R v CM, 2014 ABQB 701

Court of Queen ’ s Bench of Alberta Citation: R v CM, 2014 ABQB 701 Date: 20141120 Docket: 101447738Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - CM and TM Accused Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , sections 110(1) and 111(1) . No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . 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.

NOTE: This judgment is intended to comply with the restrictions so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________

Table of Contents I. Introduction .. 2 II. Retrospective application of YCJA amendments . 2 III. YCJA provisions in force at the time of CM and TM’s offences . 3 IV. Onus of proof .. 4 V. YCJA principles in force at the time of the offence .. 5 VI. Factors under s. 72(1) YCJA .. 8 A. The seriousness and circumstances of the offence . 8 Submissions regarding findings of fact 9 Findings of Fact 12 Level of moral culpability on the Laberge scale – manslaughter . 14 B.

TM’s age, maturity, character and background .. 16 TM’s previous record . 16 TM’s conduct while detained and while under pre-trial release . 16 The Pre-Sentence Report (“PSR”) 17 Family History . 17 Education . 18 Employment 18 Social and emotional data . 18

Section 34 YCJA psychiatric assessment 18 C. Other relevant factors . 20 D. Findings . 20 VII. Credit for pre-trial custody .. 21 VIII. The position of the Crown .. 22 IX. THE Position of TM ... 23 X. Discussion .. 24 XI. Conclusion .. 26 I. Introduction [ 1 ] A jury found CM guilty of first degree murder and his twin brother TM guilty of manslaughter in relation to the death of Emmanual Amoah on September 1st, 2010. The Crown applies for an order that each be sentenced as an adult pursuant to s. 64(1) of the Youth Criminal Justice Act , S.C., 2002, c.1 [“the YCJA ”].

These reasons contain my findings of fact in relation to the participation of both CM and TM in the killing of Mr. Amoah and my determination of whether TM should be sentenced as an adult. As I gave CM’s trial counsel leave to withdraw as his counsel in August 2014 during the sentencing phase and CM did not wish to retain new counsel, his sentencing was adjourned so that arrangements could be made for the appointment of an amicus curiae to provide any necessary assistance to the Court.

The amicus curiae has been appointed and the hearing as to whether CM is to be sentenced as an adult or youth is scheduled to commence on December 3 rd , 2014. II. Retrospective application of YCJA amendments [ 2 ] The convictions of CM and TM were recorded on December 18, 2013, the charge having been laid against on November 11, 2010. Bill C-10 and the amendments to the YCJA came into force on October 23, 2012.

The offences and the charges against CM and TM having both pre-dated the amendments to the YCJA , an issue arises whether the version of the YCJA in force at the time of the offence or its current version govern this proceeding.

[ 3 ] It was common ground between the Crown and counsel for TM, having regard to the principles set out in R v Diniely, 2012 SCC 58 , that as the YCJA amendments affected an accused’s substantive rights as regards the factors to be taken into account in an application to have a young person sentenced as an adult, the amendments should not be applied.

I agree that this is the proper approach, particularly having regard to the wording of s. 195 of Bill C-10, a transitional provision that specifically addresses offences in respect of which no charges had been laid before the coming into force of the section, and is silent as to offences in relation to which charges had been laid before the YCJA amendments came into force. Accordingly, I conclude that the version of the YCJA in force at the time of the offence applies to this proceeding. III. YCJA provisions in force at the time of CM and TM’s offences [ 4 ]

Section 62 of the YCJA in force at the time of the offences provided that: Imposition of an adult sentence 62. An adult sentence shall be imposed on a young person who is found guilty of an indictable offence for which an adult is liable to imprisonment for a term of more than two years in the following cases: (

a) in the case of a presumptive offence, if the youth justice court makes an under subsection 70(2) or paragraph 72(1)(b); or (

b) in any other case, if the youth justice court makes an order under subsection 64(5) or paragraph 72(1)(

b) in relation to an offence committed after the young person attained the age of fourteen years. [ 5 ] Sections 71 and 72 of the YCJA in force at the time of the offences provided as follows: Hearing – adult sentences 71. The youth justice court shall, at the commencement of the sentence hearing, hold a hearing in respect on an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing. Test – adult sentences 72.

(1) In making its decision on an application heard in accordance with

section 71 , 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 behavior, 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. Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant. Pre-sentence reports

(3) In making its decision, the youth justice court shall consider a pre-sentence report. Court to state reasons

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.

Appeals

(5) For the purposes of an appeal in accordance with

section 37, an order under subsection (1) is a part of the sentence. IV. Onus of proof [ 6 ] In R v BD , 2008 SCC 25 , the Supreme Court of Canada determined that the provisions of ss. 62 and 72 (1) and (2) of the YCJA in force at the time of the offences were unconstitutional. These provisions placed the onus on the young person to satisfy the youth court justice in the case of a presumptive offence, (which includes manslaughter) that a youth sentence has sufficient length to hold the young person accountable.

Abella J., writing for the majority of the Court, concluded, at paras 94-95, that these provisions were inconsistent with the presumption of diminished moral culpability, a principle of fundamental justice in the sentencing of young persons, and were not saved by s. 1 of the Charter . [ 7 ] Abella J. recognized, at paras 78-83, as a principle of fundamental justice that the Crown bears the burden of proving aggravating sentencing circumstances. A maximum adult sentence in the case of presumptive offences is by definition more severe than the maximum permitted for a youth sentence.

A young person should receive, at the very least, the same procedural benefit afforded to a convicted adult, placing the burden on the Crown to demonstrate why a more severe sentence is necessary and appropriate in a given case. Bill C-10 amended the YCJA to comply with the Court’s ruling in BD. [ 8 ] As to the nature of the Crown’s onus, our Court of Appeal in R v DDT , 2010 ABCA 365 , adopted, at para 7, the approach in R v AO et al , 2007 ONCA 144 at para 34 : Section 72(1)(

b) requires the youth court justice to weigh and balance the enumerated factors and then to decide whether a youth sentence is sufficiently long to hold a young person accountable for his or her offending behaviour. That type of evaluative decision – making an informed judgment – does not lend itself to proof beyond a reasonable doubt. [ 9 ] As noted in AO , at paras 37-38, the burden of proof is a persuasive burden balancing the relevant factors under s. 72(1) and considering the purpose and principles of the YCJA set out in ss. 3(1) (

b) and 38 . The decision to impose an adult sentence on a young person is “a very serious one and should only be taken after careful consideration of all the relevant factors” and “when necessary to fulfill the objectives of the YCJA ”; see also R v Estacio , 2010 ABCA 69 , at para 9 . V. YCJA principles in force at the time of the offence [ 10 ] Section 3(1) of the YCJA recites the principles to be generally applied in YCJA proceedings: Policy for Canada with respect to young persons 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public. (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time. (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve theparents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young personswith special requirements; … [11] Section 3(1)(

d) refers to special considerations that apply in respect of proceedings against young persons, including their rightto be heard and participate in the processes that lead to decisions affecting them. [12] Section 3(2) provides that the YCJA shall be liberally construed so as to ensure that young persons are dealt with inaccordance with the principles I have just referred to. [13] The factors to be considered in this application are set out in s. 72(1) of the YCJA.

It requires the youth court justice toconsider the seriousness and circumstances of the offence, the age, maturity, character, background and previous record of the youngperson, and any other factors that the Court considers relevant. The Court must decide whether a youth sentence imposed in accordancewith the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 would have sufficient length to hold the young person accountable forhis or her offending behaviour. [14] Section 38(1) of the YCJA states: Purpose 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through theimposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation andreintegration into society, thereby contributing to the long-term protection of the public. [15] As noted in AO, at para 48, accountability does not include deterrence, in either a general or an individual sense, as thisprosecution was commenced prior to the Bill C-10 amendments to the YCJA.

