Her Majesty the Queen v. “X” SENTENCING DECISION JUDGE: The Honourable Anne S. Derrick, 2014 NSPC 95

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Cite as: R. v. “X”, 2014 NSPC 95 Date: November 21, 2014 Docket: 2588522, 2588523, 2588527, 2588528 Registry: Halifax BETWEEN: Her Majesty the Queen v. “X” SENTENCING DECISION JUDGE: The Honourable Anne S.

Derrick HEARD: September 30, October 1, 2, 3, 14, and 31, 2014 DECISION: November 21, 2014 CHARGES: sections 239 , 85(1) (a), 91(1) , and 92(1) of the Criminal Code COUNSEL: Terry Nickerson, for the Crown Christa Thompson, for “X” Introduction [ 1 ] On April 15, 2013 “X” shot “Y” in an attempt to kill him. “Y” was fifteen years old. “X” was four months past his sixteenth birthday. The teens were cousins although there had been bad blood between them for some time.

They are both African Nova Scotian and grew up in the same close-knit African Nova Scotian community of “…”. [ 2 ] In convicting “X” of attempted murder, I found that he had deliberately pointed a hunting rifle at “Y” and fired into his abdomen, actions that permitted only one rational inference to be drawn, that “X” was trying to kill “Y”. [1] In addition to attempted murder (Count 1), I also convicted “X” of: using a firearm, a rifle, while committing the indictable offence of attempted murder (Count 2); possessing a rifle for which he did not have a registration certificate issued to him (Count 6); and possessing a rifle, knowing he was not a holder of a license or a registration certificate for the firearm under which he may possess it (Count 7). [2] [ 3 ] Although “X”’s sentencing was originally scheduled for March 2014, it had to be adjourned. [3] When it proceeded a number of reports were filed and ten witnesses testified.

The fundamental issue to be determined is what sentence will hold “X” accountable for attempting to kill “Y”. Crown Application for an Adult Sentence [ 4 ] The Crown has applied under sections 71 and 72 of the YCJA for an adult sentence for “X”. Mr. Nickerson is seeking a sentence of life imprisonment. Section 120(2) of the Corrections and Conditional Release Act sets full parole eligibility for life sentences imposed otherwise than as a minimum punishment at seven years less any time spent in custody between the day on which the offender was arrested and taken into custody.

The Crown is therefore asking for “X” to be given a life sentence with parole eligibility set at seven years from his arrest on April 24, 2013. [ 5 ] Section 76(1)(

c) of the YCJA requires that a young person sentenced to an adult sentence of two years or more serve his/her sentence in a penitentiary. The Defence Position on Sentence [ 6 ] Ms. Thompson argues that “X” should be sentenced as a young person. Section 42(2)(

o) of the Youth Criminal Justice Act provides

that the youth sentence for attempted murder is a custody and supervision order (CSO) not exceeding three years. Two-thirds of such a sentence would be served in custody at the Nova Scotia Youth Facility at Waterville and one-third would be served in the community.

Application for an Adult Sentence - The Youth Criminal Justice Act [ 7 ] The earlier incarnation of section 72(1) of the YCJA, before amendments introduced by Bill C-10 on October 23, 2012, required judges to evaluate and weigh the following factors in considering whether an adult sentence should be imposed: the seriousness and circumstances of the offence, the young person’s age, maturity, character, background and previous record, and any other factors deemed to be relevant.

These factors are no longer mentioned in the YCJA although the Crown concedes they are still relevant in the determination of whether an adult sentence should be imposed. [4] [ 8 ] Section 72(1) now provides that an adult sentence shall be imposed if the Youth Justice Court 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 [of the YCJA ] would not be of sufficient length to hold the young person accountable for his offending behaviour. [ 9 ] The Declaration of Principle under the YCJA is where subparagraph 3(1)(b)(ii) is found. It requires the emphasis of "fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity."

Section 38 contains the purpose and sentencing principles of the YCJA , and indicates that: The purpose of sentencing ... 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. [ 10 ] The relevant sentencing principles referenced in

section 38 of the YCJA include: parity -- that a young person's 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; proportionality -- that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; and, subject to the proportionality principle, that the sentence be the least restrictive sentence that is capable of achieving the overall purpose of sentencing; that it be the one most likely to rehabilitate the young person and reintegrate him or her into society; and that it promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. [5] Introduced by Bill C-10, a youth sentence now may also advert to the objectives traditionally associated with adult sentencing – denunciation and deterrence. [ 11 ] The references to sections 3(1)(b)(ii) and 38 of the YCJA in section 72(1)(

b) do not require any special consideration in “X”‘s case: “X” is not making an argument that the maximum youth sentence allowable for attempted murder – a three year Custody and Supervision Order - is inconsistent with the purpose and principles of these sections.

He is not suggesting that an application of the relevant YCJA principles should result in him receiving a youth sentence of less than three years. “X”‘s fundamental argument is that the presumption of his diminished moral blameworthiness has not been rebutted and a three year Custody and Supervision Order sentence under the YCJA satisfies the accountability requirement. [ 12 ] The critical factor in sentencing a young person is accountability. A little later in these reasons I will be discussing what that means.

Documentary and Witness Evidence at Sentencing [ 13 ] In the course of the sentencing hearing, 10 witnesses testified and a number of reports were filed as exhibits. Two of the witnesses – Sarah Rafuse, a clinical social worker at the Nova Scotia Youth Facility (“Waterville”) and Stephen Gouthro, a psychologist with the IWK, authored the

section 34 psychological assessment dated March 28, 2014. [6] Peyton Harris, a school psychologist, prepared a psycho-educational report on “X” dated March 28, 2014. [7] Dr. Chris Murphy, a psychiatrist, wrote the psychiatric report dated June 4, 2014. [8] [ 14 ] Other witnesses called by the Crown were: Stephen Hepburn, unit supervisor for the cottage where “X” resides at Waterville; Larry Priestnall, program worker for that cottage; and Sarah Nagy, a probation officer who supervised “X” on probation from April 2012 to April 2013. [ 15 ] Ms.

Thompson called three witnesses: Susan Dunne, the Manager of Assessment and Intervention at Springhill Penitentiary, and previously Program Manager for 5 years; Robert Wright, who was qualified to give opinion evidence on issues of race and culture; and “XX”, “X”‘s father. [ 16 ] Also filed as exhibits were the following reports: a report from the Nova Scotia Youth Facility at Waterville dated September 4, 2014 [9] ; pre-sentence reports from sentencings that occurred on November 23, 2011 and June 28, 2012 [10] ; a letter from the Waterville chaplain dated September 22, 2014 [11] ; an update on the Rites of Passage Program, dated September 17, 2014 [12] ; an update on “X”‘s participation in the Music Therapy Program, dated September 11, 2014 [13] ; an update on “X”‘s academic performance, dated September 16, 2014 [14] ; and an overview of the Youth Advocate Worker’s involvement with “X”., dated October 2, 2014. [15] [ 17 ] No fresh pre-sentence report was prepared as counsel agreed that the

section 34 psychological assessment was the best option for providing the information needed for this sentencing. The Victim Impact Statement [ 18 ] “Y” did not file a Victim Impact Statement. His mother did, and came to court to read it. She said that her son’s shooting not only changed his life, it changed the life of their immediate family. It also appears to have disrupted her family’s relationship with their

community: “YY” said that she and “Y”’s father fear the worst for “Y” and their other children and have been keeping them away from the community since the shooting. [ 19 ] “YY”’s initial thought upon hearing that “Y” had been shot was that it had to be a mistake. “It couldn’t have been my 15 year old son, he’s just a child.” She had to suffer through the anxiety of not knowing if “Y” would survive and then, when he was in recovery, the anguish of trying to manage his pain and anguish.

She described how her son is still dealing with the trauma of the shooting because now he has been stigmatized as a “snitch.” Also lost are the simple joys of a close-knit extended family: “Y”’s mother regarded “X” as a nephew. She never imagined that he would shoot her son. [ 20 ] “YY”’s comments about the harm done by “X” to their shared extended family brought to mind Nordheimer. J.’s observations in R. v. Bagshaw : … People generally feel a greater degree of injury when harm is occasioned to them by someone they know as opposed to being the result of the acts of a stranger.

