2015 MBPC 15, 2015 MBPC 15

Cite #2015 MBPC 15 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) S. Barager, for the Crown ) - and – ) ) R. M. ) H. Tasche, for the Accused ) ) Judgment delivered: ) March 20, 2015 BAN ON PUBLICATION: No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act. See the Youth Criminal Justice Act, s.110(1). No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person.

See the Youth Criminal Justice Act, s.111(1). CORRIN, P.J. Introduction [ 1 ] Over an approximately eight month period in 2012, R.M. committed two serious crimes to which he has pled guilty. He was 14 years old at the time of both incidents. [ 2 ] On June 17, 2012 he attended to a 7-Eleven convenience store in the city of Winnipeg with a black pistol style pellet gun concealed in the front of his hooded sweater. At such time he approached the store clerk, pointed the gun at the victim and shouted “Give me the money. Give me the money.” The victim turned over approximately $62.00 in cash to the accused. R.

M. was arrested a short time later in possession of the stolen money and the pellet gun. [ 3 ] He then went on to commit a violent armed robbery and aggravated assault while under strict conditions of Judicial Interim Release. This incident, occurring on November 6, 2012, involved R.M. concealed his face with a balaclava and approaching two youths while brandishing a knife. R.M. demanded that one of the victims give him his bicycle and then slashed this victim’s neck with his knife, causing a deep laceration approximately four inches in length.

R.M. then approached the other victim and without provocation struck him in his left knee with the knife, causing a deep laceration and significant injury. Apparently the knife cut tendons adjacent to the knee joint. R.M. then stole the bicycle and made good his escape. [ 4 ] R.M. told Dr. Brian Chaze, when interviewed prior to the preparation of his forensic report, that the November 6, 2012 incident stemmed from his being enraged about his girlfriend allegedly cheating on him. Dr.

Chaze stated that anger and impulsive aggression were also the reasons that R.M. committed the earlier 7-Eleven armed robbery offence. [ 5 ] The Crown seeks consecutive maximum three-year sentences for the charges before the court. Yielding no ground, the prosecution argues that there should be no reduction for pre-sentence custody. The accused has been in custody since November of 2012. [ 6 ] Defence also took the position that the appropriate global range of sentence for these offences is thirty-six months but requested that credit for pre-sentence custody at 1.5:1, be granted, leaving no go-forward sentence.

In such respect Mrs. Tasche submitted that the accused should receive a time in custody sentence to be followed by three years of supervised probation. The basis for the defence request was that the youth required a lengthy period of rehabilitative supervision in the community in order to ensure his successful reintegration into the community. The Youth Criminal Justice Act: Sentencing principles [ 7 ] An accused who is to be sentenced pursuant to the Youth Criminal Justice Act is not subject to the same accountability and moral blameworthiness as would be appropriate in the sentencing of adults.

The YCJA emphasizes the importance of rehabilitation and

reintegration. [ 8 ] Sections 38 and 39 of the YCJA set out the principles that must be considered in sentencing young persons. Relevant provisions of those sections are as follows:

Section 38 • Section 38(1) requires that the sentence: • Hold a young person accountable; • Imposed meaningful consequences; • Promote rehabilitation and reintegration into society thereby contributing to the long-term protection of the public. Section 38(2) requires:

a) the sentence must not result in punishment that is greater than the punishment that would be appropriate for an adult convicted 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; e) (

i) the sentence must be the least restrictive sentence that is capable of achieving the purposes set out in the Act; (ii) the sentence must be the one that is most likely to rehabilitate the young person and reintegrate the young person into society; (iii) the sentence must promote a sense of responsibility in the young person and an acknowledgement of harm done to the victim and the community. Amendments to the Youth Criminal Justice Act, passed in 2012, permit the court to denounce unlawful conduct in order to deter the young person from committing offences. Section 38(3) requires that the court take into account a variety of factors including:

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;

e) 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 purposes and principles set out in this section.

Section 39

Section 39 provides the Judges must not impose a custodial sentence unless:

a) the young person has committed a violent offence;

b) the young person has failed to comply with non-custodial sentences;

c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt;

d) in exceptional circumstances where the young person has committed a non-indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purposes and principles set out in

section 38. [ 9 ] Any period of custody imposed upon a youth must be followed by a period of community supervision half as long as the total period of custody. For example, if the court imposes a nine month custody and supervision order, the first six months would be spent in custody followed by three months community supervision. [ 10 ] These are the principles I must consider and balance in determining the appropriate sentence for the accused.