The Court stated, at para 42, that accountability: ...is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitationand reintegration into society.

The purpose of accountability in this context would seem to exclude accountability to society in any largersense or any notion of deterrence. [16] The Court, at para 45, likened accountability in the youth context to retribution in sentencing adults, concluding, at para 47, that: ... for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by theoffender, and the normative character of the offender’s conduct. [17] The Supreme Court of Canada explained what is meant by retribution in R v CAM, (SCC), [1996] 1 SCR500, at paras 80-81: … an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of theoffender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normativecharacter of the offender’s conduct.

Unlike vengeance, accountability incorporates a principle of restraint; retribution requires theimposition of a just and appropriate punishment, and nothing more. The Court also noted that retribution is to be distinguished from denunciation.

The former requires the sentence to reflect the moralblameworthiness of the particular offender; the latter mandates the communication of society’s condemnation of that particularoffender’s conduct. [18] Also relevant to the accountability principle are the comments of our Court of Appeal in Estacio at paras 14-15, citing R vMorton, 2004 ONCJ 100, in which Blackwell J. stated: Thus, in my view, when one is considering whether or not a youth sentence would be sufficient to hold a young person accountablewithin the meaning of s. 72, the youth sentence, to be acceptable, must not only be long enough to reflect the seriousness of the offencebefore the Court and the accused’s role in it.

But it must also be long enough to provide some reasonable assurance of the accused’srehabilitation to the point where he can be safely reintegrated into society. [emphasis added] [19] Section 38(2)(

c) requires that the sentence be “proportionate to the seriousness of the offence and the degree of responsibilityof the young person for that offence”. Section 38(2)(

e) requires (subject to para (c)) that the sentence must “be the least restrictivesentence that is capable of achieving the purpose set out in subsection (1)”; “one that is most likely to rehabilitate the young person and

reintegrate him or her into society”; and “promote a sense of responsibility in the young person, and an acknowledgment of the harmdone to victims and the community”. [20] If TM is sentenced as a young person for the offence of manslaughter, s. 42(2)(

o) of the YCJA provides: (

o) in the case of an offence set out in

section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexualassault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceedingthree years from the date of committal that orders the young person to be committed into a continuous period of custody for the firstportion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence underconditional supervision in the community in accordance with

section 105. VI. Factors under s. 72(1) YCJA A. The seriousness and circumstances of the offence [21] Unlike a judge sitting alone, who is obliged to give reasons, the jury only gives its verdict. The trial judge is therefore obligedto determine the facts necessary for sentencing from the issues before the jury and its verdict. McLachlin C.J.C. summarized theprinciples to be applied to this exercise in R v Ferguson, 2008 SCC 6, at paras 17-18: Two principles govern the sentencing judge in this endeavor.

First, the sentencing judge ‘is bound by the express and implied factualimplications of the jury’s verdict’: R v. Brown, (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge ‘shall acceptas proven all facts, express or implied, that are essential to the jury’s verdict of guilty’ (Criminal Code, s. 724(2)(a)), and must not acceptas fact any evidence consistent only with a verdict rejected by the jury: R. v. Brown; R v. Braun (1995), (MB CA),95 C.C.C. (3d) 443 (Man.C.A.).

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logicalprocess of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R v. Fiqia (1994), 1994ABCA 402 , 162 A.R. 117 (C.A.). In so doing, the sentencing judge ‘may find any other relevant fact that was disclosed by evidence at the trial to be proven’ (s. 724(2)(b)).

To rely upon an aggravating factor previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; torely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(

d) and 724(3)(e); seealso R v. Gardiner, (SCC), [1982] 2 S.C.R. 368; R v. Lawrence (1987), (ON SC), 58 C.R. (3d) 71(Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit theproper sentence to be imposed in the case at hand.

The judge should first ask what the issues on sentencing are, and then find such factsas are necessary to deal with those issues. [22] In R v RTK, 2014 ABCA 349, reference was made, at para 19, to the argument that where the jury acquits on any count in thecontext of conviction on companion counts, the sentencing judge is compelled to assume the least egregious set of facts to have beenproven on the evidence. The Court stated: That is not what is required by s. 724(2) of the Criminal Code. That

section compels the opposite. Nor is it what the Supreme Court ofCanada required in Brown; rather, it would drive a sentencing judge to attempt to deconstruct the logical processes of the jury, animpossible and dangerous enterprise. Submissions regarding findings of fact [23] Crown counsel submitted that I should find the following facts in relation to the participation of CM and TM in the killing ofMr. Amoah: 1. TM and CM were part of a group of six young males, which included the deceased, Mr.

Amoah, who participated, on September 1st, 2010 in a search for an individual named Andy to enforce an outstanding drug debt. 2. CM drove the group of males to a home in the Petrolia area of Edmonton which they understood to be occupied by Andy. CMand TM were full participants in breaking into that home and removing property from it. 3. After dropping DA off at the Southgate LRT terminal, CM drove the group of males to a Clareview area home where CM wasresiding then to an area south of Edmonton the group referred to as “the Boonies”. CM was in possession of a sawed-off shotgun andMr.

Amoah was in possession of a 9 mm handgun. CM and TM were aware of who in the group had the firearms. 4. On arriving at the Boonies, CM discharged the shotgun and Mr. Amoah discharged the handgun. Mr. Amoah then surrenderedhis handgun to Mr. Abdulle, an adult member of the group. CM attempted to shoot Mr. Amoah in the face with the shotgun. 5. CM then struck Mr. Amoah about the head with the barrel of the shotgun. Mr. Amoah went to the ground and CM kneeled on his

head commanding him not to move. AA is a young person who, prior to the trial of CM and TM, had entered a guilty plea to second degree murder in relation to the events in the Boonies that day. CM told AA to remove his jacket and tie up Mr. Amoah’s feet. AA removed the bandanna belt from Mr. Amoah’s pants. CM told AA to tie Mr. Amoah’s hands with one of the bandannas. CM directed Mr. Abdulle to hold down Mr. Amoah’s legs and AA to hold down Mr. Amoah’s back. 6. CM started to strangle Mr. Amoah with his hands. Mr. Amoah’s body moved as if in a seizure and he struggled to breathe. 7. CM stopped strangling Mr.

Amoah then stomped on Mr. Amoah’s head with his feet, saying words to the effect of “you’re going to set up your cousin for a 45, we’re going to put you in the trunk. Your cousin robbed me.” CM then continued choking Mr. Amoah using the other bandanna which had been retrieved from Mr. Amoah’s pants. While doing so, Mr. Amoah moved around and spit was flying from his mouth. 8. At this time, TM was pointing Mr. Amoah’s handgun at Mr. Amoah’s head from a distance of five to 15 feet while watching CM strangling Mr. Amoah. Mr. Amoah screamed when he saw the gun. TM continued to point the gun at Mr.

Amoah’s head as he struggled against the strangulation and displayed clear signs of distress from the strangulation. 9. After Mr. Amoah stopped struggling, lay prone on the ground and was dead, TM stomped on his head. 10. The group returned to CM’s vehicle and then to the home in which CM was residing and there were some efforts made to destroy evidence of the killing. CM then drove to DA’s home and handed him a backpack in which the shotgun was located. 11.