This greater sense of injury undoubtedly arises because the wrongful acts of someone who is known to us constitute a fundamental breach of that element of trust that we naturally develop with persons who we know… [16] [ 21 ] The damage down by “X” to the members of his extended family and the burden of pain being borne by “Y” and his parents is a terrible consequence of his actions that no sentence can alleviate. Onus [ 22 ] The onus of satisfying me that an adult sentence should be imposed on “X” lies with the Crown.

Despite "a broad consensus reflecting society's values and interests" the presumption of diminished moral culpability in young persons can be rebutted if "the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age." [17] The Supreme Court of Canada in D.B. explained how placing the onus on the Crown does not make a young person less accountable for serious offences: ... it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person.

It means that before a court can do so, the Crown, not the young person, should have the burden of showing that the presumption of diminished moral culpability has been rebutted and that the young person is no longer entitled to its protection. [18] [ 23 ] D.B. found young persons to be entitled to a presumption of diminished moral blameworthiness that reflects, as a consequence of their age, their heightened vulnerability, immaturity, and reduced capacity for moral judgment. [19] [ 24 ] Displacing the presumption of diminished responsibility does not involve the conventional standards of balance of probabilities or proof beyond a reasonable doubt.

It is not "a very heavy onus." It is an onus that is requires the judge to engage in "evaluative" decision- making.

The relevant factors must be weighed and balanced to determine whether a youth sentence is "sufficiently long" to hold “X” accountable for the attempted murder of “Y” I must be mindful of "the very serious consequences of an adult sentence" for “X” so that I only order an adult sentence "when necessary to fulfill the objectives of the YCJA." [20] [ 25 ] The Ontario Superior Court of Justice, in a decision referenced with approval by our Court of Appeal [21] , has described the two objectives to be achieved if a sentence is to hold a young person accountable: It must be long enough to reflect the seriousness of the offence and the offender's role in it, and it must also be long enough to provide reasonable assurance of the offender's rehabilitation to the point where he can be safely reintegrated into society ... [22] [ 26 ] Where the Crown establishes to the sentencing judge's satisfaction that a youth sentence will not be long enough to achieve these goals, then an adult sentence must be imposed. [23] Accountability [ 27 ] Accountability is the fundamental principle embedded in sections 72, 3 and 38 of the YCJA .

In the words of the Ontario Court of Appeal in A.O ., accountability "drives the entire YCJA sentencing regime." [24] It is the objective that must be foregrounded in determining whether to impose an adult sentence on a young person. The principle of accountability has been extensively considered in A.O ., a decision relied on by the Nova Scotia Court of Appeal in R. v. Smith . [25] [ 28 ] The YCJA brought a shift in emphasis in the sentencing of young persons. Rehabilitation, the core sentencing principle under the predecessor legislation, the Young Offenders Act, R.S.C. 1985, c.

Y-1 ( YOA ), has been replaced by accountability.

A "significantly different approach" in sentencing of young persons has been mandated by the YCJA . [26] It is a sentencing regime designed by Parliament to ... promote the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done. [27] [ 29 ] The consensus is that accountability is to be regarded as having equivalency to "the adult sentencing principle of retribution" discussed by the Supreme Court of Canada: Retribution in a criminal context ... represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects 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.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . [28] [ 30 ] Proportionality is a central feature of a retributive sentence: the sentence must "properly reflect the moral blameworthiness of that particular offender." This harkens back to the individualized nature of sentencing.

[ 31 ] Rehabilitation, although regarded as significant, is now recognized as only one of the "important factors that are integral to the accountability inquiry mandated by ss. 72(1)(

b) and 38(1) of the YCJA." [29] [ 32 ] As Judge Campbell stated in the sentencing of a young person for attempted murder: 110 The YCJA is not a licence for violent crime. It is not a shield for young people who commit serious acts of violence. It provides a set of sentencing options that are intended to provide a nuanced response to the crimes committed by young people. It recognizes that young people do function in a way very different from adults.

It encourages an approach that takes into account the reality that public safety is best served by dealing with problems while there is still time and that strict punishment may not be the best answer in the long run. 111 The YCJA also recognizes however that there are times when circumstances demand a response that is out of the ordinary. There are times, when the crime and the young person who commits it are such that accountability in the form of retribution is called for.

It is called for in a way and to an extent that would not normally be the case for a young person. [30] [ 33 ] In providing in the YCJA for a maximum youth sentence of three years for attempted murder, Parliament plainly contemplated that some youth would not receive adult sentences even where their intent had been to kill their victims.

The challenge lies in determining which cases of attempted murder fall under the youth sentencing regime and which require an adult sentence. [31] [ 34 ] The issue I am required to decide is this: whether a youth sentence of three years is a sentence of sufficient length to reflect the seriousness of “X”‘s offences and his role in them, and whether it will provide reasonable assurances of “X”‘s rehabilitation to the point where he can be safely reintegrated into society.

To evaluate this, I must assess: the seriousness and circumstances of the offence, “X”‘s age, maturity, character, background and previous record, and any other factors I consider to be relevant, which in this case include evidence about race and culture.

The Seriousness and Circumstances of the Offence [ 35 ] What makes the offence of attempted murder “… in all cases…an inherently serious crime” is “not the actus reus of the offence which may vary from modest acts of preparation with no resulting physical injury, to an egregious life-threatening assault where it is simply fortuitous that the victim survived at all.” What makes attempted murder inherently serious in all cases is the specific intent to kill. [32] The attempted murderer is “a lucky murderer”: the intended killing of his victim thwarted by a “fortuitous circumstance” but he still has “the same killer instinct...” [33] In this case, “Y” didn’t die because help was summoned, an ambulance came quickly enough, and medical intervention saved his life. [ 36 ] The basic facts of “Y”’s shooting are recited in my trial decision: On April 15, 2013 in broad daylight “Y” was shot in the abdomen by someone using a rifle.

Just before the shot was fired, “Y” had been standing talking with his friend, “Z”., inside the “…” community basketball court. Other teenagers and younger children were also on the court, taking advantage of the early spring sunshine. The shooter fled. “Y” was rushed to Emergency and into surgery. He had life- threatening internal injuries and spent two weeks in hospital... [34] [ 37 ] A C.T. scan at the hospital, possible because of “Y”’s stable condition, indicated a perforated bowel and the presence of numerous bullet and vertebral fragments along the pathway of the gunshot.

The vertebral fractures did not involve “the main body of the bones.” Fortuitously, “Y” did not sustain a spinal cord injury. [35] [ 38 ] Approximately an hour after his arrival at the hospital, “Y” was taken into surgery as a level one priority. The extent of the abdominal damage was explored and “Y”’s bowel was repaired. His gunshot wounds were cleaned and dressed. His major organs (such as right kidney, vena cava and pancreas) were spared. “Y” was treated post-operatively with antibiotics and narcotics for pain management.

He has made a complete recovery. [36] [ 39 ] Unlike murder itself which is classified under the Criminal Code as first or second degree murder, there is no codified classification for attempted murder.

Notwithstanding, a sentencing judge is “certainly entitled to take into account the features” of the attempted murder before her. [37] That includes considering whether the attempted murder was “planned and deliberate.” [38] An Impulsive or a Planned and Deliberate Attempted Murder? [ 40 ] The Crown submitted in its written brief that “X”‘s actions constituted a planned murder of “Y” and that his planning, including the obscuring of his face to avoid being identified, “helps rebut the presumption” of diminished moral culpability. [ 41 ] Can “X”‘s shooting of “Y” be characterized as a shooting that was planned and deliberate?

After seeing “Y” on the basketball court, “X” went into the nearby woods, retrieved the rifle, returned to the edge of the court, aimed at “Y”, fired, and immediately turned and fled. [39] His explanation has been that he believed “Y” was a threat that had to be eliminated. [40] [ 42 ] First degree murder is an intentional killing that is both planned and deliberate.

