R. v. R.K., 2017 BCSC 1510

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. R.K., 2017 BCSC 1510 Date: 20170531 Docket: 1853-22 Registry: Salmon Arm Regina v. R.K. Youth Matter - Restriction on Access pursuant to ss. 118 and 110 of the Youth Criminal Justice ActRestriction on Publication: Pursuant to 486.5(2) C.C.C. Before: The Honourable Madam Justice Donegan Oral Reasons for Sentence Counsel for the Crown: W.J. HildermanCounsel for the Accused: D.M. TurkoPlace and Date of Trial/Hearing: Kamloops, B.C. January 2, 23, 27 andMay 29-31, 2017Place and Date of Judgment: Kamloops, B.C.

May 31, 2017 INTRODUCTION [1] THE COURT: On June 25, 2016, following a trial by judge and jury, R.K. was convicted of first degree murder in theshooting death of T.M., contrary to s. 235(1) of the Criminal Code [Code]. R.K. committed the offence on November 21, 2008, at a timewhen he was a “young person” within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1 [YCJA] He was just a few weeksshy of his 17th birthday. [2] The Crown has applied, pursuant to the provisions of the YCJA, to have R.K. sentenced as an adult.

R.K. submits the Crownhas not satisfied the court that an adult sentence ought to be imposed. He seeks the maximum youth sentence available under the YCJA of10 years, with six years of that time in custody and the balance of four years under conditional supervision in the community. [3]

Section 72 of the YCJA sets out the test I am to apply in this application. That section, along with other provisions of the YCJA,were amended in 2012. After setting out the circumstances of this offence and R.K.'s circumstances, the first issue I will address iswhether the current or the pre-2012 legislative provisions apply in this case. I will then analyze whether the Crown has met its burdenunder the appropriate legislative provisions and the relevant legal principles that have been developed in the jurisprudence. CIRCUMSTANCES OF THE OFFENCE [4] This was a jury trial.

As the sentencing judge, I am to do my best to determine the facts necessary for sentencing from theissues before the jury and from the jury's verdict: s. 724 of the Code and R. v. Ferguson, 2008 SCC 6 at para. 16. [5] In Ferguson, Chief Justice McLachlin discussed the role of a sentencing judge in this endeavour at paras. 16-18: [16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury givesonly its ultimate verdict.

The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from theissues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts;the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case athand. [17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and impliedfactual implications of the jury’s verdict”: R. v. Brown, (SCC), [1991] 2 S.C.R. 518, p. 523.

The sentencing judge “shallaccept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code s. 742(2)(a)), and must notaccept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), (MB CA),95 C.C.C. (3d) 443 (Man. C.A.).

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

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

d) and 724(3)(e); see also 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 theexercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand.The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [6] In its written submissions, the Crown set out the facts it asks me to find.

The defence does not dispute these facts, but suggeststhat I find an additional fact involving a particular text message exchange between R.K. and his co-accused on the day of the offence. Ilargely agree with the parties here, but will put my findings of fact in my own words and make modifications as I see necessary. [7] R.K. admitted guilt to second degree murder at the commencement of the trial. The Crown did not accept that plea.

The onlyissue before the jury then was whether the murder R.K. committed was a planned and deliberate one. [8] R.K. testified that his plan was only to scare T.M. with the rifle and that everything he did prior to firing the first and secondshots was in accordance with that plan. He admitted to then intending to kill T.M. with his latter shots. His testimony was at odds withstatements he made to police and to undercover officers.

In reaching the verdict it did, the jury clearly rejected R.K.'s evidence and didnot have a reasonable doubt based upon it. [9] What follows are the facts I find necessary for sentencing. [10] In the months leading to T.M.'s death on November 21, 2008, R.K.'s former co-accused, M.S., was in a sexual relationship withboth R.K. and T.M.. At the time of his death, T.M. was 22 years old, M.S. was 17, and R.K. was 16. Both R.K. and M.S. were grade 12students in the same school. [11] M.S. did not reveal the true nature of her relationship with either of them to the other.

However, they were both upset that theother was also in some type of relationship with M.S. [12] M.S. was R.K.'s first girlfriend. He learned of her involvement with T.M. early in their grade 12 year. He knew T.M. to beolder, bigger, and tougher than him. R.K. learned that M.S.'s relationship with T.M. was something more than she had been telling himshortly before an incident that occurred on November 10, 2008. [13] On November 10, 2008, a physical confrontation occurred between T.M. and R.K. R.K. went to M.S.'s residence, where hefound M.S. and T.M. sleeping on her bed.

He woke them and asked to speak to M.S. outside. She agreed but, unbeknownst to R.K., shesimply left her residence entirely. Unaware she had left, R.K. went back inside her residence to look for her. T.M. was still there. The twosat there uncomfortably for a time before R.K. went back outside and called his own home to see if M.S. had gone there. She had. [14] T.M. followed R.K. outside and said he wanted to talk to M.S. M.S. hung up her end of the phone before T.M. spoke with her.T.M. was upset. He grabbed a bike and threw it into the yard. He pushed R.K. R.K. did not retaliate.

R.K. asked T.M. what he was doing.R.K. told T.M. that M.S. was his girlfriend and that he had been dating her for nine months. R.K. then ran back through M.S.'s housewhile T.M. chased him. There was no further physical confrontation as R.K. ran back to his own home. [15] R.K.'s next interaction with T.M. was on November 20, the day before T.M. was killed. Their conflict over their relationshipswith M.S. continued. M.S. had been, in the weeks prior, pressing the idea to R.K. that T.M. could harm R.K. or his family, but she alsotold him not to worry about it.

On November 20, R.K. and M.S. walked to her house after school. T.M. went to M.S.'s residence as well.M.S.'s mother told T.M. that M.S. was not home, as requested by M.S. R.K. and M.S. went into the back of the house and pretended theywere not there, until T.M. left. [16] T.M. then texted M.S. at about 4:10 p.m., saying that he wanted to talk to R.K. M.S. replied, "He's scared shitless of you." T.M.replied, "So what, I'm not going to hurt him. Why can't I talk to him?" At about 5:50 p.m., M.S. texted R.K. to pass along T.M.'s apologyto him.