CM then engaged in a campaign to enforce silence within the group, culminating in an incident where a gun was put to AA’s head, as CM was concerned that AA was providing information to the police. CM then participated in a robbery of AA and his home, which included taking AA’s cell phone. 12. TM did not participate in any of the post-offence cover-up or threatening activities. [ 24 ] Counsel for TM submitted that there was no evidence TM actually removed any property from Andy’s house. Counsel for TM also took issue with the Crown’s assertion that Mr.

Amoah was “shot at” and that TM would have observed this to have occurred or Mr. Amoah being clubbed with a gun. He pointed out that there was no stipling found in Mr. Amoah’s face at autopsy, and the autopsy findings were inconsistent with half of Mr. Amoah’s face being shot off from CM’s discharge of the shotgun as alleged by AA There were very few marks on Mr. Amoah’s face and his skull was not cracked or broken. [ 25 ] Counsel for TM also took issue with the manner and cause of death described by Crown counsel, noting that Dr. Rivera, the medical examiner who performed the autopsy on Mr.

Amoah, could not exclude five possible causes of death, having regard to the level of decomposition of Mr. Amoah’s body, namely, by: smothering; strangulation with a soft ligature or a carotid sleeper hold; a blow to the head; a blow to the center of the chest; or exposure to the cold. TM’s role, consistent with the jury’s verdict of manslaughter, was as a party to an unlawful act that caused the death of Mr. Amoah as his own actions in pointing the handgun at Mr. Amoah did not result in his death.

Finally, counsel for TM submitted that the Crown failed to prove beyond a reasonable doubt the aggravating factor that TM stomped on Mr. Amoah’s head after he died as the autopsy findings in relation to the state of Mr. Amoah’s face and skull contradicted AA’s evidence in that regard. [ 26 ] As the fact findings made in sentencing TM are relevant to the sentencing of CM, I invited submissions from CM.

CM raised issues with the credibility of AA’s evidence which, he argued, affected whether some of the fact findings proposed by Crown counsel were proved beyond a reasonable doubt. [ 27 ] CM submitted that the divergence in the testimony between AA and DA as to who did what at Andy’s house gives rise to concerns as to AA’s credibility.

He argued that it would be reasonable to assume that AA, whom DA testified came with him to the front door, would be armed when approaching a known drug dealer’s home and that therefore it was reasonable to infer from those circumstances that it was AA, not CM, who was in possession of the shotgun at that time. [ 28 ] CM submitted that there was no evidence that he was aware that Mr. Amoah was in possession of a 9 mm handgun on the way to the Boonies. [ 29 ] CM took issue with the Crown’s assertion that he fired a shotgun that caused the bullet or products of combustion to graze Mr. Amoah.

The autopsy findings are inconsistent with this theory. CM referred to the expert testimony of Mr. Veitch as to the approximate distance products of combustion can travel and CM’s location described by AA well exceeding that distance. [ 30 ] CM argued that AA’s testimony as to the multiple stomps and blows to Mr. Amoah’s head he is alleged to have administered are contradicted by the autopsy findings of a small amount of bruising to Mr. Amoah’s head and uninjured state of his skull.

[ 31 ] CM characterized as pure fabrication, in light of AA having observed the events in the Boonies and the autopsy findings, AA’s testimony that on the way back from the Boonies he asked CM why he did not just shoot and kill Mr. Amoah and that CM responded that the bullet spread and grazed Mr. Amoah’s face. [ 32 ] CM argued that while the final instructions to the jury stated that the bullet recovered from the scene could be used as confirmatory evidence of AA’s testimony, the bullet spreading was inconsistent with the 30 calibre bullet recovered from the scene.

CM referred to Jeil Simon’s testimony that AA told him Mr. Amoah had been grazed by a 9 mm bullet, which contradicted AA’s trial testimony that Mr. Amoah’s face was grazed when CM fired the shotgun. I note, however, that Mr. Simon’s evidence was qualified on this point, having initially responded that he assumed AA was referring to the nine 9 mm handgun. [ 33 ] CM submitted that Dorothy Otuomagie’s testimony was ambiguous and therefore not confirmatory of AA’s version of the events surrounding the discharge of the firearms.

Her testimony that CM told her while in hospital that he “tried to kill him, shoot him with a gun and it did not work, so then he strangled him” could equally be interpreted as Mr. Amoah not having died from his bullet wounds. This

interpretation of her testimony would not be confirmatory of AA’s testimony in the sense of restoring the trier of fact’s faith in AA’s evidence. [ 34 ] CM submitted that the evidence did not establish that it was he who passed the backpack containing the shotgun to DA after returning from the Boonies. [ 35 ] There was no evidence that sometime after the events in the Boonies, CM instructed another individual, ME, to point the handgun at AA.

It was AA’s testimony that CM told the ME to stop doing what he was doing. [ 36 ] CM argued that the collective effect of these issues, many of them affecting the credibility of AA’s testimony, severely weakens the Crown’s theory that CM was the principal perpetrator. CM argued that an alternative motive not explored at trial was an alleged prior robbery of CM by an individual named Johnson referred to by AA in his testimony. The Crown, in what CM described as “calculated decision”, did not attempt to pursue this theory, or that robbery was a motive for killing Mr. Amoah.

CM argued that an adverse inference should be drawn against the Crown for not pursuing this alternative theory. He referred to AA’s testimony that it was Mr. Abdulle who removed money and a cell phone from Mr. Amoah which should shed doubt on whether CM was the principal offender. CM also argued that the fact that the execution of a search warrant on his residence after the killing uncovered no firearms spoke against him being the principal offender. [ 37 ] CM noted AA’s testimony that he tied the jacket and bandana as tight as possible on his own initiative and punched Mr. Amoah.

These were not the actions of an unwilling participant as AA attempted to portray himself at trial. CM also noted AA’s testimony that he confided in his girlfriend’s mother, Ms. Lafleur, and confessed to choking Mr. Amoah. [ 38 ] In response to the submissions of counsel for TM and of CM, Crown counsel noted, in relation to the type of bullets fired from the shotgun, AA’s testimony that it was CM who told him the bullets spread. This is consistent with what Ms. Otuomagie said CM told her occurred. Moreover, Mr.

Veitch could not say with certainty if the shell casings recovered from the scene had been discharged by the shotgun. If so, the result would have been a very unsteady shot. As to whether stipling was evident from the autopsy, Dr. Rivera testified that there was considerable superficial tissue lost from body decay. Crown counsel noted the autopsy evidence that there were injuries to Mr.

Amoah’s face and neck consistent with blows having been administered. [ 39 ] Crown counsel argued that CM was attempting to mount a collateral attack on AA’s testimony, however, the jury’s guilty verdict on the charge of first degree murder through unlawful confinement was a clear acceptance of AA’s testimony as to CM’s role as principal perpetrator in the unlawful confinement and murder of Mr. Amoah, and a clear rejection of CM’s testimony. Findings of Fact 1. CM and TM were in a group of six males who were looking for an individual named Andy to enforce a drug debt.

CM and TM were parties to a break-in by the group of a Petrolia area home they believed to be where Andy was living. Property was physically removed from the home by other members of the group. CM drove the vehicle used in the break-in. At the time of the break-in, Mr. Amoah was in possession of a 9 mm handgun, as observed by AA. 2. After the break-in, CM dropped DA off at the Southgate Mall LRT station and the group proceeded to CM’s residence for a short time. CM then drove the group to a rural location, the Boonies, to shoot off guns.

