His Majesty the King - v. -, 2022 SKPC 38

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2022 SKPC 38 Date: September 9, 2022 Information: 991114776 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - B.J.M. Appearing: Melodi Kujawa For the Crown Christopher Gratton For the Accused Restriction on Publication – An order has been made in accordance with s. 74(2) of the Youth Criminal Justice Act [ YCJA ] directing that any information identifying the young person shall not be published until the appeal period is complete. DECISION S.S. ANAND, ACJ I. INTRODUCTION

[ 1 ] B.J.M. pled guilty to committing a second-degree murder that occurred when he was seventeen-years-old. The charge stems from an incident in which B.J.M. shot an individual from a rival gang in the back on the streets of Saskatoon. [ 2 ] The Crown applied, under section 64(1) of the YCJA , to have B.J.M. sentenced as an adult. If the Crown is successful in its application, B.J.M. will be given an adult life sentence with no eligibility for parole for seven years pursuant to

section 745.1 (

c) of the Criminal Code . If the Crown is unsuccessful in its application, the maximum youth sentence that can be imposed upon B.J.M. is, as set out in section 42(2)(q)(ii) of the YCJA , for a period of seven years, comprised of up to four years in custody with the remaining years under conditional supervision in the community.

However, it should be noted that under section 104(1) of the YCJA , within a reasonable time before the expiry of the custodial portion of this youth sentence, an application can be made to have the young person ordered to remain in custody during all or part of the period of conditional supervision in the community. Such an order may be made if a court is satisfied that there are reasonable grounds to believe that the young person is likely to commit an offence causing the death of, or serious harm to, another person before the expiry of the youth sentence. [ 3 ]

Section 72 of the YCJA is the legislative provision governing whether a youth justice court shall impose an adult sentence on a young person. The

section provides as follows: 72

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

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

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

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

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General. In order to secure an adult sentence, the Crown must satisfy the Court that both prongs of the

section 72 test, concerning the presumption of diminished moral blameworthiness and the inadequacy of a youth sentence to hold the offender accountable, have been met. In other words, a failure on the part of the Crown to satisfy the Court as to either of the two prongs in

section 72 results in a youth sentence being imposed. [ 4 ] The issues that I must resolve to decide the Crown’s application are as follows:

(1) Under section 72(2) of the YCJA , what is the precise onus of proof required to be met before the Court can order that an adult sentence be imposed?

(2) Has the Crown rebutted the presumption of diminished moral blameworthiness and culpability in this case?

(3) Has the Crown satisfied the Court that a youth sentence would not be of sufficient length to hold B.J.M. accountable? [ 5 ] For the reasons that follow, I am allowing the Crown’s application. [ 6 ] In order to reduce redundancy in the context of these written reasons, I will not provide a comprehensive up-front recitation of all of the evidence presented at the sentencing hearing and then refer to that same evidence again in the context of my analysis of the issues. Instead, only the latter reference to the evidence will be made. Still, to enhance reader comprehension of these reasons, I will provide, in the

section that follows, the agreed statement of facts that was admitted by B.J.M. when I accepted his guilty plea to the offence of second-degree murder. In addition, in that same

section of the decision, I will make brief reference to the sources of evidence presented at the sentencing hearing. II. AGREED STATEMENT OF FACTS UPON WHICH THE GUILTY PLEA WAS ACCEPTED AND THE SOURCES OF EVIDENCE PRESENTED AT THE SENTENCING HEARING Agreed Statement of Facts [ 7 ] On December 7, 2019, Eiryn Straightnose was visiting her sister’s home at 207 Avenue X South in Saskatoon. During that

visit, Ms. Straightnose observed Winston Littlecrow at the residence with some friends. Ms. Straightnose believed that Mr. Littlecrow was a member of a rival gang, the Indian Posse. Ms. Straightnose and B.J.M. are members of the Terror Squad gang. [ 8 ] Ms. Straightnose was upset at Mr. Littlecrow’s presence in the house. As a result, she sent a text message to B.J.M. who she knew was at the McDonald’s restaurant nearby. She also knew that B.J.M. had a gun. She wanted him to come over and get the Indian Posse people out of the house. [ 9 ] Shortly after Ms.

Straightnose texted B.J.M., he left the McDonald’s and went to 207 Avenue X South. B.J.M. entered the residence, and Mr. Littlecrow exited it followed by him. B.J.M. fired a gun at Mr. Littlecrow, left the scene, and went to 202 Avenue V South, where he changed his clothes and left. [ 10 ] Mr. Littlecrow received a gunshot wound to his back and later died several hours later from his injuries. [ 11 ] At the time of the shooting, B.J.M. was subject to a

section 51 YCJA order prohibiting him from being in possession of a firearm. Sources of Evidence Presented at the Sentencing Hearing [ 12 ] Before B.J.M. entered a guilty plea, with the consent of the Crown, to one count of second degree murder, evidence was presented on the trial and various voir dires pertaining to Information 991114776 charging B.J.M. with one count of first degree murder and one count of breaching a firearms prohibition. This evidence was also admitted at the sentencing hearing by consent of both Crown and defence counsel.

