. The young person’s inappropriate conduct made it difficult to provide him with programs available to other residents.

[ 26 ] Anne Hay has been Mr. P.’s youth probation officer since she prepared a pre-sentence report for his first offence three years ago, and prepared a pre-sentence report for this hearing. She notes that since September 11, 2010, Mr. P. has spent 331 days at the EYOC, 162 days at the CYOC and approximately one month at the Alberta Hospital. Ms. Hay notes that, given Mr. P.’s behaviours at both centres, he could not be trusted to be on his own within the general population, and has been on specialized programs and under intense supervision. [ 27 ] Ms.

Hay was in contact with a teacher at the EYOC who worked with Mr. P. on an individualized learning plan (because of his risk level to other students). He indicated that he had not had any problems with Mr. P. and described him, despite being aware of his history of conflicts on the unit, as being polite and respectful. [ 28 ] Ms. Hay was left with the impression from her conversations with the EYOC staff that Mr. P. had more periods of stability there then at the CYOC and fewer problems with staff. [ 29 ] Mr.

P. was co-operative for the purpose of the report and acknowledged his involvement in the offences, taking full responsibility. He was, however, reluctant to discuss them with Ms. Hay. For the first time, he acknowledged involvement with the FOB to her, but would not elaborate. [ 30 ] Ms. Hay testified that Mr. P. had always been polite with her, forthcoming in some areas and evasive in others. His family were very co-operative and supportive, and actively pursued resources to help him. [ 31 ] Ms. Hay was the person who referred Mr.

P. to the “Centre for Newcomers” program, the “Stepping Out” program that helps immigrants get out of gangs, where he has developed a relationship with a youth worker who intends to continue to provide him with support, no matter the outcome of this hearing. Ms. Hay testified that this youth worker had reported that Mr. P. was unresponsive initially, but that this had changed over time, and that Mr. P. was now more open with him. [ 32 ] Ms. Hay testified that she had little opportunity to work with Mr. P. in the community, given his extensive periods in custody.

Her efforts during the short periods of time he was not in custody were focussed on his schooling and not much else, but she commented that Mr. P. was so enmeshed with his group of friends when he was out of custody that he wasn’t really committed to a school program. She said that Mr. P. is in her view quite intelligent, and generally methodical, thinking things through and making decisions in his own interest. She finds his behaviour in custody over the last ten months to be out of character and puzzling. [ 33 ] Following his July, 2009 charges, Mr.

P. was assigned to the Serious Habitual Offender Program (“SHOP”) run by the Calgary City Police. The officers in this program monitor and attempt to interact with youth between the ages of 13 and 21 who are referred to them from a variety of sources and are seen as a risk to the public. Officers attempt to develop a relationship with the offenders, their families and probation officers with the goal of ensuring the young offender complies with court orders and does not re- engage criminally, thus maximizing public safety.

They use a “carrot and stick” approach, rewarding attempts at compliance and participation in the program with support and help in such areas as obtaining employment or reintegrating into school. Mr. P. was assigned two officers who attempted to connect with him and develop some rapport, but he squandered these opportunities. The role of the SHOP officers became one of enforcement, monitoring Mr. P. closely on his infrequent releases, often with the result that Mr. P. would quickly be discovered to be in breach of his release conditions or to be re-offending. Both of the officers assigned to Mr.

P. were impressive in their degree of concern and professionalism in their assignment to Mr. P., and both were jaundiced by Mr. P.’s failure to communicate with them, by his failure to engage the help they could offer, and what they viewed as his manipulative behaviour and lack of remorse. Clearly, Mr. P. did not engage with them in any meaningful way. [ 34 ] A

section 34 psychological and psychiatric report was prepared for this hearing by the Forensic Adolescent Program of Alberta Health Services. The report, dated February 6, 2012, was authored by Dr. John Naylor, a consulting psychiatrist with the program and Dr. Deborah Brown, a staff clinical and forensic psychologist. Dr. Naylor met with Mr. P. on January 12, 2012 for approximately two hours and on January 30, 2012 for about an hour. Dr. Brown met with him on three occasions in January for about two to two and a half hours each. Dr.

Brown described that the first interview, through secured glass, was difficult to conduct, but that during later interviews, she and her assistant were able to establish a better rapport with Mr. P.. She said that Mr. P. was co-operative, that he was initially quite guarded but become more forthcoming over time. [ 35 ] Mr. P. gave his version of the circumstances of the offences to Dr. Brown and Dr. Naylor. He advised them he would take

[ 35 ] Mr. P. gave his version of the circumstances of the offences to Dr. Brown and Dr. Naylor. He advised them he would take responsibility for what he did, but would not discuss the involvement of others. In this description, Mr. P. admits his involvement, the way he was able to gain access to the house, and the way he hit and kicked Mr. T. He said that Mr. T. grabbed him and tried to wrestle him and at this point he had not realized that the man was elderly. He acknowledged kicking Mr. T. in the head, hitting him and tying him up. He also acknowledged tying up Ms. N. With respect to Ms.

H., the grandmother, he said that he noticed her at the top of the stairs, told her to come down and also tied her up. He said he didn’t want to hurt her because she was frail, and did not hit her, but only tied her up. He acknowledged using duct tape on all three victims. [ 36 ] Mr. P. reported that he saw the grandfather lying in a pool of his own blood and thought “why did I do this”. He said he felt sorry about what he had done, was worried the man was dead and asked the granddaughter to find out if he was alright. Mr.

