Her Majesty the Queen - v. -, 2010 SKPC 139

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2010 SKPC 139 Date: November 24, 2010 Information: 42412082 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - C.M. (No. 2) Appearing: Lua Young For the Crown Jessie Buydens For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT P.S.

KOLENICK , J _____________________________________________________________________________

BACKGROUND [1] The accused youth is charged that he did, on or about September 11, 2009, commit robbery against the complainant, contraryto s. 334(

b) of the Criminal Code. After having entered a plea of guilty, the Crown gave notice pursuant to s. 64 of the Youth CriminalJustice Act (YCJA), of its intention to apply for an order that the accused be subject to an adult sentence. [2] Also the Crown is seeking a designation that the accused’s matter be found to be a “serious violent offence” as set forth in s.42(9) of the Act. In the interim, he has been on remand since September 11, 2009, most of that period in an adult facility. [3] In the course of these proceedings a dispute arose between the parties as to the material facts.

Therefore we convened ahearing under s. 724(3) of the Criminal Code for a determination on its merits (2010 SKPC 65 , 2010 SKPC 065). Theevidence therein included the following, commencing at para. 4: Larissa Cipywnyk [4] At approximately 7:00 a.m. on September 19, 2009, the complainant was at Woodlawn Cemetery to honour her deceased daughterby lighting candles at her grave site. In the past she had visited that location almost daily, as a tribute to her memory. She was parkedoff the road, sitting in her vehicle drinking coffee, with the driver’s door open. She leaned into the vehicle to get some candles.

As shesat up, the accused was already standing there by the open car door. He asked her what she was doing, and she replied that she was thereto light candles. Her wallet and cell phone were sitting in the car. He told her that he wanted her purse, wallet, cell phone and smokes,or else he would hurt her. When he pulled out a knife, she believed he was serious. He lunged at her with it, and she put her hands up inorder to shelter her face. As a result, she suffered a cut to one of her thumbs, but believed that otherwise she could have been stabbed inthe neck or chest, had she not been able to deflect the blow.

The injury which she received required some stitches and other treatment. She noted that her injured thumb is not as flexible as the other. [5] In any event, at that time, the accused stumbled somewhat which allowed her the opportunity to start the car, put it in gear and pushthe gas. She drove off with the accused hanging on to the outside of her car. As she drove along for a short distance on the cemeterygrounds, the accused’s grip came loose and he fell off the vehicle. Therefore the complainant drove further before she stopped, lockedthe door, and called 911.

In the meantime, the accused had been moving toward where she was parked, so the complainant had to startup and move further before she stopped and continued her conversation with 911. She was also aware of another young male in theimmediate vicinity at the time, who was apparently with the accused. He has been identified herein as Sage Paddy. In due course boththe accused and Mr. Paddy were subdued and placed under arrest by the police who responded promptly to the scene and thecomplainant’s call. She identified her assailant as the one who had been wearing a jersey with the number 7 on it.

On the evidence, itwould appear that the accused had been wearing that distinctive top when he was taken into custody. [6] It was also apparent from the testimony of the complainant that she had not only been hurt physically, but also emotionally andspiritually. She is a person of faith, and no longer has the courage to attend alone at the cemetery each day to pray to her deceaseddaughter and her memory the way she used to before this alleged matter occurred.

She does not want her dear departed daughter to feelthat she has been abandoned because her mother no longer has the courage that she once did. [7] In cross-examination, the complainant indicated that she had not received a letter of apology from the accused. As well, he hadseemed more determined to come to her vehicle when she had stopped the first time, so she had to drive away again. Constable Carla Garvie [8] Constable Garvie of the Saskatoon Police Service had attended at Woodlawn Cemetery in answer to the dispatch.

They encounteredtwo males at the scene, one of whom was apparently the accused, and the other, Sage Paddy. As Constable Garvie observed theaccused, he had been kicking flowers off of a grave. They were both stumbling around and eventually each of them complied with thecommand to get down on the ground. Thereafter, Constable Garvie placed handcuffs on the accused, and read his Charter rights and

police warning. He was transported to the Police Services building and put in contact with counsel once they had arrived. The officer concluded in her contact with the accused that he was intoxicated, by the very strong smell of alcohol and eyes that were half shut. At times he was also laughing and joking. [9] In cross-examination Constable Garvie reiterated that she had concluded he was intoxicated, with an extreme smell from his breath and with his eyes half shut and glossy. He had admitted he was drunk, was off balance and stumbling around, but his speech was alright.

He appeared to be aware of what was happening, because he was able to answer her questions without any problem. She agreed also that every person acts differently when they are drunk and being placed under arrest. [10] In re-examination, Constable Garvie indicated that she had not lost sight of either the accused or his accomplice at Woodlawn Cemetery while they were at that location. Constable Scott Zary [11] Constable Zary of the Saskatoon Police Service received the dispatch at 702 hours. It had included a description of a suspect wearing a black hoodie with the number 7 on it.

At the scene, there were two suspects. He had some minor contact with the one who was described as being Sage Paddy, but it was the other suspect who was wearing the black hoodie. In any event, the officer located the knife three to four feet from the suspects, which was seized and entered as an exhibit. The knife was broken. [12] In cross-examination, Constable Zary indicated that he did not know how the knife became broken. EVIDENCE FOR THE DEFENCE The Accused [13] The accused, age 18, confirmed that he had been at the cemetery accompanied by his friend, Sage Paddy.

The accused was searching for his deceased father’s grave site, but to no avail. They were both intoxicated and his friend had passed out on the ground. The accused was unable to pick him up. It was at this time that he became aware of the complainant where she was sitting in her motor vehicle. He went and spoke to her, asking the complainant what she was doing at the cemetery. He was hoping to get some help lifting up his intoxicated friend. [14] He was carrying a knife hidden from the complainant, behind his back. When he saw her purse, he took the knife out from behind and showed it to her.

He told her to give up her money. She screamed, put the car in gear and drove off as he lunged at her with the knife. He had not jabbed at her until she had started to drive, so did not believe he had stuck her with it. [15] The accused denied as well that he had grabbed on to the complainant’s motor vehicle, except perhaps briefly at the start, nor was he caught on it. Instead, he went back to check on his friend. Also, he had broken the blade of the knife in two pieces, and kicked at them, hoping to hide them from the police who were arriving by that time. Likewise, he denied kicking at the flowers as alleged.