She wrote to R.K., "he just said, k sorry." R.K. texted back, "Ha, alright." M.S. texted back to him, "Maybe he shocked." R.K.responded, "thank ya." [17] Later on that same evening, M.S. texted an unknown third party looking for a gun. At approximately 11:00 p.m., M.S. and R.K.began a text message exchange where they discussed the problem they were facing with T.M. The exchange occurred as follows: MS: Word. But I promise nothing is gonna happen to you or me well get this figured ok we smart. R.K: Yea we are … hard not to worry wen a crazy fuck like him wants me dead tho, right, ha.

M.S: Take into consideration though, ya, he is crazy but he is a lot of talk and exaggeration. He has got a lot to hide. Cant risk gettinginto too much trouble and those kinda ppl just love scaring other ppl make em feel tuff. R.K: Well true, but still he knows he could destroy me so hes gonna keep this shit up. If we talked he would just push me around tofeel tuff then knock me out lol. And hes too dumb to think about consequences. M.S: Youre not going to meet up with him who knows what hed try and pull. [18] On November 21, 2008, before school at about 8:25 a.m., R.K. texted M.S: Indeed.

I got an ideaa that may buy us more time with the whole situation, ill share later k.

[ 19 ] M.S. and R.K. went to one class at school that day and then left. They spent the rest of the day with a friend of R.K.'s, a young man by the name of J.D. [ 20 ] From school, R.K., M.S., and J.D. went to J.D.’s residence. While there, R.K. expressed his concerns to J.D. about T.M. and M.S. and their relationship. R.K. told his friend that T.M. was fooling around with M.S. on him. R.K. told him he wanted to get T.M. out of his and M.S.'s life.

R.K. also told him about the incident where he had gone to M.S.'s house and found T.M. in her bed. [ 21 ] After lunch, R.K., M.S., and J.D. went to a forested area located at the back of Bastion Elementary School in Salmon Arm. This was the location where R.K. committed the offence later that same day. While they were there that afternoon, all three shared a marihuana cigarette. R.K. and M.S. talked about what to do about T.M. They discussed having M.S. bring T.M. to that location where R.K. would be waiting in the bush and have a chance to take T.M.'s life.

They noticed a stump in the forested area where R.K. could hide. They noticed an area with no cameras where M.S. could bring T.M. [ 22 ] Later that afternoon, after they left the school grounds, R.K. texted J.D. and asked to borrow a gun. J.D. agreed. R.K. borrowed a car from another friend, and then drove to J.D.’s residence where he retrieved a firearm, a rifle, stored in J.D.’s family's trailer parked in the driveway. [ 23 ] R.K. then drove his friend’s car to a church nearby to Bastion Elementary School and parked in the church parking lot. He walked to the forested area behind the school carrying the rifle.

He and M.S. were in contact through text messages during this time. At 5:25 p.m., R.K. texted M.S., "Walking over now." M.S. replied, "Kay but still letting me know when you leave right." At 5:45, R.K. texted M.S., "People out at house beside Bastion... I know what im gonna say, ya." [ 24 ] R.K. set up at the stump in the forested area that they had noticed earlier in the day. The stump lined up perfectly with where M.S. would bring T.M. [ 25 ] M.S. had T.M. believe that they were meeting R.K. to talk.

When she brought him to the spot where R.K. had a clear line of sight from where he was at the stump, she pretended she had to urinate and moved away from T.M. [ 26 ] R.K. had never fired a rifle before. He was crouched at the stump, using it to steady himself. He fired a shot, aiming for T.M.'s body. T.M. was struck. R.K. got up from his crouched position and went toward T.M. He fired another shot. T.M. stumbled and fell. R.K. and M.S. went up to T.M. as he lay on the ground. M.S. said, "Do him in the head," so R.K. shot T.M. in the head. [ 27 ] M.S. then took the lead.

She emptied all of T.M.'s pockets, taking his cellular telephone, wallet, and his small bag of marihuana. The two picked up the shell casings from the ground and left. [ 28 ] M.S. and R.K. then drove to J.D.’s residence to return the rifle to the location where R.K. had retrieved it. They gave J.D. a small bag of marihuana and told J.D. that "it was done", that "[T.M.] was no longer with us." [ 29 ] M.S. and R.K. then returned the car to the friend's residence and walked to R.K.'s house. They borrowed R.K.'s mother's car and drove to a nearby convenience store where they got drinks. They then drove to the wharf.

They walked to the end of the wharf. R.K. threw T.M.'s wallet, cellular telephone, M.S.'s cellular telephone, and the shell casings into the lake. [ 30 ] The two then drove to a nearby bird sanctuary located along the lake. They walked along the adjacent train tracks for some distance. R.K. threw his jacket and the gloves he had been wearing into a swampy area. They then drove back to R.K.'s residence. [ 31 ] A young man found T.M.'s body where it had fallen behind the elementary school shortly after T.M. was killed. Police immediately began their investigation.

Nothing of evidentiary value was found at the scene. T.M. was not identified until the following day, through fingerprint identification. It was then that T.M.'s mother was notified. [ 32 ] M.S. and R.K. were interviewed by police within a couple of days of the murder. Both denied any knowledge of what happened. Investigators began to suspect R.K. and M.S. as the investigation progressed, but the investigation stalled for a few years. [ 33 ] In 2012, RCMP conducted what is known as a “Mr. Big” undercover operation, targeting primarily M.S. R.K. was a secondary target.

Over the course of roughly four months, M.S. came to believe that she was working for a criminal organization and, near the conclusion of the operation, came to believe that the police were close to arresting her for T.M.'s murder. Undercover officers told her that they could help her cover up the crime, but would need to speak to R.K. and would need to retrieve the firearm from J.D. [ 34 ] With her help, police did both. They retrieved the rifle used to kill T.M. They also convinced R.K. to talk about the murder.

R.K. was arrested on November 5, 2012, and has been in pre-trial custody since that time, roughly four and a half years. [ 35 ] Shortly following his arrest and while in custody, R.K. provided an inculpatory warned statement and participated in a re-enactment. [ 36 ] I will have more to say later about R.K.'s motivations to commit this crime, but I will say at this juncture that the evidence does not support R.K.'s assertion that M.S. was afraid of T.M. and that R.K. felt he needed to protect her from T.M. I reject this as a fact.