Key aspects of this evidence concerned video images of B.J.M. at a McDonald’s restaurant shortly before the shooting, video images of B.J.M. in the area outside the McDonald’s restaurant shortly after the shooting, a video image of the shooting itself taken from a video camera mounted high atop a business some distance away from the shooting, and B.J.M.’s journal that was seized by staff at Kilburn Hall Youth Centre from his room on May 3, 2020. [ 13 ] In addition, a

section 34 YCJA psychological assessment report authored by Dr. DeSorcy on January 11, 2022, a pre-sentence report (PSR) dated January 11, 2022, and a PSR dated February 26, 2018 were filed as exhibits at the sentencing hearing. Other exhibits filed included a copy of B.J.M.’s criminal record, which included entries for offences that occurred after the murder, a written

summary describing in some detail the facts of the offences comprising B.J.M.’s criminal record, and a history of institutional incidents involving B.J.M. from Kilburn Hall Youth Centre and the Regina Correctional Centre. [ 14 ] Two other sources of evidence presented at the sentencing hearing are noteworthy. The Crown filed a letter written by Dr. DeSorcy on February 2, 2022 and addressed to Sharyn Houle, Manager of Youth Services, Ministry of Corrections, Policing, and Public Safety. A subsequent letter authored by Ms. Houle and addressed to the court was read into the record by Crown counsel.

In that letter, Ms. Houle stated that Dr. DeSorcy, in her letter to Ms. Houle, confirmed that B.J.M. is not suffering from any major mental illness or disorder. Consequently, Ms. Houle concluded that B.J.M. does not meet the criteria for an IRCS (Intensive Rehabilitative Custody and Supervision Order) pursuant to section 42(7) of the YCJA .

Given this information, defence counsel conceded that the court could not impose an IRCS youth sentence on B.J.M. [ 15 ] The one aspect of viva voce evidence presented during the sentencing hearing was the evidence of Stan Tu’Inukuafe, who was qualified as an expert in the area of what is required for someone to leave a street gang. III. ANALYSIS 1.

Under section 72(2) of the YCJA , what is the precise onus of proof required to be met before the Court can order that an adult sentence be imposed? [ 16 ] In R v Henderson , 2018 SKPC 27 at paras 30-35 [ Henderson ], I addressed the above noted issue and engaged in a lengthy analysis in so doing. In that case, I noted that there was a strong argument that any judicial remarks from higher courts in Saskatchewan on the issue of onus of proof under section 72(2) could be considered obiter dicta . Thus, in Henderson , I felt free from the constraints of stare decisis in interpreting the relevant provision.

In the end, I ruled that both prongs of the

section 72 test had to be proven beyond a reasonable doubt in order to satisfy the Court that an adult sentence should be imposed. [ 17 ] There are compelling reasons for me to simply apply my ruling in Henderson to resolve the issue of onus of proof in the present case. I still believe in the soundness of my reasoning in Henderson .

Moreover, in the subsequent case of R v R.D.F. , 2019 SKCA 112 at paras 14-16 and 19 , 382 CCC (3d) 1 [ R.D.F. ], the Saskatchewan Court of Appeal refrained from explicitly endorsing the standard of “satisfaction after careful consideration by the court of all the relevant factors” adopted by the Manitoba Court of Appeal in R v Okemow , 2017 MBCA 59 at para 61 , 353 CCC (3d) 141 [ Okemow ]. [ 18 ] Nevertheless, the latest decision of the Saskatchewan Court of Appeal in R v W.M. , 2021 SKCA 103 [ W.M. ] does seem to endorse the above noted standard of proof articulated in Okemow , and the Saskatchewan Court of Appeal does so in a context that suggests its words of endorsement are not mere obiter dicta .