He had been arrested without the use of a police dog and eventually got down on the ground to comply with the officers who had placed him under arrest. [16] He stated further herein words to the effect that he feels bad for what he did to the complainant and had written her a letter of apology. He explained that when he gets messed up on alcohol and drugs, he does stupid things. [17] In cross-examination the accused confirmed his criminal record, which has been entered as an exhibit in these proceedings.

[18] He had been drinking and doing drugs for the whole day before this alleged matter. Despite heavy consumption during that time, the accused claimed that he was able to remember most of what had happened. He denied any memory loss, and could remember the basic things, except small details. He disputed that there had been any real problem with blackouts. [19] His claim to having a reasonable memory was contrary to indications he gave both to Dr. Zaharia and Jennifer Peterson in their interviews with him in which he had stated he had little recollection of what had happened. Dr.

Zaharia had completed a Psychological Assessment and Ms. Peterson had prepared a Pre-Sentence Report. [20] He had claimed to them that he had no memory because of his shame at having committed the robbery and did not wish to admit that misdeed. In that regard, he had stabbed straight out with the knife as she was driving away. Again he denied kicking the flowers, but had kicked at the knife blade pieces after breaking it in two.

He was attempting to awaken his friend Sage Paddy. [21] In re-examination the accused advised that the general stabbing motion which he had made had not been intended to strike any particular part of the complainant. [ 4 ] In any event, the Court concluded that the Crown had established beyond a reasonable doubt as an aggravated circumstance that the accused had used a knife in the course of a robbery, stabbing at the complainant and causing an injury to her hand as she attempted to shield herself in a defensive manner. [ 5 ] As a further interim issue, the Crown had attempted to have Detective Constable Scott Joslin of the Saskatoon Police Service qualified as an expert, to provide opinion evidence relating to the Indian Posse.

By oral ruling made July 19, 2010, the Court concluded that his length of service in that particular area was, at the time, too short for the Court to endorse him as an expert, in accordance with that application by the Crown. [ 6 ] Regardless, the following issues remain to be determined: 1. Is the offence a “serious violent offence” within the meaning of s. 42(9) of the Youth Criminal Justice Act? 2.

Would a youth sentence imposed in accordance with the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 of the Youth Criminal Justice Act have sufficient length to hold the accused accountable for his offending behaviour? 3. What sentence is appropriate in addressing the principles of sentencing set out in the Youth Criminal Justice Act and the Criminal Code ? REVIEW OF EVIDENCE FOR THE CROWN Leslie Ann Skene [ 7 ] Ms. Skene is the Manager of Programs at the Saskatchewan Penitentiary, Prince Albert.

In general, she described the procedure which occurs when an offender is placed at their facility to serve a sentence. Initially, the subject is placed in an Intake Assessment Unit and assigned a Case Management Team. It conducts various testing and interviews in order to create a correctional plan, for the offender, which includes a time line of the sentence, and a rehabilitation scheme for that length of sentence. The plan is placed before a board at the penitentiary for approval. Once it has been approved, the offender is moved to his first new unit in accord with that plan.

Prior to leaving the Assessment Unit, the offender is provided with substance abuse programming as a priority to other issues, because of its primary concern to the offender’s overall rehabilitation.

[ 8 ] In her testimony, Ms. Skene confirmed that all the programs for rehabilitation are voluntary but the staff gives much encouragement to the prisoners to get involved in the various counselling and treatment in order to better serve their positive growth. In that regard, it was apparent from her testimony that there are, for instance, regular programs dealing with violence that can be accessed by an inmate in four to six months after a request, and high intensity programs within six to ten months.

The programs and treatment cover some key issues of rehabilitation, which an offender can pursue, such as substance abuse, violence prevention, sexual offenders, family violence and core values. [ 9 ] Some of the programs are also geared at the counselling and treatment of young aboriginal offenders, with an aspect of spirituality. They include the involvement of an elder, a circle program and follow-up maintenance to better assist the offender in his rehabilitation.

Further, any offender with gang affiliation when he was in the community is encouraged to confirm that connection so that he can be placed in a range with other members of the same gang, in order to foster safety and compatability. [ 10 ] The institution has the full program for basic adult education, but again it is voluntary by the inmate. There is also employment for those who wish to get involved, and daily pay if they do the tasks and are otherwise making progress in their rehabilitation.

Privileges may be suspended for an inmate who ends up in segregation for behaviour problems, but may regain entry into the programs if motivated to improve the offending misconduct. As well, all prisoners are given the opportunity for physical exercise, at least to some extent. [ 11 ] Ms. Skene testified further that all of the offenders in the federal system are supervised by a Parole Officer which continues throughout the sentence while serving in the community, until their warrant expiry date. Each prisoner has a statutory release date which will vary, depending on their progress while on parole.

The goal is for each prisoner to be a law abiding citizen while on parole, but a prisoner who fails the terms of his parole can be returned to the penitentiary to continue his sentence in custody. [ 12 ] Further, although the Prince Albert Penitentiary is designated a maximum security jail, Riverbend and Willow Creek Healing Lodge in this province are both minimum security facilities. In that regard, it could be possible for an offender with a history of violent behaviour to successfully complete the violence program and be cascaded to the lower risk facility.

In general Saskatchewan Penitentiary can easily accommodate young offenders in its various facilities and programming. [ 13 ] In cross-examination Ms. Skene advised that offenders who take the education program end up with a GED designation, rather than a regular Grade 12. As well, a unit known as Pathways is often used by former gang members who have dropped their colours and are hoping to change their mode of conduct, and stay substance free. Again there are elders and counsellors involved to assist the offender’s rehabilitation.

Chris Tkatchuk [ 14 ] Chris Tkatchuk is a youth facility worker at Kilburn Hall whose duties involve a wide range of case management in the course of his contact with the youth during their sentences. In general he explained that, after a secure custody sentence is imposed, the staff at Kilburn hold a Sentence and Admissions Conference to discuss the needs of the youth regarding sentence programming and goals for the sentence. Included in those options is the high risk violent offender initiative, which could be used in appropriate circumstances.

In due course, as the community supervision portion of the sentence is approaching, a Discharge Conference is held to plan and set conditions for release. Once the community supervision portion of the sentence has commenced, the staff has very little contact with the youth. [ 15 ] Mr. Tkatchuk also confirmed that he was familiar with the accused, whom he believed had been on remand status at Kilburn from September 12, 2009 to November 25, 2009. In general, for any youth who is engaged in a fight he would be subject to consequences of seven days confinement.