Rather, R.K. did have some personal fear of his romantic rival as a result of T.M.’s larger size and stature and his aggression toward R.K. in the recent past. EFFECTS AND IMPACTS OF THIS CRIME [ 37 ] The Crown has tendered several written victim impact statements. They are collectively marked Exhibit 1. They are victim impact statements from [names omitted]. Some read these statements aloud.

[ 38 ] My words cannot do justice to the eloquence of T.M.'s family and friends in communicating their enormous loss. T.M. was a young man with his whole life in front of him. It is clear to me that he was very much loved and had much to offer. Those left behind struggle to this day with the devastating emotional impacts of this crime. I know that any sentence I impose on R.K. today would be insufficient to address the emotional impact that you have suffered.

Not only were these victims, that is T.M.'s family and friends, forced to deal with the profound loss of their loved one and the loss of his potential, but they were forced to deal with the added trauma arising from the fact that he was murdered. Their pain was compounded and extended for years, not knowing what happened and why. [ 39 ] I know that T.M.’s family and friends will continue to feel those emotions for some time to come. They may never go away.

As I said at M.S.'s sentencing hearing not long ago, I am aware that the sentence I impose will not remove that loss, nor will it reduce that sadness, but I sincerely hope that, as some of you have expressed to me in writing and orally, that with R.K.'s sentencing, you will be able to close this chapter, the court process chapter, and hopefully move forward as best you can. CIRCUMSTANCES OF THE OFFENDER [ 40 ] R.K. is now 25 years old. He was a 16-year-old high school student when he committed this offence.

He had no prior criminal record and no prior police involvement. [ 41 ] R.K.'s history is fully explored and can be determined through the various reports and letters that have been filed, through the submissions of R.K.'s counsel, through R.K.'s own words (he addressed the court twice), and through the words of his mother, who filed a letter and also addressed the court. [ 42 ] I have before me 32 letters written by community members, family, friends, and professionals, all describing R.K. in very positive terms.

The letter writers are aware of the offence he has committed and all have expressed, in varying ways, that R.K. was, and they believe still is, a fundamentally good and decent person who will one day again be a contributing member of society. [ 43 ] In terms of reports, I have been provided with two pre-sentence reports (one is the original report and the other is an updated report) by probation officer, Lindsay Gordon. I have received two psychiatric assessments prepared by Dr. Riar (one is the original assessment and the other is an update). Dr. Riar also testified.

I also have a psychosocial assessment prepared by social worker, Mr. Brooks, a report from psychologist, Dr. Koopman, and a letter from the Provincial Director of the Ministry for Children and Family Development, Youth Justice, addressing the suitability of an Intensive Rehabilitative Custody and Supervision Order under the YCJA . [ 44 ] I draw upon all of these sources, in addition to submissions of counsel, in outlining R.K.'s personal circumstances. [ 45 ] R.K. had every opportunity in life. He grew up in a close, stable, and healthy family environment. His parents were nurturing and involved.

He suffered no abuse or hardship of any kind. His parents and older brother have remained by his side, supporting him every step of the way through this court process. [ 46 ] I can understand why R.K. is deeply saddened by the emotional toll his crime, his incarceration, and these court proceedings have taken, not only on T.M.'s family and friends, but on his own.

His own family and friends have only loved him and supported him through his entire life, including through this process, no matter what the personal cost to them. [ 47 ] R.K. met regular developmental milestones as a child, other than a speech impediment that resolved through speech therapy by the time he entered kindergarten. He had, by all accounts, a very happy childhood. He attended one elementary school and one high school. He played sports, had friends, although he was shy, helped around the house, was supported in his various interests and completed high school successfully in 2009.

He held a few part-time jobs during his teenage years. His family had no financial difficulties. [ 48 ] Other than his withdrawal from his family during the time period he was in a relationship with M.S., R.K. continued to be close to his parents through his life. He was a respectful, well-behaved, kind child and teenager. The only difficulty of any significance noted by Dr. Riar relates to R.K.'s self-consciousness of and worry about his small stature and size relative to his peers. He did not engage in any fights or any criminal behaviour.

He had pro-social friends and never got into trouble with the law. [ 49 ] R.K. began to smoke marihuana more heavily during the time he was dating M.S. in high school. In the six to nine months prior to the offence, his use of marihuana increased to almost daily. He was introduced to ecstasy by M.S., a drug he then used a few times. [ 50 ] During the time he was dating M.S., R.K. drifted away from his older brother. His father was suffering from serious health issues. R.K. was infatuated with M.S. He spent his time trying to please her, buying her expensive gifts and dinners. He spent all of his money on her.

He developed difficulties sleeping. [ 51 ] After the offence, his relationship with M.S. deteriorated, leaving him feeling abandoned and betrayed by her. He continued to buy her gifts. He tried to stay in her life for a time. [ 52 ] After they eventually ended their relationship completely, R.K. smoked marihuana every day. He used the drug to cope with the stress he was feeling from having committed this terrible crime, including the effect the crime was having on T.M.'s family and the effect it was having on the whole community. [ 53 ] R.K. described these feelings to Dr.

Riar this way: He [T.M.] was only 22 years old, I took away his opportunity and right to have a family. I took away a lot from his family and my family has to deal with it in the community. [ 54 ] M.S. started dating T.M.’s best friend shortly after T.M.'s funeral. R.K. said that he found it “disgusting” that she could do that. He felt that she was playing both sides. He felt abandoned. He felt used. In addition to marihuana, he also started to drink alcohol to

excess, to the point of blacking out a few times. [ 55 ] After high school, R.K. worked in a restaurant for a while and then took seasonal labour jobs. At age 19, he received a settlement for injuries he suffered in a car accident. He used this money and his savings to go travelling for about a year. He wanted to leave the country because of his remorse over committing this crime and the negative emotional impact arising from his separation from M.S. [ 56 ] R.K. lived in Australia for six to seven months, supporting himself by picking fruit and vegetables and cleaning in a bar.