The Court of Appeal in W.M. states the following in assessing whether the first prong of the

section 72 test has been met: In

summary, there is no doubt that W.M. has had a difficult and compromised life. The answer to the question raised by s. 72(1)(

a) in this case is not entirely clear cut but, considering all of the factors and indicators relevant to a determination of the question raised by s. 72(1) (a), I am satisfied that the Crown has rebutted the presumption of reduced moral blameworthiness or culpability. [ W.M. at para 50]

The Court of Appeal’s conclusion that, based on the evidence tendered at the sentencing hearing, “The answer to the question raised by s. 72(1)(

a) in this case is not entirely clear cut” suggests that the evidence tendered gave rise to at least a reasonable inference that the presumption had not been rebutted. Thus, the Crown did not rebut the presumption beyond a reasonable doubt. Moreover, the Court of Appeal held that the sentencing judge, who applied the Okemow standard (see R v W.M . , 2019 SKPC 50 at paras 37-38 ), was not in error in concluding that he was satisfied that the presumption of diminished moral culpability had been rebutted. Accordingly, it can be argued that the issue of the precise burden of proof to be applied to both prongs of the

section 72 test played a pivotal role in the Court of Appeal’s disposition of the appeal so the Court’s comments on this point, endorsing the section 72(2) YCJA standard articulated in Okemow , are not obiter dicta but part of the ratio decidendi . [ 19 ] I find these arguments sufficiently compelling that I feel bound by the Saskatchewan Court of Appeal’s ruling in W.M. An application of the principle of vertical stare decisis demands nothing less, despite my reservations about the correctness of the Court of Appeal’s pronouncement on the standard of proof governing these types of applications.

As a result, the precise onus of proof that I must apply under section 72(2) of the YCJA to order a young person liable for an adult sentence is neither proof beyond a reasonable doubt nor proof on a balance of probabilities. Rather the standard is one of satisfaction after careful consideration by the Court of all the relevant factors. In order for a court to order an adult sentence on a young person, the Crown must prove that this standard has been met in relation to both prongs of the

section 72 test. 2. Has the Crown rebutted the presumption of diminished moral blameworthiness and culpability in this case? [ 20 ] The key issue in dispute in this case, and the issue to which counsel devoted the bulk of their submissions, is whether the Crown has rebutted the presumption of diminished moral blameworthiness or culpability under section 72(1)(

a) of the YCJA . Justice Tholl explained the operation of section 72(1)(

a) as follows in R.D.F. at para 37 : The focus of the first prong of the s. 72(1) application requires the court to be cognizant that young persons are presumed to have a lower level of maturity, moral sophistication and capacity for independent judgment. Impulsivity, immaturity and a young person’s inability to appreciate the consequences of his or her actions are at the root of the presumption. In order for the Crown to rebut this presumption, it must establish the offender demonstrated the level of maturity, moral sophistication and capacity for independent judgment of an adult.

Evidence of the circumstances of the offender (age, maturity, intelligence, mental health issues, moral capacity, background, Gladue factors, previous criminal record and any other relevant factors) and the circumstances of the offence (actions taken in relation to the offence, planning, sophistication, role played, motivation and any other relevant factors) are at the core of this determination. [ 21 ] B.J.M. was seventeen years and five months old when the offence was committed.

In effect, he was almost an adult in chronological terms. [ 22 ] Although B.J.M. suffers from some intellectual impairments, these impairments are not necessarily determinative or even influential in terms of assessing whether the Crown has rebutted the presumption of diminished moral culpability. As the Court of Appeal has indicated, the operative question is “what effect those cognitive difficulties had on his moral culpability.” (See R.D.F. at para. 53 .) Dr.

DeSorcy’s psychological assessment of B.J.M. stated that his strength, and he scored in the average range for these skills, lies in his ability to organize and interpret visual information as opposed to verbal information. B.J.M.’s learning deficits mainly pertain to verbal comprehension and the retention of verbal information. He also requires extra time to process information. Turning to the offence in this case, there is no suggestion that B.J.M. fired the fatal shot at Mr. Littlecrow because he misinterpreted verbal information from him, from Ms. Straightnose, or from any other source.

Nor is there any evidence that implies that B.J.M. acted as he did out of frustration because of a lack of understanding or because he was having difficulty processing information. Hence, there is no evidence that his learning difficulties played a role in this offence. Indeed, defence counsel, in his submissions, did not argue that B.J.M.’s cognitive difficulties had any effect on his moral culpability for committing the offence. [ 23 ] Dr. DeSorcy commented extensively on findings pertaining to B.J.M.’s mental health issues. In her psychological assessment report, Dr.

DeSorcy stated as follows at pages 16-17: Personality testing revealed a young man who was plagued by problems associated with substance abuse and trauma. His responses suggest a person who is suspicious and hostile and often irritable and angry . . . He may find that his irritability is linked to this inability to grasp information as easily as others. It is also possible that his tendency to anger easily is associated with his alcohol and drug use. Historically, [B.J.M.] was treated for ADHD, depression, and sleep problems.

Because of his tendency to abuse his prescriptions, a decision was made to discontinue his medication. It may be the case that [B.J.M.] has outgrown some of the difficulties he experienced as a child, as there are no current signs of depression and only a few symptoms of ADHD were endorsed . . . [G]iven that he is no longer taking medications for these disorders, we would expect to see an increase in symptomatology; which is not the case here.