P. said that he told the granddaughter he was sorry and that he didn’t mean to hurt the grandfather. He said that he advised her that he was just there to get the safe, and asked her to translate for him. [ 37 ] Mr. P. acknowledged hitting the granddaughter in the face and telling her to shut-up, saying that she was hysterical by that time. He admitted opening the safe with a crowbar and stealing items from the house.

He admitted threatening the victims by stating “don’t call the police or I will come back”. [ 38 ] When asked by the authors of the report how he thought the victims felt, he said he thought they were probably scared and may have feared that they were going to kill them. He said he was sorry for what he did and regrets everything, particularly what he did to the grandfather and tying up the older people. [ 39 ] As the Crown has noted, this account does not correspond exactly with the testimony of Ms. N. and the findings of fact made at trial. It does not mention the involvement of the black male or what Mr.

T.T. did during the incident. It suggests that Mr. P. asked Ms. N. to check on her grandfather and told her he didn’t mean to hurt him, which Ms. N. did not report. It also suggests he asked Ms. N. to translate, although her testimony was that she was the one who suggested that to the intruders. It does not mention Mr. P. slapping Ms. N.’s butt, or telling her that if she didn’t tell him where the safe was, he would hurt her. It does, however, acknowledge much of the violent behaviour attributed to Mr. P. as found at trial. [ 40 ] The authors of the report were extensively cross-examined by the Crown on how Mr.

P.’s self-report of the incident affected their conclusions, with the implication that Mr. P.’s down-playing of his role would cast doubt on their recommendations. Dr. Naylor testified that they had reviewed the official record of the offence and Mr. P.’s version, and that it condensed down to the fact that it was a serious violent offence and “not much more than that. . . in terms of reflecting on Mr. P.’s capacity for response to treatment and need for treatment.” He noted that he understood that there were always going to be some differences in detail between the offender’s account and the official account.

Dr. Brown agreed that there were some inconsistencies between the reasons for decision and Mr. P.’s verison, but pointed out that there were also similarities. She noted that part of the inconsistency arose from Mr. P.’s refusal to talk about the involvement of others. [ 41 ] Mr. P. acknowledged to the authors of the report that he is prone to anger and unable to walk away from what he perceives as slights or lack of respect. He described that he feels he has no control over his impulses.

He recalled that he was in his first fist fight in school when he was 13 and was beaten and that, subsequently, he started to work out and learn to fight. He admitted using weapons to intimidate and scare people. [ 42 ] The authors of the report were aware of Mr. P.’s aggressive behaviour while in custody, and described it in the report. They were also aware of the most recent incident on February 5, 2012. They noted that during the interviews, Mr.

P. stated that he was doing his best to change his behaviour and was willing to attend a treatment program. [ 43 ] He acknowledged his substance abuse, including marijuana, ecstasy and MDMA and disclosed that he had begun to deal drugs when he was fourteen. He said he made most of his money selling ecstasy, that he kept 60 - 70% of the profit, and the rest of the money went to his “boys”. Mr. P. also acknowledged stealing from convenience stores starting at age 13, and moving up to robberies at C-train stations and on the street, using a knife at times. [ 44 ] Mr.

P. indicated that he had a good relationship with his parents, although he acknowledged arguing with them over their attempts to enforce rules.

[ 45 ] The report indicates from an interview with Mr. P.’s mother that she first noted a major change in Mr. P. in 2008 when he was thirteen years old. By 2009, he was a major concern, constantly out with his friends and on one occasion he did not return home for three months. She described seeing him at the mall during this period hanging out with older youths, whom he would ask for permission before he acknowledged and hugged her. [ 46 ] In January, 2009, before he first started to experience his formal problems with the youth criminal justice system, Mr.

P. was tested and assessed by a psychologist and diagnosed with Conduct Disorder, Adolescent onset - Severe. Recommendations were made for various programs, but he shortly thereafter began the first of his many sessions of custody. After he assualted a staff member at CYOC while in custody in October, 2010, he was admitted to Alberta Hospital Edmonton for a psychiatric assessment, and was again diagnosed with Conduct Disorder, Adolescent onset, Severe and Polysubstance Dependence, in remission in a secure environment. [ 47 ] Mr. P. described his gang involvement with the authors of the report.

He began hanging out with peers at school who were involved in the FOB when he was 12 or 13. He thought it was cool and was eventually initiated in July, 2009. He acknowledged that he no longer had any friends who were not involved in the gang. [ 48 ] Mr. P. reported that he had not been able to access a lot of treatment up to the point of the report, but acknowledged working with two psychologists at EYOC.

In May, 2011, he completed a guided interactive counselling program called “Courage to Change - Self Control Moderate”, with minimal interaction from the facilitators, given the requirement for close behavioural supervision. Staff reported that he displayed excellent effort and presented sincerely in conversation with the facilitator. [ 49 ] Dr. Brown’s clinical impressions as described in the report are as follows: K. appears to be struggling with the idea of leaving his previous lifestyle with the gang and turning his life around and becoming more prosocial.

He expressed a strong bond with his friends and described the gang as a brotherhood. On the other hand, K. also expressed a strong bond with his family and is aware that his actions are hurting everyone, particularly his mother. He spoke about the realities of leaving a gang and no longer being protected when targeted by rival gang members and the difficulty this posed. He was able to articulate that he no longer wants to live the life he has been living by being incarcerated and appears to understand that if he receives an adult sentence that he will become further entrenched in the gang lifestyle.

K. is aware that he is at a crossroads and indicated that he has had a lot of time to think as he is in his cell for 23 ½ hours a day. It became apparent when speaking with K. and reviewing his file that he has great difficulty generating nonaggressive solutions to problems and has become quite invested in being perceived as the “tough guy who does not back down.” K. expressed that he perceives his behaviour as powerful. K. also has demonstrated some cognitive deficiencies with misattributing hostile intent by others even when none was intended.