It is not clear from the evidence at what point in time CM came into possession of the shotgun but he had it at the Boonies. 3. When Mr. Amoah discharged the 9 mm handgun, it jammed. CM shot off a shotgun. 4. I find that the Crown has not proven beyond a reasonable doubt that CM “shot at” Mr. Amoah. AA did not make any direct observation of this, having only heard the report from the shotgun while speaking to TM and having seen Mr. Amoah clutch his head after the report. The autopsy did not reveal any evidence of shotgun or “blowback” wounds to Mr. Amoah’s head.

While there was slippage of the superficial layer of Mr. Amoah’s skin through decay, the aggravating feature of “pointing at”, not having been directly witnessed by AA, is not proven beyond a reasonable doubt. 5. After CM shot off the shotgun, he proceeded to club Mr. Amoah with it. Dr. Rivera could not exclude a blow to the head causing

neurologic dysfunction of the brainstem even though the bruising and abrasions to his head were relatively minor. A bruise to the headbehind the right ear was caused before death. As noted, skin slippage impeded his ability to identify superficial injuries. 6. While the motive for the killing of Mr. Amoah was unclear, CM’s actions were the substantial cause of Mr. Amoah’s death. Ms.Otuomagie testified that CM admitted to her around the beginning of October, 2010 that he strangled Mr. Amoah and killed him.According to Dr.

Rivera, a bandanna is considered a soft ligature; death by ligature strangling was one of five possible causes of Mr.Amoah’s death identified by Dr. Rivera. He also noted that compression around the neck cutting off blood flow to and from the headusing something soft and pliable or the crook of the arm can leave no evidence. While Mr. Amoah’s eyes were free of pitechiae and mostcases of strangulation show pitichael bleeding, there are exceptions if the cut-off of blood flow does not cause an imbalance at thecapillary level. Although the hyoid bone can compress and break during strangulation, and Mr.

Amoah’s neck was anatomically normal,Dr. Rivera referred to academic literature reporting that ligature strangulation will only cause hyoid damage in one-third of cases. 7. I find that under CM’s direction, AA tied his jacket around Mr. Amoah’s feet and tied his hands with a bandanna being used byMr. Amoah as a belt. CM strangled Mr. Amoah, first with his hands, then with a bandanna, while, under CM’s direction, AA washolding down Mr. Amoah’s back and Mr. Abdulle was holding down his feet. There were no gunshot wounds on Mr. Amoah’s bodynoted at autopsy such as to lend credence to any alternative

interpretation of CM’s words to Ms. Otuomagie while in hospital. 8. TM pointed a handgun at Mr. Amoah’s head while Mr. Amoah was lying on the ground, being held down by AA and Mr.Abdulle and while CM was choking him, first with his hands, then with Mr. Amoah’s bandanna, all of which TM observed from adistance of five to 15 feet from Mr. Amoah. 9. Mr. Amoah screamed when he observed TM pointing the gun at him. TM continued to point the gun at Mr. Amoah’s head as hestruggled against the strangulation, including making seizure-like movements. 10. TM did not touch or verbally threaten Mr.

Amoah prior to or during the time he pointed the gun at Mr. Amoah’s head. 11. After Mr. Amoah stopped struggling, was no longer moving, and was dead, TM stomped on Mr. Amoah’s head. Dr. Rivera noteda skin laceration resulting from a blunt force injury and two areas of bruising in the area of Mr. Amoah’s right upper eyelid. While Dr.Rivera could not say whether these injuries were caused before or after death and Mr. Amoah’s skull was intact, he also testified that theextent of bruising a body will display is reduced after the heart stops pumping. 12. CM drove the group to the home where he was residing.

AA changed his pants and members of the group discussed how todispose of the shotgun. AA disposed of some evidence of the killing and CM continued to drive the group to DA’s home. CM passed toDA a backpack containing the shotgun. 13. In the days and weeks after the events of September 1st, 2010, CM contacted other members of the group and told them not to talkon the phone or to police. CM also contacted Ms. Otuomagie and told her not to talk to the police. TM did not participate in theseattempts to discourage members of the group or Ms. Otuomagie from speaking about the events or to the police. 14.

CM confronted AA about talking to the police in the company of ME, who pointed Mr. Amoah’s handgun at AA’s head. CMrobbed AA of property including his cell phone. CM showed AA that the gun that ME had pointed at his head was not loaded. Duringthe course of this incident, CM told ME to leave AA alone. CM then returned with ME and AA to AA’s home where CM robbed him ofother property. TM was not present at any of these events. Level of moral culpability on the Laberge scale – manslaughter [40] In pointing the handgun at Mr.

Amoah while he was being strangled by CM and his back and legs were being held down byAA and Mr. Abdulle, TM committed an unlawful act and participated in the commission of an unlawful act, an assault that wasinherently dangerous and harmful to another which was neither trivial nor transitory was its foreseeable consequence: R v Jackson, (SCC), [1993] 4 SCR 573, at p 583, citing R v Creighton, (SCC), [1993] 3 SCR 3 and R v DeSousa, (SCC), [1992] 2 SCR 944.

As noted in Jackson, at p 583: ... a person maybe convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person inall the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was beingundertaken.

[41] R v Laberge, 1995 ABCA 196 guides sentencing decisions in this province in relation to the evaluation of the level of moralblameworthiness, viewed both objectively and subjectively, that attaches to the offence of manslaughter. The offence describes conductthat causes the death of another person, the mental element of which falls short of the intent required for second degree murder.Manslaughter covers a wide range of cases from “near accident” at one extreme to “near murder” at the other. The degree of moralblameworthiness increases along a continuum within that spectrum.

The sentencing judge must determine what rung on the moralculpability ladder the offender reached when committing the offence. [42] The judge must consider the nature and quality of the unlawful act itself, the method by which it was committed and themanner in which it was committed in terms of the degree of planning and deliberation (para 8). [43] Fraser C.J.A., writing for the majority of the Court, noted, at para 9, that unlawful acts may be divided into three broadgroups, those which are likely to put the victim at risk of, or cause, bodily injury, those likely to put the victim at risk of or cause seriousbodily injury, and those which are likely to put the victim at risk of or cause life-threatening injuries.

Only when the offender’s provenmental state at the time of the commission of the offence is evaluated in the context of the crime itself, in other words, in terms of itsrelative degree of seriousness, is it possible to classify for sentencing purposes the degree of fault inherent in the particular offencecommitted. [44] Fraser C.J.A. added, at para 10, that in order to complete the moral blameworthiness picture and to situate the offenderrelative to others convicted of the same offence, the court must also have regard to those personal characteristics of the offender thatmitigate or aggravate culpability. [45] As noted at para 12, the mens rea for manslaughter is objective foresight by the accused of the risk of bodily harm which isneither trivial nor transitory.

Whether the additional level of subjective intent, not necessary for manslaughter, is established is importantin assessing the offender’s blameworthiness for sentencing purposes. Fraser CJA referred, at para 16, to the need to consider whatinferences, if any, must be properly drawn from the unlawful act and the surrounding circumstances.

The requisite intent or knowledgemay be inferred by what the offender said or says about his or her mental state or indirectly from the act and its circumstances. [46] The more an offender’s “intention” or “awareness” approaches the point that he knew or was willfully blind to the fact thathis unlawful act was not only likely to put the victim at risk of death, but indeed to cause death, the more culpable he or she is.