According to the gathered testing information, observed behaviour through the course of the assessment, and [B.J.M.’s] responses during the interview, it is my clinical opinion that there is not enough evidence for a current diagnosis of Attention Deficit/Hyperactivity Disorder (ADHD) or Major Depressive Disorder. Rather, it would be beneficial for [B.J.M.] to complete some substance abuse programming and engage in counseling with a registered psychologist to learn some alternative methods of coping and address his history of trauma and neglect.

In her later letter to Ms. Houle, Dr. DeSorcy clarified that, “In sum, at the time of the assessment, there was no indication that [B.J.M.]was struggling with a major mental illness.” [24] I am also mindful that the presumption of diminished moral blameworthiness or culpability in the section 72(1)(

a) analysis isfounded on reduced moral blameworthiness or culpability as a result of youthfulness. Therefore, as stated by Stromberg-Stein in R vChol, 2018 BCCA 179 at para 61: The young person’s cognitive limitations and emotional and mental health, while relevant to this prong, should not overwhelm theanalysis. . . . In some cases it may be that it is more appropriate to take these factors into account in the s. 72(1)(

b) analysis, or indetermining an appropriate sentence. [25] B.J.M. recounted, to Dr. DeSorcy and others, a history of substance abuse. It is not clear from the evidence how this historycan be said to impact the variables relating to B.J.M.’s maturity or impulsiveness. As for the impact of drugs and alcohol on the offenceitself, the 2022 PSR noted that B.J.M. reported he was using methamphetamine, cocaine, and alcohol on the day of the offence. He alsoindicated in the psychological assessment report that, proximate to the offence, he had been high and was drinking, resulting in himbeing in and out of a blackout.

Nevertheless, pursuant to how the Court of Appeal dealt with a similar situation in W.M. at para. 38, asB.J.M.’s intoxication was not mentioned in the statement of facts to which he agreed after entering his guilty plea, I am loathe to attach agreat deal of significance to his professed state of intoxication at the time of the offence, especially in light of the fact that the Crowntook issue with any suggestion that B.J.M. was intoxicated at the time of the shooting. [26] When the incident occurred, B.J.M.’s criminal record was substantial, and he has engaged in post-offence offending as well.B.J.M. was found guilty in youth justice court for violent offences, including uttering threats, robbery, and assault.

He also had multiplefindings of guilt for weapons related offences, administration of justice offences, including offences of being unlawfully at large, and afew entries for property-related crimes. The longest period of custody to which B.J.M. had been sentenced was a ninety-day securecustody and supervision order. Since the commission of the murder, he engaged in an assault while remanded at Kilburn Hall YouthCentre, for which he received a thirty-day secure custody and supervision order.

In addition, on July 6, 2020, B.J.M. committed his firstadult crime, which involved an attempted escape from Kilburn Hall, and he received a thirty-day custody sentence concurrent with thedisposition he received for the Kilburn Hall assault. [27] The personal history experienced by B.J.M. is a difficult one and, pursuant to R v Gladue, (SCC), [1999] 1SCR 688 [Gladue], this history is relevant in considering B.J.M.’s moral blameworthiness for his crime.

Crown counsel indicated in hersubmissions that, “we can draw a straight line from colonialism to residential schools to the ‘60s scoop and to B.J.M. being here today.”As recounted by defence counsel in his submissions, B.J.M. was ripped from his traditional First Nations’ household, where he hadaccess to cultural activities and was learning the Cree language, and at the age of five or six years old, he was apprehended by theMinistry of Social Services. B.J.M. spent the next nine years in the care of the Ministry, in various foster homes where he was repeatedlysubjected to physical and sexual abuse.

He started using drugs and alcohol at a young age. He returned to his mother’s care at the age offourteen. Around this same time, B.J.M. became gang affiliated. His maternal grandfather, uncle, and mother attended residential school.B.J.M.’s biological father was a residential school survivor and an alcoholic. B.J.M.’s mother indicated that her husband was physicallyand verbally abusive towards her and that her boys all witnessed the violence.