This hostile attributional bias has shown itself over and over again while he has been in custody. If a peer even looks at K. a certain way he believes the intent to be hostile and he reacts violently towards that person. This persona that K. has carried has hindered him from being able to access resources and allow himself to be available and open to intervention. It appears that K. is only starting to realize that his behaviour is only hurting himself.

K. acknowledged that when he was charged with the index offence he knew he was facing serious charges and would receive a lengthy custodial sentence and that he “gave up.” [ 50 ] Mr. P. was administered psychological tests in January and early February, 2012 at the CYOC. While Mr. P. was supervised by CYOC staff during the testing, he was reported by the tester to be co-operative, friendly and talkative, happy to be out of his room where he was spending about 23 hours a day. [ 51 ] Test results with respect to general intellectual ability were unremarkable, with Mr.

P. scoring a low average rating in tests of global intellectual functioning and short term memory, and average and above average in overall academic achievement. [ 52 ] In tests for adolescent psychopathology, Mr. P.’s clinical profile was consistent with the kind of numerous behaviour problems that he has been exhibiting, including antisocial problems, difficulties with juvenile authorities, and a pattern of destruction. [ 53 ] On the test that assesses adolescent personality characteristics and clinical syndromes, Mr.

P.’s profile was consistent with personalities that were unruly, forceful and oppositional, individuals who act out as a means of coping with tension and who show

predominately hostile and angry moods. Individuals with similar profiles are frequently vengeful and must prove their toughness to others. [ 54 ] He was high on the social insensitivity scale, and, in the clinical syndromes domain, was high on scales indicating proneness to substance abuse, disposition to delinquency and impulsivity. The report comments that individuals with this profile “tend to feel little anxiety or worry about their behavioural problems, which creates a strong obstacle for treatment.” [ 55 ] Mr.

P. did not show undue signs of depression or anxiety, but he showed elevated readings for anger and disruptive behaviour. [ 56 ] Dr. Brown assessed Mr. P. for general and violent recidivism. Mr. P. was found to have a very high risk of general recidivism, suppressed by incarceration. He was also assessed as high risk for violent recidivism, with Dr. Brown commenting as follows: . . .in [the domain of social and contextual risk factors] for K. is his association with criminal or antisocial peers (FOB members).

Another area of high concern is K’s low frustration tolerance and ineffective coping ability, particularly with peers at CYOC. K. is presently experiencing a great deal of stress with his upcoming court appearance and the possibility of facing an adult sentence. His typical response to such stressors appears to be one of anger and poor impulse control. . . . Of main concern with K. is his negative attitudes, he clearly endorses attitudes and values that condone violence and appears to have social cognitive deficiencies that contribute to his negative attitudes.

That is, K. shows significant difficulty in generating nonaggressive solutions to problems, and a tendency to perceive hostile or aggressive intent by others, even when none is intended. Another high risk factor is that K. exhibits significant risk taking and impulsivity and struggles with controlling his anger. It appears that a great deal of K.’s violent behaviour is reactive. Lacking adaptive anger management skills, when faced with either a real or perceived threat K. reacts by both aggressing against the person who represents the threat and by displacing the anger and lashing out at others.

K. has displayed poor compliance thus far by his behaviour while incarcerated but now appears to appreciate that he is need of significant intervention to reduce his risk, however, he was still deemed high risk on this factor and will remain until such time he has started to engage in treatment. [ 57 ] Dr. Brown reported that K.’s strong family support and bond with his mother was considered a protective factor.

She noted that estimates of risk of recidivism are strictly time-limited, and should be repeated at regular intervals, particularly following major changes in circumstances. [ 58 ] Notably, on the Hare Psychopathy checklist, Mr. P. scored on the low end of moderate for identifying individuals with psychopathy. Dr. Brown gave the opinion that Mr. P.’s “current presentation is not consistent with the construct of psychopathy but rather his is best understood as having more antisocial traits and meeting criteria for Conduct Disorder, Severer, Adolescent onset.” (emphasis added) [ 59 ] The Crown cross-examined Dr.

Brown vigorously on the scoring of the psychopathy index, but Dr. Brown was unshaken in her opinion, explaining the criteria that go into each factor and how she exercised her clinical judgment to come up with an appropriate score. [ 60 ] In the

section 34 report, Dr. Naylor commented as follows: K. has failed to control his anger and aggressive impulses during the 18 months of his incarceration. He has appeared to retain a grudge against anyone who offends him and will launch an assault against that person at the first opportunity, regardless of the circumstances or consequences. As a result, he has spent the majority of his time in custody on the Blackrock unit at CYOC or the Wabasca program unit at EYOC. This extremely restrictive management of K. has been necessary for the safety of the other residents and staff.

However, it has also contributed to K.’s lack of progress as he has been unable to take advantage of a number of programs available in the Centres. The patient has had little to distract him from his vengeful thoughts and preoccupation with his allegiance to fellow FOB gang members. He has noted that his gang peers have remained in touch with him and he has returned their consideration with loyalty.

K. has acknowledged that if he remains with the FOB or any gang, his life will just “go down the drain.” During our second meeting, the patient was introduced to Jacqueline Leland, Psychologist and director of the Forensic Adolescent Treatment & Education (FATE) program, a group therapy program situated on the Rundle unit at CYOC, and designed to provide opportunities for rehabilitation for individuals with serious violent offenses. During our discussion, K. expressed his interest in participating in the FATE program.