He also lived in Indonesia for a month, and then travelled with a friend through parts of southeast Asia. [ 57 ] R.K. returned to Canada in 2012. He moved back in with his parents, who still lived in Salmon Arm. He obtained employment in a plywood plant and worked there for eight to nine months prior to his arrest. [ 58 ] R.K. had a good work ethic and was punctual. He was seen as a dependable worker. Although working and contributing to society, his drug use continued. He used mushrooms, acid, and cocaine a few times, in addition to marihuana. He did so because he was, as he told Dr.

Riar, trying to “numb and escape the reality by going away and using drugs”. He felt lost and depressed. [ 59 ] Prior to his arrest, R.K.'s plan had been to save money again to go travelling. [ 60 ] Shortly after he was arrested, R.K. confessed. He says, and I accept, that his confession and subsequent re-enactment of the crime was a relief to him. I also accept this was his first expression of remorse. His remorse persists today and will, I expect, persist throughout his lifetime. [ 61 ] While in custody these past four and a half years, R.K. has completed several university courses.

He is hoping to complete an undergraduate degree or learn a trade while serving his sentence. He has been very successful at managing his behaviours in custody. He has avoided conflict with other inmates and avoided drugs. He has worked and, by all accounts, been a model prisoner. He has taken several essential skills to success courses. He has also recently completed a violence prevention program. [ 62 ] R.K. wants to continue to be productive in custody and is open to any counselling or programs that may be recommended.

He continues to have close and supportive relationships with his parents, his brother, friends, and other family. He receives frequent visits in custody and his family helps him access educational materials and books. [ 63 ] Upon his eventual release, R.K. hopes to be able to start a construction business and build a house for his parents. He also would like to “try to do good things in life and be a nice person”. He wants to “help children with their confidence and maybe do a mentoring program”. In short, he wants to do positive things with his life and be a contributing member of the community.

He expresses a willingness and an openness to taking whatever steps T.M.'s family may need or want to help them with their grief. I accept that R.K. is sincere. [ 64 ] R.K.'s mother provided a letter. I think her words describe R.K. and his support system very well. She writes: This is the final

chapter in a very long and painful journey for [R.K.] and for everyone involved. [R.K.] is a good person with a good heart, but he made a terrible mistake. [R.K.] has taken responsibility for what he did and for that we are proud of him. He has told us many times that facing his mistake and telling the truth was the best thing he has ever done. He has started to make peace with himself, has accepted his punishment, and is trying to make the best of his difficult situation.

Once [R.K.] has done his time and is released, we feel that he has much to offer society and that he will be a contributing member of the community. Our family will be right beside him, helping him each step of the way. We look forward to the day when we can wrap our arms around him and welcome him home again. [ 65 ] To say that R.K. is an offender with tremendous family support is an understatement. [ 66 ] Dr. Riar initially assessed R.K. in the fall of 2016, and then again very recently. As I have indicated, he prepared two reports and testified yesterday. Dr.

Riar found R.K. to be cooperative and polite in the assessments. Other than not discussing the element of planning and deliberation on the advice of counsel, he was very cooperative. Dr. Riar did not find any symptoms of any psychiatric disorder or condition. He did not note any major psychopathic traits. [ 67 ] In his initial report, Dr. Riar opined: I do not believe that [R.K.] suffered any psychiatric disorder which precludes him from knowing right from wrong around the time of the incident in question.

I feel that he and his co-accused colluded with each other which ended up encouraging and motivating him to do what he has done. [ 68 ] After evaluating R.K. for a second time, Dr. Riar's opinions remained the same. He concluded that R.K. does not have any bona fide mental disorder. He opined that R.K. did have a substance abuse disorder in the past, but Dr. Riar does not recommend any residential or intensive treatment for this. Dr. Riar sees R.K.'s previous difficulties with substance misuse as in remission and found those difficulties were not severe enough to warrant such treatment. [ 69 ] Dr.

Riar also noted that R.K. took responsibility for his actions upon his arrest and has been able to express remorse and appropriate empathy toward the victim and the victim's family. In his supplemental assessment, R.K. told Dr. Riar that he knows that T.M.'s family continues to suffer and he regrets his decision to kill T.M. every single day. I accept this is true. [ 70 ] Dr. Riar opined that R.K. is at low risk of re-offending. Other than the offence before the court and his former use of illicit substances, Dr.

Riar noted no other behaviours or attitudes that would predict a very high risk of offending in the future. In reaching this

opinion, Dr. Riar also relied upon the fact that eight years had passed since the offence and that R.K. had not committed any other antisocial, criminal, or violent acts, either in or out of custody, during that time. [ 71 ] As for treatment, Dr. Riar suggested that R.K. could benefit from counselling for drug and alcohol misuse and to address his low self-esteem and self-image involving his short stature. If he would take these steps, Dr. Riar believes R.K.’s risk to reoffend would be mitigated even further.

He opined that R.K. does not need any immediate treatment for any psychological or psychiatric condition. [ 72 ] As for rehabilitation, Dr. Riar is optimistic. He noted that R.K. has good family support, has upgraded his education, and is “planning to do the right thing when he gets out of jail”. Dr. Riar's optimism continued yesterday when he testified. [ 73 ] R.K. addressed the court twice. I accept that R.K.'s remorse over committing this crime is genuine. I accept he plans to use his time in custody wisely, as he has thus far, in order to eventually one day lead a productive and pro-social life.

I also accept that he genuinely hopes that with his sentencing, T.M.'s family can find some small measure of peace and closure. LEGAL FRAMEWORK AND PRINCIPLES [ 74 ] When the Crown brings an application under s. 64(1) of the YCJA in regard to a young person who was convicted of first degree murder who was under the age of 18 at the time he committed the offence, a Youth Court judge has two choices. The judge may sentence the young person as youth under the YCJA or as an adult under the Code . [ 75 ] If sentenced as an adult, R.K. would receive a life sentence pursuant to s. 235(1) of the Code .

As a person who was 16 years old at the time of the commission of the offence, as an adult he would be eligible for parole after serving 10 years in custody, pursuant to s. 745.1 (

b) of the Code . [ 76 ] If sentenced as a youth, the maximum sentence the court may impose is 10 years, comprised of a committal to custody for a period that cannot exceed six years, followed by placement under conditional supervision in the community for the balance, pursuant to s. 42(2) (

q) of the YCJA . [ 77 ] Counsel agree that on either sentence, the actual time R.K. would spend in custody would be close to or exactly the same. This is because an adult life sentence commences when a person is remanded into pre-trial custody. In R.K.'s case, that was four and a half years ago. Assuming he would be paroled at 10 years, he would be serving 10 years. If sentenced as a youth, R.K. does not seek credit for his pre-trial custody, a matter of discretion for the court.

