2019 MBPC 20, 2019 MBPC 20

2019 MBPC 20 THE PROVINCIAL COURT OF MANITOBA (Gimli) BETWEEN Her Majesty the Queen ) R. Gosman for the Crown ) - and – ) ) B.W. ) S. Simmonds for the Accused (Young person) ) ) ) Decision on Sentence Judgment delivered: ) April 3rd, 2019 M. P. Thompson, P.J. RESTRICTION 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). Introduction [ 1 ] B.W., who had just turned sixteen-years-old at the time of this offence, is charged under the Youth Criminal Justice Act as a young person.

Originally charged with second-degree-murder, the Crown laid a new charge of manslaughter and accepted his guilty plea to manslaughter for the stabbing death of 18 year-old Evan Engbaek in Gimli on July 25, 2017. [ 2 ] The Accused has been held in custody since his arrest on July 27, 2017. [ 3 ] At the sentencing hearing on January 9 th , 2019 the following documents were filed as Exhibits: S-1. Investigative

summary and agreed facts; S-2. Youth Gladue Pre-Sentence Report; S-3 Two Youth Forensic Reports on B.W. - from Dr. Therrien dated September 18, 2017 and from Dr. Chaze dated October 11, 2018; S-4. Autopsy Report; S-5. Toxicology Report of the Victim; S-6. Crime Scene photographs; S-7. Defence Book of Sentencing Materials, which included four case precedents, a Risk Assessment on B.W. by Gerry Goertzen and twelve letters of reference; S-8. Resume of Gerry Goertzen. S-9. Four Case precedents filed by the Crown; S-10. Thirteen Victim Impact Statements; and S-11.

Photographs of B.W.’s injuries. [ 4 ] In addition to these documents, the Court received sentencing submissions, listened to Victim Impact Statements and heard from B.W.. The Court reserved its decision on sentence until today. Crown Position on Sentencing

[ 5 ] The Crown sought a further period of secure custody, in addition to the time in custody the accused has already served. In support of its request for additional custody, the Crown argued that an appropriate sentence should reflect the gravity and seriousness of this offence. Defence Position on Sentencing [ 6 ] Defence submitted that an appropriate sentence was the time spent in pre-trial custody. The Defence requested enhanced credit at 1.5 days for each day in custody.

In the alternative, Defence requested a short transition period of open custody. [ 7 ] Since those submissions were made, the Accused has now spent an additional 84 days in custody, or nearly 3 months. As of today, the accused has spent 615 days of actual time in custody. At 1.5 credit, it totals 922 days, the equivalent of 30 months and 3 weeks.

Principles of Sentencing [ 8 ] Sentences for manslaughter can range greatly, depending on the circumstances of each case and the moral culpability, or blameworthiness of the offender. [ 9 ] Because the Crown does not seek an adult sentence, the applicable sentencing principles are contained in the Youth Criminal Justice Act , which are unique to young persons. [ 10 ] As stated in R. v. D.

L . (No. 3), 2005 ONCJ 386 , a 2005 decision of the Ontario Court of Justice: 20 First, quite apart from any statutory provisions, it appears to be almost universally accepted that youth should be treated differently from adults in respect of punishment for crime. Their degree of responsibility and blameworthiness is less because of their immaturity, their susceptibility to negative influences, and their natural tendency to impulsive ill-considered behaviour.

Further youthful offenders possess greater potential for rehabilitation because their character is not well formed and there is greater chance that deficiencies can be corrected.

These factors lead to the accepted conclusion that youth sentencing should be less severe than for adults and that the emphasis should be placed on rehabilitation. 21 On the other hand, youth are not completely lacking in the capability of moral judgement and must be taken to bear responsibility, albeit to a lesser degree, for their choices and actions which, at times, can cause very great harm. [ 11 ] In recognition of these factors, Parliament has set a maximum penalty of three years combined custody and conditional community supervision from the date of committal for the offence of manslaughter pursuant to S. 42(2) Youth Criminal Justice Act (The Act). [ 12 ] As my late colleague Judge Meyers determined in the case of R. v.