As notedat para 14, even absent proof of subjective mens rea, the more the offender’s conduct, on an objective basis, approaches the point whereit can be said he or she ought to have known, had he or she proceeded reasonably, that the unlawful act would be likely to cause life-threatening injuries as opposed to simply putting the victim at risk of bodily injury, the more culpable he or she is. [47] The surrounding circumstances should be examined, including the choice of weapon used to effect the unlawful act, thedegree of force the offender used in perpetrating the act, the extent of the victim’s injuries, the degree of violence or brutality used, theexistence of any gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought ofaction or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element ofchance involved in the resulting death (para 23).

Finally, the fact that the act was impulsive and did not involve a high degree ofdeliberation is a relevant factor in sentencing (para 49). [48] It is clear from the jury’s verdict that the Crown failed to prove beyond a reasonable doubt that TM meant to kill Mr. Amoahor to cause him bodily harm that he knew was so dangerous and serious that he knew was likely to kill Mr. Amoah and proceeded despitehis knowledge of that risk. Crown argued, however, that TM’s offence should be placed at the highest level short of murder on theLaberge scale.

A reasonable person in TM’s position would have recognized the risk to Mr Amoah of life-threatening injuries.

Counselfor TM conceded that TM would have reasonably perceived a risk of bodily harm or at worst serious bodily harm in the circumstances.However, he maintained that TM never physically restrained the deceased nor gave any commands to others in the group, nor did hebring the firearm to the location or fired it. [49] Crown counsel referred to R v MacIntyre (1992), 1992 ABCA 319 , 135 A.R. 166 (ABCA) a case where it was notpossible to determine which member of a group inflicted the blow that led to the victims’s death.

Fraser, C.J.A., for the Court, noted, atparas 3-4, that individuals acting in a group must accept the consequences of the group action and the fact that the accused acted as partof the group which caused this result was a significant aggravating factor. This approach is justified as these offences place the individualvictim at a far greater disadvantage, and tend to cause greater fear and alarm.

Also aggravating is the fact that members of the group canfeel safe and secure in the knowledge, typical of bullying, that they collectively have the ability to overpower their chosen victim, andcan decide to assert power and control over another human being with complete disdain for the victim’s feelings. [50] I find that the circumstances of this offence present similar characteristics. While TM did not touch Mr. Amoah during thecourse of his killing, in pointing a firearm at Mr. Amoah’s head while Mr.

Amoah was being held down and strangled, and continued tostruggle and make seizure-like movements, his degree of moral blameworthiness is on the “near murder” end of the Laberge scale. TMought to have known, had he proceeded reasonably, that these unlawful acts would be likely to cause life-threatening injuries to Mr.Amoah. A handgun is a dangerous weapon and the violence being perpetrated upon Mr. Amoah was brutal, callous and terrifying. Theprocess of killing of Mr. Amoah extended over a period of minutes and left him no opportunity for escape. His death was a predictableoutcome. B.

TM’s age, maturity, character and background [51] TM was born on September 13, 1992 and was 17 years and 353 days old at the time of the offence. TM’s previous record [52] TM pled guilty to assault in Brampton, Ontario and was sentenced, on August 8, 2008, to probation for 12 months. Accordingto the transcript of that proceeding, he was one of a group of five young males who approached two other young males and demanded

that they give up whatever they had. He admitted to having participated in an assault on one of the complainants but was not aware that any property had been taken. TM was 15 years of age and in Grade 11 at the time. He apologized to the complainants during the sentencing hearing and expressed remorse for his actions. TM’s bail supervisor during the entirety of his interim release, Ms. Maria Nanninga, testified that TM’s probation was transferred to Alberta when he came to live with his brother.

He stopped reporting as regards the Brampton offence after a period of time, however, no violations were pursued in either province. TM’s conduct while detained and while under pre-trial release [ 53 ] According to a Custodial Progress Report submitted by TM’s Correctional Service Worker, TM was admitted to the Edmonton Young Offender Centre (“EYOC”) on November 12, 2010. He was released to his brother SC and SC’s common-law spouse on February 2, 2011, however, his release was revoked on March 8, 2011 when he was charged as an adult with a number of breaches of the conditions of his release.

He was subsequently sentenced to 45 days’ imprisonment for three breaches of his release terms. [ 54 ] Following his return to EYOC in July 2011, there followed a short period of non-compliance with staff direction which prompted TM’s transfer to the highly-structured unit for highly disruptive inmates. He was returned to his original unit in August 2011 and no other serious concerns arose thereafter, until his release on bail in April 2013. [ 55 ] While an inmate of EYOC, TM participated in numerous programs in the areas of community service, skill acquisition and personal fitness.

He taught basketball and organized a tournament and helped out with social activities. He obtained first aid certifications and participated in a drug counseling program. TM’s key-worker at EYOC described him as always polite and respectful toward staff. [ 56 ] When released again on April 19, 2013, he was required to abide by an 8 p.m. to 7 a.m. curfew seven days per week, and to be in his residence from 8 p.m. to 7 a.m. seven days per week. Ms.

Nanninga testified that between April 2013 to the time of the sentence hearing, TM was contacted successfully on 358 curfew calls and 42 in-person home visits during curfew and missed 35 curfew calls. Up until May 2014 he was not charged with any curfew violations. [ 57 ] TM pled guilty on August 22, 2014 to two breaches of recognizance he committed on May 13 and May 18, 2014 when he was absent from the residence designated in his recognizance during curfew. TM turned himself into police shortly after these breaches and was granted release on these charges in June, 2014.

On the same date, he pled guilty to two further breaches of recognizance arising from the events of July 19, 2014 and August 9, 2014 when he was located by police in local bars in breach of his curfew. On the evening of August 9 th , he was approached by Constable Perry of the Edmonton Police Service and, when asked to identify himself, he gave a false name and false explanation for his inability to produce identification. He was placed under investigative detention and handcuffed and when told by the officer that he was going to check his police computer for a photograph, he admitted he was TM.

He was sentenced to time served. The Pre-Sentence Report (“PSR”) [ 58 ] TM was 21 years of age at the time Ms. Nanninga prepared the PSR. TM declined to provide information in relation to the circumstances of the offence to preserve his rights on any conviction appeal. The PSR contains no recommendation as to sentence, Ms. Nanninga noting that the Court had not yet determined whether he is to be sentenced as a young person or an adult. [ 59 ] Ms.

Nanninga was not successful in reaching TM’s brother SC and SC’s common-law wife to whom he was initially released and with whom he has resided when released again in April 2013. Family History [ 60 ] TM is of Jamaican descent. He has a twin brother, CM, two half-brothers and a half-sister. His parents resided for a time in a common-law relationship. He resided in Ontario with his mother until 2007 when he lived briefly with his father.

He returned to live with his mother who then sent him to live with his brother SC in Edmonton. [ 61 ] TM reported having a positive relationship and frequent phone contact with both his parents. Although his mother continues to reside in Ontario, she was present during the trial and the sentencing hearing. TM also reports having a positive relationship with both step-brothers, particularly SC, with whom he is currently living and who was also present for parts of the proceeding.

According to the PSR, his brother’s wife confirmed that TM is very respectful of rules in their home and they are like brother and sister. He is helpful around home and assists with child care, cooking and cleaning, and purchases groceries but not paying rent. They are prepared to continue to have him reside with them. Education [ 62 ] A former guidance counselor Ms. Nanninga contacted in Ontario did not recall TM being a problem. However, he described him as an angry young man walking around with chip on his shoulder, but with obvious talent in basketball. On his arrival in Edmonton, TM attended J.