A plan, for the purposes of first degree murder, is “a calculated scheme or design that has been carefully thought out and the nature and consequences have been considered and weighed.” “Deliberate” includes the concepts of being slow in deciding and cautious, implying that the accused must take time to weigh the advantages and disadvantages of his or her intended action. [41] [ 43 ] A murder committed on a sudden impulse and without prior consideration, even though the intent to kill is clearly proven, would not constitute a planned murder. [42] The Saskatchewan Court of Appeal in Smith found the evidence of a “cruel and sadistic” shooting of the victim in cold blood did not show “the implementation of a previously determined design or scheme.” [43] The Court went on to say: “It may well be that the killing was deliberate.

However, even if it was, there could only be a verdict of first degree murder if the evidence established as well that the murder was planned.” [44]

[ 44 ] I do not think it can be stated with any confidence that had “Y” died, “X” would have been convicted of first degree murder.

There is room on the facts for an argument that, as in Smith , the essential element of planning could not be established beyond a reasonable doubt even if the shooting was found to have been deliberate. “X”‘s retrieval of the rifle and shooting of “Y”, all of which happened very quickly, could be viewed as having been impulsive and without prior consideration. [ 45 ] While, as I have said, the shooting of “Y” might not constitute a planned and deliberate attempt to kill him, the circumstances of the offence are extremely grave and “X”‘s moral culpability is high, having regard to his intentional risk taking, the consequential harm caused, and the egregious affront to societal norms represented by his conduct. [45] Use of a firearm [ 46 ] “X”‘s use of a firearm in the attempted murder of “Y” is another serious feature of the crime. “X” used a weapon - a .300 calibre rifle - that is designed for lethality [46] and was able to execute his intention to kill “Y” from a distance, increasing the chances he would not be identified and could escape.

Presence of other children on the basketball court [ 47 ] Also contributing to the seriousness of this offence is the fact that “X” fired at “Y” when other children were playing on the court. A child could have easily moved into the path of the bullet or there could have been a ricochet. “X” shot at “Y” without any regard for the other children and the collateral harm that might be caused. Motive [ 48 ] Although “X” and “Y” had known each other their entire lives and had grandfathers who are brothers, in elementary school the friendship between them had soured.

Arguing evolved into fistfights and as time went on, “X”‘s hostility toward “Y” became intractable. “Y” testified that “X” would always want to fight when he saw “Y” In my trial decision I concluded that, …“X” had an animus toward “Y” and a motive to shoot him. His hostility toward “Y” had not abated and while the shooting was a significant escalation in the aggression “X” had demonstrated previously, it occurred on a continuum where “X” had started to produce weapons and fists had already been supplanted by knives. [47] [ 49 ] The

section 34 psychological assessment obtained information from the “X’s community” Community Officer for the RCMP. “Cst…” indicated that there had originally been conflict between “Y”’s older brother and an older brother of “X”’s. It appears this played a role in poisoning the relationship between “X” and “Y:. [48] [ 50 ] In his interviews for the

section 34 psychological assessment, “X” said he shot “Y” because he thought “Y” might have a gun and decided to get “Y” before “Y” could get him. [49] Whether “X” really thought this at the time I have no way of knowing as I am unable to assess the credibility of this assertion.

There was no evidence at trial to suggest “Y” had been arming himself or was a threat to “X” Indeed, he was not even living in the community at the time of the shooting. “X” himself described “Y” to Stephen Gouthro as: “an average community guy.” [50] However, “X” personifying himself in “gangster” terms - which I will be discussing later in these reasons - may have distorted his perception of the situation or amplified his hostility toward “Y” whom he regarded as an enemy. [ 51 ] There is no evidence however that “X” was incubating a scheme to kill “Y” and had a gun hidden in the woods for just the right moment to execute a murderous plan.

I regard the presence of the gun, obviously known to “X”, as merely fortuitous, a readily available and convenient weapon seized upon in a spur-of-the-moment decision to kill. [ 52 ] What “X” told Stephen Gouthro in the course of what appears to have been a lengthy discussion about the circumstances of the shooting is that he “wasn’t thinking. I was too high…” [51] [ 53 ] The circumstances of this serious offence tilt toward the imposition of an adult sentence. However there is much more to consider, including “X”‘s age, maturity, and character.

Age, Maturity, and Character [ 54 ] At 16 years and 4 months when he shot “Y”, “X” was not on the cusp of becoming an adult in the eyes of the criminal justice system. He told Peyton Harris during the psycho-educational assessment that his close friends in high school ranged in age from 15 to 18 years old. [52] His parents confirmed that his closest friends were similar in age. [53] In other words, he was associating with other young people, and not adults. [ 55 ] It was Mr.

Gouthro’s opinion that “X” evidenced a strong affiliation to his peer group whose shared interests were music, substance abuse, and criminal activity. “X” did not indicate many pro-social relationships or friends. [54] [ 56 ] It does not appear that “X”‘s peer group contributed to him making positive choices. His father indicated in the

section 34 psychological assessment that over the previous three years, “X” had often been in trouble with his friends. “XX” did not approve of them and suspected they were involved in criminal activity. He expressed his disapproval to the parents of these friends. “XX” believes that “X”‘s group of friends was in conflict with another group of youths in “…”. [55] “X”‘s disengagement from supports and services appears to have been directly correlated to deepening ties with his peer group. [ 57 ] “XX” testified about his relationship with and knowledge of his son.

He was well aware prior to the shooting that “X” was a management issue. He described enjoying an open relationship with “X”‘s mother. “XX” testified that he felt he had a “very good grasp” on what was happening with his son. He and “Y”’s father, his best friend, would talk about their sons and “what they were doing to each other.” He viewed each teen’s friends as negatively influencing the bad feelings between the boys. [ 58 ] At the time of the shooting, “X” was living at home with his mother and siblings and still enrolled in school. He had not begun to

live independently from his family. “X”’s mother interviewed for the

section 34 psychological assessment indicated that when “X” became a teenager, “it appeared to her that he felt he was old enough to make his own decisions.” He began to spend more time with his friends than at home. Despite being told by his mother that the wrong decisions would led to him having to suffer the consequences, consequences seemed to have little effect on “X” It was his father’s impression that “X” did not care about the consequences meted out by his parents and found ways to circumvent them. [56] [ 59 ] Information obtained in the course of the

section 34 psychological assessment and the psycho-educational assessment indicate that as a young teen, “X” showed tendencies toward aggression and violence. The principal from the school he attended in Grades 7 and 8, and briefly at the start of Grade 9, described him as manipulative, bullying, defiant, and aggressive. [57] He was suspected of being involved in criminal activities in addition to the drug dealing he has admitted. There are suggestions in the assessments that “X” was involved in luring and pimping teenage girls.

A joint Department of Community Services and police investigation was conducted into a complaint made by a 15 year old girl that “X” had set up and then participated in her being forcibly confined and sexually assaulted. The complainant alleged that four other male youths were involved.

She did not want charges to proceed and relocated with her family. [58] Asked about this allegation by Stephen Gouthro, “X” flatly denied it. [59] [ 60 ] These allegations of misogynist, criminal behaviour in relation to young women are suggestive of very serious character flaws in a young teen, and negative peer influences, that are deeply troubling. It is difficult to know how to treat the allegations in the context of the Crown’s application for an adult sentence. They are not proven.

They are not the subject matter of these proceedings and are unrelated to the shooting of “Y” And while Stephen Gouthro noted in the

section 34 psychological assessment that “X” “eventually” admitted to him that he had been involved in pimping, [60] in his interview with Dr. Murphy, “X” “denied any history of sexual exploitation or any recollection” of having made such disclosures. [61] This inability to recall does not seem credible.

However I do not know whether the sexual assault and luring/pimping allegations are true or not and I have concluded it would be unfair of me to rely on unproven allegations of bad character in my determination of whether “X” should be sentenced as an adult. [ 61 ] “X” does not come before me as a young person of previously good character. In addition to having a prior criminal record, there is a consistent and reliable thread of misconduct that runs through his school records.

An incident described by the principal of his junior high school bears some resemblance to the shooting of “Y” The principal recalled a specific instance of “X” leaving the office “mid- discussion to punch another student in the head.” This occurred in the presence of another teacher. “X” subsequently sought to justify his actions on the basis that the other student “deserved it.” This was described not as an isolated incident but as a pattern of behaviour for “X”. [62] “X” was known to have difficulty accepting responsibility for his behaviour: “… He would always have an excuse, even when he was caught red-handed. [“X”] would never own up for anything.” [63] [ 62 ] “X”‘s behavioral issues continued in high school where he was removed from the Options and Opportunities program (a program to develop both employment and academic skills.) He continued to associate with a group of loyal peers and was seen, as he had been in junior high, as a leader.