B.W.P., 2003 MBPC, the YCJA does not mandate that two thirds of any sentence imposed pursuant to section 42(2)(

o) of The Act must be served in custody. The Court has discretion to determine the proper amount of custody. In B.P.W . the Court imposed a one-day open custody sentence, which was the day sentencing took place, followed by 15 months of conditional supervision and a further one-year of supervised probation. [ 13 ] Judge Meyer’s approach to interpreting section 42(2)(

o) was affirmed as the correct one by the Supreme Court of Canada in an appeal of his decision. In R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941, 2006 SCC 27 , the Court stated the following at paragraph 43: Section 42(2)(

o) only applies to offences of manslaughter, attempted murder and aggravated sexual assault. Under its terms, the custody and supervision order cannot exceed three years; however, there is no restriction on what part of the time can be spent in a custodial setting. Indeed, nothing is said about the respective duration of the custody and supervision portions of the order. [ 14 ] The Court has discretion as to how much to credit a young person for pre-sentence custody. It can vary from no credit, to 1-1 credit, to 1.5 days for each day served, which is typically the case for adults.

This flexibility is contextual. [ 15 ] While the Court must take into account the time spent in custody, it does not form part of the formal sentence, which only commences once imposed. [ 16 ] Time in custody is not one of the available sanctions found in

section 42 of The Act . The Manitoba Court of Appeal in the case of R. v. T. (G. A.) , 2007 MBCA 88 , ruled that time in custody or time served does not form part of the disposition in a youth case. [ 17 ]

Section 38 of The Act sets out the purposes and principles of a youth sentence are 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 their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 18 ] A Court that imposes a youth sentence on a young person must determine the sentence in accordance with the principles in section 38(2): (

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

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

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

(

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

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

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

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

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

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 19 ] Even though a young person who commits a violent offence is eligible for custody, section 39 (2) sets out that a youth justice court shall not impose a custodial sentence unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles set out in

section 38. The Facts [ 20 ] The fact that a young man was killed on a main street in Gimli during broad daylight is undeniably tragic and senseless. As the Court heard the impact of Evan’s sudden death on family, friends and loved ones has been lasting and profound. In addition to their personal grief and loss, the community itself has felt a loss of its sense of safety and security. [ 21 ] The arrest report details the circumstances of the crime. To summarize, Evan was cycling downtown on his bike to buy a Slurpee on a hot day.

B.W. was sitting on a bench, waiting for a ride from his sister after he had just finished work, prepping food at a restaurant. It was a little after 1 pm. For no apparent reason, when Evan cycled by, insulting words were exchanged. [ 22 ] Other than the Accused, there are no known witnesses to the start of the fight and what caused it. [ 23 ] The accused’s recounting of this event is contained in his interviews with Gerry Goertzen in the Risk Assessment Report and Dr. Chaze in the Youth Forensic Report. [ 24 ] B.W. told them that Evan accused him of staring at him and insulted him.

B.W. replied with insults of his own. This sparked a serious fistfight between Evan Engbaek and the accused on the spot. [ 25 ] B.W. stated that he was an unwilling participant in the fight and told Evan he did not want to fight. The Crown has conceded that Evan was the aggressor in the fistfight. Although Evan was two years older, was 5’9, and weighed 193 pounds, he was smaller in stature than the accused. Evan was unarmed. [ 26 ] B.W. had a knife with him that he used to open potato sacks at work. He produced that knife and brandished it, before blows were struck, in an effort to scare Evan off.

Never the less, a fistfight ensued. During that fight, he stabbed Evan once in the chest. [ 27 ] The Accused has stated it was a reflex action to being punched and that he did not realize he had stabbed Evan as Evan rode off on his bike. It was only when he heard the ladies yelling for help and he saw Evan laying on the ground that he realized what he had done. [ 28 ] The wound had penetrated Evan’s heart. The injury was fatal. He died a short time later at the Gimli hospital. [ 29 ] The accused has admitted that introducing a knife into a fistfight was an unlawful act that lead to the death of Evan Engbaek.

In addition to the stab wound, Evan had abrasions and contusions to his face, arm hand and knees, some of which would have been caused when he collapsed and fell from his bike after being stabbed. [ 30 ] B.W. was in shock and fled after the fight. About two hours later, he posted to his snapchat account “I’m so sorry Lord, forgive me it was an accident, amen”.