Percy Page for Grades 10 and 11, excelled in basketball but was frequently late and missed practices. He frequently missed school in both years. He was suspended four times in 2009 and 2010. One of his suspensions involved him displaying defiant aggressive and inappropriate behaviour toward a teacher. He completed his high school diploma at EYOC and was described by a teacher there as a very respectful student who was one of the strongest students EYOC had in years, was proactive in his learning, and is capable of doing well in post-secondary studies.

His current plans are to enroll in a power engineering program at NAIT which, according to his teacher, is within his capability. Employment

[ 63 ] TM started working as a part-time labourer at age 14 and, after moving to Edmonton, worked part-time in a restaurant and clothing store. Following his first release from EYOC, he worked as a shipper receiver, then in a recycling plant. He is currently employed as a scaffolder, earning over $28 per hour. He frequently works six days per week and overtime hours. Social and emotional data [ 64 ] TM has no counseling or psychological treatment history. He reported that he consumes alcohol socially, first smoked marijuana at age 17, then infrequently as it did not interact well with his sports activities. He does not consume other drugs.

Section 34 YCJA psychiatric assessment [ 65 ] Dr. Curtis Woods, a consulting forensic psychiatrist and the medical director at the Forensic Assessment Community Service, prepared the s. 34 YCJA assessment. It was based on a two-hour interview with TM and an interview, along with psychometric and risk assessment testing, conducted by Dr. Theresa Domselaar or under her supervision. [ 66 ] Dr.

Domselaar noted that TM having declined to discuss the circumstances of the offence on the advice of his counsel, given a possible appeal, there were aspects of his attitudes, cognitions, beliefs, etc. that were inaccessible to psychological evaluation. However, he did not exhibit clinical features of serious active mood disturbance or acute psychotic process. He was observed to be minimally engaged in and distant from the assessment process, “going through the motions” of the assessment politely but superficially.

While his responses to cognitive testing placed him in the borderline category, his efforts were noted to be markedly suboptimal, and to significantly under-represent his cognitive abilities. [ 67 ] TM’s personality profile was within normal limits and depicted a defensive closed individual, with a tendency toward anxious conforming and seeking reassurance from those he considers to be in a position of authority. He appeared to best fit within the late adolescent stage in terms of development and maturity.

Despite his closed overall stance, in his responses to more general lines of inquiry, he demonstrated concrete, un-nuanced emotional understanding and a sense of identity and personhood which has not yet coalesced into a self-directed, mature, adult form. He seems to be developing a rudimentary understanding that it is possible to form a sense of self through means other than acquiescing to the wants, needs and expectations of others, but these concepts remain inchoate at the present time. [ 68 ] According to Dr.

Woods, despite the limitations of the assessment, it appears that TM has ample room for improvement in the way of developmental maturity. Whether he chooses to cultivate such development remains to be seen. [ 69 ] Dr. Woods noted that TM can be categorically classified as a non-psychopathic. His total score places him at “low” level of psychopathic traits. The Violence Risk Appraisal Guide places him within the moderate range. His risk of violent recidivism also falls within the moderate range. [ 70 ] Dr.

Woods noted that the index offence, like the earlier assault offence, involved “…the collective swarming and physical attack of a victim by a group of individuals …” although the events of the index offence were discernibly more serious with respect to violence. He stated that TM does not manifest features suggestive of a clinically significant mental disorder, major mood disturbance, psychiatric illness, or organic brain impairment.

While not psychopathic and not appearing to fulfill the criteria for a personality disorder, TM appears to have “narcissistic and latent antisocial characteriological tendencies”. [ 71 ] Dr. Woods was of the opinion that a diagnosis of conduct disorder was warranted based on a repetitive and persistent pattern of behaviour in which the basic rights of others or major age-appropriate societal norms or rules were violated in his adolescent years.

He went on to note that many individuals with conduct disorder, particularly of the adolescent-onset type as in TM’s case, achieve adequate social and occupational adjustment as adults. [ 72 ] Nonetheless, Dr. Woods stated that the fact that TM progressed to the point of participating in what could be viewed as a callous and severe violent act is a testament not only to the magnitude and seriousness of the antisocial influence, but to his own maladjusted personality development. [ 73 ] Despite these clinical observations and inferences drawn from TM’s family, social and history of offences, Dr.

Woods concluded that TM has effected and maintained positive and pro-social behavioural change (excluding the curfew breaches) from the time of his arrest and detention for the index criminal offence.

He noted, at p. 30 of his report, that since TM’s arrest: There has been noteworthy improvement in respect of the following areas – engagement in criminal activity, employment and educational standing, familial relationships and the substance of his social support network, peer associations and affiliations, constructive use of idle time, finances accommodation, adherence to societal convention and norms, and outwardly evinced degree of antisociality.

I also suspect that there has been some dampening of TM’s overtly projected narcissistic impairments, though his internal psychological state of being and mindset were not easily accessible for the purpose of examination. [ 74 ] According to Dr. Woods, these positive changes offer a cautiously optimistic prognosis with respect to rehabilitation and reintegration, considering his family relationships, the constructive use of his time while in detention and through his current employment, and his financial standing (having been able to accumulate $10,000 in savings). [ 75 ] Dr.

Woods noted that TM does not misuse alcohol or illicit substances and does not suffer from a serious mental disorder. During his adolescence he had a severe conduct disorder, however, he has not demonstrated any significant degree of institutional misconduct since the offence. He has maintained gainful employment and stable accommodation. While he has breached his terms of release more than once, there is no evidence to suggest that his criminality has escalated beyond the breaches. The severity of his conduct disorder has attenuated over time.

He appears to have realistic and creditable goals regarding future plans. [ 76 ] The risk of criminal recidivism including violent crime will, according to Dr. Woods, depend on the quality of TM’s social

group and peer influences, since this factor, in all likelihood, is the most potent external trigger for any dormant antisocial proclivities. Dr. Woods noted that there is some uncertainty in TM’s case as regards the risk of gravitating back to an antisocial-minded group of individuals – the offence itself was contemptuous as were his breaches of his bail, the latter indicative of defiant behavior. Dr. Woods concluded that TM is not in need of any formal psychiatric/psychological treatment but that he should be monitored in the community for an extended duration.

He has self-regulating abilities in order to pursue a pro-social direction, however, with his narcissistic impairments and latent anti-social tendencies, there is a risk of these tendencies resurfacing. Dr. Woods referred to the concoction of a story to police during the latest breach as a self-defeating battle for control and also indicative of the need to monitor and supervise TM’s behaviour in the community. [ 77 ] Dr. Woods described TM as a “puddle of flammable liquid” with the characteriological vulnerability to catch fire.

What he has shown is that if disengaged from antisocial influence, he can perform quite well in the community. Dr. Woods was cautiously optimistic about TM’s future. While Dr. Woods was aware that TM had spent about 28 months at EYOC and about 15 months on release, he was clinically concerned about his “mild non-compliance” but pleased he had not offended in a more serious manner. Violating curfew, however, is a cause for concern as the index offence was committed in the context of an alliance with antisocial- oriented individuals which is not a healthy exposure for him. [ 78 ] Under cross-examination, Dr.

Woods acknowledged that “there is no bigger ball of fire” to expose TM to than a federal maximum security penitentiary and that imprisonment would be contrary to the potential for a successful course of rehabilitation. Given TM’s personality, going back to jail for a long period carries the risk of becoming tied to antisocial influences and would be counterproductive to the rehabilitation and reintegration process. C. Other relevant factors [ 79 ] No victim impact statements were tendered although the family of Mr.