Therefore, assuming he continues on the positive path he is on, either as a youth or as an adult, the difference between the two sentences would in essence be whether he remains on parole for life following his release or not. The custodial portion of his sentence would be very close to the same. [ 78 ] Youth Court judges must presumptively sentence persons who are 18 years of age or younger at the time of the offence under the YCJA . [ 79 ] The Crown brought this application under s. 64(1) of the YCJA . I find that the Crown met the notice requirements of that

section and a sentencing hearing has now been held over five days, pursuant to s. 71. R.K. and his mother were both heard during the hearing. [ 80 ] Section 72(1) of the YCJA establishes the factors and the test that a Youth Court judge must apply when determining whether to impose an adult sentence. As s. 72 of the YCJA was amended in 2012 and this crime occurred in 2008, the first question for me to decide is whether the current or the previous version of s. 72(1) of the YCJA applies to this case.

What is the Correct Test to Apply? [ 81 ] The statutory test for determining whether a youth sentence or an adult sentence should be imposed has evolved over the years. [ 82 ] When the YCJA first came into force in 2003, the onus was placed upon the accused in relation to a presumptive offence like murder to satisfy the court that a youth sentence would have sufficient length to hold the young person accountable for his offending. [ 83 ] In R. v. D.B. , 2008 SCC 25 , the Supreme Court of Canada struck down that reverse-onus provision as contrary to the Charter .

Although that reverse-onus provision was struck down and the onus placed upon the Crown, the statutory test in s. 72 remained in place until Parliament made certain amendments in 2012. [ 84 ] In response to D.B. and as part of the Safe Streets and Communities Act , S.C. 2012, c. 1 [ SSCA ], Parliament amended several aspects of the YCJA , including the test to be applied under s. 72. [ 85 ] During the first days of this hearing, counsel both urged me to apply the previous legislative provisions, those that had been in force in 2008, when R.K. committed this offence.

Aware of certain transitional provisions in the SSCA , I asked counsel for further submissions on the point. Those submissions were made on Monday and again yesterday. Both counsel now agree that contrary to their original positions, the post-2012 amended s. 72 applies in this case. I agree. [ 86 ] The transitional provision in s. 195 of the SSCA provides: 195.

Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respect of which no proceedings were commenced before that coming into force shall be dealt with under the Youth Criminal Justice Act as amended by this Part as if the offence occurred after that coming into force, except that (

a) the definition “violent offence” in subsection 2(1) of the Youth Criminal Justice Act , as enacted by subsection 167(3), does not apply in respect of the offence;

( b ) paragraph 3(1)(

a) of that Act, as enacted by subsection 168(1), does not apply in respect of the offence; ( c ) paragraph 38(2)(

f) of that Act, as enacted by

section 172, does not apply in respect of the offence; ( d ) paragraph 39(1)(

c) of that Act, as enacted by

section 173, does not apply in respect of the offence; and (

e) section 75 of that Act, as enacted by

section 185, does not apply in respect of the offence. [ 87 ]

Section 204 of the SSCA states that the provisions of

Part 4, in which s. 195 is found, come into force on a date fixed by order of the federal cabinet. On June 19, 2012, the Governor General in Council ordered that October 23, 2012 be fixed as the day on which the sections of the SSCA amending the YCJA come into force. [ 88 ] What does all of this mean? R.K. committed this offence on November 21, 2008, when he was a young person. He was arrested on November 5, 2012, after which point the state commenced proceedings against him. This date, November 5, 2012, is roughly two weeks after the new YCJA provisions came into force.

Therefore, by operation of s. 95 of the SSCA , the current version of the YCJA , with certain exceptions, applies to the case at bar. [ 89 ] The current version of s. 72 of the YCJA provides: 72

(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that (

a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (

b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General. [ 90 ] This current version of s. 72 reflects a change in approach. Both counsel referred me to R. v. P.J. , 2016 ONSC 3061 , where Mr. Justice Code very succinctly summarized this change in approach at para. 51: [51] Section 72(2) [of the Youth Criminal Justice Act ] now places the onus on the Crown in all cases where an adult sentence is sought. The Crown must satisfy the court that both of the two s. 72(1) criteria have been met.

As a result of the 2012 amendments, the basic test remains whether "a youth sentence . . . would not be of sufficient length to hold the young person accountable for his or her offending behaviour." What has changed is two-fold: first, the old list of relevant considerations in s. 72(1) has been removed ([that is] "the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant"); and second, s. 72(1) now explicitly requires the Crown to rebut "the presumption of diminished moral blameworthiness." [ 91 ] Section 72(1)(

a) and (

b) are aimed at distinct assessments – diminished moral culpability and accountability. It is for the Crown to satisfy the requirements of both. Satisfying the court is not a low threshold. It has been described as a serious evaluative decision that must be made after careful consideration of all relevant factors, requiring significant care, in line with the impact of a young person potentially receiving an adult sentence: R. v. B.J.A., 2016 MBQB 207 at para. 20 and R. v. K.M. , 2017 NWTSC 26 at para. 11 .

ANALYSIS Has the Presumption of Diminished Moral Blameworthiness or Culpability Been Rebutted? [ 92 ] This phrase, “diminished moral blameworthiness or culpability”, is not defined in the legislation. [ 93 ] Guidance can be found by considering the broader context of the principles that underlie the YCJA and from D.B. The

preamble to s. 3 of the YCJA sets out a clear policy statement by Parliament that the criminal justice system for young persons is separate from the system dealing with adults, and is based on the principle of diminished moral culpability and responsibility for youths. That policy choice recognizes that there is a fundamental difference between adults and young persons in terms of development and maturity. [ 94 ] As I have already outlined, the original version of the YCJA placed the onus on a young person charged with certain offences to show that he or she should not be sentenced as an adult.