Generally, in his observation of this accused, at times he was a challenge, and at others he was compliant with others. [ 16 ] Further he testified that if the accused was sentenced for a violent offence to be served at Kilburn, he would be helped to modify his behaviour so he could move from a high security unit, with more free time. As well, a youth can access education programs and cultural events with access to an elder, as this accused had done while on remand. In that regard, they are in the process of building a sweat lodge at Kilburn.

In general, the programming which is available for secure custody youth is geared to their individual needs,

including personal and professional counselling for matters such as substance abuse. For instance, if the accused was receiving counselling from Dr. Zaharia as a violent offender, that treatment could continue while serving his sentence at Kilburn. He observed as well that eighteen year old offenders serving at Kilburn have more rules and restrictions than they would at an adult facility. Gang membership is also discouraged at the youth facility. [ 17 ] In cross-examination Mr. Tkatchuk confirmed that in general, programming is voluntary, and this accused chose to get involved, including physical activity.

As well, the accused had some success in his programming involvement. In particular, he could return to the education program if sentenced to be served at Kilburn. Bob Lague [ 18 ] Bob Lague of the Saskatoon Provincial Correctional Centre in Saskatoon is the Assistant Deputy Director of the Secure Unit, whose main duties are with the inmates at that location. In general, he advised that when a new prisoner arrives to serve a sentence at the Correctional Centre a screening risk assessment is completed.

The purpose is to confirm a security level (low, medium or high), and to determine the appropriate placement for the inmate to commence the sentence. The initial case plan is to be completed within the first twenty-eight days of admittance. Thereafter, there is a progress report every sixty days. In the meantime, there are regular reviews of the security status of each inmate as circumstances require. [ 19 ] He testified as well that there are various programs available for inmates, such as violence reduction, substance abuse and others. An inmate can also seek his GED Grade 12.

Aboriginal inmates have access to various spiritual and cultural activities. Case workers for each inmate provide counselling and guidance. An inmate who wishes to be involved in specific programming can sign up, but for many of them, there is a waiting list. The situation with gangs at the Correctional Centre continues to be a “real catastrophe” because there is no specific program, and requires regular attention by the staff to keep matters under control.

In that regard as well, the Correctional Centre is very cramped at present, and some of the program space has been converted to dorms. [ 20 ] Inmates are expected to participate in programming and thereby can earn remission for early release. Inmates who are a low security risk can request to be involved in work placement in the community, provided that public safety is not compromised. All programming is voluntary, but the inmates are encouraged to participate. Good behaviour can result in the inmate’s security risk being lowered.

As well, an inmate would be able to continue in an educational program he had started prior to being placed at the Correctional Centre. [ 21 ] Mr. Lague confirmed that he was familiar with the accused as an inmate in his unit, and had been a high security risk for part of the time that he was there, as a result of incidents of violence with another youth. As well, he had instigated violence with another inmate while on remand. However, when one of the other inmates in that unit was moved out, the accused’s behaviour improved and he had been recommended for a reduction to medium security risk. Mr.

Lague believed also that the accused had been associating with the Indian Posse at the time, and his behaviour was downgraded to medium, when another member of the Indian Posse was relocated out of the Secure Unit. He believed also that the accused is a follower rather than a leader, regarding his relationship with other inmates. It has been explained to him that behaviour and safety are important issues in order for the security levels to be reduced. [ 22 ] In cross-examination Mr.

Lague advised that the accused could get access to more programming with a lower security unit rating, if his good behaviour continues. At that time, he was involved in the GED program. Dr. Marilee Zaharia [ 23 ] Dr. Zaharia confirmed that she is a registered doctoral psychologist with the Young Offender Program in Saskatoon. She is familiar with the accused and completed a psychological assessment of him, on January 29, 2010, which was entered as an exhibit in these proceedings. [ 24 ] During the course of her testimony, she had referred to and confirmed some of the contents of her conclusions. Her basic

recommendations therein were that the accused is unlikely to follow through with any community based programming, once his immediate environmental security or supervision is relaxed. If he were to engage in such services, he would need to be monitored in order to ensure that any superficial conformity showed genuine progress. Likewise, if he is in the community he would require intensive supervision and monitoring with immediate consequences for his non-compliance. [ 25 ] She noted in her testimony that, at present, for a month or so, he had some success with compliance while at the Correctional Centre on remand.

In the past as well, he had done better for shorter periods of time at Kilburn, and also in open custody at Yarrow Youth Farm, where he got good marks at school, and behaved well. In general, though, his conduct in the community had been poor. He was offered treatment and did not take it. [ 26 ] The psychological testing in the assessment for the accused indicated among other things in its conclusions that people with the accused’s profile tend to have a high probability of continued violence, and the potential for further anti-social behaviour or re- offending.

As well, they tend to express their anger in a forceful manner, and may perceive and/or exhibit a hostile world view. Further, it appears, that he is developing a substance dependency disorder as reflected in the report. [ 27 ] He did show some empathy for the victim of the robbery, being somewhat ashamed about robbing a female while she had visited her daughter’s grave site. He claimed in the report to have written a letter of apology to her. [ 28 ] The risk assessment in the report shows that he had a score equal or greater than 88% of male institutionalized young offenders.

In that regard as well, his risk for violence in the community is also high. Part of that problem is that, to date, he has not made use of any of the treatment support offered in the community, despite that he has completed some activities and programs while in custody. He repeatedly fails to engage in community based treatment and programming once the supervision and structure was relaxed. [ 29 ] Part of the

summary of Dr. Zaharia’s assessment offered the view that because of the tendency to engage in manipulative behaviour and his history of not following through with community based treatment services it is highly unlikely he will complete his articulated goals in the community. [ 30 ] In cross-examination Dr. Zaharia agreed that the accused has a history of modeling violent behaviour from his family members, and has been raised with those values. His situation is made somewhat worse because he is at risk for substance abuse which can contribute to violent behaviour.

She agreed also that he had indicated to her in the assessment that he wants to change because he is now an adult, which is motivation for him. As well, she did not believe that any of the programs that are available for youth in the community would also be available on an adult sentence. Further, he has tended to refuse supports in the community and gone missing, rather than be supervised. He needs to internalize the need for change, and stick with treatment. DEFENCE WITNESS Lisa Sebestyen-McLean [ 31 ] Ms. Sebestyen-McLean is a teacher in the Opening Doors Program at Saskatoon.