B.J.M.’s biological father ceased to play an active role inhis life once his wife left him when B.J.M. was five or six years old. [28] B.J.M.’s Gladue circumstances have a profound impact in reducing his moral blameworthiness for his offences and mustinform the analysis required under section 72(1)(

a) of the YCJA. However, I am mindful that, as mentioned in W.M. at para 32, thequestion posed by this provision [I]s whether the presumption of reduced moral blameworthiness common to all young people because of their youth has been rebutted soas to make an adult sentence appropriate. Thus s. 72(1)(

a) involves a threshold-type inquiry focused specifically on what might be calledthe level of moral maturity of the young person. It is not an inquiry that, as per Gladue and Ipeelee, considers how the circumstances ofan offender might limit their culpability and thereby affect the particulars of the bottom-line sanction. [29] The manner in which Gladue factors inform the analysis required under section 72(1)(

a) of the YCJA must be considered inassessing defence counsel’s claims surrounding the significance of B.J.M.’s statements to Dr. DeSorcy that his gang affiliation giveshim a sense of family. Defence counsel argued that the sense of family B.J.M. receives from his gang is evidence that he was in a state ofdependency and immaturity at the time he committed the murder. But, even if the Court could infer from this statement that B.J.M. wasin a state of dependency and immaturity when he shot Mr.

Littlecrow, defence counsel’s own submissions point out that B.J.M. becamegang-affiliated chiefly because the pernicious effects of colonialism resulted in him being taken from his family and abused in fostercare. Essentially then, doesn’t this mean that B.J.M.’s gang affiliation, to the extent that it demonstrates a heightened dependency andimmaturity on his part and reduces his moral blameworthiness for the offence, is a reduction of moral blameworthiness that is, at leastpartly due to Gladue factors and not age?

I would suggest the answer to this question is yes. [30] Nonetheless, a comprehensive analysis of the implications of the Court of Appeal’s statements in para 32 of W.M. and theirapplication to B.J.M.’s case is not necessary because the evidence tendered at the sentencing hearing clearly establishes that B.J.M. wasnot in a state of dependency and immaturity at the time of the commission of the offence.

An examination of further circumstancespertaining to the young person as well as circumstances of the offence, both of which are discussed below, amply demonstrate thatB.J.M. possessed and exhibited adult-like maturity at the time of the murder. [31] Turning to some of the characteristics of youth that are often implicated in claims of reduced offender moral blameworthiness,the vulnerability of being swayed by others must be considered. In the psychological assessment report, B.J.M. was described by his

mother as being a follower not a leader. She noted that he was easily manipulated by his friends and often talked into unwise courses of action by them. [ 32 ] Yet the ability of B.J.M.’s mother to observe whether he was a leader or follower among his peer group is questionable. The evidence tendered at the sentencing hearing suggests that she simply did not spend much time with him and that she spent even less time in the presence of his friends. The 2018 PSR stated that B.J.M.’s friends were not allowed in the family home and that B.J.M. was seldom at home.

In the psychological assessment report, B.J.M. indicated that he was living with his mother and stepfather in Saskatoon prior to the murder. However, he also noted that he had an apartment that he shared with friends and, although he had a room at his mother’s house, he didn’t like to stay there. B.J.M.’s mother indicated to Dr. DeSorcy that B.J.M. would come and go and that he would come home to eat and shower. In the 2022 PSR, B.J.M. stated that he spent little time at home when he was unlawfully at large or breaching his court ordered conditions.

According to B.J.M., when he did not abide by rules proscribing the use of drugs, the presence of his negative peer group, or the display of gang colors in the family home, he was not allowed to stay. In the 2022 PSR, B.J.M.’s mother also confirmed that she would not allow him to stay with her when he was using drugs or being threatened by other gangs, as she had to maintain a safe home for her other children. When B.J.M. was staying with friends, he would only see his mother once a week. [ 33 ] There is other evidence in the psychological assessment report that ostensibly suggests immaturity on B.J.M.’s part.

In the report, B.J.M. described how he met his best friend, Hunter, and the fact that they used to scare people for the fun of it by flashing weapons and gang signs. Although this passage of the report certainly is suggestive of B.J.M.’s immaturity, it also has an historical quality about it – B.J.M. is describing how he met his best friend and the kinds of things over which they bonded.

Other evidence, discussed below, suggests that the immature motive of scaring people for the fun of it later gave way to the pursuit of more adult-like utilitarian objectives involving instilling fear in people. [ 34 ] B.J.M.’s scholastic and employment achievements are limited. He has a grade nine education and has completed a few credits towards grade ten. At the time of the murder, he was not attending school and had never been formally employed. Despite these facts, he did report to Dr. DeSorcy that he was a good student when he was younger.

The 2018 PSR attributed his lack of attendance in school to his consumption of drugs and alcohol. The 2022 PSR noted that, following B.J.M.’s withdrawal from school in January of 2018, he was in and out of custody and sometimes unlawfully at large when he was in the community. These circumstances made it difficult for him to enroll in community school programs again or make significant progress in terms of educational programs in custody. [ 35 ] Defence counsel submitted that B.J.M.’s activities while in the community demonstrate his immaturity at the time of the offence.