Nothing suggests that “X”‘s peer choices promoted improvements in his behaviour. He continued to be seen as manipulative and disingenuous. He was suspected of drug dealing at the school. [64] His inappropriate, aggressive behaviours resulted in suspensions and continued until just before the shooting. [65] [ 63 ] In October 2012, “X” and his mother met with a clinical social worker, an appointment arranged by “X”‘s probation officer, Ms. Nagy, through the IWK Youth Intervention Services. “X”‘s mother was keen to have “X” participate in the recommended mental health services however “X” declined the opportunity.

The clinical social worker reported that “X” had “limited insight into how he could [manage his risk in the community] and minimized the significance of his anti-social peer group.” [66] [ 64 ] Stephen Gouthro viewed “X” as “eager to portray himself as a savvy and streetwise young man who was highly confident.” [67] This description indicates that “X” wanted to present himself to Mr. Gouthro as sophisticated and self-possessed but whether that is an accurate representation of “X” is another question. “X” told Mr.

Gouthro that after being stabbed in August 2011 he began carrying a handgun and for a time, owned two – a .32 calibre and a 9 mm Beretta. If this is true it indicates that a 14 year old living in “…” was able to acquire two handguns quite readily. That says something about the community where he was growing up. [ 65 ] “X” admitted to Mr.

Gouthro that he had been a drug dealer although his claim of “moving” $5000 worth of crack cocaine per week is difficult to believe as is his estimate of having made $20,000 in the year before the shooting and saving $10,000 of it. “X”‘s pimping claims have a similarly flamboyant character: he told Mr.

Gouthro he became involved in pimping at the age of 15, and on three occasions went to Moncton and Ontario with others to deliver girls for the purposes of prostitution. [68] “X”‘s father, asked about these claims found them hard to believe in light of the fact that when “X” didn’t come home at night he would get a call from “X”‘s mother to go and look for him in the community. “XX” testified: “Nothing goes on in [“X”]’s household that I don’t know about from my daughter, son, or [“X”‘s mother.]” [ 66 ] “X”‘s response to being confronted by Stephen Gouthro about the increasing seriousness of his anti-social and criminal activities, was flippant, dismissive and immature: “More serious?

I wouldn’t say more serious. It was getting better. I was making money.” [69] [ 67 ] In the

section 34 psychological assessment Mr. Gouthro commented on “X”‘s willingness to boast about and glamorize criminal activities he purported to have engaged in. He described it as “concerning” that “X” was “so willing to portray himself in such a negative light” and viewed it as possibly being accounted for by “immaturity and a degree of impulsivity.” [70] [ 68 ] Mr. Gouthro noted in his testimony that at times during the assessment “X” “seemed over the top…He enjoyed being interviewed, talking about his exploits. I had to be careful that I wasn’t taking everything at face value.

There was probably a degree of embellishment and exaggeration of his pro-criminal activities by him.” He testified that “X” engaged in “a bit of grandiosity” in his narratives about his criminal history. [ 69 ] The opinion Mr. Gouthro formed of “X” was very negative. He described his impression of “X” as “a highly anti-social, self- assured young man who is arrogant, has a sense of omnipotence and is typically indifferent to [the] welfare of others.” [71] [ 70 ] “X”‘s father, “XX”, has seen a positive change in “X” since he was remanded into custody.

He said: “He’s a different kid now than before he went in.” He described this in terms of how “X” “conducts himself, how he talks to people.” Mr. Nickerson seemed to

acknowledge “X”‘s relative immaturity at the time of the shooting when, in cross-examining “XX” he pointed out, as an explanation for the changes “XX” has seen in his son, that “X” is 18 months older now. [ 71 ] “X” told Peyton Harris during his interview for the psycho-educational assessment that when he arrived at Waterville he had been “burnt out” from drug use and partying and that it took him “9 months to realize that he gotta do something different.” [72] That being said, it is Ms.

Harris’ opinion that “X” “demonstrated little understanding of how his marijuana use potentially interfered with his ability to learn and perhaps his motivation to succeed at school.” [73] [ 72 ] “X”‘s failure, prior to the shooting, to take advantage of opportunities and supports, and his disengagement and withdrawal, for example from the Youth Advocacy Program, points strongly to an immaturity in his thinking and choices. This is revealed in the excerpt from a letter written by “X” to the Youth Advocate Program, an excerpt included in Ms. Thorpe’s October 2 report.

She noted that in July 2014 “X” had written: Tell Helen [“X”‘s first Youth Advocate Worker] I know she still cool and the YAP was a great opertunity (sic). At the time I ain’t know it, but something always has to happen to make you think. I hope when I get out I can be part of the program.

If not, I’m thankful y’all try to help my life… I respect your support. [ 73 ] I note that the goal of the Youth Advocacy Program is to “prevent youth from engaging in gang related activities, antisocial and criminal behavior while enhancing public safety.” [74] It is these goals that “X” disassociated himself from when he disengaged from the YAP. Now that a catastrophic event has caused him to think, he may have started to grow up and see the value in the program’s pro- social objectives. Ms. Thorpe, interviewed for the

section 34 psychological assessment, expressed her opinion that “X” has done “a lot of reflecting and has matured.” [75] [ 74 ] It is difficult to know, given “X”‘s noted tendency to be manipulative and calculating, whether his professed recognition that he needs to change and avail himself of opportunities, previously spurned, to make better choices, is genuine or part of an ongoing effort at “impression management”.

Stephen Gouthro sounded a caution with respect to “X”‘s personality testing results, noting that his score on Impression Management was in the above average range. [ 75 ] All this evidence indicates to me that in April 2013, “X” was an immature 16 year old who was associating with negative peers and taking advantage of the inability of his parents to more effectively supervise him. But the issue of character in the analysis of the Crown’s application is about more than whether a young person has shown evidence of bad character. It is also about the nature of the young person’s character.

In the case of “X”, the profile of his character is more complex than his anti-social behaviours suggest. This was identified by Robert Wright, whose evidence I will be discussing. His youth mentor, Otis Daye, was interviewed for the

section 34 psychological assessment and also described a teen who was struggling within himself. The changes he observed around the time “X” started junior high were not positive: he felt “X” was “giving in to his friends and outside influences.” Mr. Daye identified the manipulative side of “X”‘s character but also said the “real” “X” is “compassionate, smart and sensitive.” [76] Remorse [ 76 ] The professionals who assessed “X” for the

section 34 psychological assessment – Stephen Gouthro and Sarah Rafuse – and Dr. Chris Murphy, who prepared the psychiatric report, view “X” as lacking remorse for shooting “Y” While there is a basis for their opinions, “X”‘s statements to others and to the Court at sentencing suggest some deeply conflicted feelings. [ 77 ] Stephen Gouthro described “X” as having quite a hardened view of his attempt to kill “Y” He testified that at one point “X” told him “Y” deserved it. Mr. Gouthro understood that “X” still believed what he had done was necessary and justified. It was Mr.

Gouthro’s evidence that “X” “… Really didn’t think he’d get caught: he didn’t think people would talk.” [ 78 ] When asked about this, “X”‘s father testified that he “… just can’t believe [“X”] would say that.” However in the

section 34 psychological assessment Mr. Gouthro details “X”‘s statements to him justifying the shooting very explicitly, including “X” telling him: “The fucker had it coming.” He also reported “X” telling him: “They were coming after me. I’m protecting myself.” [77] But “X” also told Mr. Gouthro he was happy “Y” hadn’t died and that he wished he had not shot him. Discussing the shooting with Mr. Gouthro, he said he had a shower after the shooting because he felt “dirty”, not to get rid of evidence. This suggests “X” was experiencing shame over the terrible thing he had just done. [ 79 ] Sarah Rafuse noted that Rev. Mike Veenema, interviewed for the

section 34 psychological assessment, said “X” had no remorse and was concerned instead about the consequences the crime had for him. This is not mentioned in Rev. Veenema’s letter [78] , written 7.5 months after Ms. Rafuse interviewed him. [79] [ 80 ] Dr. Chris Murphy testified that his statement that “X” “has shown a genuine lack of remorse or guilt” [80] was based on his observations of “X” Dr. Murphy testified that “X” justified the shooting to him by saying he had felt his life was in danger. When Dr.