It is available to students who wish to attend structured classes in smaller sized classes, in order to complete high school class credits. [ 32 ] Her first contact with the accused as a student was in October 2007, where he attended from Yarrow Youth Farm, and successfully completed four credits. In 2009 he completed two more credit courses, attending from the Youth Detention Centre at North Battleford. He has finished seven courses of Grades 10, 11 and 12 credits, with a 70% average in his classes. Throughout, he has been a diligent respectful student, and a pleasure for her to work with as a teacher.

He is motivated to be the first person in his family to get regular Grade 12, rather than GED 12. As a teacher, she is willing to continue as a support person for him, whether in the community, or custody.

[33] In cross-examination Ms. Sebestyen-McLean confirmed that he had been referred to Mount Royal Collegiate because of thegreat progress he had made in her program, but had not received any progress report. Letter of Apology [34] Also filed on behalf of the accused as an exhibit was a letter of apology which the accused had prepared for the complainant,but which she did not believe she had received. In it, he expressed that he was truly sorry for what he had done, and that having nomemory of it was no excuse. He took full responsibility, and hoped she could forgive him for his actions.

ANALYSIS [35] Counsel filed legal briefs, which have been very helpful and are greatly appreciated. In the Crown brief, reference was madeto the following case authorities: 1. R. v. A.(S.J.), 2010 SKPC 112 (Sask. Prov. Ct., Gray J.) 2. R. v. D.B., 2008 SCC 25 (S.C.C.) 3. R. v. F.(B.C.) (2008), 2008 SKPC 98 , 326 Sask. R. 77 (Sask. Prov. Ct. Halliday J.) 4. R. v. F.(B.C.) (2010), 2009 SKCA 136 , 343 Sask. R. 57 (Sask. C.A.) 5. R. v. D.(C.), 2005 SCC 78 , [2005] 3 S.C.R. 668 (S.C.C.) 6. R. v. Leask, 2002 CarswellMan 252 (Man. Prov. Ct., Conner J.) 7. R. v.

Pratt (2007), 2007 BCCA 206 , 218 C.C.C. (3d) 298 (B.C.C.A.) 8. R. v. Q.(E.), 2008 CarswellBC 302 (BC Prov. Ct., Ball J.) 9. R. v. Roberts (2005), 2005 ABCA 11 , 14 M.V.R. (5th) 1 (Alta. C.A.) 10. R. v. S.(C.), 2008 CarswellNS 273 (Nova Scotia Prov. Ct., Williams J.) 11. R. v. S.(T.J.), 2007 CarswellBC 1601 (B.C. Sup. Ct., Grist J.) 12. R. v. T.F.J., 2010 SKPC 88 , 2010 SKPC 088 (Sask. Prov. Ct., Whelan J.) 13. R. v. T.(L.) (2008), 2008 ONCA 740 , 239 C.C.C. 426 (Ont. C.A.) 14. R. v. Turcotte, 2008 SKQB 478 (Sask. Q.B., Barclay J.) [36] The brief for the accused had these cases and articles: 1. R. v.

C.R.B., 2009 SKQB 176 (Sask Q.B., Acton J.) 2. R. v. Cheekinew, C.K., 2007 SKCA (Sent. Dig.) 24 (Sask. C.A.) 3. R. v. K.J.G., 2007 SKCA 75 (Sask. C.A.) 4. R. v. Ewenin (T.L.), 2009 SKCA (Sent. Dig.) 21 (Sask. C.A.) 5. R. v. McKay, 2010 SKCA 66 (Sask. C.A.) 6. Morbidity and Mortality Weekly Report, November 30, 2007, Vol. 56, No. RR-9 7. Developmental Science and Youth Justice, Daniel P. Keating Phd., University of Michigan, March 21, 2010

Is the offence a “serious violent offence”, within the meaning of s. 42(9) of the YCJA? [37] The general principles to be considered were applied by my colleague Judge Gray in R. v. A. (S.J.), 2010 SKPC 112, andmaking reference to the facts therein, commencing at para. 7: [7]

Section 2 of the Youth Criminal Justice Act (YCJA) defines a serious violent offence as an offence in the commission of which ayoung person causes or attempts to cause serious bodily harm. [8] Section 42(9) of the YCJA sets out the procedure for the designation of a serious violent offence: On application of the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity tobe heard, the youth justice court may make a judicial determination that the offence is a serious violent offence and endorse theinformation or indictment accordingly. [9] In R. v.

D.(C.); R. v. K.(C.V.), 2005 SCC 78 , [2005] 3 S.C.R. 668, the Supreme Court of Canada held that a serious violentoffence was any hurt or injury, either physical or psychological, that interferes in a substantial way with the physical or psychologicalintegrity, health or well-being of a complainant. In the case before the Court, 23 year old Mr. Pahtayken sustained a gunshot wound tohis back which required surgery and kept him hospitalized for one month.

His victim impact statement, dated October 13, 2009,indicated that he required further surgery, that he had not yet returned to work and did not know if, or when, he might be able to do so.His use of one arm was severely compromised as a result of his wound. He withdrew from his training to be a welder. As a result of thissituation, he experienced depression which affected him and his family. There is no doubt that this offence has had a profound effect onthe victim. Defence counsel conceded that the test enunciated in R. v. D.(C.), supra, had been met.

That Court concluded that the Crown had met the onus on it in proving that it was a serious violent offence. [38] The Crown herein has submitted that the same result should occur, even though the physical injury was not as serious as itmight have been. Reference was made to para. 6 in the sentencing hearing herein, which has already been noted: [6] It was also apparent from the testimony of the complainant that she had not only been hurt physically, but also emotionally andspiritually.

She is a person of faith, and no longer has the courage to attend alone at the cemetery each day to pray to her deceaseddaughter and her memory the way she used to before this alleged matter occurred.

She does not want her dear departed daughter to feelthat she has been abandoned because her mother no longer has the courage that she once did. [39] On this issue the accused has suggested that this was not a serious violent offence without evidence from an independentsource that the complainant had suffered specific psychological harm. [40] Regardless, while the Court would not suggest that independent evidence might in some cases be important, that is not thesituation here.