It was noted that when B.J.M. was not in school, which was often, he would simply get high, play video games, and watch movies. Moreover, defence counsel contended that B.J.M.’s mother financially supported him, and so the drug dealing that B.J.M. engaged in was limited to supporting his own addictions. [ 36 ] The suggestion that B.J.M. was financially dependent on his mother and only engaged in drug dealing to support his own addictions is not borne out by the evidence.

Although it is true that B.J.M. indicated to the PSR writer that his mother still provided him with some food and clothing, B.J.M. also indicated to Dr. DeSorcy that he engaged in criminal activity, particularly robbery, to support himself. B.J.M. went so far as to compare these activities to being like a business. B.J.M. also indicated to Dr. DeSorcy that the methamphetamine that he took helped him stay awake longer, which allowed him to sell more drugs. The 2022 PSR noted that, rather than pursuing formal employment, B.J.M. supported himself financially by selling drugs.

Accordingly, while there is no doubt that B.J.M. sold drugs to get money to buy more drugs and alcohol for himself, the only reasonable inference I can draw is that B.J.M.’s crimes extended beyond feeding his own drug habit. [ 37 ] At first blush, B.J.M.’s decision to support himself financially by selling drugs may seem to suggest immaturity on his part. But as the Court of Appeal implicitly admonished in para. 47 of W.M. , criminal offending per se should not be seen as an indicator of immaturity.

To equate any criminal choice or enterprise, no matter how robust, sophisticated, or planned out, with immaturity would be to confuse antisocial tendencies and proclivities with immaturity. As antithetical as it may seem to mainstream societal norms, for B.J.M. to support himself financially by selling drugs as opposed to pursuing formal employment may be seen as an exercise of adult maturity. Reasonable members of society would not condone an individual choosing to deal drugs for a living.

But those same members of society could understand that this choice might reasonably be perceived as being the preferable option compared to pursuing conventional work, especially if the individual in question faced barriers to obtaining a legitimate employment position.

Such barriers would include the presence of a criminal record and the absence of marketable skills and training – the same barriers faced by B.J.M. [ 38 ] Crown counsel contended that a passage contained in B.J.M.’s journal, addressed to someone with whom he presumably enjoyed a close relationship, can be used to infer that, proximate to the time of the shooting, he possessed adult-like maturity. The passage in question was a poem. In it, B.J.M. stated, “I’ll wake you up every morning with a bunch of kisses.

Maybe one day turn you into my missus.” Crown counsel submitted that this passage suggests that B.J.M. was thinking in a fairly adult way in terms of marriage. I, however, am not convinced that this passage is suggestive of adult-like maturity. Given the predicament in which he found himself, in custody facing a murder charge, is waking up next to his girlfriend and giving her kisses realistic? There are no detailed plans outlined by B.J.M. that culminated in marriage nor was a possible time frame discussed for when marriage might become a reality.

Instead, there is only a fanciful suggestion that marriage might be in their future. Not every mention of the possibility of marriage is indicative of adult- like maturity, especially when it is remarked upon in a fleeting and speculative fashion, as was the case here. [ 39 ] The reports of institutional incidents since B.J.M. has been detained on his murder charges does show that his violent behaviour within a custodial setting has decreased markedly, as has the frequency of his noncompliance with institutional rules.

Both of these developments are laudable and may indicate that B.J.M. has undergone a maturation process since being remanded into custody. However, the strength of the inferences of maturation that can be drawn from this evidence is limited. What attenuates the strength of these inferences is that B.J.M., because of his attempt to escape custody from Kilburn Hall Youth Centre, was moved to adult correctional facilities.

Thus, one cannot discount the possibility that the reduction of problematic institutional behaviour at these adult institutions compared to the youth centre may be the result of practices conducted, or structures established, at the adult institutions that are not in place at the youth centre. Consequently, it is possible that what is being demonstrated by these reports is not the maturation undergone by B.J.M. but, at least in part, the effectiveness of the prevention measures entrenched within the Regina Correctional Centre.

Certainly, the inference that the reduced institutional offending that B.J.M. has engaged in at the Regina Correctional Centre is

attributable to significant maturation on his part would be strengthened if he had remained at Kilburn Hall Youth Centre with a similarly improved record of behaviour. Most importantly, even if a maturation process has occurred with B.J.M. since he arrived at the Regina Correctional Centre, B.J.M.’s evolution in this respect still does not squarely address the level of maturation he possessed at the time of the offence. [ 40 ] More cogent evidence of his level of maturation at the time of the shooting can be found by examining the circumstances of the offence.

Defence counsel argued that B.J.M.’s commission of the homicide on camera, and his subsequent escape from the scene by traversing a busy road through a brightly lit business, illustrates a lack of care in avoiding detection that one would tend to associate more with a youth than an adult offender.