Murphy suggested he could have just left the area, “X” told him that the confrontation with “Y” was something that would have happened “sooner or later.” [ 81 ] “X”‘s Youth Advocate Worker has had ongoing contact with “X” since he was remanded to Waterville. They have corresponded and had several face-to-face meetings. In her October 2 report [81] , Ms. Thorpe has indicated: “During my visit with him in March of this year he admitted that he regretted his actions, a confession that came unbidden and was unprompted.

He also told me during a recent visit that he regretted how his actions had affected the children who were in the basketball court at the time of the shooting.” [ 82 ] “X” went further than that when he addressed the Court on October 31 at the end of his sentencing hearing.

He admitted that what he did was wrong and apologized “to the people of the community of “…”, all the communities that were affected.” He said he “truly and honestly” regretted his actions and acknowledged owing “a major apology” to “Y”’s parents, “if it means much.” He went on to say the following: I made a big mistake, you know, shooting “Y: and it affected not only me, not only him, but our whole family and it is a mistake that l

learned from. And I also want to apologize to my parents because I know this disappointed them. They probably didn’t expect me to do something like this. I didn’t expect me to do something like this and in the end, it happened.

And from this point, I feel like the only thing I could do now is to move on from what happened and try to make a positive change for the better of me, for the benefit of “Y”’s grandmother, my father, my mother and my family and to him, if he were here, I would be like, I want to apologize, but somewhere in my mind it says it’s too late…I am sorry to him because at the time I don’t know where my mind was, it was just like, okay, you’re in a situation, let’s do something, and now it’s like, where do we go from here.

I feel like the best thing we could do is help other people so they don’t make the same mistakes that we made. I feel like the best thing I can do, right now, is help people and help [hope] that they don’t make the same mistake that I made.

I mean, someone once told me that your future starts with the decisions you make today and no matter what happens I’m going to try my best to make positive choices in my life and hope that everyone who’s been affected from my actions can recover and live a happy and successful life. [ 83 ] I was not convinced by “X”’s statement in court that he yet feels true remorse for shooting “Y” It is not “Y” he referenced first: “Y” was down on the list of people “X” spoke about having hurt and disappointed.

Robert Wright, asked about his interview with “X”, testified that “X” did not reflect on how the shooting will have affected “Y” I suspect “X” continues to harbour a belief that he had some justification for what he did, even if he recognizes now the harm he has caused. But that is what rehabilitation is for: we don’t often sentence people who have been fully rehabilitated. What we craft as a sentence is intended to address issues that remain outstanding and contributed to why an offender is before the courts.

Good Intentions or Manipulation? [ 84 ] The more recent reports/updates concerning “X” indicate apparent pro-social and positive impulses and interests. For example, Ms. Thorpe described how “X” “expressed a desire to help his community by doing work similar to” the youth advocacy work she does. In one of his letters he told her: “I don’t want to tell you how to do your job, but get these guys in programs; get them active in and out of the community.” She said he wanted to “embrace positive change and transform a tragic decision that he made as a young person;

an act that he maintains “won’t define [him].” [ 85 ] Another positive report comes from Rev. Michael Veenema, the chaplain at Waterville. [82] Rev. Veenema has described “X” as “a strong participant” in the chaplaincy programs offered at Waterville. He has completed programs and continues to attend church very regularly. He consistently meets with Rev. Veenema, often once per week. He appears to take an active interest in church services, suggesting “music/rap videos that are appropriate for raising important topics during church.” Rev.

Veenema notes that “X” has displayed dozens of photos, a certificate from the chapel, and prayers or similar Bible passages in his cell, “indicating that family and faith are important to him.” Rev. Veenema concludes his observations with the following: [“X”] has remained respectful all the time I have known him, about a year and a half. He continues to be articulate and to demonstrate leadership skills. I hope [“X”] will one day become a pastor or chaplain. [ 86 ] “X” has also been a consistently positive participant in music therapy. He self-referred to the music therapy program at Waterville in September 2013.

Brenda Johnson’s report [83] describes “X” as “an engaged participant of therapy, consistently respectful, cooperative and views music therapy as a safe place to improvise, express and generally explore his experiences.” He engages in “reflective and narrative discussion about his material” and its themes of “values, trust, beliefs and evaluating change.” Ms. Johnson notes that “X” “can speak about family, struggles for money, mistakes and loyalty. He expresses a desire to “let go of his past.” She has observed “a progression of reflection” in “X” since she started working with him. Interviewed for the

section 34 psychological assessment, Ms. Johnson advised that she believes “X” “is starting to put serious thought into what he needs to change in his life and appears to be moving in a positive direction.” [84] X’s Background and Prior Record [ 87 ] A young person’s background and prior record are important factors to be considered in assessing a Crown application for an adult sentence. A significant feature of “X”‘s background is the fact that he is an African-Nova Scotian youth. I will be discussing the relevance of his race and culture in a separate, dedicated

section of these reasons. What I am going to describe now is the evidence from various sources concerning his upbringing, certain traumatic events, and his prior involvement in the criminal justice system. [ 88 ] “X” has grown up living with his mother and siblings. His father has played a role as a disciplinarian when “X”‘s mother was having difficulty getting “X” to comply with household rules, such as a curfew.

While his father has been engaged and seems to have a good understanding of his son’s issues and difficulties, he does acknowledge the need to have a greater involvement with his son, given “all that’s happened.” [ 89 ] One of “X”‘s older brothers and his father have served time. “XX” served a jail sentence for domestic assault when “X” was 8 years old. He has had no further problems with the law since then. [ 90 ] Both parents have worked full-time. The

section 34 assessment notes that “X”‘s mother seemed to have had “little awareness of “X”‘s anti-social activities and negative peer influences identified by several other collateral sources.” She was very familiar with the difficulties her son experienced at school and the interventions that were employed to address his behavioural issues. [85] The assessment credits “X”‘s father with providing a portrayal of “X” that is “a more detailed account of [“X”]’s defiant attitudes and anti-social behaviour.” [86] For example, “XX” indicated during his interview for the

section 34 psychological assessment that “X” had been drinking and smoking marijuana on a regular basis for several years prior to the shooting. [87] “X” confirmed this when interviewed by Stephen Gouthro. [88] [ 91 ] “X” has experienced some trauma in his young life: when he was a small child his family home was badly damaged by fire; he suffered the death three years ago of his maternal grandfather which his mother says left him “heartbroken”; and two years ago, there were two separate incidents of shots being fired at his home. “X” was at home on both occasions when the shootings occurred.

The RCMP conducted an investigation but no one was charged. The incidents led to the decision by “X”‘s parents to send his twin sister to live with his father. [89]

[ 92 ] On August 12, 2011, “X”, then 14, was the victim of a serious stabbing. He underwent emergency surgery for repair to two wounds, one to his hip and one to his lower chest. The discharge

summary, referenced in the

section 34 psychological assessment [90] , indicated the following wounds: right hip laceration, right posterior lateral chest wall injury, pneumothorax, diaphragmatic injury and liver laceration. “X” recovered well and was discharged from hospital on August 17, 2011. He did not want anyone charged and claimed not to know who had stabbed him. “X”‘s mother believes he did know but did not want the person charged. [91] [ 93 ] “X” told Stephen Gouthro that the stabbing strengthened the bonds with his closest friends. [92] In Mr.

Gouthro’s opinion, “it likely increased [“X”]’s vigilance and readiness to react to a real or perceived threat…That experience has likely helped shape [“X”]’s world view and attitudes toward violence.” [93] I find that to be a significant statement that provides important context for better understanding “X” and the shooting. [ 94 ] There is nothing in “X”’s prior record [94] that approximates the violence he perpetrated in attempting to kill “Y” [95] To establish the facts of “X”’s prior convictions, I listened to the record of the proceedings from his sentencings on November 23, 2011, June 28, 2012 and April 25, 2013. [ 95 ] On April 29, 2011, when he was 14, “X” committed an assault causing bodily harm.