Victim impact [ 11 ] As a consequence of the November 6, 2012 armed robbery and aggravated assault incident one teenage victim was left with a four inch scar to his throat as well as a major hearing loss in one ear. Further impacts includes a numbness to one side of his face down to the region of his collarbone as well as a fear of going out in public which expresses itself by way of a more withdrawn and reclusive

personality. The other youth, the one who suffered the serious leg injury, has been left with significant scarring, numbness to the affected leg and still has pins in his legs as a consequence of necessary arthroscopic surgery. Several witnesses to the incident also express being emotionally and psychologically traumatised as a result of seeing the violence perpetrated against the two aforementioned victims. Background and Circumstances of the Accused [ 12 ] The court initially received two pre-sentence and a forensic report as well as a copy of a report from the Manitoba FASD Centre.

A sentencing conference was subsequently convened and held at the Manitoba Youth Centre on September 29, 2014. The participants at such conference were R.M., defence counsel, Mr. Colin Lavallee, R.M.’s grandfather, Ms. Martha Lavalee, R.M.’s grandmother, Jodi Garrioch, Agassiz Youth Centre case manager and Jennifer Harlos, Judicial Conferencing Coordinator. Mrs. Harlos provided a conference report to the court in such respect. The court also heard viva voce evidence from Dr. Brian Chaze on December 2, 2013. [ 13 ] R.M. is currently 16 years of age and will be turning 17 on March 8, 2015.

He is an aboriginal person who was raised by his mother until he was 5 years of age at which time he moved to his maternal grandparent’s residence in Easterville, Manitoba. He resided there until he was 9 years of age. His father has never been involved in his life. He moved to Thompson, Manitoba with his grandparents when he was approximately 10 years old. [ 14 ] R.M.’s mother says that Child and Family Services apprehended R.M. when he was 5 years old because of her addiction issues.

The mother told the preparers of the pre-sentence report that her son is usually a quiet and passive person and these charges are therefore out of character for him. She also acknowledged that she has caused R.M. and his siblings a lot of emotional stress and distress due to her not having been present for much of their young lives. She admitted drinking throughout R.M.’s pregnancy. The FASD report determined that R.M. suffered no severe impairments as a consequence of his mother’s behaviour and determined his profile to be inconsistent with a diagnosis of Fetal Alcohol Spectrum Disorder.

His grandmother observed that she had only noticed a significant change in R.M.’s behaviour a relatively short time before the first incident. The interviewer, in the FASD report, observes that Mrs. Lavallee related R.M.’s behaviour to have become quite impatient with people. She described him as having recently become an angry individual. His behaviour was described as being explosive and venting by way of swearing, yelling and hitting things. In the same report, R.M. admitted to being subject to such loss of control when “somebody said something to me or I didn’t get my way”.

He also stated that the feeling of being let down and thinking that others don’t care about him is a key trigger for his anger. It was R.M.’s position that he’d been using drugs prior to the offences and had been under the influence of same when he became involved in both incidents. [ 15 ] R.M. disclosed that he was 11 years of age when he started drinking. He informed the interviewers that he was 8 when he started smoking marijuana and was smoking this drug everyday but the age of 10. He admits to having started “popping pills” i.e. prescription drugs when he was about 13 years old.

As previously noted he claimed to be on prescription drugs at the time of the incidents. When he was 13 R.M. disclosed that he went to the AFM in Thompson for a month but dropped out of the program. R.M has no prior criminal involvement. The current charges represent his first involvements with the Justice system. [ 16 ] R.M. has been in several schools in Winnipeg, Easterville, Grand Rapids and Thompson. He had not been attending school in Thompson, his last place of residence, for two to three years. R.M. hopes to reside with his grandparents and return to school after his release.

He hopes to register at RD Parker Collegiate, the local high school. R.M. advises that his plans upon release also include participating in programming at the Addictions Foundation of Manitoba and in recreational activities at the Boys and Girls Club, a facility located approximately one block from his grandparent’s residence in Thompson.

His grandparents informed the sentence conference that the Club has a summer program which can lead to full-time employment. [ 17 ] A progress report prepared by Agassiz Youth Centre staff reports that R.M. struggled with frustration and anger after admission to their facility in July 2013. He was described as occasionally engaging in limit-testing behaviour although he was noted to be generally accepting of support and direction and considered part of the positive core in his peer group. He was also described as a hard worker with high standards who displayed initiative.