Defence counsel also asserted that the circumstances of the offence suggest that it was impulsive and the result of someone who acted violently without full consideration of the results of his actions, which is another indicator of youthful immaturity. [ 41 ] I do not find defence counsel’s arguments on this point to be particularly persuasive. Although it is true that this shooting was captured by a video camera, the vantage point of the camera was high atop a business located some distance away. There is no indication that B.J.M. was aware of the camera’s existence at the time of the incident.

Indeed, given the location of the camera, the most compelling inference to draw is that he was unaware of it. In this context, B.J.M.’s decision to engage in the shooting looks less reckless, at least in terms of the risk he took in getting caught, especially given the lack of evidence pointing to other witnesses on the street. Immediately after the shooting, B.J.M. did run through the area of a brightly lit and busy road close to a McDonald’s restaurant that was open for business. In addition, he had been inside that same McDonald’s restaurant before the shooting.

Both while inside and outside the McDonald’s, his image was captured by video surveillance. Yet, it must be remembered that the shooting did not occur at the McDonald’s restaurant but some distance away. Nevertheless, given the relatively close proximity of the McDonald’s to the area of the shooting, would a savvy adult have attempted to avoid being seen by anyone or recorded by any surveillance equipment by remaining away from any open, brightly lit business establishments and busy roadways? Yes.

Is the risk of being linked to this offence by being seen near the McDonald’s so great that any reasonable adult would have regarded this escape route as a blatantly obvious risk? The answer to this question is less certain.

What is readily apparent is that the lack of sophistication shown by B.J.M. by choosing to escape through this route does not have the same hallmark of youthful immaturity as, for example, Jacqueline Henderson hiding behind a couch after being seen leaving her victim’s bedroom (see Henderson at paras. 13 and 45 ) or TF asking his mother to throw the gun involved in the homicide committed by him out of the window (see R v W. (M.) , 2017 ONCA 22 , 346 CCC (3d) 319).

Moreover, it is a compelling inference that B.J.M. did realize the risk associated with using this escape route and attempted to mitigate the risk by immediately changing his clothes.

Whether or not his change of clothes was meant to address his perceived risk taking by being in the area of the McDonald’s after the shooting or the change of clothes was meant to distance him from any forensic evidence associated with the shooting, his journal makes clear that he undertook this course of action to avoid getting caught. [ 42 ] Evidence of motive can be instrumental in rebutting the presumption of reduced moral blameworthiness or culpability of a young person in a section 72(1)(

a) analysis. As stated at para. 44 of Henderson , “A clear motive for a crime can be indicative of a more advanced capacity for moral judgment on the part of an offender.” But not every clear motive demonstrates a more advanced capacity for moral judgement – not even every clear gang-related motive. For example, it is conceivable that a young recruit to a gang, in order to ingratiate herself to a gang leader, may follow the leader’s order to commit a violent offence. In this situation, the young recruit could be seen as giving in to peer pressure – a classic character flaw associated with youthful immaturity.

It is noteworthy that there is no evidence in this case that Mr. Littlecrow’s shooting was ordered by Ms. Straightnose or anyone else. Susceptibility to peer pressure did not seem to play a role in this offence. [ 43 ] Although there is no evidence that this murder was planned, in fact Crown counsel agreed to accept a plea to second degree murder, which indicates a murder that was not planned and deliberate, the precise motive for this crime suggests it was not impulsive. When B.J.M. was asked by Dr. DeSorcy why he began to engage in criminal activity, B.J.M. said that he wanted to make a name for himself.

He explained that he wanted his children to be able to say his name and not be bothered by bullies; he wanted his name to instill fear and respect. In his journal, when he wrote about the shooting, B.J.M. stated, “I just wanted people to fear my fuckin name.” I agree with Crown counsel that this specific motive for the shooting, to ensure that B.J.M. was feared so that he and his future children would be protected, is extremely probative evidence that this shooting was not impulsive. This motive indicates that B.J.M. did not commit the offence to obtain immediate gratification.

His goals were more long-term, more adult-like in nature, especially his desire to protect his children. B.J.M.’s actions advance the objectives of his gang by targeting a rival gang member. Yet, for B.J.M., the gang is simply the context in which he takes action to make a name for himself. [ 44 ] Crown counsel postulated that if the offence was truly impulsive, then B.J.M. would have expressed regret or remorse for committing it and he has, to date, made no such expressions. We know from the psychological assessment report that B.J.M. does not possess significant problems with empathy.

Moreover, in the report, in reference to the shooting, B.J.M. stated that he wished it never happened. He discussed the victim’s children and how having to bury a loved one is terrible. B.J.M. also acknowledged to Dr. DeSorcy that if he were a member of the victim’s family, he would feel angry, devastated, and depressed.