[ 31 ] When Police arrested him for murder later that day, B.W. also had visible injuries. Photographs of his injuries were filed with the Court. He had a black eye, an abrasion to his right cheekbone as well as scrapes to one leg and arm. [ 32 ] The Accused declined to give a statement to Police and he was released without charge. [ 33 ] Two days later, on July 27, 2017, more witnesses came forward, including a group of teens who he met up with at a gravel pit on the day of the killing. They led police to the knife. We know from their evidence that B.W. was crying and could not believe he had stabbed someone.

He told them that he and Evan got in a heated argument. He told them Evan punched him and that he stabbed him in self-defence. [ 34 ] This new evidence resulted in the accused’s being re-arrested and charged for murder on July 27 th , 2017. [ 35 ] After the Crown conducted a review of the police investigation, interviewed witnesses and assessed the strength of their case, they laid a charge of manslaughter. In the context of this case, the manslaughter charge involved a homicide resulting from an unlawful act, the stabbing of the deceased by B.W..

The actions of the accused fell short of murder due to a combination of factors where the Crown could not prove beyond a reasonable doubt that he had the requisite intent to kill together with the accused’s admission that he used more force than was necessary for self-defense. The Court views the Crown decision to charge manslaughter, instead of murder, as the correct one. [ 36 ] On September 5 th , 2018, B.W. pled guilty to manslaughter. Similar Cases in the Region [ 37 ] Section 38(2)(

b) of the Youth Criminal Justice Act requires that the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offences committed in similar circumstances. [ 38 ] Crown and Defence counsel provided a number of cases for the Court to consider. [ 39 ] Cases provided from this region included: [ 40 ] R. v. N.A., a.k.a. N. T-S., 2018 MBQB 93 , a recent decision of the Manitoba Court of Queen’s Bench, dated June 6 th , 2018. In that case the accused was convicted of manslaughter at trial after stabbing another young man once, killing him.

He was credited with time spent in custody of 9 months. He was assessed as a very low risk to re-offend and the Court found that specific deterrence was not required. In considering denunciation, the Court considered that the accused did not initiate the confrontation, the victim was the aggressor wanting to fight. The accused obtained a knife to arm himself. He knew that the victim sometimes carried weapons.

At the time of the fatal stabbing, the accused thought the victim was reaching in his pocket for a weapon. [ 41 ] Because the Court determined he was a very low risk to re-offend, further custody was not required for the accused. In addition to the 9 months of pre-trial custody, he was sentenced to one day of open custody to be followed by a year of conditional supervision in the community. [ 42 ] On March 13, 2012, the Youth Criminal Justice Act was amended to include the twin objectives of denunciation and personal deterrence under S. 38(2)(

f) that were previously absent. The following cases provided by counsel were decided prior to this legislative change and must be viewed with that significant distinction. Those cases include: [ 43 ] R. v. M.D.C. , 2004 MBQB 47 , a 2004 decision of the Queen’s Bench Court in Winnipeg. The Accused entered a guilty plea to manslaughter. He was 16-years-old when he became involved in an altercation with his roommate. He was bothering his roommate who responded by starting a physical confrontation. The accused grabbed a knife and stabbed the deceased once in the upper left of his back.

The Accused initially left, but eventually returned to apologize and to see how the bad the situation was. The roommate eventually went into cardiac arrest and died. [ 44 ] In M.D.C ., the Accused had no prior record.

Based on the clinical interview and observations of the Accused, his psychological test results and his background, the doctor who assessed the Accused found the incident involving the deceased to be an isolated incident that was extremely out of character and inconsistent with the Accused’s prior history, orientation and values. [ 45 ] In M.D.C. , the court emphasized the rehabilitative potential of the Accused and that a custodial sentence would not be in his best interest and sentenced him to 2 years supervised probation. [ 46 ] R. v.

T.C.R., 2013 MBPC 63 , is a Provincial Court of Manitoba case in which I was the sentencing Judge. The accused was 17- years-old and pled guilty to manslaughter in a stabbing death in Shamattawa, Manitoba. The accused had no criminal record and was 19- years-old at the time of sentencing. He had many Gladue considerations, whereas the deceased was 39-years-old and had a lengthy record for crimes of violence. The victim was the aggressor and provoked the accused.