The Court in D.B. struck down that provision on the basis that the presumption of diminished moral blameworthiness for youths is a principle of natural justice. At para. 41, the Court noted that a young person was entitled to the presumption of diminished moral blameworthiness because they have heightened vulnerability, less maturity, and a reduced capacity for moral judgment. [ 95 ] The Supreme Court also endorsed a number of comments from various authors who had advocated for the presumption of diminished responsibility for young persons.

These reasons were summarized by Justice Charbonneau in K.M. at para. 15 : …age plays a role in the development of judgment and moral sophistication; adolescents and children lack a fully developed adult sense of moral judgment and lack the intellectual capacity to fully appreciate the consequences of their acts; in many cases youths act without foresight or awareness, and they may lack empathy for those who may be the victims of their wrongful acts; offenders who act out of immaturity, impulsiveness, or other ill-considered motivations are not to be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as more mature, reflective, or considered individuals.

[ 96 ] The Ontario Court of Appeal put it a similar way in R. v. M.W. , 2017 ONCA 22 at paras. 97-98 : [97] In my view, the focus must necessarily be on the issue of maturity. The Presumption assumes that all young people start from a position of lesser maturity, moral sophistication and capacity for independent judgment than adults. Bala and Anand explain at p. 4: Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts.

In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: "I don't know." This seemingly impertinent answer may simply reflect a lack of forethought or self-awareness, or non-responsiveness due to embarrassment and the shame of hindsight, or it may signal a more significant cognitive issue.

Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. [Footnotes omitted.] [98] In order to rebut the Presumption the Crown must satisfy the court that, at the time of the offence, the evidence supports a finding that the young person demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult such that an adult sentence and adult principles of sentencing should apply to him or her. [ 97 ] The circumstances of R.K. and the circumstances of the offence are to be examined in deciding whether the Crown has rebutted the presumption of diminished moral blameworthiness. [ 98 ] There is no question that by committing this planned and deliberate murder, R.K. was involved in the most serious offence in Canadian law.

Such an offence profoundly affects not only T.M.'s family, friends, and community, but it affects society as a whole. That the crime remained unsolved for four years only exacerbated these negative effects. [ 99 ] However, as the Ontario Court of Appeal in M.W. emphasized at para. 112 , it is important for the court to remember that the seriousness of this offence does not, in itself, lead to the conclusion that an adult sentence should be imposed. This is very apparent from the fact that the YCJA provides a penalty for first degree murder.

Rather, what is relevant to my analysis of whether the presumption has been rebutted is the level of moral judgment or sophistication demonstrated in the planning and implementation of the offence, the young person's role in carrying out the offence and, of course, his personal circumstances. [ 100 ] The actual plan to kill T.M. developed over a relatively short period of time. It came together the day that the murder occurred. In this sense, it was relatively impulsive. [ 101 ] T.M. was murdered close to 6:00 p.m. on that day. R.K. had texted M.S. that morning before school to tell her about a plan he had.

After lunch, M.S., R.K., and J.D. spent time at the location of the offence and discussed what to do to end T.M.'s life. The offence occurred only a few hours later. Despite its relatively impulsive nature in the sense only that I have just described, the plan did include some degree of sophistication. It included the choice of a secluded location without cameras in which to lure T.M. It included R.K. borrowing a friend's car to get to that location and parking in a spot with no cameras.

It included R.K. borrowing J.D.’s father's gun, and then lying in wait for T.M. to be brought by M.S. to the pre-arranged location. [ 102 ] The crime was callous, particularly when R.K. followed the urgings of M.S. to shoot the prone T.M. in the head to ensure that he was dead. R.K., as the shooter, clearly had a significant role. [ 103 ] With respect to his personal circumstances at the time of the offence, I find that the evidence supports Dr. Riar's opinion that R.K. had analytical maturity adequate for his age, but was socially and emotionally immature. [ 104 ] R.K. was 16 years old at the time he killed T.M.

As I have outlined in detail, he had a loving, supportive family, was involved in pro-social activities and had every opportunity. He had no criminal history or any involvement with police. Then he became entangled with M.S. [ 105 ] I am convinced R.K. is in the place he is today because his life intersected with that of M.S. at a time when, as a teenager, he had heightened vulnerability, a reduced overall maturity level, and a reduced capacity for moral judgment. [ 106 ] I find that R.K. had analytical maturity adequate to his age at the time of the offence.

This is well established in the facts I have found and supported by Dr. Riar's opinion. This analytical maturity was demonstrated by his ability to execute a plan with some degree of sophistication.

I say “some”, because while aspects of the plan, as I have outlined, were clearly sophisticated, I do not view the plan to borrow a firearm from a teenage friend and then return it to him immediately after, while effectively saying it was used to kill T.M., as particularly sophisticated. [ 107 ] I should also emphasize here that I specifically find the plan did not involve taking T.M.'s personal belongings and disposing of evidence. This was something initiated by M.S. after T.M. was killed. [ 108 ] R.K. did, however, follow her lead in the disposal of evidence.

He was able to convincingly lie about his crime to his parents and to police, at least for a time. This is all consistent with R.K. having analytical maturity adequate to his age. It is also consistent with my findings in voir dire #3 about how he seemed in his 2008 interview with police. [ 109 ] R.K. was, however, socially and emotionally immature at the time he committed this crime. It is well established in the evidence that he was a people pleaser. He was a follower. He was shy. At the age of 16, he became enmeshed in his first love affair.

M.S. became his focus, to the point he withdrew from his family and friends. He spent all of his time and money on her. He began to consume drugs more earnestly. He wanted to look good in her eyes. He wanted, at all costs, to maintain that relationship. [ 110 ] I agree with Mr. Brooks' observation at page 7 of his report that some of R.K.'s behaviour regarding M.S. around this time may point to a level of maturity that was not fully developed. I also accept Dr. Riar's opinion about his level of maturity at the time of the offence, which he described at page 10 of his first report:

…I believe that he had short stature compared to his peers. I believe that his analytical maturity was adequate for his age at the time. However, I tend to believe that his emotional (emotions and their regulation) and social (relating to others) maturity was lagging behind his peers. I feel that it could be an influence from his speech impediment during his early years, but most likely his physical short stature made him vulnerable to lag behind his peers in emotional and social maturity.