Amoah was advised of the opportunity to submit them. [ 80 ] TM pled guilty to shoplifting CD’s on May 9, 2011, subsequent to the offence, and was sentenced to a six-month term of probation with conditions. I am not of the view that this subsequent conviction for a minor offence should alter the course of his rehabilitation. D. Findings [ 81 ] Having considered the expert reports and testimony regarding TM’s maturity, character and background, I accept Dr.

Woods’ diagnosis of adolescent onset conduct disorder having regard to the results of TM’s psychometric testing indicating: narcissistic and latent antisocial tendencies; a fractured family unit and lack of parental supervision in his adolescent years; the circumstances of his previous assault conviction, his truancy and suspensions from high school after moving to Alberta, and his involvement in the index offence. Given the risk of recidivism, including violent recidivism classified as moderate, TM is at a crossroads.

His sense of identity and personhood has not yet coalesced into a self-directed, mature, adult form.

He has the ability to control his antisocial tendencies, evidenced by his respect for authority figures within EYOC (except for one brief period while in custody when increased structure and conduct regulation was required), the lack of any indication of substance or alcohol dependency, his very productive work on his education, his realistic plans for further post-secondary education having regard to his intellectual abilities, his constant and currently stable employment and accumulation, through his employment, of a substantial nest-egg for a person of his age.

He is not psychopathic and does not require psychiatric or psychological treatment. [ 82 ] However, I also accept Dr. Woods’ analogy of TM’s character to “flammable liquid”. If he surrounds himself with an anti- social peer group as was the case in his adolescence, his anti-social behavior could re-ignite. VII. Credit for pre-trial custody [ 83 ] TM was in custody in a young offender facility for a period of 28 months prior to his trial. In DDT , the sentencing judge declined to give credit for four years of pre-trial custody. Our Court of Appeal held that a sentencing judge can take into account under s. 38(3) (

d) of the YCJA in ways other than by granting a reduction in the custodial period served. S.38(3) provides: Factors to be considered 38

(3) In determining a youth sentence, the youth justice court shall take 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. [ 84 ] In DDT , the trial judge determined he could “take into account” the pre-trial custody by sentencing the respondent as a young person, rather than as an adult. On appeal, Bielby J.A., for the Court, concluded, at para 57, that the youth court justice can award no

credit for pre-trial custody where to do differently would compel the imposition of an adult sentence in circumstances where the principles of the YCJA otherwise support the imposition of a youth sentence.

The determination of this issue will turn on the youth court judge’s assessment of the seriousness of the offence, the offender’s efforts towards rehabilitation and prospects of reintegration under the YCJA sentencing regime. [ 85 ] In R. v DMT , 2012 ABCA 142 , Slatter J.A., for the Court, noted, at para 6, that as a sentencing option in the case of young person, the pre-sentencing custody could be credited entirely against the global sentence, or against the custodial portion of the sentence only, with the community supervision portion to remain intact.

He indicated, at para 10, that the latter approach should normally be preferred. He also recognized, at para 11, that in exceptional circumstances the sentencing judge can give no credit for pre-sentence custody. VIII. The position of the Crown [ 86 ] Crown counsel sought an adult sentence of six to eight years’ imprisonment, less 28 months’ credit for time in pre-trial custody.

Crown counsel argued that while a credit of 1.5 to 1 is within the Court’s discretion, in this case, a large portion of pre-trial custody was due to TM having breached his release conditions, a matter which can be taken into account in refusing a 1.5 to 1 treatment of pre-trial custody as the situation is akin to the endorsement process under s. 719.1 in relation to adult offenders. [ 87 ] Crown counsel noted that manslaughter is a very serious offence carrying a maximum sentence for adult offenders of life imprisonment. The fact that TM used a handgun to commit the offence also increased its seriousness.

Though lacking intent to kill, he displayed a marked callousness towards the deceased, underscored when he stomped on Mr. Amoah’s body after he was strangled to death. His moral culpability placed him on the highest rung of the Laberge scale. He was 12 days away from becoming an adult at the time of the offence. As noted in BD at paras 61-62, age plays a role in the development of judgment and moral sophistication.

Williams J. noted, in R v CS , 2008 NSPC 22 , cited in R v NLH , 2009 ABCA 168 , at para 86 , that “maturity … should be considered from two perspectives, behaviourally as exhibited by her words, thoughts and actions and chronologically by looking at her actual state of development.” (para 18).

Crown counsel submits that the presumption of diminished moral blameworthiness is weaker having regard to TM’s age. [ 88 ] Crown counsel noted that TM has a prior record for assault that has some similar characteristics, however, acknowledged that the PSR and Custodial Progress Report are largely positive. [ 89 ] Among several authorities, Crown counsel referred to R v Ferriman , 2006 CarswellOnt 5993 (ONSC) , where the 15-year-old offender, aware of a group plan to kill the deceased, provided the knife to the killer who, in a frenzied attack, inflicted 72 stab wounds to the head and neck of the deceased.

When the deceased’s stepfather returned home, Ferriman did not warn him of the danger but fled. His behaviour in the months prior to the offence was described, at para 29, as completely out of control, consistently truant, failing school, wanton destruction of property, although he had no previous record. He made significant progress during his three years of pre-trial custody. He was diagnosed with a conduct disorder along with a panic disorder and ADHD and was deeply insecure. Expert opinions were divided as to whether he could be safely returned to the community without a continued period of supervision.

He expressed shame and remorse. The Crown sought a two-year adult sentence followed by three years’ probation. The sentencing judge concluded that the maximum youth sentence of three years’ imprisonment/supervision was not sufficient to hold him accountable and provide reasonable assurance of rehabilitation and reintegration.

He was sentenced to an adult sentence of two years’ incarceration plus three years’ probation. [ 90 ] It was the Crown’s position that considering all of the circumstances, a youth sentence would not have sufficient length to satisfy the need for TM to be accountable for his involvement in the death of Mr. Amoah. [ 91 ] Crown counsel argued, in the alternative, that if an adult sentenced is rejected, as I am constrained by the provisions of s. 42(2) (

o) of the YCJA to a three-year sentence, TM’s pre-trial custody should not be credited to his sentence. If consideration is given to a period of conditional supervision, it could thus be extended to the maximum period of three years. TM’s recent breaches reveal efforts to avoid the consequences of his misbehavior, having lied to the officer about his identity in the course of the August 2014 curfew breach, and earlier having misrepresented to his bail supervisor in the context of the May 2014 breaches that he was told by some unnamed person at the attendance centre that he was no longer bound by a curfew. IX.

The Position of TM [ 92 ] Counsel for TM submitted that the Crown has failed to satisfy the Court that an adult sentence is necessary in this case and that no further custodial disposition or period of conditional supervision should be imposed, having regard to the 28 months TM spent in pre-trial custody and the 16 months on pre-trial release. His progress while in pre-trial custody in advancing his education and participating in sports and social programs are noteworthy and not consistent with the anti-social tendencies referred to by Dr. Woods. Defence counsel argued that Dr.

Woods’ finding of a conduct disorder was coloured by TM’s refusal, on the advice of counsel, to discuss the circumstances of the offence in order to preserve his rights on appeal. [ 93 ] Counsel for TM noted that TM has strong family support, stable employment and realizable education plans for the future. He demonstrated over 90% compliance with curfew conditions over the course of the period of his release until very recently. He dealt summarily with his recent breaches, indicating a willingness to take responsibility for his actions.

His pre-trial detention and supervision were protracted as his two severance motions were refused and the trial was adjourned at CM’s request and over the objections of TM, delaying the proceedings a further six months. [ 94 ] Counsel for TM noted that Dr. Woods recognized the strides and progress TM has made since the offence. In describing TM as a “puddle of flammable liquid”, Dr. Woods recognized that there is no bigger fire than the adult penitentiary environment.