K. was informed that his complete lack of cooperation and his aggressive behaviour had made him unavailable for treatment of any sort. We discussed the behavioural contract required for participants in the FATE program and K. agreed that he would sign a contract. The patient has signed the behavioural contract in advance of a determination of his eligibility for the program in the interest of demonstrating his intention to cooperate.

K. pointed out that he has demonstrated some capacity to participate in programming when he achieved and maintained a high level in the behavioural system existing on the Wabasca program at EYOC. Although the patient has remained ambivalent about his departure from gang life and giving up on his allegiance to gang members, he has expressed a willingness to participate in rehabilitation and has behaved accordingly since our discussion. [ 61 ] The report concludes with the following opinions and recommendations from Dr. Naylor and Dr.

Brown: K.P. is a seventeen year old boy who presents with a longstanding history of adolescent antisocial behaviours, substance abuse, truancy, school failure, reactive anger and aggression. These signs and symptoms have occurred in the context of moderately disrupted family circumstances and indoctrination into a gang. The patient’s symptoms are compatible with diagnoses of Conduct Disorder, Substance Abuse - alcohol, marijuana and ecstasy.

Because of the patient’s extreme reactive anger and subsequent sustained dysphoria in the context of conflict with peers, the differential diagnosis must also include Mood Disorder - Not Otherwise Specified. In addition, due to the patient’s victimization at the hands of gang members and other aggressive youth during his early teenage years, the diagnosis of Posttraumatic Stress Disorder must also be considered. He did not meet criteria for any other Axis I psychiatric diagnosis at the time of the assessment. The patient has no clear biological predisposition to mental illness beyond his own substance abuse.

From a psycho-social perspective, the patient has experienced: bullying, social isolation, school failure, inappropriate peers, gang indoctrination as well as modeling of conflictual and violent relationships. These experiences may have interacted with temperamental characteristics such as poor anger control and low frustration tolerance to predispose the patient to chronic low self-esteem, feelings of loss of control and high rejection sensitivity. The patient had begun to display reactive anger and aggression from his preschool years, although this was managed by his parents until he became too big to control.

His victimization by gang members in the school setting facilitated his transition and indoctrination into gang life, where he enjoyed a sense of belonging as well as feelings of power and control. Presently, K. is struggling with his allegiance to the gang as he is able to perceive the destructive effect of gang membership on his adult life. . . . . . . Personality testing suggested that K. has numerous behaviour problems that are in conflict with the law and shows a pattern of disinhibition that is manifested through high risk-taking, impulsivity and irresponsibility.

His profiles were suggestive of a theme of revenge and a need to constantly prove his toughness and seek retribution to show power and control. There was some indication that K. may have deficiencies in the areas of remorse and empathy. There were themes of social insensitivity, substance abuse, delinquent predisposition and impulsive propensity. On a self-report measure, K. endorsed behaviour and attitudes associated with conduct disorder and symptoms of anger. . . .

Relative strengths for K. include: his desire to do better for himself, his willingness to accept help, his good health and the ongoing support of his parents. His prognosis depends on his ability to invest in a treatment program and to remain compliant with follow up. . . . K. is experiencing extreme difficulty in controlling his behaviour enough to make himself available for treatment in a variety of programs through the youth custody facilities.

Given the degree of allegiance that gangs demand of their members, the patient remains fearful and ambivalent when considering a possible exit form the gang and associated lifestyle. Should the patient be sentenced in the adult court, it is our view that his gang involvement will become entrenched and his potential for rehabilitation will be extremely limited. In contrast, a youth sentence would provide the opportunity to continue to work with K. in an effort to move him away from gang involvement.

In addition, he would be able to finish his schooling and take advantage of significant additional resources through youth

sentencing, including participation in the FATE program, anger management, substance abuse programming, and other psychological/psychiatric support. From a psychiatric perspective, it is our view that K. may benefit from a trial of medication such as Risperidone, which would decrease his reactive anger and improve his capacity to respond to other interventions. In addition, given the severity and duration of his dysphoric mood, the patient may also benefit from a trial of antidepressant medication. Unfortunately, K. is opposed to the idea of taking medication at this time.

However, he has agreed in principle with the concept of using medication to help control aggressive thoughts and impulses if, despite his willingness and effort, he is unable to control himself well enough to participate in therapy. Should the patient make himself available to participate in treatment with the FATE program, Dr. Naylor will work in concert with FATE therapists and Nursing staff to optimize the patient’s treatment. The Forensic Adolescent Program remains available to provide pharmacotherapy and Psychiatric follow-up at the request of the Court, or the patient and his family. . . .

In addition to the above therapeutic considerations, it is our view that K.’s treatment should involve the following guiding principles. In order to manage his risk he needs to be placed in an environment that is highly structured with clear limits and consequences.

K. may benefit from being placed in a setting where he can receive intensive programming in developing strategies to resolve issues or cope more effectively, increase emotional regulation and coping skills, address victim impact and victim empathy, encouraging taking responsibility for one’s behaviour, develop insight into risk factors and related issues and assist him in developing strategies for self-risk management, and skills to improve interpersonal functioning and resolve conflicts.

K. needs may best be served through a period of incarceration where he could engage in some intensive rehabilitative programming/treatment which could be then be followed by a lengthy period of community supervision where again rehabilitative treatment and community supports would be offered to address specific criminological risk factors by professional forensic mental health specialists.

K. would require an intensive case management, risk assessment and risk management planning delivery model, which could likely be met within a partnership through the Alberta Solicitor General, Alberta Young Offender Branch and Alberta Health Services, Provincial Forensic Psychiatry Services. Regardless of the above therapeutic considerations, K. should also be given the opportunity to appropriately atone for his behaviour in a manner that reflects the views of the Court and society.