In my view, he got entangled in the situation with the victim and his co-accused because of his social and emotional vulnerability and exercised poor judgment in committing the crime. [ 111 ] Dr. Riar confirmed this opinion yesterday when he testified. [ 112 ] Although I place less weight on the opinions of Dr. Koopman, because her report was prepared for a different purpose some two years ago and relies on certain facts that I have not found, I do note that her opinion in this particular area is consistent with that of Dr.

Riar. [ 113 ] While R.K. was able to participate in planning and successfully cover up his crime for a time, which is demonstrative of his adequate analytical maturity, he could not detach himself from M.S. and think through the profound consequences his behaviour would cause. [ 114 ] I think R.K.'s reduced social and emotional maturity at the time of the offence is demonstrated well when one contrasts his 2008, 2012, and current behaviours.

A comparison of these evolving behaviours highlights what I find to be his lesser social and emotional maturity when the offence was committed. [ 115 ] In 2008, he was socially and emotionally vulnerable. M.S. was more social, more emotionally and socially mature, and more of a risk taker than he. He did not want to risk losing her. He wanted to please her. With the intersection of their two very different personalities, he was easily manipulated by her. [ 116 ] M.S. was encouraging him to do something about T.M. He felt he had to do something.

That manipulation, in conjunction with his own fear of T.M. and desire to get his romantic rival out of the way and to preserve what mattered most to him, motivated R.K. to do what he did. Nowhere is M.S.'s manipulation of R.K. more evident than in the final act R.K. took to end T.M.'s life, where he followed her urgings to shoot him in the head. [ 117 ] M.S.'s emotional manipulation of R.K. continued for a time, even after their relationship ended and she began dating the victim's best friend. For a time, R.K. still took steps to try and maintain a place in her life.

He descended into further drug and alcohol misuse. Over time, and once free from her influence, R.K. began to mature socially and emotionally and detach himself from his toxic relationship with M.S. [ 118 ] In the four years between the time he committed this offence until his arrest in 2012, he committed no crimes and had no police involvement. He lived what can fairly be described as a pro-social life, other than, of course, his drug use. [ 119 ] When R.K. spoke to the undercover officers and then investigating officers in 2012, it is clear to me that he had broken away from his emotional dependence with M.S.

By that time, he was strong minded, he was thoughtful and he was independent in his thinking. After his arrest, he took responsibility for his actions, admitting what he had done. This demonstrates increased maturity. [ 120 ] Since his arrest and incarceration, R.K. has socially and emotionally matured even further. He has consistently, over the last four and a half years, taken steps that exemplify this increased maturity. He has overcome his substance misuse, not an easy thing to do while incarcerated. He has maintained positive relationships with friends and family, he has stayed close to them.

He has been a model prisoner. He has demonstrated a motivation to learn, to better himself, and to make amends in the only way he can, by leading a productive life on his release. [ 121 ] I also consider that R.K. did take some measure of responsibility in these court proceedings for intentionally killing T.M. when he tried to enter a guilty plea to second degree murder. The trial ended up being very focused on one issue. [ 122 ] The experts do not recommend any particular treatment plans for R.K. They consider him to be at low risk to reoffend. Dr.

Riar opined that the only treatment he would recommend would be counselling for substance misuse, which would include general personal counselling. Were he to do these things, R.K.'s risk to reoffend would be reduced even further. [ 123 ] R.K.'s profound remorse over his actions, I accept, is sincere. In short, R.K.'s rehabilitation prospects are very high. [ 124 ] This is not an easy decision. I am mindful of the nature of this crime and the terrible toll it has taken on T.M.'s family, friends, community, and society as a whole.

However, taking all of the factors I have now discussed into consideration, I conclude that I am not satisfied that the Crown has met the burden of overcoming the presumption of diminished moral blameworthiness or culpability. Although R.K. played a significant role in planning and killing T.M. and exhibited analytical maturity adequate for his age at the time, I conclude that he had heightened vulnerability, a reduced social and emotional maturity, and a reduced capacity for moral judgment. [ 125 ] At the time of the offence, I am convinced R.K. acted out of that immaturity.

He had a degree of impulsiveness and acted out of very ill-considered motivations. [ 126 ] In the end result, I am not satisfied he had a level of overall maturity, moral sophistication, and capacity for independent judgment at the time of the offence, such that the presumption of diminished moral blameworthiness or culpability is rebutted. [ 127 ] Although this determination means that the Crown's application to have R.K. sentenced as an adult is dismissed, I will go on to very briefly discuss the issue of accountability for the sake of completeness.

Has the Crown established that a youth sentence would not be of sufficient length to hold the young person accountable?

[ 128 ] In making this determination, regard must be had to the principles set out in ss. 3(1) (b)(ii) and s. 38 of the YCJA , with the exceptions that were noted in the transitional provisions. Those provisions state: 3

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

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: … (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, … 38

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

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

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

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

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

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

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (

f) subject to paragraph (c), the sentence may have the following objectives: (

i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences.

(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. [ 129 ] I am careful here not to consider s. 38(2)(f), because by virtue of the transitional provisions of the 2012 amendments, deterrence and denunciation are not relevant factors in this case. [ 130 ] Both counsel referred to R. v. A.O. , 2007 ONCA 144 , where that Court discussed at length what accountability in this context means.

Although that decision predates the 2012 amendments, the Court's comments at paras. 42-49 remain instructive: [42] The combined effect of ss. 72, 3 and 38 is to identify accountability as the purpose that the youth court judge must consider when deciding an application to impose an adult sentence on a young person. Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society.

The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence.

[43] This view of accountability is consistent with the "offender-centric" nature of a youth sentencing decision identified by theSupreme Court of Canada in R. v. P.(B.W.); R. v. N.(B.V.) (2006), 2006 SCC 27 , 209 C.C.C. (3d) 97. In that case, the courtheld that general deterrence is not a factor in youth sentencing.

Speaking for the court at para. 33, Charron J. said the following: In the same way, when the statute speaks of "accountability" or requires that "meaningful consequences" be imposed, the languageexpressly targets the young offender before the court: "ensure that a young person is subject to meaningful consequences" (s. 3(1)(a)(iii)); "accountability that is consis-tent with the greater dependency of young persons and their reduced level of maturity" (s. 3(1)(b)(ii));"be meaningful for the individual young person given his or her needs and level of development" (s. 3(1)(c)(iii)).