At his sentencing, “X” admitted to having punched the victim in the face, knocking him to the ground and kicking him once. Other young people then assaulted the victim but “X” denied playing any role in these further assaults. The victim sustained a concussion which led to headaches and limitations on his normal activities and a broken nose which required surgery. [ 96 ] On November 17, 2011, “X” grabbed an iPhone from the victim’s hands when she entered a Metro bus terminal. CCTV footage of the incident led to “X”‘s identification and arrest.

The phone was recovered. [ 97 ] “X” was sentenced on November 23, 2011 to 12 months’ probation for the assault causing bodily harm and the theft of the iPhone and 15 hours of community service. [ 98 ] A pre-sentence report was prepared for “X”‘s November 23 sentencing on the charges of assault causing bodily harm and theft. [96] In the report, “X” indicated that both his parents were aware of his offences and were very disappointed with him. His mother said he was doing very well at home and had not got into further trouble. He was playing basketball with the “…” Basketball Association and doing well at school.

It was his mother’s view that “X” should have been permitted to have his charges dealt with through the Restorative Justice Program although she indicated her understanding that what happened was very serious. It was her opinion that “X” did not need any help and was capable of staying out of trouble. She told the author “he acted out of anger, which he does feel bad about.

I don’t think he will get into that type of trouble anymore, so I would say he has learned his lesson.” [ 99 ] “X” accepted responsibility for what he had done, advising that he felt bad and that “it shouldn’t have happened like that.” He reported that he put up with school but didn’t really like it. He had been suspended for five days in the previous year for fighting but said he had not had any suspensions since that incident.

He claimed to get along well at school for the most part. [ 100 ] The information obtained by the author of the pre-sentence report from the principal of “X”‘s junior high school was a good deal less positive. “X” had attended school for the first week in the fall of 2011, and engaged in behavior “which ended up being serious matters the school had to deal with.” “X” was described as “a leader [who] influenced his peers tremendously in a negative way.” “X” was placed on an extended school suspension. When he returned an agreement was reached between the school and “X”‘s mother that he should move to a new school.

His youth mentor at the time, interviewed for the

section 34 psychological assessment, described “a network of trouble” at “X”‘s junior high school, identifying “X”‘s friends from “…” being a factor in him getting into trouble. [97] [ 101 ] “X”‘s second sentencing occurred on June 28, 2012. He was given nine months’ probation and ordered to complete 20 community service hours for a theft committed on January 24, 2012. The original charge was robbery: the Crown accepted a guilty plea to the lesser included offence of theft.

The theft conviction qualified “X” for a conviction for breaching his November 23, 2011 probation order. [ 102 ] “X” committed the theft with two teenaged accomplices. The boys followed a woman off the bus, pushed her from behind on to the ground, kicked her and stole her bag containing her Blackberry Playbook, her wallet and other personal items.

Eventually all the items were recovered including the Playbook although after the theft it had been sold by the boys and the proceeds divided. [ 103 ] A pre-sentence report was also prepared for “X”‘s second sentencing, on June 28, 2012 for theft and breach of probation. [98] This report indicated that “X” had completed his 15 hours of community service work on June 4, 2012.

His hours included: taking the initiative to be a leader amongst his peers at an art expressions program; performing at the Elimination of Racism event; performing at the Cole Harbour Skateboard Park reopening; and participating as a panelist for the Peer Leader Forum. [ 104 ] “X”‘s mother was again interviewed. She indicated that “X” was doing well and said she was proud of him. She expressed the fact that she was not pleased with “X”‘s involvement in these latest offences but described him as progressing in a positive manner.

She said he was involved in the Youth Advocate Program and community activities and was playing sports. He had just completed his Grade 9 year and had been accepted into high school. [ 105 ] The change of junior high school in the fall of 2011 seems to have been positive for “X” The Acting Vice Principal indicated that “X” had been pretty disciplined since his arrival with only a few minor incidents. “X” was described as “holding it together quite well.” Academically he was described as “quite weak.” The pre-sentence report details steps that were being taken to assess and respond to “X”‘s educational needs.

These initiatives were seen by “X” as positive. The author of the pre-sentence report, Sarah Nagy, noted that: “[“X”] seems to feel welcome, supported, valued and even connected to his school and school community. Youth reported to YAW [Youth Advocate Worker] in February 2012, that he felt this was the first time his education mattered to anyone other than him.” [ 106 ] Ms. Nagy’s pre-sentence report also noted that “X” was working with a mentor (Otis Daye) on some musical initiatives and was recording some of his songs.

His mentor had facilitated “X”‘s participation in a local university radio show which had played some of his music. [99] Music was viewed as a pro-social activity with the potential to provide “X” with financial benefits. Other activities had included attending church with the “…” Community Worker and participating in the RCMP hosted Father and Son Camp earlier in the

spring of 2012. The RCMP officer involved described “X” as a positive, engaged and considerate participant in the weekend event. [ 107 ] In his interview for the pre-sentence report, “X” volunteered that his commitment to his peers was a risk factor.

The pre-sentence report states that: [“X”] “has what seems to be an intense commitment to his peers…[Youth Advocate Worker] is looking for additional strategies to support [“X”] and increase positive engagement and prosocial activities.” It was noted that “X” was building a support network for himself. [ 108 ] As for his offending behaviour, “X” admitted responsibility but expressed no remorse. [ 109 ] On April 25, 2013, “X” was sentenced to 12 months’ probation for assaulting a police officer on January 11, 2013.

He also earned a conviction for breaching a probationary condition to keep the peace and be of good behaviour which was a condition of the probation order he had received on June 28, 2012. The breach of probation charge arose out of “X” trying to intervene during the arrest of two robbery suspects. “X” told police he wanted to speak to one of the suspects, whom he said was his brother. He was told he couldn’t. When the police were distracted, “X” opened the door of the patrol vehicle where one of the suspects had been placed. A police officer reacted quickly and closed the door. “X” was arrested.

During his arrest, “X” pushed the arresting officer in the chest with both hands and was charged with assault. [ 110 ] As indicated in the report of Youth Advocate Worker, Gillian Thorpe, in February 2013, “X” withdrew from the Youth Advocate Program. “X” also discontinued the involvement with his mentor, who was supporting “X”‘s musical aspirations. This was another unfortunate decision by “X” who is described by Ms.

Thorpe as “a talented rhyme-writer and performer.” [100] [ 111 ] Sarah Nagy, the author of “X”‘s pre-sentence report for his June 2012 sentencing, testified at this proceeding that she had found him to be really charismatic, charming and pleasant. He was easy to communicate with. When his behavior deteriorated in the latter part of 2012, Ms. Nagy referred him to the IWK Youth Forensic Services, with the support of his mother. As I noted earlier, “X” was not prepared to attend a meeting. Other Relevant Factors The March 28, 2014

section 34 Psychological Assessment [ 112 ] For the

section 34 psychological assessment, Stephen Gouthro administered a number of personality tests. These included the Million Adolescent Clinical Inventory (MACI), Resiliency Scales for Adolescents, the Beck Youth Inventories Second Edition (BYI-II), the Behaviour Assessment System for Children, 2 nd Edition (BASC-2), questionnaires about drugs and alcohol (HIT-D&

A) and self- serving cognitive distortions (HIT), Criminal Sentiment Scale – Modified (CSS), the Pride in Delinquency Scale (PID), and the Hare Psychopathy Checklist:Youth Version (PCL:YV). [ 113 ] Mr.

Gouthro interpreted the following from “X”‘s testing results: • “X” is “likely to be exploitative, self-centered, and indifferent to the welfare of others.” A lack of empathy may be present. “X”‘s profile described “a young man with a sense of omnipotence who may readily exploit and manipulate others to enhance and indulge himself….He desires the attention and approval of others and has become skilled in sensing what will please others….