The patient must not understand his psychiatric difficulties as “excusing” or “justifying” his antisocial behaviour. [ 62 ] As noted in the report and described by other witnesses during the hearing, the Forensic Adolescent Treatment and Education program (“FATE”) is intended for male youth the age of Mr. P. who are deemed to be at significant risk for violent recidivism. It is an intensive program of therapy and education involving individualized treatment plans and focussing on unique issues, including substance abuse, gang prevention and managing and treating specific clinical disorders.

It is only available when an individual has been sentenced to a custodial sentence of six months or more, and includes, over its course, the creation of an individualized community release plan with the support of case workers and treatment facilitators during the period after release, including relapse prevention and community reintegration. The program is a relatively recent program, having become operational in March, 2011. It would not be available to Mr. P. unless and until he is sentenced on these offences. [ 63 ] The Crown cross-examined Dr. Naylor on his opinion that, should Mr.

P. be sentenced in adult court, his gang involvement would become entrenched and his potential for rehabilitation would be limited. [ 64 ] Dr. Naylor testified that, while he was not an expert on gangs, in his view, adult custody supports gang involvement more than it defeats it. He said that, in giving his opinion, he was aware that there was schooling available in the adult system.

He was also aware that there were some programs available in the adult system, but he noted that the FATE program was a unique program, and that the opportunity to work in terms of psychiatric treatment with someone who is involved in the FATE program added another dimension to the treatment.

He noted that there are difference in the approach that is taken in adult psychiatry compared with the treatment of youth with conduct disorders. [ 65 ] The Crown adduced evidence during the hearing from James Gonzo, an employee of Corrections Services Canada, about the availability of programs in the federal penitentiary system and the treatment of gang affiliations, presumably to counter the opinions of Dr. Naylor and Dr. Brown about the possibility of gang entrenchment should Mr. P. be sentenced as an adult. If that was the purpose, the evidence was not persuasive to show that the opinions of Dr.

Naylor and Dr. Brown, even though they do not hold themselves out as experts in this area, were mistaken. There are, of course, many valuable programs and resources available to inmates in the federal

system, but they do not include the FATE program, nor do they appear to include the individualized assistance in schooling, nor the adolescent-focussed counselling available in the youth criminal justice system. Mr. Gonzo’s evidence with respect to the handling of gang affiliations made it clear that Mr. P. would likely be placed in either Bowden Penitentiary or Edmonton Maximum Security, where FOB gang members are typically placed, and it is clear from the statistics he provided that Mr. P. would likely encounter older members of the FOB in these facilities. Mr.

Gonzo testified that parole officers would encourage inmates to leave ganga and could provide programming that would aid this, but did not refer to any program that may be the equivalent of the FATE program. It is also clear that Mr. P. would not be accepted in a federal penitentiary, nor could he access any available programming, until he was 18. [ 66 ] It is certainly true that the test for accountability set out in

section 72 of the YCJA discussed later in these reasons does not require a comparison of the treatment available in the federal penitentiary system and the young offender system, but the views of Dr. Naylor and Dr. Brown with respect to the better prospects for rehabilitation and disengagement from the FOB available in the youth criminal justice system are relevant as rehabilitation of Mr. P. is important for the protection of the public. Section 38(1) of the YCJA specifies that a youth sentence should promote rehabilitation and reintegration, “thereby contributing to the long-term protection of the public”.

This is not a case where Mr. P. would never be released from custody if he is sentenced as an adult, and the fact that the resources for rehabilitation in the adult system may be less suited to his age, reduced maturity and personality disorders is a factor for long-term public safety. [ 67 ] The Crown suggested to Dr. Naylor that Mr. P. remained unwilling to accept help. Dr. Naylor did not agree, indicating that Mr. P. was ambivalent. He testified that Mr. P. was suitable for treatment in the FATE program, although not currently available for it given his behaviour to date. He confirmed that if Mr.

P. changes his behaviour and becomes motivated, the program would be available to him. He testified that Mr. P.’s ambivalence was greater now, in a positive sense, than in the last eight months, since he had not previously had much understanding about the availability of treatment. Dr. Naylor testified that the approach taken to treatment in this kind of case was to attempt to move the young offender from being ambivalent to being co-operative. Mr. P. is clearly treatable. Dr. Naylor noted that the fact that Mr.

P. had been involved in a serious violent offence and persistent behaviour problems at the CYOC was not a problem for admission to the FATE program if he became co-operative and willing to take treatment, as these are the target behaviours of the program. [ 68 ] Dr. Naylor testified that when the report was being completed, the events of February 5, 2012 had occurred, but that they did not change his opinion in terms of what kind of treatment approach was required. He conceded to the Crown that Mr. P. continually stated one thing and did another, but testified that, despite that, his opinion did not change.

He had not had a chance to discuss the February 5th incident with Mr. P. but testified that more treatment as opposed to no or little treatment was the best option. [ 69 ] Dr. Naylor testified that “conduct disorder” is a youth diagnosis of a pattern of aggressive behaviour, and that this disorder had its onset in Mr. P.’s case in his adolescent years and was at a severe level. He acknowledged that, in terms of gaining compliance, Mr. P. was a difficult case, but he commented that he had not yet had a great deal of opportunity to work with Mr. P. at the CYOC. Dr. Naylor pointed out that Mr.

P. was not an adult and still required treatment tailored towards youth. He testified that he and Mr. P. had an initial agreement in that Mr. P. agreed in principle that if he failed to control his behaviour, he would consider medication. [ 70 ] Dr. Naylor acknowledged that Mr. P. demonstrated a poor response to the environment at Alberta Hospital and wasn’t able to control himself well enough to participate, but noted that this was a long-term process that required repeated attempts to engage the young person. Dr. Naylor described the FATE program as the best option for Mr. P. [ 71 ] Dr.