Although the physical injury was relatively minor in the result, it was apparent that she had understandably sufferedsubstantial psychological trauma from the circumstances as they unfolded, which should not be diminished. That was sufficient for theCrown to prove beyond a reasonable doubt the offence was a serious violent offence as contemplated in s. 42(9) of the YCJA, and theCourt does so order. [41] It is, of course, apparent that the Court in R. v. A. (S.J.), supra is mainly applicable to its particular facts.

That said, it does alsoinclude helpful reference in regard to the general principles which are in issue, starting therein at para. 11: Does a youth sentence imposed in accordance with the purpose and principles of the YCJA have sufficient length to hold the youthaccountable for his offending behaviour?

[11] Section 64(1) of the YCJA says, in part: The Attorney General may, following an application under subsection 42(9)....and before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence....for which an adult is liable to imprisonment for a term of more than two years, that was committed after the young person attained the age of 14 years. . . . [14]

Section 71 of the YCJA requires a youth justice court to conduct a hearing at the commencement of sentencing where an application has been made under s. 64(1) of the Act , unless the Court receives notice that the application is not opposed. In this instance, the youth did oppose the application and a hearing commenced on April 8, 2010 and continued on May 12, 2010. The Court also had the benefit of a pre-sentence report (PSR) and a psychological assessment; no issue was taken with the contents of those reports. The Court also heard evidence from Ms.

Pringle-Nelson, a registered psychologist who was qualified to give expert opinion evidence on the assessment and the treatment of young offenders, as well as the program development and supports available for them. [15]

Section 72 of the YCJA states: 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 behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

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

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

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

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

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

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

section 37, an order under subsection (1) is part of the sentence. [16] In R. v. F. (B.C.) , 2008 SKPC 98 , Halliday J. set out the approach to be taken and principles to be applied with respect to applications pursuant to s. 72 of the YCJA at para. 16: 1) Upon receipt of an opposed Crown application for an adult sentence, the Court must order at least a pre-sentence report.

2) The Crown bears the onus throughout the proceedings. 3) Within the context of

section 72, the Crown must prove disputed facts on which it seeks to have the Court rely beyond a reasonable doubt. Disputed aggravating circumstances must also be proven beyond a reasonable doubt. 4) The Crown is not required to satisfy the Court that a youth cannot be rehabilitated by a youth sentence. 5) Except where disputed, the contents of court-ordered reports form part of the record for the Court to consider. 6) The ultimate issue in paragraph 72(1)(

b) does not fall within the category of disputed facts or disputed aggravating circumstances. It does not lend itself to proof beyond a reasonable doubt. The determination of the ultimate issue requires the Court to make an “evaluative decision” or an “informed judgment” in the formulation of its opinion. The phrase “is of the opinion” does not equate to the level of certainty which attaches to the requirement of proof beyond a reasonable doubt. 7) The Crown’s onus is to satisfy the Court that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(

b) and

section 38 of the YCJA would not have sufficient length to hold the young person before the Court accountable. 8) It is not useful to categorize the onus in terms of its weight. However, it is imperative to consider applications for adult sentences as matters of utmost seriousness involving severe consequences for young persons flowing from the loss of entitlement to a youth sentence. 9) The Court must weigh and balance the factors in subsection 72(1). Depending on the nature of the case, some factors may assume more importance than others. However, each factor must be properly considered.

The Court must formulate its opinion on the sufficiency of the length of a youth sentence to achieve accountability for the young person before the Court. 10) In assessing accountability, the Court must start from the principle of presumed diminished moral culpability as identified by the Supreme Court and as reflected in subparagraph 3(1)(b)(ii) and

section 38 of the YCJA. Pursuant to the YCJA , accountability is fair and proportionate accountability consistent with a young person’s greater dependency and reduced level of maturity. In youth sentencing, these reduced capabilities are reflected in just sanctions having meaningful consequences for a particular young person which promote rehabilitation and reintegration into society, thereby contributing to long term public protection. These reduced capabilities are also reflected in sanctions imposed pursuant to subsections 38(2) and (3). Accountability, in the context of

section 72, involves the concept of a meaningful consequence together with rehabilitation and reintegration for a particular youth with individualized circumstances who has committed a particular crime. In this context, accountability is the young person’s equivalent of the adult principle of retribution.

As does retribution, accountability represents an objective, reasoned and measured determination of a sentence properly reflecting the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender and the normative character of the offender’s conduct. 11) If the Crown satisfies the Court that a youth sentence imposed in accordance with the purpose and principles set out in subsection 3(1)(b)(ii) and

section 38 of the YCJA would not have sufficient length to hold the young person accountable, the presumption of diminished moral culpability is rebutted and the young person loses entitlement to a youth sentence. The Court shall then order that an adult sentence be imposed. [17] On appeal of this decision, the Saskatchewan Court of Appeal found no error with this approach: R. v. Flaten, 2009 SKCA 136 . Further, at para. 49:

[49] At the core of the issue to be determined is the question of accountability. In R. v. Turcotte, 2008 SKQB 478, at paras. 13-16,Barclay J. summarised the law on the concept of accountability in this way: 13. Furthermore, the Supreme Court of Canada in R. v. P. (B.W.) (2006), 2006 SCC 27 , 209 C.C.C. (3d) 97 held that theprinciple of accountability in the YCJA mandates an approach to sentencing that is “offender-centric”, and which excludes the sentencingnorms of deterrence and denunciation. The Ontario Court of Appeal in R. v.

O. (A.), supra, held that accountability under the YCJA isequivalent to the adult sentencing principle of retribution. At para. 47, the following was said: [47]........for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributivesentence, the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harmcaused by the offender, and the normative character of the offender’s conduct..... 14.

To assist in determining the necessary degree of accountability, the trial judge must also consider “rehabilitation and reintegrationinto society”, as outlined in s. 72 of the YCJA. As the Court of Appeal said in R. v. O (A.), (supra), at para. 57, rehabilitation is “one, butonly one, of the important factors that are integral to the accountability inquiry mandated by ss. 72(1)(

b) and 38(1) of the Y.C.J.A.” 15. Additional factors that must be considered include 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.” These factorsrecognize that the special treatment of young offenders is premised in part on their immaturity. It is this immaturity that affects a youngperson’s ability to fully evaluate and appreciate the consequences of their actions: R. v. M.(S.H.), supra. 16.