The profile suggests that [“X”] readily engages in an active fantasy life in which he is able to readily rationalize school and social failures into successes.”(MACI) [101] • The MACI profile is “often associated with pervasive substance abuse issues…as an extension of [a] self-centred and stimulus seeking lifestyle.” [102] • “X”‘s Resiliency Scale scores suggest “X” portrays himself as “self-confident, receptive to support and not vulnerable to stress.” They also suggest he “sees himself as adaptable or able to learn from his mistakes.” [103] • “X”‘s scores on the various Beck Youth Inventory tests suggest he “enjoys healthy self-esteem”; does not perceive himself as frustrated, resentful, or angry, to any greater extent than other youth his age; and is experiencing some understandable levels of anxiety about his future. [104] • “X” indicates difficulties establishing and maintaining relationships and produced an “At Risk” score for anxiety suggesting “substantial worrying and an inability to relax.” [105] • “X”‘s responses on the HIT-D&A were inconsistent with what he reported during interviews about his drug and alcohol use. [106] “X”‘s HIT results were contrary to his behavioural history and what he reported during interviews about engaging in physical aggression (fights). [107] Mr.

Gouthro viewed these testing results as a reflection of “X”‘s “attempt to manage his image and present an overly positive view of himself.” Mr. Gouthro formed the opinion that: “those attempting to work with him should take into account that he will have great difficulty seeing things from others’ perspectives and that he is primarily motivated by self-serving interests.” [108] • While “X”‘s responses on the Pride in Delinquency Scale (PID) “indicated that “X” would expect to be extremely ashamed of all 10 of the delinquent behaviors identified”, Mr.

Gouthro rated these responses as inconsistent with “X”‘s statements in the interviews about his criminal activities and attitudes. Mr. Gouthro noted that “X”‘s responses on the Criminal Sentiment Scale-Modified (CSS) “indicated he was more willing to acknowledge negative attitudes towards the police, rationalization of criminal behaviour and affiliation with the pro-criminal peer group.” [109] [ 114 ] Mr. Gouthro used the PCL:YV to consider personality characteristics to be taken into account by treatment providers developing and orchestrating strategies for intervention.

He testified that the test has “very little long-term predictive ability.” He confirmed that it is not appropriate to use the test to draw conclusions of psychopathology in a teenager nor can the test be used to assess long-term treatment amenability. In the

section 34 psychological assessment he referred to “X”‘s PCL:YV scores as portraying [“X”] having the following personality characteristics: “a highly manipulative young man whose initial presentation should not be taken at face value…Such

youth…tend to respond better to approaches emphasizing building behavioral controls and coping strategies rather than insight. Youth with similar scores are often hedonistic and highly self-centered. They are most strongly motivated by what serves their needs and typically show little regard or concern for others.” [110] [ 115 ] Mr. Gouthro found that “X” meets the criteria for Conduct Disorder, Adolescent Onset type (Severe). In Mr. Gouthro’s opinion, “X”‘s apparent lack of remorse and empathy appears to also qualify him for the specifier of Conduct Disorder with limited pro-social emotions. [111] Mr.

Gouthro noted that “X” “accepts little responsibility for his own actions.” When discussing his previous convictions, [“X”] consistently dismissed, distorted or rationalized his involvement. When confronted with contradictions between his version of events and the evidence that resulted in convictions, he presented as indifferent, showing no embarrassment.” [112] [ 116 ] Mr. Gouthro acknowledged in his testimony that long-term risk is difficult to predict. Furthermore, the

section 34 assessment states explicitly that: “The following assessment of risk should only be considered valid for one year after the date of this report. If there is a significant change to this young person’s clinical presentation, or family and educational/vocational characteristics within a year of this report, then this assessment of risk should be considered invalid.” [113] [ 117 ] Using the Structured Assessment of Violence Risk in Youth (SAVRY), Mr. Gouthro assessed “X”‘s overall risk for violence as falling within the high range. It was Mr.

Gouthro’s opinion that most of “X”‘s violence has tended to be “instrumental and goal directed” rather than as a result of emotional dysregulation. [114] Mr. Gouthro testified that “X” is “not ruled by emotion.” Using the Youth Level of Service/Case Management Inventory, 2.0 (YLS/CMI 2.0), Mr. Gouthro assessed “X”‘s risk for general criminal recidivism as falling within the moderate range in comparison with youth in custody and in the high range compared to youth in the community.

Both the violence risk and general criminal recidivism risk assessments are based on no meaningful interventions being undertaken to manage “X”‘s risk. [115] [ 118 ] Mr. Gouthro identified a number of dynamic factors in “X”‘s case that “are contextual, situation dependent and can be amenable to change over time if addressed through treatment or by altering the environment.” These factors are in the social/contextual category - peer delinquency; poor parental management; and community disorganization.

In the individual/clinical category, they are - antisocial attitudes that condone crime and violence; risk-taking and impulsivity; substance use difficulties; low empathy/remorse; poor compliance with intervention/supervision; low interest/commitment to school. [116] “X”‘s intelligence and self-confidence and his strong social skills are strengths that can mitigate the effect of his risk factors although, Mr. Gouthro viewed “X” as having “frequently applied those strengths toward a criminal purpose.” [117] [ 119 ] In Mr.

Gouthro’s opinion, a risk management plan for “X” should include: “exploring and challenging his anti-social attitudes and values, and discouraging his affiliation and socialization with anti-social peers.” [118] Other issues to be targeted are: substance abuse, callousness and lack of empathy. Rehabilitation will require “sustained effort and the likely collaboration of family and other system participants” involved with supervision, education, therapy, and mentoring. [119] [ 120 ] Mr. Gouthro is of the opinion, as expressed in the

section 34 psychological assessment, that “X” will “likely…require years of intervention to significantly reduce his risk for re-offending.” He testified that it was his impression that “X” will be “extremely difficult” to engage because he is comfortable with who he is and what he’s done, has questionable motivations and firmly entrenched attitudes and values. Mr.

Gouthro views a maximum youth sentence of three years as of insufficient length to effectively reduce or manage “X”‘s risk “in a meaningful way.” [120] It was his evidence that “X” will have to be subject to a lengthy enough sentence that he is inconvenienced into thinking “there has to be another way…Given his personality, it has to be about him coming to the view that things are not working for him.” [ 121 ] The

section 34 psychological assessment concludes with a number of recommendations [121] , formulated by Mr.

Gouthro, Sarah Rafuse, and Peyton Harris: • That “X”‘s sentence afford a consequence that is meaningful enough to encourage him to reconsider his commitment to a pro- criminal lifestyle and its associated values; • That “X” be “strongly encouraged to participate in therapy directed at exploring, challenging and restructuring his pro-criminal, pro-violence and misogynistic attitudes and values.” • Family members or those responsible for his supervision should be involved in “X”‘s rehabilitation to provide a reality-check against “X”‘s tendencies to minimize and distort. • A case manager should be assigned to oversee “X”‘s rehabilitation and risk management planning. “Such a role may provide a degree of objectivity to maintain expectations, coordinate services and support service providers in their efforts.” • Academic and/or vocational training should be encouraged and supported. • Pro-social recreational and leisure opportunities should be explored and encouraged. • “X”’s placement at Waterville should be contingent on his ability to benefit from the programming and services available there, as well as the nature of his influence on other youth. • Substance abuse counselling. • Community re-integration should provide structure and clear accountability. “The development of a pro-social support network should be given high priority” as “X” must distance himself from pro-criminal influences. • Enhancement of “X”‘s independent living skills, e.g. budgeting, securing and maintaining employment, and life skills, e.g. pro- social activities, adaptive problem-solving skills.

[ 122 ] Mr. Gouthro agreed that programming available at Waterville could positively motivate “X” and help address issues such as low empathy and remorse and assist his rehabilitation and reintegration. He emphasized that pro-criminal attitudes and values are difficult to address and the process of change requires the youth being prepared to do the heavy lifting. The March 28, 2014 Psycho-Educational Assessment Report [ 123 ] The psycho-educational assessment was prepared by Peyton Harris, a school psychologist. She spent a couple of days with “X” in February 2014 – February 10 and 18.

She interviewed eight school collateral sources, looked at “X”‘s school history and behaviour, and conducted testing. [ 124 ] “X”‘s school history shows evidence of lack of focus, behavioural issues, and academic difficulties associated with both.

A “very hyper” student, “X” was part of a group of boys in Grade 6 who were all “extremely physically active, loud, and vocal”, at times “argumentative” and apt to engage in “fights.” The overall impression of the Educational Program Assistant (EPA) assigned to the group was that they were “real busy boys, not hostile or horrible.” Their “bickering” at times led to physical aggressive rather than “talking it out.” [122] [ 125 ] “X”‘s behaviour – aggression and physical violence – began to earn him suspensions in Grades 5 and 6.