After determining that no further rehabilitation was required and that further custody was not required, the accused was sentenced accused to time served of six months custody and was placed on conditional community supervision for 6 months. [ 47 ] R. v. JES II , 2013 ONSC 4854 , is an Ontario Superior Court of Justice decision, from Thunder Bay. The 15-year-old accused was charged with second-degree murder and pled guilty to manslaughter. He stabbed the 17-year-old victim who was the aggressor, killing him. The accused had been sniffing gas at the time of the stabbing and did not want to fight.

The accused had many Gladue considerations. The accused served 6 months of pre-trial custody. The Court declined to give enhanced credit and instead gave 1-1 credit for the 6 months he had served. A further 3-months of custody was imposed, followed by 15 months of Conditional Community Supervision. Personal Circumstances of the Accused

[ 48 ] B.W. turned 16-years-old, twelve days before this offence. Three days before this offence, he was involved in another violent incident. The Court was not provided with the facts of that matter, as he had not yet been charged on July 25, 2017. Counsel did advise the Court that he pled guilty to assault causing bodily harm, and as of January 9 th , when I heard sentencing submissions, he had not been sentenced for that offence. [ 49 ] As of July 25, 2017, the accused had no prior criminal record.

The accused is now 17-years-old and will turn 18, later this year, and has spent the last 20.5 months of actual time in custody. [ 50 ] B.W. has accepted full responsibility for his actions. He has expressed shame, regret and remorse. He made an emotional apology for his actions in Court on January 9th. [ 51 ] A Pre-Sentence Report together with a Gladue assessment was prepared by a Youth Probation Officer to provide some background and insight into the offender. [ 52 ] Before coming into custody, he was living with his father and his fiancée.

He had moved there, from his mother’s home in Winnipeg in March of 2017, as she was having trouble controlling his behaviour. [ 53 ] When living in Winnipeg, he had been using drugs, spending time with some negative influences and could not find a drug intervention program suitable to him. His school in Winnipeg, had many dealings with B.W., but none of them were for major incidents. He had attendance issues, poor work ethic and was suspected to be using drugs. He was a follower, but not aggressive.

He was involved in one fight at school where he was suspended for a couple of days. [ 54 ] He was often running away from his mother’s home. CFS had initial contact with her and she wanted them involved for extra support regarding his drug use, but they closed their file. She also reached out to Metis CFS but they indicated that B.W. was well supported by his family and there was nothing more the Agency could offer so they did not become involved. [ 55 ] When B.W. first came to live with his father, it was rough in the beginning, as he did not want to listen to expectations.

He tried to skip school but his Aunt had friends who worked there and would advise her when he was not in class. His grandmother assisted in ensuring that B.W. attended where he was required to be. His behaviour started at home to improve and he earned his first job. [ 56 ] At school in Gimli, things did not go well. In May of 2017 he tried to challenge a student to a fight. Another incident took place in June 2017 when he was late for class and told to sign in to the office. He and other student kicked the classroom door.

He was suspected of having marijuana at school and was resistant to meeting with the vice-principal became verbally aggressive. He would not cooperate with a requested search of his bag so he was told this was his last day of school, as this was near the end of his year. [ 57 ] While in closed-custody at Agassi Youth Centre, he has done well in a structured setting, with one incident of non-compliant behaviour in September 2017. He has earned a good reputation with staff and has been a positive contributor to his group. He appears committed to wanting a better life.

He has been an active participant in prosocial programming and is now seems to better understand and has insight into decisions he makes. He has continued his education and intends to graduate from high school, which will reduce his risk of reoffending when he is released. When attending school in the community he was earning marks of 50%. In custody, his marks are in the 80-90% range. They report he has had positive interactions with teachers and classmates. [ 58 ] B.W. was first employed for a few weeks at a restaurant in Gimli as a dishwasher, bus boy and preparing French fries.

While in-custody, he was employed in the kitchen and earned the trust of staff. [ 59 ] His family is very close with him and visits every week, together with phone calls twice a week. They noted a huge difference and a positive change and state that he has matured during his time in custody. [ 60 ] Although he has used marijuana and alcohol, this offence was not related to drugs or alcohol use and he was not under the influence at the time. [ 61 ] B.W. was diagnosed with ADHD, Attention Deficit Hyperactivity Disorder at age 9 years. He was not taking his medication in the time leading up to the offence.