Brown was also cross-examined by the Crown on her opinion that, should Mr. P. be sentenced in adult court, his gang involvement would become entrenched and his potential for rehabilitation would be limited. She also acknowledged that she was not an expert at gangs, but referred to her previous experience working at the Bowden penitentiary. She noted that she believed that other gang members would be housed at the institution, and that Mr. P. would have more opportunity to be with these individuals and that it would be harder for him to ask for help or to break away.

As previously noted, while this may not be an expert opinion, it cannot be said to be mistaken. [ 72 ] She confirmed that she was aware that Mr. P. could finish his schooling in the adult system. She testified that, while her knowledge of adult programs was not current, she had worked for Corrections Canada in the past and felt that there were more resources available to Mr. P. as a youth. Again, given Mr. Gonzo’s testimony, this is not incorrect. [ 73 ] Dr. Brown agreed with Dr. Naylor that Mr. P. is ambivalent about treatment, noting that she saw someone who is carefully weighing his options.

She conceded to the Crown that Mr. P. had a history of saying that he would do one thing and doing another, but she pointed out that he had not yet had the benefit of treatment, both because of his behaviour and because he is not eligible for the

FATE program until he is sentenced. [ 74 ] Dr. Brown noted that Mr. P.’s periods of segregation and close confinement have been unhealthy for him, and that the FATE program would help in terms of working with others and focussing on treatment. [ 75 ] Dr. Brown testified that, while Mr. P. had to date been committed to the gang lifestyle, he had acknowledged to her that it was a dead end, that his life would go down the drain if he continued in this path.

She was of the opinion that with a bit of work he could be moved over to the treatment side, and that tangible benefits could be seen in twelve to twenty-four months, although she cautioned that this was speculative. [ 76 ] Dr. Brown was of the opinion that the FATE program was immediately available to Mr. P. once he had been sentenced, that Mr. P had given the necessary consent to participate. The differences between Dr. Naylor’s view and Dr. Brown’s view on the “availability” of the program appears to be rooted in their perceptions of the degree of Mr. P.’s commitment to the program.

Charlotte Macdonald-Allen, the Director of the CYOC, in describing the FATE program testified that since the program was about treatment, a certain level of commitment would be required of Mr. P., and that the CYOC staff would look at his ability to engage in the program. She agreed with counsel for Mr. P. that staff could not assess Mr. P.’s ability to participate in the program until he tried it. She testified that Mr.

P. meets the criteria, but, given his current behaviour, it would be difficult to manage him within the program. [ 77 ] From all of this testimony, I find that the FATE program would be available for Mr. P. if he repeats his previously expressed commitment and continues to indicate a willingness to co-operate. [ 78 ] Dr. Brown also spoke about the possibility that Mr. P. would be able to access the Intensive Rehabilitative Custody and Supervision Sentence

Part C Program (“IRCS-C”). Mr. P. meets the criteria for this program, which involves a team approach to provide treatment for his issues and which would follow him out into the community and help with transitioning for the duration of his sentence. This program must be approved by the Provincial Director of Youth Services and Justice Canada and involves federal funding. It is a treatment plan, not a sentence, and would require Mr. P.’s consent. [ 79 ] Dr. Brown testified that Mr. P.’s behaviour in custody reinforced her opinion that Mr.

P. was a young man at very high risk who was in need of every available service that could be offered him. B. Analysis [ 80 ] Sections 71 and 72 of the YCJA govern this application.

Section 71 sets out the requirement of a hearing and

section 72 provides that the Court making a decision shall consider the seriousness and circumstances of the offence, the age, maturity, background and previous record of the young person, and any other factors that the court considers relevant. Having done so, if I am of the opinion that a youth sentence imposed in accordance with the purpose and principles of the YCJA set out in subparagraph 3(1) (b)(ii) and

section 38 would have sufficient length to hold Mr. P. accountable for his offending behaviour, I am to impose a youth sentence. If I am not satisfied of that, I am to order that an adult sentence be imposed. [ 81 ] The Crown bears the onus of satisfying the Court that a youth sentence would not have sufficient length to hold the young person accountable for the offences. This is a burden of persuasion or satisfaction, not a burden of proof beyond a reaosnable doubt or proof on a balance of probabilities: R. v. B.(D.) , 2008 SCC 25 ; R. v. D.D.T. , 2010 ABCA 365 .

Although this burden is not an onerous one, an adult sentence is warranted only when necessary to fulfull the objectives of the YCJA : R. v. B.(D.) ; R. v. A.A. , 2011 ABQB 598 at paragraph 110 . [ 82 ] The circumstances of the offences were set out in my decision on conviction and it is clear that they are serious offences. This was a home invasion robbery where two elderly victims and a younger female victim were beaten, tied up and threatened. The beating administered to the elderly grandfather, Mr. T., was the most severe, and he was left bleeding and bound on the floor while the house was ransacked.

The trauma to the elderly grandmother was severe, given her inability to understand English and her frail condition. The younger victim was traumatized by what was happening to her grandparents and was threatened more than the others.

[ 83 ] Mr. P.’s

part in this serious crime is also described in my previous decision. He was certainly directly involved in much of the violence, and has acknowledged most of his involvement in the description of events he gave to Dr. Brown and Dr. Naylor. I recognize that Mr. P.’s description of events is skewed in part to his advantage, and leaves out details of acts committed by others, but he takes responsibility for most of what occurred during the robbery. [ 84 ] While the trauma to the victims was severe, and according to the victim impact statements, continuing, none of them were permanently physically injured or maimed.