Parliament has made itequally clear in the French version that these principles are offender-centric and not aimed at the general public[.] [Emphasis in original.] [44] While s. 38 sets out principles of sentencing that could have individual as well as societal purposes, these must be read in light ofthe purposes of sentencing in the youth justice context. Thus, for example, s. 38(2)(

c) sets out as a principle of sentencing that thesentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence. Inthe context of the YCJA, proportionality must be seen as providing an upper limit on the sentence that can be imposed on the offender.

Inother words, even if a long sentence were deemed necessary to rehabilitate the offender and hold him or her accountable, the sentencestill must not be longer than what would be proportionate to the seriousness of the offence and the offender's degree of responsibility.That is not a concern in this case.

The offences in this case are so serious that an upper limit fixed by the principle of proportionalitywould not be less than what might be necessary to hold the offenders accountable. [45] Thus, the question in this case is what is meant by the terms accountability, meaningful consequences, rehabilitation andreintegration. One obvious point is that meaningful consequences cannot be synonymous with rehabilitation and reintegration.Parliament has used the different terms and is presumed to have intended different meanings. See for example, R. v. Barnier, (SCC), [1980] 1 S.C.R. 1124 at 1135-36; Winko v.

British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2 S.C.R. 625 at para. 134. [46] In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by LamerC.J.C. in R. v.

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

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

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law. [Underlining in original, italics added.] [47] In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does aretributive sentence, "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequentialharm caused by the offender, and the normative character of the offender's conduct". [Underlining omitted.] We see no other rationalway for measuring account-ability. [48] The need to consider the normative character of an offender's behaviour necessarily requires the court to consider societal values.But what the court cannot do is add on to a youth sentence an element of general deterrence or denunciation.

This concept ofaccountability is consistent with this court's decision in R. v. W.(R.E.) (2006), (ON CA), 205 C.C.C. (3d) 183 at paras.40-42, where the court noted the focus of the YCJA on the best interests of the young person, and at para. 43, in which it considered theexceptional circumstances in which a court can impose a custodial disposition under s. 39(1)(

d) of the Act: The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where thecircumstances of the crime are so extreme that anything less than custody would fail to reflect societal values. It seems to me that oneexample of an exceptional case is when the circumstances of the offence are shocking to the community. [49] This view of the meaning of accountability is also consistent with the other principles of sentencing to which the youth courtjudge is directed under s. 38, especially those set out in ss. 38(3)(

a) and (b): degree of participation, harm to the victim and whether theharm was intentional or reasonably foreseeable. These principles speak to retribution as defined by Chief Justice Lamer in R. v. M.(C.A.),supra. [131] The Court in K.M. summarized: [25] In considering the issue of accountability, the question comes down to whether a youth sentence would be long enough to reflectthe seriousness of the crime committed by the young person, and whether it would be long enough to provide reasonable assurances ofthe young person's rehabilitation to the point that he or she could be safely reintegrated into society.

R v O.(A.); R v M.(J.), para 50; R vC.H.T., 2015 MBCA 4, para 26; R v Estacio, para 14; R v A.(D.R.), 2014 MBQB 199, para 17. [26] "Reasonable assurances" as to the young person's rehabilitation do es not amount to absolute certainty: it means a reasonableprediction of future behaviour based on an evaluation of all of the evidence. The issue is whether a youth sentence would be of sufficientlength to promote the results of rehabilitation and reinsertion in a meaningful and realistic fashion. R v C.H.T., para 26; R v Casavant,2009 ABQB 672, para 16.

[ 132 ] In balancing the objectives of accountability, rehabilitation, and the factors set out in the YCJA as explained in the jurisprudence, I am satisfied that R.K. can be held sufficiently accountable for his offence by the imposition of the sentence set out in s. 42 (q)(

i) of the YCJA – a 10-year youth sentence, with six years to be spent in custody and the balance to be spent on conditional supervision. This is in addition to the 4.5 years he has spent in custody already. [ 133 ] This means that at the end of his sentence, R.K. will have been deprived of his liberty for nearly 15 years for this crime.

This sentence is long enough, in my view, to reflect the seriousness of the crime committed by him and will provide a reasonable assurance of his rehabilitation to the point where he can be safely reintegrated into society. [ 134 ] R.K. has substantial rehabilitative prospects and has been found to be a low or perhaps very low risk to reoffend. He has matured since he was 16 years old. He has no anger management issues to address. He has no psychological issues to address. His substance misuse issues are in remission and can be further addressed, if necessary, by counselling recommended by Dr.

Riar over the next 10 years. He has tremendous support from his family and friends and many other assets, which were well highlighted by Dr. Riar yesterday, that will serve him well in the future. [ 135 ] R.K., it is now up to you to continue on the path that you have started. [ 136 ] R.K.'s age triggers the consequences that are set out in s. 89 of the YCJA . R.K. must be committed to custody in a provincial correctional facility.

Should the provincial director apply to this court under s. 89(2) of the YCJA to have R.K. moved to a federal correctional institution, and they have a certain timeframe in which to do that, I will be seized of such an application. Ancillary Orders [ 137 ] R.K., you will be required to provide a sample of your DNA for inclusion in the DNA data bank, pursuant to s. 487.051 of the Code .

That is mandatory. [ 138 ] Pursuant to s. 51 of the YCJA , you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for life. [ 139 ] Upon the expiration of the appeal period in this matter and with no appeal being filed, the exhibits that are still in the custody of the police and the exhibits that are filed in these court proceedings will be forfeited to the Crown for disposal. [ 140 ] Unless, Ms. Turko, were there any items that -- [ 141 ] MS.

TURKO: Just with regards -- I understand the publication ban remains in place under a youth sentence. [ 142 ] THE COURT: It does. In terms of the exhibits though? [ 143 ] MS. TURKO: Nothing with regard -- my friend discussed that with me. We're not making any -- taking any issue with that. [ 144 ] THE COURT: All right. Are there any other ancillary orders or anything that needs clarification? [ 145 ] MR. HILDERMAN: I don't think so, My Lady. [ 146 ] THE COURT: No? All right, so all that remains is to thank counsel.

I know you will also thank your co-counsel who are not here today, for all of your hard work in this case. “S.A. Donegan J.” DONEGAN J.