He is currently taking Concerta. [ 62 ] As of October 19, 2018, the date the report was prepared, The LS/CMI Index assessed him as a Medium Risk to re-offend and the Pre-Sentence Report writer deemed him as an unsuitable candidate for community supervision. His significant risk factor is unstructured leisure and recreation time and a factor that impacts case management is anger management deficits. [ 63 ] B.W. identifies as a Metis person.

His father is indigenous and his paternal grandfather grew up in a First Nation. [ 64 ] In all cases, Judges must take into account any relevant systemic or background factors when sentencing Aboriginal offenders. [ 65 ] In regards to Gladue factors, there is contradicting information as to whether the family has been affected by the legacy of the residential school system. However, there is a loss of traditions, language and cultural identity as is the case of his paternal grandmother who was denied her Metis card as she could not prove her heritage.

B.W.’s Grandfather spent the first 18 years of his life in a First Nation but on the non-reserve area of the land. He did not grow up participating in traditional activities and culture. He grew up speaking Ojibway but is no longer fluent, as English has become his primary language. B.W.’s father grew up in a small community, an area with strong Icelandic roots. He did not learn Indigenous traditions and does not know the language. [ 66 ] B.W. wants to learn more about his cultural background and is participating in cultural activities when offered at Agassiz Youth Centre. Forensic and Risk Assessments

[ 67 ] Filed with the Court as Exhibit S3 were two Forensic Assessments prepared by Youth Forensic Services on B.W.. Dr. Therrien prepared the first on September 14, 2017. The results of that assessment did not meet the criteria for a diagnosis of intellectual or learning disability, but were suggestive of borderline intellectual functioning. This could explain his tendency to respond or act out impulsively, particularly when quick decisions are required. [ 68 ] The second report from Dr. Chaze, dated October 24, 2018 was conducted in contemplation of this sentencing hearing.

B.W. reported that things were going much better with his ADHD symptoms since starting medication with Concerta. [ 69 ] He reported he was feeling less hyperactive and impulsive, better focus and feeling more settled. His report was consistent with the custody records of his behaviour, showing he was less provocative to towards other young persons at Agassiz Youth Centre. [ 70 ] He appeared to have a pro-social attitude, meaning he does not condone violence or minimize its harmful impact.

He appeared genuinely remorseful for his actions and demonstrated appropriate empathy. [ 71 ] Over all he was described as a leader within the group, as he was seen to hold others accountable. At other times, he appeared overwhelmed by his problems and had difficulty identifying coping skills that would help him.

In contrast to the initial part of his custody, B.W. appeared to have improved in his functioning in programming, his level of maturity and his ability to take a leadership role among his peers. [ 72 ] His ADHD symptoms appear well controlled and he has begun to excel in programming and education, following the start of medication. Prior to his arrest he also appeared to be engaged in a more structured lifestyle, including prosocial goals and activities, suggesting that he is likely to respond well to supports in a community setting.

Ongoing management of his ADHD can continue in the community under the care of his doctor. [ 73 ] Dr. Chaze supported Dr. Therrien’s view that B.W.is an individual who may need increased levels of support, supervision and structure in the community. [ 74 ] He also affirmed that B.W. presented as a moderate risk to re-offend. He went on to say that several risk-of-violence factors are absent.

There is also an absence of negative attitudes, anger management problems, empathic deficits, compliance issues or a low interest in school. [ 75 ] Protective factors against future violence are present for B.W., including strong social supportive and bonded family, a positive attitude towards intervention and authority, and a strong commitment to school. [ 76 ] Dr.

Chaze concluded that these factors suggest B.W. will be responsive to community supervision with Court-ordered conditions. [ 77 ] Gerry Goertzen, a registered psychotherapist and certified professional counselor also provided a risk assessment to the Court at the request of defence counsel. He has given expert evidence to the Court on three prior occasions. [ 78 ] His report is the most recent, dated December 31 st , 2018. He has classified B.W. as a low level of risk based on his test results.

He is of the opinion that B.W. is a good candidate to returning to the community to live with his mother in Winnipeg in a structured supervision program. Analysis and Decision Mitigating Factors Include: [ 79 ] The accused’s guilty plea; [ 80 ] The accused degree of participation in the offence. He was not the aggressor in the fight; [ 81 ] This is a youthful offender: the offence took place 12 days after his 16th birthday.