While the home was ransacked, it was not permanently damaged or desecrated. This was undoubtedly a serious violent offence, but not the most violent on a scale of brutal and callous offences. [ 85 ] As noted by Germain, J. in R. v.

T. (D.D.) at para 43, in considering the seriousness of the offence, it is important to remember that, despite the serious nature of a category of offence, whether it be a home invasion robbery, an aggravated sexual assault or even a murder, the YCJA still contemplates that youths who commit such offences can be sentenced as youths and not adults if such a sentence meets the requirements of section 72(1) (a). [ 86 ] As noted in T. (D.D.) , this reflects the principles of fundamental justice identified by the Supreme Court of Canada in R. v.

B. (D.) , the presumption of diminished moral blameworthiness for a young person who commits wrongful acts and the necessity of a separate sentencing regime for young persons due to their heightened vulnerability, reduced maturity and reduced capacity for moral judgment.

Thus, even though an adult sentence for one of these very serious offences may be longer than the maximum youth sentence, the test is not whether the young person can be sentenced under the youth regime to a sentence of equal length, but whether a sentence fashioned under and in accordance with the regime would have sufficient length to hold the young offender accountable as that term has been interpreted. [ 87 ] What are the principles of sentencing that are specifically involved in Mr. P.’s case?

I have already noted the principle set out in subparagraph 3(1) (b)(ii) of the YCJA that the criminal justice system for young person must emphasize fair and proportionate accountability that is consistent with the greater dependency of young person and their reduced level of maturity. [ 88 ] Mr. P. was 15 when he committed the offences. While he sometimes left home for prolonged periods of time, he was living with his parents for the most part. He had recently been diagnosed with a severe level of adolescent-onset conduct disorder, and he was abusing drugs.

While he was at that point a member of the FOB, there is no evidence that he was a leader in that organization: the limited evidence in that regard is that he was under the influence of older youth and adults. [ 89 ]

Section 38 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 and that promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 90 ] Section 38(2) sets out certain principles, the most relevant to this hearing (given that the defence concedes that custody is required) being that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence, and the sentence must be the one that is most likely to rehabilitate the young person and reintegrate him into society.

The sentence must promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community. I must also consider the sentence imposed on Mr. T.T. for the same offences in terms of addressing parity, and I must take into account in fashioning an appropriate sentence any aggravating or mitigating factors. [ 91 ] Section 32(3) sets out factors to be considered in determining a youth sentence. As set out in my reasons for conviction, Mr. P. participated to a high degree, engaging directly in the violent acts against Mr. T. and Ms.

N., and tying up and threatening the victims. This was a planned home invasion. While there is no evidence that Mr. P. recruited others to participate, it can be inferred that he engaged in the acts for status within the FOB. These factors favours a stricter sanction. [ 92 ] With respect to the harm done to the victims and whether it was intentional or reasonably foreseeable, this was a violent offence and violence was reasonably foreseeable. The violence to Mr. T. was unnecessarily severe to secure the home and appears to have involved a weapon.

However deplorable, it was not violence committed merely to fulfill a desire to engage in violent behaviour. A more restrictive sentence is engaged by this factor, although this was not the worst possible case of harm to the victims.

[ 93 ] Mr. P. has not made reparation to the victims, but it must be noted that he has been in custody since the commission of the offence. [ 94 ] Mr. P. has spent approximately a year in remand on these offences. The details of this period of custody have been described at length, and it is clear that he has not profited to any great extent by his period of remand custody. The defence concedes that he would not be entitled to any credit for this time when fashioning an appropriate sentence.

It is clear that it is not necessary that I take into account pre-trial custody by giving a reduction from a custodial period imposed upon sentencing if to do so would make an otherwise appropriate youth sentence unavailable: R. v. D.D.T. at paras. 55, 57 and 58 . [ 95 ] Mr. P.’s extensive record over a relatively short period of time has been described, including breaches of conditions, as well as his admitted involvement in the FOB. [ 96 ] All of these factors give rise to a determination that a youth sentence imposed on Mr. P. would have to be at the maximum allowable limit.

That limit is set out in section 42(2) (n), and is a custody and supervision order of three years, two of which to be served in custody and the final year served under supervision in the community, subject to continuation of custody in certain circumstances as directed under

section 98. [ 97 ] The question thus becomes whether this sentence would have sufficient length to hold Mr. P. accountable for his offending behaviour. Accountability, understood in the context of the overarching purpose ( s. 3 ) and the sentencing principles (s. 38) of the YCJA , “is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society” : R. v.

O.(A.) , 2007 ONCA 144 at para. 42 . [ 98 ] Accountability in this context is the personal accountability of the young person, recognizing his greater dependency and reduced level of maturity, not accountability to society in the large sense, or any notion of deterrence: O. (A.) at paras. 42 and 43 . [ 99 ] The Ontario Court of Appeal has compared accountability to the adult sentencing principle of retribution, as an appropriate punishment which properly reflects the moral culpability of the offender: O.(A.) at paras. 46-47 . [ 100 ] I am satisfied that the potential imposition on Mr.

P. of a sentence of two years in custody and one year under community supervision in accordance with the purpose and principles of the YCJA would be a sentence that appropriately reflects Mr. P.’s moral culpability for the offences, given his condition and circumstances, and would be meaningful. I note that the sentence could be accompanied by appropriate conditions, and that it would hold the potential of prolonged custody if Mr. P.’s behaviour did not improve or he breached those conditions. I have taken into account in assessing moral culpability Mr.