Imprisonment in a penitentiary for any time would not give effect to the important sentencing principles of rehabilitation and reintegration. [ 95 ] In the event the Court determines that TM should be sentenced as a young person, his counsel maintained that he is no longer at a crossroads – he has paid the penalty for his recent breaches, and has demonstrated generally that he is on a pro-social path given his educational strides while in custody, his stable employment since his release and his positive family and social relationships. [ 96 ] Defence counsel argued that if an adult sentence is imposed, 1.5 to 1 credit should be given as the situation is akin to that in R v Summers , 2014 SCC 26 , having regard to the unavailability of parole provisions for pre-trial custody.

X. Discussion [ 97 ] I reviewed a number of authorities submitted by Crown counsel and counsel for TM in which Courts wrestled with whether an adult sentence is necessary to fulfill the objectives of the YCJA and meet the need for the young person to be accountable for his offence. [ 98 ] In BD , the young person, who pled guilty to manslaughter, had a record for possession of stolen property and robbery offences, was bound by two separate probation orders at the time of the offence, and had a history of mental health issues and behavioural problems at school.

The sentencing judge characterized the offence as “most serious”, and the offender’s actions as “stupid, impulsive, and born of the exuberance of youth and a misguided need for “image” before his peers. The predisposition assessment recommended that he be treated in a therapeutic and highly structured environment and that societal and his personal needs could be best met by keeping him in the juvenile correctional system rather than exposing him to hardened criminals.

The sentencing judge’s conclusion that the Crown’s concerns regarding the offender’s maturity, character, background and previous record could be addressed by the intensive rehabilitative custody and supervisory order was upheld by the Supreme Court of Canada. [ 99 ] In R v NH , 2009 NSPC 36 , the offender pled guilty to manslaughter arising from a group assault on an elderly victim when the offender was three months short of his 18 th birthday.

The victim died from a blow unrelated to the blow struck by the offender, who stole some beer and departed while others in group continued to punch and kick the victim, who died the next day. The offender was aboriginal with a prior record of failures to comply, uttering threats and joyriding. He completed programs and progressed well in custody, however, he was rated as high-risk to re-offend violently.

The sentencing judge concluded that the Crown had not met the burden of establishing a youth sentence was insufficient for the long-term protection of society which would be better provided for through an intensive youth sentence which would promote his recent progress while in custody. [ 100 ] In DDT , Bielby J.A, noted, at para 24, that the offender’s moral culpability was reduced because her level of participation was lower than that of her co-accused.

Her moral culpability should, however, be assessed based upon her participating in these horrific acts at all, rather than through a weighing of her actual contribution to those acts. The trial judge recognized that she participated in a “killing frenzy” of a 13-year-old girl. The trial judge found she was treatable within the upper limits of the YCJA ’s range based on her positive efforts while in pre-sentence custody, including her behaviour, educational achievements, and expressions of remorse and sympathy for the victim and her family.

His decision was upheld on appeal. [ 101 ] In Estacio the offender, who was 17 years and two months old at the time, stabbed the 17- year-old victim a number of times in the torso while his friends beat and punched him. Two of the stab wounds were inflicted while one of the group held the victim’s arms behind his back. The young person pled guilty to second degree murder. He was a rebellious student who had been expelled from a number of schools, was a drug trafficker and a member of a gang and, after his arrest, his subordinates in the drug trade continued to earn substantial revenue for him.

He admitted that as part of his drug trafficking lifestyle he had threatened, beaten and robbed various people, and that there was nothing he would not do for money, including killing someone if he could get away with it. He was sentenced as an adult and that determination was upheld on appeal. [ 102 ] In R v AA 2009 ABQB 621 , Hillier J. convicted a young person of the first murder of his uncle. It was unclear who of the group involved shot the deceased. Hillier J. determined that the motive of the young person, aged 17 at the time of the offence, was profit and revenge.

He had no record although admitted to prior drug involvement and had spent three years and nine months in pre-trial custody. He was 21 and working on completing high school at the time of sentencing. [ 103 ] Hillier J. noted, at para 105, that the young person was nearly an adult when involved in this very serious crime with high level of moral blameworthiness, but had begun to make progress over a sustained period.

He concluded, at para 110, that the young person could be held accountable for the first degree murder within the youth sentencing regime and that a sentence which would be long enough to reflect the seriousness of the offence and the young person’s role in it. [ 104 ] For reasons earlier given, I assessed a high level of moral blameworthiness to TM’s participation in the death of Mr. Amoah. Prior to the offence, TM had been involved in one group assault and robbery with elements that resembled this offence albeit on a much less serious scale.

However, since committing the offence four years ago, TM has, overall, made excellent progress with his studies while in EYOC and has maintained stable employment, and was compliant for over 90% of the curfew checks conducted during the course of a lengthy period of release. [ 105 ] I am not satisfied that an adult sentence is necessary to fulfill the objectives of the YCJA and meet the need for the young person to be accountable for his offence.

Neither am I of the view that time spent in pre-trial custody is an appropriate disposition, having regard to the level of moral blameworthiness involved, and to the recent spate of curfew breaches committed by TM, along with concerns raised by Dr. Woods relating to his vulnerability to antisocial associations. I am, however, of the view that these concerns can be fully addressed within the youth sentencing regime, particularly having regard to the discretion I have to consider all, some, or none of the pre- trial period of custody in fashioning a fit sentence.

I am of the view that having served 28 months in custody, just six months short of the maximum three year sentence under the youth regime, on any characterization of the sentence, whether one-for-one or 1.5-for-one, TM has spent an extended period in custody answering for his crime. I agree with Dr. Woods’ opinion that a further term of imprisonment would risk TM becoming tied again to anti-social influences and counter-productive to the rehabilitation already under way.

[ 106 ] However, I am of the view that having regard to the seriousness of his crime and the need to both further his rehabilitation and reintegration into society and to protect the public, a further period of supervision, over and above the 16 months he has been on release to date, is necessary.

He has been under a curfew condition (8:00 p.m. to 7:00 a.m.) since his interim release was granted on April 19, 2013 constraining release conditions since release was granted on April 19, 2013. [ 107 ] In imposing this sentence, it is important to note the impact of s. 743.5 of the Criminal Code if the offender is sentenced to a period of imprisonment as an adult while under conditional supervision. This particular sanction is an important feature in encouraging TM to maintain pro-social behavior.

Having regard to the fact that he has served 28 months in custody and has at the time of sentence been on a form of community supervision for in excess of 18 months, I am of the view that a fit and proper period of conditional supervision should be one of two years. XI. Conclusion [ 108 ] For the reasons given, a youth sentence is imposed and TM is sentenced to a period of conditional supervision of two years. In addition to imposing the mandatory conditions set out in s. 105(2)(a-

h) of the YCJA , I will hear submissions from counsel on any further appropriate conditions of his continued supervision set out in s. 105(3) of the YCJA and address any ancillary orders that must be imposed. Heard on the 28 th day of February, 2014, 18 th and 19 th of August, 2014, 7 th of October, 2014 and 3 rd of November, 2014 Dated at Edmonton, Alberta this 20 th day of November, 2014. M.T. Moreau J.C.Q.B.A. Appearances: Melanie Hayes-Richards and James E. Stewart for the Crown Howard K. Poon for for the Accused TM Accused CM self-represented Derek Anderson amicus curiae