In short, it is important for the judge to weigh and balance the factors outlined in s. 72 with a view to the overall objectives of theYCJA to formulate his or her opinion on the sufficiency of the length of a youth sentence to achieve accountability for the young personbefore the Court. An adult sentence should be imposed when a youth sentence would not be long enough to meaningfully address theseriousness of the offences, the offender’s role in them, and his or her rehabilitation and ultimate reintegration into society: see R. v. O.(A.), supra, and R. v. Lights, supra at para. 45.

Finally, at para. 55: [55] In R. v. Flaten, supra, the Saskatchewan Court of Appeal, at paras. 36 to 38, held that once the presumption of diminished moralculpability has been rebutted, the adult sentencing principles as set out in s. 718 to s. 718.2 of the Criminal Code prevail in the impositionof an adult sentence. This does not mean that youthfulness and the potential for rehabilitation cease to be considerations; rather, theybecome potential mitigating factors.

Thus, any mitigating factors such as youth, and potential for rehabilitation must be weighed andbalanced with any aggravating circumstances in arriving at a fit sentence. [42] As noted previously, s. 72 of the YCJA requires the Court to consider various factors, including the seriousness andcircumstances of the offence, the age, maturity, character, background, previous record and any other factors the Court considersrelevant. [43] In its legal brief, the Crown has submitted that the charge of robbery is a very serious matter which is reflected in themaximum penalty of life imprisonment in regard to an adult.

In addition to having been on probation at the time, reference is made atpara. 39 of the brief to the following aggravating factors: 39. The Crown submits that the following are indicative of the seriousness of this offence and a high level of moral culpability: a. [The accused] committed an armed robbery against a complete stranger; b. [The accused] was in possession of a large kitchen knife, which was concealed on his person and used in the commission ofthe robbery;

c. [The crime] took place in a public place and in a cemetery where the public has an expectation of privacy, solace and safety; d. [The accused] was in a highly intoxicated state by both alcohol and drugs; e. [The accused] used a knife to stab at the victim and caused injury to her; f. [The accused] attempted to dispose and conceal of the weapon after the offence; g. [The accused] was the subject of warrants for his arrest at the time of the offence; h. [The accused] was forcibly arrested by the police standoff; and i. [The accused] has past convictions for robbery (1), assault with a weapon (4), aggravated assault (1) and common assault (2). [ 44 ] As to the impact of the offence, the Crown submits that the complainant was assaulted and stabbed at close range, causing injury and a long time reminder of this traumatic event.

Her testimony indicated the severity of the injury and its profound effect on her. [ 45 ] It is confirmed in the legal brief as well, that the accused was seventeen and three-quarters years old and will be almost nineteen years old by the date of sentencing. [ 46 ] In respect to the factor regarding maturity, the Court noted the portion contained in the Crown brief at para. 46: 46. The Psychological Assessment summarizes that [the accused] is, [. . .] a highly criminalized, non-compliant, and at times, surly youth.

His strengths include previously assessed average global cognitive skills, the ability to perform well within a highly structured school setting (if he chooses) , his ability to exhibit some self-control and appropriate social behavior (when he chooses) and the ability to benefit from highly structured, secure residential setting. He is also able to modify his behavior and communication to immediate perceived environment demands (if he chooses). Unfortunately, [he] may use these strengths to engage in further criminal behavior. 47.

The Crown submits that the Psychological Assessment reveals an accused whose maturity appears to be commensurate with his age. Moreover, the assessment describes a youth with cognitive capabilities and the ability to succeed when he chooses. This factor was addressed and confirmed by his teacher, Ms. Sebestyen-McLean. However, [he] has chosen a criminalized and violent lifestyle and refused forensic treatment in the past, both in custody and in the community. [ 47 ] The factors regarding his background are found in the brief starting at para. 48: 48.

The Presentence Report and the Psychological Assessment both detail the difficulties experienced by [the accused] in his upbringing. The Psychological Assessment describes [the accused] as having an extensive history of anti-social and criminalized behavior. He is described as having a “neglected, criminalized lifestyle from an early change” including a family who is entrenched in substance abuse, criminalized behavior and gangs. 49.

Both reports include an extensive history of Social Services, Mental Health and Additions Services and Corrections and Public Safety involvement in [the accused’s] life from a very young age. There are past assessments from psychologists, psychiatrists and medical doctors in relation to conduct disorders, antisocial behavior and partial FAS diagnosis.

[ 48 ] In respect to character, the following matters were noted starting at para. 50: 50. The Crown further submits that the Psychological Assessment reveals a troubled and troubling character. [The accused] seems to have insight into his offending behaviour and appears to lack remorse for his violent and criminalized lifestyle. Problems with drugs and alcohol are ongoing, as are his associations with negative peers, criminal attitudes associated with violence and weapons use.

In addition, his service providers have concerns of [the accused] becoming entrenched in a street gang as canvassed in the Psychological Assessment and the Presentence Report completed by Jennifer Peterson. His association with the Indian Posse of great concern. Both his risk for general re-offending and risk for future violence are assessed to be very high . 51. The Presentence Report completed by Jennifer Peterson indicates that there are no strength areas for this accused.

He has been assessed as Level 5 on the Level of Service Inventory - SK Youth Edition, requiring the highest level of supervision and intervention by Corrections and Public Safety. . . . 55. The final recommendations of the Psychological Assessment at page 12 note: a. “[He] is unlikely to follow through with any community-based programming.” b. “There should be no expectation of him either remaining crime- or substance-free when in the community.” [ 49 ] In respect to the accused’s criminal record at para. 57: 57.

The accused has been convicted of one robbery, one aggravated assault, two common assaults and four assaults with a weapon. [He] has been in custody extensively since January of 2006. While serving, he has been unlawfully at large or has escaped lawful custody on three occasions. He has been the subject of thirteen Provincial Director Reviews of his youth sentence for breaching his community supervision portion of custodial dispositions while in the community.

His criminal record is demonstrative of his blatant disregard of court orders and propensity towards committing violent offences including 8 convictions for violent offences. [ 50 ] As to the other factors which the Crown has submitted, it was suggested that the plea of guilty on this matter should not be considered a mitigating factor, because the complainant had to testify regardless.

Review of the Accused’s s. 72 Factors: [ 51 ] The accused submits that there are positive mitigating factors in these proceedings which should cause the Court to conclude that a youth sentence should be imposed, in the context of those factors to be considered. [ 52 ] In regard to the seriousness and circumstances of the offence, the legal brief for the accused included the following, starting at para. 16: 16. There is no question that robbery is a serious offence. However, it is submitted that the circumstances of this particular offence put it at the lower end of the range. 17.