Staff at Agassiz also describe R.M. as making excellent progress with respect to academics. Such skills were observed to be rapidly approving. He was also identified as being hard working in class and making considerable progress with respect to his academic goals. Teachers described him as being polite, mature and respectful. Mention was also made of his participation in the Equip Program. This program involves reflection on the way residents treat others, themselves and society. It integrates thinking errors, anger management, socio-moral development and social skills development.

R.M. is described as a positive member and influence during Equip meetings. He is identified as contributing in a mature and positive manner and as a person who frequently assists other group members. It was further observed that R.M. has learned to use the skills he has developed and encourages others to do the same. R.M. has also completed the Thinking Awareness Group Program that focuses on the concepts of cognitive thinking and relapse prevention.

As well, Agassiz staff relates that R.M. has been meeting with the Aboriginal Spiritual Care Provider at the institution and has been described by same as both respectful and interested in the provider’s teachings. In conjunction with this activity, R.M. has also been participating in sharing circles as well as sweat and smudge ceremonies.

The court was told that he also engages on a monthly basis with the Christian volunteer group at the institution. [ 18 ] R.M. also reported that he has learned a lot about himself while in custody and feels that he has developed a lot of positive interpersonal and social coping skills. [ 19 ] R.M. has a supportive and actively involved family who are reported to have maintained close contact with him while in custody both via telephone as well as in person. His grandparents advise that they are dedicated to continue raising him and are prepared to have him return to reside with them in Thompson.

R.M. identifies them as positive supports in his life and as previously mentioned would like to return to live with them. [ 20 ] Dr. Chaze is of the opinion that time spent in custody isn’t as important as the nature of R.M.’s interventions. He was of the opinion that poor socialization most certainly contributed to R.M.’s involvement in these offences. He expressed a concern that R.M. had missed out on gaining skills that other adolescents develop by the time they reach 14 years of age. Dr. Chaze also observed that

R.M. had been tearful when discussing the impact of these offences on his victims and had appeared to be genuinely remorseful at suchtime. Dr. Chaze went on to state that it was his opinion that R.M. suffered from a conduct disorder as opposed to a psychotic or othermore serious affliction and that it was his professional opinion that a three year range of sentence would not be too little in terms of aneffective treatment intervention. Dr.

Chaze also cautioned that R.M. would face challenges once he returned to the community andaccordingly recommended close supervision and monitoring. [21] The authors of the pre-sentence report are also of the opinion that R.M. is a suitable candidate for community supervision.

MsRey’s report states that she “is hopeful should R.M. engage in daily, structured activities including education and employment, he will besuccessful” ANALYSIS Aggravating and Mitigating Factors [22] The aggravating factors are as follows: • the senseless, extreme and gratuitous violence perpetrated in the second incident; • the use of a weapon in both incidents; • the wearing of a disguise to conceal his identity in the second, November incident; • the assaults took place in a public place exposing others to this bloody and traumatic event; • the serious wounds/injuries sustained by the victims in the second incident; • the accused was on interim release when he re-involved in the second incident.

The mitigating factors are: • the early guilty pleas to these offences which pre-empted the necessity of the victims having to testify at a trial and thusrelive the trauma of the incidents; • the absence of a criminal record when he committed these offences; • the accused’s apparently sincere expressions of remorse not only through his guilty pleas but also through his assertionsrelated in the various reports and his apology offered in court.

In acknowledging his culpability and seeking to be held accountable for his crimes, the accused has taken a major step towardsfulfilling the objectives of the Youth Criminal Justice Act (Y.C.J.A.). His comments and observations recorded in the various reportsand in court suggest that the young person has initiated and taken ownership of his rehabilitation process.

These and his guilty pleasdemonstrate that he has already started down the road towards developing the insight and the strength to become a law-abiding adult andcitizen who can make a genuine contribution to his community instead of causing harm. [23] It is important to note that while identifying aggravating and mitigating factors is an essential part of the sentencing exercise, itis only one component of the total analysis. [24] Both parties in this case appropriately concurred that custody is an available sentence, since the accused unequivocallycommitted violent offences as that term is described in Y.C.J.A. section 39(1)(

a) and the pertinent jurisprudence. Accountability [25] Section 3(1)(b)(ii) of the Y.C.J.A. requires that the criminal justice system emphasize “fair and proportionate accountabilitythat is consistent with the greater dependency of young persons and their reduced level of maturity”. Further,

section 38 of the Y.C.J.A.identifies the purpose of sentencing as holding “a young person accountable for an offence through the imposition of just sanctions thathave meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, therebycontributing to the long-term protection of the public.