In Grade 7 it was noted that his difficulties “working within classroom routines and meeting academic expectations… lead to frustration and anger.” [123] He was suspended for physical violence on four occasions, involving assaults on other students.

Suspensions continued through Grade 8 and at the beginning of Grade 9. [124] [ 126 ] A youth mentor who started working with “X” in Grade 5 noted that “X” was a charismatic presence in the classroom and had the ability to “diffuse situations with other students or add fuel to the fire.” He tried to draw on “X”‘s strengths and engage him to focus them in a positive way. [125] [ 127 ] School attendance had become a problem for “X” at the start of junior high and continued through Grade 9. He attended Grade 10 until he was taken into custody in April 2013. He acknowledged to Ms.

Peyton that he had not taken school seriously. “I understood school was important but didn’t give the push I needed… I was okay with half-assed.” He admitted to selling drugs at his high school (“marijuana, ecstasy, MDMA”) and to having sold marijuana during Grades 8 and 9. [126] [ 128 ] Ms. Harris noted that “X”‘s involvement in using and selling drugs, including at school, interfered with his ability to concentrate on his academic responsibilities. He told Ms. Harris he was focused on “drugs, girls and money.” He admitted to smoking marijuana at high school: “in the morning and lunch I was smoking weed.

I was just chilling out. I was high all day.” He partied and socialized a lot and would sometimes “sleep in class.” [127] [ 129 ] According to Ms. Harris, many collateral sources saw “X” as a very bright, capable young man (when he applied himself) whose behaviour had a direct impact on his academic performance. In Ms. Harris’s opinion, “X” could be successful at university with some accommodation, for example, more time to complete examinations. [ 130 ] Ms.

Harris herself found “X” to be “pleasant, polite, and animated…” She noted that he is articulate and presents “well orally.” He can be dramatic but showed “no overt signs of restlessness” during the assessment. [128] Ms. Harris reported that the results of “X”‘s cognitive assessment suggest “he has the underlying potential to succeed academically.” She described “X”‘s test results as indicating that he “is a fluent reader who generally understands what he reads.” [129] His areas of weakness are “processing speed and visual-motor integration” and mathematics and Ms.

Harris concluded that “X” has “a Mild Learning Disability in the areas of processing speed and visual-motor integration.” [130] [ 131 ] It was Ms. Harris’s opinion based on the results of “X”‘s psycho-educational testing that he would be a good candidate for insight- based therapy. (I note that Stephen Gouthro assessed “X” as “likely to be a difficult candidate for talk-based therapy” [131] which he testified is insight therapy.) Ms.

Harris also noted that “certain aspects of [“X”]’s personality and belief system will make him challenging to engage in therapy in a meaningful way.” [132] She testified that “X” has the cognitive ability to learn and a good potential to succeed if his risk factors are addressed. [ 132 ] Ms.

Harris concluded her report with the following comments: “It is this writer’s hope that [“X”] will make the choice to actively pursue treatment for his criminogenic needs while he is in custody, so he will be in the best position to benefit from the support of school personnel and other service providers upon his eventual release. He is a bright young man with much potential should he choose to channel it in a pro-social direction.” [133] She recommended: individual therapy; individual addictions counseling; consultation by Ms.

Harris with teachers at Waterville; and addressing “X”‘s processing speed difficulties, visual motor integration problems, and mathematic difficulties. Ms. Harris also recommended that “X” be encouraged to become involved in pro-social activities such as music, dramatic arts, and athletics, given “X”‘s abilities in these areas. [134] The June 4, 2014 Psychiatric Assessment [ 133 ] The psychiatric report prepared by Dr. Chris Murphy of the IWK assessed “X” to have a Severe Conduct Disorder – Adolescent Onset. [135] Dr.

Murphy described this diagnosis as “a disruptive behaviour disorder characterized by “… a repetitive and persistent pattern of behaviour in which the basic rights of others or major age-appropriate societal norms or rules are violated.” Dr. Murphy went on to note: These behaviors are grouped into the domains of aggression, destruction of property, deceitfulness or theft, and serious violations of rules and must cause clinically significant impairment in social, academic, or occupational functioning.

While there is some suggestion of disruptive behavior in [“X”’s] early childhood, behaviors consistent with conduct disorder only emerged in adolescence. [136] [ 134 ] It was Dr. Murphy’s assessment that at the time of his remand, “X” met criteria in the domains of aggression, deceitfulness and theft. It is Dr. Murphy’s opinion that “X” “continues to demonstrate some features of conduct disorder despite being in a highly controlled environment” and therefore “a current, active diagnosis of conduct disorder continues to be warranted.” [137]

[ 135 ] Dr.

Murphy viewed “X” as also meeting criteria “for the specifier of conduct disorder with limited pro-social emotions”, basing this opinion on “X” having “minimized or denied his involvement in past offences” and his “lack of remorse or guilt…a history of manipulative and exploitative behaviors towards others and the majority of his peer relationships [tending] to be fairly superficial or centered around antisocial or criminal behaviors.” [138] [ 136 ] Given that “X” pleaded guilty when previously in Youth Court, prior to the shooting of “Y”, I find it is not entirely accurate to say that he has “minimized or denied” his involvement in past offences. “X”’s denial to Dr.

Murphy of involvement in crimes – pimping – that he made claims to Stephen Gouthro about raises more questions than it reveals. “X”’s claims are unsubstantiated; his father testified that the family had seen no evidence of “X” being engaged in extra-provincial pimping and the transport of young women for prostitution, activities that would have required him to be away from home. It is distinctly possible that “X” may have been exaggerating his lawlessness, seeking to embellish a “gangster” profile and being too immature to recognize the harmfulness of portraying himself in this light. [ 137 ] Dr.

Murphy also diagnosed “X” with Cannabis Use Disorder, noting that “X” described an entrenched pattern of daily cannabis use “which may have perpetuated and further contributed to his long-standing academic difficulties.” It was noted by Dr. Murphy that “X”’s drug-dealing in the community and at school had helped to support his habit. [ 138 ] It was Dr. Murphy’s conclusion that there was no evidence to support a diagnosis, past or present, of a major mood, anxiety, or psychotic disorder. [139] [ 139 ] Dr.

Murphy made recommendations [140] for: • Individual or group counselling “to address “X”’s substance use and associated lifestyle choices”, stating that such counseling “should be considered as part of the rehabilitative process and may contribute to a reduction of the risk of reoffending once in the community.” • “X”’s participation “in interventions targeting his antisocial attitudes, encouraging the avoidance of antisocial peers, and development of pro-social living skills.” Dr.

Murphy cautioned that treating clinicians should be aware of “X”’s “limited empathy, and tendency to engage in manipulative behavior and impression management.” • “Active follow-up and gradual reintegration into the community” to “increase the chances that any observed improvements in behavior will translate into lasting, meaningful change.” Dr. Murphy noted that although “X” “has multiple potentially redeeming factors, including interpersonal skills, charisma and intelligence, interventions to date have been unsuccessful in altering his life trajectory.” [ 140 ] According to Dr.

Murphy, “X”’s age makes it difficult to “prognosticate his trajectory going forward” without knowing how genuine or sustained “X”’s efforts will be to engage in programming. He noted that this is the first opportunity “X” has had to access in- custody programs. He testified: “There’s an age [before mid-20’s] where the personality structure isn’t fully formed yet and there is the chance for intervention or…improvement of the symptoms.” It was Dr.

Murphy’s evidence that “X”‘s personality will be revealed over time by “his pattern of behaviours going forward and his level of engagement with treatment…” He agreed with Ms. Thompson that “X” should be encouraged to avoid anti-social peers and that pro-social skills can be developed through programming. [ 141 ] Dr. Murphy acknowledged that his assessment of “X” did not address his race and culture. “X”’s Behaviour and Progress in the Nova Scotia Youth Facility in Waterville [ 142 ] As noted at paragraphs 84 to 86, “X” has done well in programming at Waterville.

In addition to positive participation with the chaplain and in various programs (substance abuse,

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