The physical harm suffered by the complainant was minimal and there was no premeditation on the part of [the accused]. Upon being confronted by [him] the complainant was able to drive away easily. She remained at the scene watching [the accused] while she waited for the police to attend. 18. [He] did not leave the scene of the offence and was easily detained by the police upon their arrival.

[ 53 ] The whole portion on maturity in his brief has been included here, commencing at para. 20: 20. R. v. S.(C.), 2008 CarswellNS 273, at paragraph 18 , defines maturity as follows: Maturity, it seems to me should be considered from two perspectives, behaviourally as exhibited by her words, thoughts and actions and chronologically by looking at her actual stage of development. 21. It is clear from the pre-sentence reports and the psychological reports on file that [the accused] , while chronologically 18 years old, is not as mature as a youth his age would be expected to be.

Although it appears that [the accused] is gaining perspective and maturity in the most recent reports on file. 22. At paragraph 19, of R. v. S. (C.) ,PCJ Williams discusses social and moral development as a component of maturity. Given [his] background, as outlined below and as articulated in the reports on file, it is clear that he did not have positive role models that contributed to his moral and social development.[The accused’s] lack of social skills is listed as a concern in the “Additional Concerns/Client Issues”

section of the most recent pre-sentence report. 23. In paragraph 20 of R. v. S. (C.) , the issues of supervision and control and how they contribute to maturity are discussed. Lack of supervision and control are identified as a factor that may contribute to immaturity. An almost complete lack of supervision and control is noted through [The accused’s] upbringing. This is a concern repeated throughout all the reports on file. 24. In the

section of the most recent pre-sentence report entitled “Attitude/Orientation” [The accused] shows maturity in that he is able to identify pro-social friends and activities that he could participate in. He recognizes that crime has never created any positive outcomes for him. However, his immaturity is very apparent in his justification of his actions based on the fact that criminality is an accepted part of his upbringing. 25. It is clear from the most recent pre-sentence report that [the accused] is beginning to have the maturity to recognize the negatives aspects of his life that need to be changed.

He has been able to identify positive aspects of his life and has sought out Ms. Sebastian- McLean as a positive pro-social support. However, it is equally clear that he continues to struggle with the lifestyle he is used to living, which is based on deeply entrenched criminological tendencies. 26. This developing maturity is in line with empirical principles as set out in Developmental Science and Youth Justice by Daniel P. Keating. In the first

section of that

article (1. Adolescent Development: Brain, Cognitive, and Psychosocial Maturity) the author explains that there are two critical features of adolescents’ biobehavioural development. The first feature is an emotional and reward system. This develops very quickly at the start of adolescence. This is expressed by increased impulsivity, high risk taking behaviour and a social orientation towards peers. 27. The second feature of adolescent development is the emergence of adult executive control of behaviour and cognition. This feature develops later and more gradually.

As this second feature develops young people gain more control over their behaviours and more understanding of their actions. In pages 12 and 13 the

article states that as the second feature develops a youth’s impulsivity is reduced and their capacity for independent judgments is increased. 28. It is clear from the reports on file and [the accused’s] testimony that he is reaching a stage where the second feature of adolescent development is beginning to manifest itself. However, overall [he] can still not be considered a mature individual. [ 54 ] In regard to character, commencing at para. 29:

29. There was only one witness who was able to testify to [the accused’s] character over a significant period of time. Ms. Sebastian- McLean has known [him] for several years. She testified that she has interacted with him throughout that time as both an educator and a counselor. Mrs. Sebastian-MacLean testified that [he] has had a lot of negative experiences and influences in his life. However, she was of the opinion that [he] has the ability to succeed if he is given the chance to do so. 30.

Ms Sebastian-McLean further testified that she has never had a problem with [the accused] when dealing with him through the Opening Doors program. She also stated that she is willing to continue working with him as long as she is able to do so. 31. This assessment is supported by the psychological report which states that [he] is able to do well in a structured setting. Dr. Zaharia testified that [the accused] exhibits leadership skills and has the capacity to be successful. [ 55 ] As to background, starting at para. 32: 32. [The accused] is the youngest of several brothers.

He reports having a positive relationship with his family. However, the pre- sentence reports and psychological assessments on record dispute this.

It appears from the reports that [he] had a very tumultuous upbringing characterized by neglect, substance abuse and physical abuse. 33. [The accused’s] father passed away when [he] has ten years old and he has not had contact with his mother since the date of the most recent offense. [He] advises that he had chosen to limit the contact he has with his brothers prior to this offence due to their life choices. 34. [The accused’s] upbringing was greatly affected by the substance abuse issues and criminal involvement of his immediate family members. [He] advises that he does not have any extended family in the area and has never had a relationship with any members of his extended family. 35. [The accused] did not have the benefit of learning about his culture or participating in cultural activities with elders as a child.

He did not have any of the benefits that contact with an extended family could have brought to his upbringing. 36. The reports on file indicate that [the accused] has been diagnosed with Conduct Disorder and ADHD. It is stated therein that medication was recommended for [him]. This treatment was never implemented as [he] did not have a responsible adult who could be tasked with administering the medication as required. As such, these conditions have been left untreated for the majority of [his] life to date. 37. The Crown has placed a lot of weight on the allegation that [the accused] is a known gang member.

He adamantly disputes this allegation. It is of note that the reports on file allege that all of [the accused’s] brothers are gang members involved with various gangs in Saskatoon. [He] admits that he is acquainted with many gang members and describes himself as being associated with gangs while not being a member in any.

This association with gangs is due to his brothers involvement and was not a conscious choice of [the accused’s] but rather a result of his upbringing in a criminalized lifestyle. 38. [The accused] became acquainted with gang life and “street culture” at a very young age due to his family situation. He recognizes that this lifestyle is not a positive one but states that it is how he was brought up and is the only lifestyle he knows. 39. It is clear from the reports on file that [the accused] grew up in poverty in the Saskatoon inner city. He has frequently been the victim of racism throughout his life.

He now recognizes that this has impacted the way he handles conflicts and how he deals with day to day situations. 40. Throughout his life, [the accused] has been subject to the negative aspects of his family’s choices due to his young age and his dependence on his family. He is now in a position to distance himself from his family and attempt to create a more positive life for himself. [The accused] advises that he plans to create and maintain a separation from the negative influences of his family.