P.’s intentional risk-taking, the harm caused by his actions and the normative character of his conduct, all of which are serious and blameworthy, but which must be viewed through the lens of the fact that this is a young offender who was 15 at the time of the offence, with a severe conduct disorder. [ 101 ] As noted by the Supreme Court in R. v. B.(D.) at para. 93 , a young person is not less accountable for serious offences, he is “differently accountable”. Before a court can impose an adult sentence, the Crown has the burden of showing that the presumption of diminished moral culpability has been rebutted.

It has not met that burden. [ 102 ] With respect to Mr. P.’s rehabilitation and reintegration into society, I must be satisfied that the sentence is adequate to promote such rehabilitation and reintegration in a “meaningful and realistic fashion”: O. (A.) at para. 61 ; D.D.T. at para. 31 . This does not require a guarantee of rehabilitation, but I must be of the opinion that the sentence is of sufficient length to promote such rehabilitation, recognizing that the Crown bears the burden of satisfying me that it does not. [ 103 ] I have set out at length the opinions of Dr. Naylor and Dr. Brown in this regard.

It is clear that they believe that Mr. P. is treatable and would benefit from participation in the FATE program, or in the IRCS-C program. Attempts by the Crown to shake this opinion on cross-examination were unsuccessful. The doctors recognize that Mr. P. is not fully committed to treatment, but appear positive that they will be able to persuade Mr. P. to make the necessary commitment and to begin to undertake the intensive treatment necessary to address his conduct disorders and to disengage from the FOB. Both Dr. Naylor and Dr.

Brown were impressive witnesses, well-experienced in assessing and dealing with troubled youth, and their report was thorough and very persuasive. They certainly do not

underestimate the challenges facing Mr. P. in treatment and in disengagement from the gang, but they set out a plan of treatment in the FATE program and the possibility of medication that meets the level of being realistic and meaningful, and that would show results within a two-year custodial sentence. [ 104 ] The Crown submits that there is not a realistic likelihood of rehabilitation for Mr. P., but merely a theoretical possibility. She submits that Mr. P. has no willingness to change, and that all previous efforts to rehabilitate him have been rebuffed. She suggests that Mr.

P.’s pattern of behaviour is to tell people that he is willing to make a change and then fail to do so. [ 105 ] Certainly, Mr. P.’s past history is rife with examples of this. The authors of the

section 34 report were aware of this history, but point out that Mr. P. has not yet had the chance to participate in the FATE program. I also note that, while his record of change is unimpressive as a whole, he was able to successfully complete one treatment program and to make progress in schooling while in custody. [ 106 ] The defence notes Mr. P.’s diagnosis of conduct disorder and the related reactive anger, and the

section 34 report references Mr. P.’s “extreme difficulty” in controlling his behaviour enough to make himself available for treatment. The report also references Mr. P.’s capacity to benefit from the program, and his relatively recent acknowledgement of the need to disengage from the FOB. It reports his recent commitment to treatment. It is true that this was followed by the February 5, 2012 incident, but this incident must be considered in the context of his conduct disorders and the stress he is experiencing with respect to this hearing.

While the conduct disorders do not excuse the incident or his behaviour, they do underline his need for intensive treatment in order to change it. [ 107 ] It is noteworthy that neither Dr. Naylor nor Dr. Brown changed their opinion arising from the February 5, 2012 incident. Mr. P. repeated his intention of seeking treatment at the hearing. While such a declaration must be taken with a large grain of salt, I find that the Crown has not satisfied me that Mr. P.’s professed intention to take treatment is a sham. [ 108 ] The Crown also submits that Mr.

P. lacks remorse, specifically pointing to his version of events in the

section 34 report. I have referenced this previously, and cannot agree with this assertion. While Mr. P.’s version is more self-serving than that of Ms. N., he does express remorse. I agree that the remorse is not perfect or even adequate at this stage, but there are indications in the

section 34 report that Mr. P. has expressed remorse and is capable of empathy. An inability to feel empathy or to express remorse would certainly hinder Mr. P.’s prospects of successful treatment, but the Crown has not satisfied me that this is the case. I also note that, despite wasting earlier opportunities to engage with the SHOP officers and with some CYOC and EYOC staff, Mr. P. appears to be able to engage with Dr. Brown and Dr. Naylor and he has developed a relationship with the Newcomer youth worker. [ 109 ] The Crown cautions that rehabilitation and reintegration into society are only one of the factors that must be balanced in making a decision under

section 72 . While that is true, they are important factors that are integral to the accountability inquiry mandated by sections 72 and 38(1) of the YCJA . They are not determinative, but neither can they be discounted. [ 110 ] I agree with the defence that Mr. P is a largely untreated youth with a diagnosed conduct disorder that provides some explanation of his behaviour in and out of custody. While it does not excuse this behaviour, it colours his past failures to follow-through on commitments to change.

While his difficulties are severe, I am satisfied that he has a realistic and meaningful opportunity to address his issues and make rehabilitative changes through participation in the FATE program or an IRCS-C program. I am also satisfied that these changes can begin to be made within the confines of an appropriate youth sentence. C. Conclusion [ 111 ] Based on the factors I have outlined in this decision, I am 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 of the YCJA would have sufficient length to hold Mr. P. accountable for his offending behaviour. The Crown has failed to satisfy me that Mr. P. should be sentenced as an adult, and the application is dismissed.

Dated at the City of Calgary, Alberta this 29th day of February, 2012. B.E. Romaine J.C.Q.B.A. Appearances: Tiffany Dwyer for the Crown James Conway, Q.C. for K.B.P. Stephen R. Wojick for R.T.T.