Thus, the objective is accountability which is to be achieved through justsanctions that impose meaningful consequences through promotion of the young person’s rehabilitation and reintegration”. [26] The definition of “accountability” in this context was authoritatively set out by the Ontario Court of Appeal in R. v. A.O. (2007)2007 ONCA 144 , O.J. No. 800. In A.O., the Court of Appeal equated the concept of “accountability” with the adult sentencingprinciple of retribution. Citing the Supreme Court of Canada’s analysis of retribution in R. v.

M.(C.A.), the court concluded that, 47... for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributionsentence, “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”.

We see no other rational way for measuring accountability. 48 The need to consider the normative character of an offender’s behaviour necessarily requires the court to consider societal values Thus, in order to determine whether a particular sentence is capable of holding a young person accountable, the youth justice court must assess the moral culpability of the young person by considering (1) the intentional risk taking of the young person; (2) the consequential harm caused by the young person; and (3) the normative character of the young person’s conduct.

I have considered each of these three components of accountability for R.M. [ 27 ] The moral culpability of R.M. for these offences is very high.

It is within this context that I must design a sentence that provides meaningful consequences, promotes R.M.’s rehabilitation, recognizes the impact of Gladue factors and the importance of an appropriately balanced restorative approach, promotes not only his rehabilitation but also his social reintegration and accords both with the principles set out in s.38(2) and s.39(3). [ 28 ] I have concluded that the sentences I am imposing will be able to accomplish all the goals set out in s.38(2)(e), in that they are the least restrictive sentences capable of achieving the purpose of sentencing in s.38(1), the sentences most likely to promote R.M.’s rehabilitation and reintegration into society as well as to bring home to him a sense of responsibility and an acknowledgment of the harm he has caused to the victims and the community. [ 29 ] It is in my view essential that R.M.’s sentence provide proportionate accountability while ensuring that his rehabilitation and reintegration are promoted in a way that will ensure a supervised transition to community living – a transition that will hopefully assist him to maximize his potential and become a contributing member of the community.

In doing this I believe that it will be important to permit R.M. to access and take advantage of a structured, supportive network of community resources. The sentence that I am imposing is intended to provide a meaningful consequence in keeping with R.M,’s role in these criminal offences and his specific rehabilitative needs. Sentence [ 30 ] For all of the above reasons I have determined that R.M. requires a custodial sentence followed by a significant period of probation.

In this regard I agree with defence counsel that the length of the custodial portion of the sentence must be tempered to reflect the progress that R.M. has made while in custody and to allow for a substantial period of probation to support his rehabilitation and reintegration. [ 31 ] The appropriate sentence length for the various charges would be close to the maximum three year custody and supervision sentence pursuant to s.42(2)(n). However, the practical reality is that R.M. has already spent approximately 28 months in secure, pre- sentence custody.

In that time he has made significant progress and taken advantage of the programming and resources available to him. I concur with his counsel that he should be credited at a rate of 1.5:1 for his pre-sentence time which means that he has already served the equivalent of over 36 months in custody. In keeping with the principle of totality and the principles of youth sentencing as they apply specifically to the accused, I sentence R.M. to a 24 month term of supervised probation.

This sentence is equivalent to the maximum length and allows for an appropriate balance between custody and supervision within the community. [ 32 ] The supervised probation conditions are to be as follows: - he is to keep the peace and be of good behaviour; - he is to reside as directed by the Provincial Director; - he is to report to a youth worker (Provincial Director) within 72 hours after and release and be supervised by the Provincial Director; - he is to appear before the Youth Court if and when required to do so; - he is to attend, participate and complete the Intensive Support and Supervision Program (ISSP) as directed; - he is to advise his youth worker (supervisor) immediately should he be arrested or questioned by the police; - he is to abide by a curfew as directed by Probation Services; - he is to attend school regularly, or seek and maintain employment, or attend a work training program; - he is to attend, participate and satisfactorily complete any assessments, programming, counseling, treatment or therapy as supervised and directed by the Provincial Director which same may address anger management or substance abuse issues; - he is to abstain absolutely from the possession or consumption of alcohol, drugs or any intoxicating substances except with a medical prescription; - he is not to possess any weapons except for the purpose of employment or work training; - he is not to have any contact or communication with any of the victims of these offences;

- he is not to attend any 7-Eleven stores in Winnipeg or Thompson, Manitoba;. - he is to be released only to his mother or a grandparent; - he is not to own, possess or have the control of any weapon, ammunition, prohibited ammunition or devise or explosive substance. [ 33 ] There will also be a DNA order as well as a two year s.51(1) weapon prohibition order. CORRIN, P.J.