This assertion is supported by the fact that [he] has not had contact with his family while he has been in custody.

41. In the most recent pre-sentence report, [the accused] expressed interest in several extra curricular activities that would likely be a positive outlet for him. Unfortunately, due to his personal circumstances he has never able to participate in any consistent recreational programming. 42. It is clear from the reports on file that [he] did not have positive role models during his upbringing. It is equally clear that he does not have community supports outside of Ms.

Sebastian-McLean. [ 56 ] In the legal brief the accused made the following observations regarding his criminal record, at para. 43: 43. [The accused] does have an extensive criminal record, however, the majority of the incidents listed thereon are system generated offences. [He] advised that the majority of the substantive offences on his criminal record were committed while under the influence of drugs or alcohol. 44.

The Crown brief relies heavily on the assertion that [the accused’s] criminal record contains numerous violent offences but there was no evidence tendered that a designation of serious violent offence has previously been sought by the Crown. [ 57 ] Reference is also made to the accused having been genuinely remorseful for his conduct, and wrote a letter of apology to the complainant. As well, he claims to have better insight as to his addiction problem and that he needs to address that important issue in the community upon release. He has also engaged in some successful education through Ms.

Sebestyen-McLean, while on remand. The Position of the Parties [ 58 ] The Crown is of the view that the accused cannot be properly held accountable in accord with the appropriate legal principles with any youth sentence, including one at the maximum length of three years. Rather he should be subject to an adult sentence, in accord with the fundamental purpose and principles of sentencing contained in s. 718 to 718.2 of the Criminal Code .

In that regard, the Crown submitted that a just and appropriate sentence in that context would be five years, less credit for remand time. [ 59 ] As to remand time, it was suggested that although the Court could at law apply a 2:1 double remand credit, because of the accused’s negative disruptive behaviour while on remand, the credit should only be at a ratio of 1:1 or at most 1:1.5 remand credit. [ 60 ] Conversely of course, the accused is of the view that he can be held properly accountable in accord with the appropriate legal principles by the Court imposing the maximum three year custody and supervision sentence as a youth sentence, being served at the Provincial Correctional Centre, where he has been on remand most of the time.

In regard to the remand credit, if a youth sentence is imposed, it has been submitted that a remand credit of 1:1.5 be ordered, so that the accused can be assured there is ample time to complete all treatment programs. [ 61 ] In the alternative, if this Court concludes that the accused must be subject to an adult sentence, it is submitted that the appropriate length is two years less one day. The suggested remand credit would be 2:1or perhaps 2.5:1, because of the difficult and onerous conditions he suffered while on remand, both at Kilburn Hall and the Saskatoon Correctional Centre. CONCLUSION

[ 62 ] An analysis of the accused’s criminal record remains a significant impediment to this Court concluding that accountability can be properly addressed through another youth sentence on this matter. Of concern are the offences of a violent nature, even though they have not been designated as “serious violent offences”, in accord with s. 49(2) of the YCJA . Regardless, he has never received a secure custody sentence on any of the violent nature offences as an original sentence (and very little when subject to a review).

That is despite the apparent serious nature of offences such as robbery, assault with a weapon and aggravated assault. Generally speaking the courts have not been disposed to sentence the accused to secure custody and supervision. However in my view that is properly a factor as to the length of sentence which should be imposed as an adult. It is not appropriate at this stage to consider, with the benefit of hindsight, the accused’s rehabilitation and reintegration into society in youth court might have been better served with a different approach.

That is particularly so with an offender at the age of this accused. [ 63 ] Therefore, applying the principles in R. v. F.(P.C.), supra, and the guidance provided by Halliday J. in item 11, this Court has concluded that the Crown has satisfied the issue that a youth sentence imposed in accordance with the purpose and principles set out in s. 3(1)(b)(ii) and s. 38 of the YCJA would not have sufficient length to hold the young person accountable, the presumption of diminished moral culpability is rebutted and the young person loses entitlement to a youth sentence.

The Court therefore orders that an adult sentence be imposed. The fundamental purpose and principles of sentencing in s. 718 to 718.2 of the Criminal Code will apply. [ 64 ] In determining a just and appropriate sentence in that context, one of the cases filed by the accused is R. v. G. (K.S.), 2007 SKCA 25 (Sask. C.A.). I note it is also reported in the sentencing digest as 2007 SKCA (Sent. Dig.) 11. [ 65 ] The accused in that case had some past criminal record. She and another person were staying with the complainant, a 70 year old man.

The two women were drinking and watching televison when the complainant went to bed. He awoke later to find the accused holding a thirteen foot long vacuum cord around his neck. He struggled for several minutes, and managed to remove the cord from his neck and fight off his attackers. His keys and wallet were taken during the altercation. The accused also had other charges from different incidents. Initially she had received a global sentence of one year, in light of the progress she had made after these matters had occurred.

However, the appeal by the Crown was allowed with the following disposition noted: Disposition: The Crown appeal is allowed. The sentence below does not meet the usual range of 2 to 4 years, but due to the unusual personal circumstances (her successful post-sentence conduct in addressing her addictions and the impending birth of her child), an 18 month sentence is imposed. [ 66 ] In any event, this Court has concluded that a sentence of three years, in the middle of that stated range would be in accord with the fundamental purpose and principles of sentencing.

It would result in not too great a gap from someone who as a youth had not been originally sentenced to secure custody and supervision. As well, in order to promote procedural consistency and predictability, the accused will receive a double remand credit. The matters which have been raised do not convince the Court that it should depart from that norm in sentencing. [ 67 ] It would appear that the accused has roughly twenty-nine months double remand credit, leaving a net sentence of seven months to be served in the Provincial Correctional Centre.

Thereafter he will be on probation for 18 months in order that he can properly address his issues of rehabilitation. We will need to confirm those conditions with input from counsel and the accused, when we are back in Court. [ 68 ] Further, as noted by the Crown, the Court is required to make the mandatory firearms prohibition order, as set forth in s. 109(1) (

a) of the Criminal Code . It is hereby ordered to remain in effect for the minimum of ten years and any restricted or prohibited firearm for life. [ 69 ] As well, in accord with the submissions of the Crown, the Court confirms that s. 344 of the Criminal Code is a primary designated offence. As such, the Court also shall order that the accused provide a DNA identification sample pursuant to s. 487.04 of the Criminal Code, as a mandatory order.

_______________________________ P.S. Kolenick, J