The accused is still only 17-years-old; [ 82 ] At the time of this offence he had no convictions; [ 83 ] The accused is remorseful as evidenced by his guilty plea, his comments contained in the Pre-Sentence Report and his apology made in Court; and [ 84 ] The Gladue factors reviewed above. Aggravating Factors Include: [ 85 ] The accused used a weapon, introducing a knife into a fistfight; [ 86 ] The extremely serious nature of the offence: a life was taken; and [ 87 ] Three days before July 25, 2017, he was involved in another incident to which he eventually pled guilty to assault causing bodily harm.

That matter is still before the Court for sentencing. The Sentence [ 88 ] Evan Engbaek was very loved by his family and his friends. They were present at Court on January 9th and again today. They

miss him terribly. The sentence imposed by the Court is not a measurement of his life. We cannot put a value on life. He was a very special young man to those that knew him and loved him. [ 89 ] When the Court imposes an appropriate sentence, it is about looking at the accused’s circumstances, the circumstances of this offence and comparing sentences to other young persons found guilty of the same offence in similar circumstances in this region to determine what is appropriate. [ 90 ] As I have said, there are aggravating and mitigating circumstances and I have considered everything.

Clearly, this is a serious charge; there is a loss of life. [ 91 ] In determining an appropriate sentence, I have considered: • that the purpose of youth sentencing is to hold a young person accountable for an offence through a sanction that has a meaningful consequence and will promote his long-term protection of the public; • that the sentence should be proportionate to the seriousness of the offence and the degree of responsibility; • case law with similar facts from the region; • all other sanctions other than custody, that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders; • that the sentence is the one most likely to rehabilitate the young person and reintegrate him into society; and • that the sentence will promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community. [ 92 ] This was

an act, by an immature 16-year-old. Given the risk assessments before the Court are at a moderate and low risk, and given the opinions of Dr. Chaze and Mr.

Goertzen that the accused’s risk is now manageable in the community, I find that a further period of custody is not required for protection of the public and for the accused’s rehabilitation. [ 93 ] I am required to consider all available alternatives to custody that are reasonable in these circumstances; particularly considering the accused’s aboriginal heritage. [ 94 ] None of the comparable cases from this region resulted in a sentence as lengthy as the time the accused has already served in custody.

The case of N.A. is the only case decided after The Act added denunciation and specific deterrence to its sentencing principles. In that case, the accused was a very low risk and received 9 months credit for time in custody, followed by one year of community supervision. [ 95 ] Considering the 615 days of pre-trial detention served, I have determined that the accused will be given 1.5 credit for the time he has served.

That means he has spent the equivalent of 30 months and three weeks in pre-sentence custody. [ 96 ] The time B.W. has served in custody is proportionate to this offence and greater than the sentences imposed in similar cases. As a result, I make a finding that no further custody is required going forward after today. [ 97 ] Taking into account the time he has spent in custody, B.W. will be subject to a custody and supervision order as required in section 42(2)(

o) of The Act , with one day, today’s sentencing day, being served as one day in open custody, with the remaining 12 months of his sentence to be served under conditions of supervision in the community subject to the following conditions: • keep the peace and be of good behaviour; • appear before the youth justice court when required to do so; • report to and be supervised by the provincial director or a person designated by the youth justice court; • reside as directed by the provincial director or youth worker assigned to the case; • attend and complete all counseling as directed by the provincial director, including counseling for alcohol and drug abuse; • abstain from the consumption of alcohol or any other intoxicating substances including marijuana; • not attend any licensed premises, an exception would be a licensed restaurant; • abstain from the consumption of illegal or prescription drugs, unless those drugs are prescribed to you by your doctor; • not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order. [ 98 ] Given the violent nature of this offence and the use of a weapon, the Court will make an order under s. 51 (1) of the YCJA , prohibiting the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance for a period of two years. [ 99 ] Manslaughter is a primary designated offence under s. 487.051 and under that section, the Court shall make an order authorizing the taking of DNA unless the young person can establish that the impact of an order on his privacy and personal security would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice by early

detection, arrest or conviction of offenders. I am not satisfied that that impact on the accused’s privacy and security would be grossly disproportionate to the public interest and I therefore make an order pursuant to s. 487.051(1)(

a) authorizing the taking of bodily substances for forensic DNA. B.W. must provide a sample of his DNA within 30 days. __________________ M. P. Thompson, P.J.