Consequently, to suggest that B.J.M. has uttered no expressions of regret or remorse is not accurate. [ 45 ] In spite of his expressions of regret and remorse over the shooting, B.J.M.’s statements of moral, albeit not legal, justification in relation to his commission of the offence suggest that the shooting was not impulsive. In the psychological assessment report, B.J.M. stated that, “[E]ven though he might regret some crimes, he also feels that he had to do it to get by.

He further explained that to have a good life, someone has to have a miserable life.” (See page 6 of the psychological assessment report.) In the 2022 PSR, B.J.M. stated that he did not believe there was anything he could have done differently to avoid the shooting and that his actions were justified in the circumstances. Taken together, these statements paint the picture of an individual who possesses the ability to be empathetic, but who nevertheless chooses to commit violent acts that he knows will hurt others to further his own, sometimes long-term, ambitions.

In B.J.M.’s world, such actions are warranted and, when seen through his own antisocial lens, these actions are not impulsive. [ 46 ] B.J.M. has the capacity to make moral decisions, but he has chosen to eschew the values of conventional society in order to maintain allegiance to gang culture and particularly his gang – the Terror Squad. Despite killing someone, B.J.M. believes that improving the fortunes of his gang is a good cause. As he stated in his journal,

Caught myself a Body now IM on my way to the penatentrie But it’s a good cause all black Till The Death of me. So why can’t you see IM terror squad through though There’s nothing you can do So get your pen’s out and write This down cause what IM sayin is true. I took The niggas life and I didn’t think twice I Just Took a Chance and rolled the fucken Dice Wow IM gonna spend the rest of my life Sittin in Prison.

Just like my momma says I don’t know how To listin[.] [ 47 ] Although this passage could be interpreted as demonstrating youthful immaturity on the part of B.J.M. because, despite the personal misfortune that has befallen him for engaging in this gang related shooting, he still remains loyal to his gang, the expert evidence presented at the sentencing hearing suggests otherwise. That expert evidence revealed that many gang members continue to support their gangs because the gangs offer them protection while incarcerated.

Thus, it can be argued that maintaining fealty to a gang while incarcerated demonstrates adult-like maturity and reasoning. In addition, the above-noted passage from B.J.M.’s journal makes clear that he was well aware of the penal consequences that awaited him for engaging in the shooting.

The ability to appreciate the consequences of one’s actions is a characteristic of adult maturity. [ 48 ] When I consider all of the factors and indicators relevant to a determination of the questions raised by section 72(1)(a), and give the evidence tendered at the sentencing hearing its appropriate weight, I am satisfied that the Crown has rebutted the presumption of reduced moral blameworthiness or culpability common to all young people because of their youth so as to make an adult sentence appropriate. I turn now to the second prong of the

section 72 test. 3. Has the Crown satisfied the Court that a youth sentence would not be of sufficient length to hold B.J.M. accountable? [ 49 ] Section 72(1)(

b) of the YCJA sets out the additional requirement that the Crown must meet before an adult sentence may be imposed on a young person. This provision provides that a sentencing judge must be satisfied that a youth sentence would not be of sufficient length to hold the young person accountable for his or her offending behaviour. Despite the fact that defence counsel conceded that the Crown had met its burden on this prong of the statutory test, this concession does not absolve me of my responsibility to fully consider the matter and arrive at my own conclusions. [ 50 ] The analysis demanded by section 72(1)(

b) was summarized as follows in R.D.F. at paras. 80 and 81 : [80] As set out in D.B. , young people who commit crimes remain accountable for their actions but are “decidedly but differently accountable” (at para 1). For a youth sentence to hold a young person accountable for his or her offending behaviour, it must achieve two objectives ( McClements at para 70, and A.O. at para 50): (

a) it must be long enough to reflect the seriousness of the offence and the young person’s role in it; and (

b) it must be long enough to provide reasonable assurance of the young person’s rehabilitation to the point where he or she can be safely reintegrated into society. [81] The inquiry under s.72(1)(

b) of the YCJA only occurs if the judge determines the Crown has rebutted the presumption under s.72(1) (a). The onus remains on the Crown to establish a youth sentence is not long enough. If the Crown demonstrates either objective of accountability is not met by a youth sentence, then an adult sentence must be imposed. [ 51 ] The first objective of accountability under section 72(1)(

b) requires the Court to assess “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[.]” (See R v A.O. , 2007 ONCA 144 at para 48 , 218 CCC (3d) 409) The intentional risk-taking engaged in by B.J.M. by firing a gun at another individual at close range is high, and the consequential harm caused by B.J.M., the loss of a life, could not be more extreme.

In addition, a normative analysis of this offence, involving as it does a person being gunned down in the streets in the context of gang violence, would inexorably lead to the conclusion that the crime shocked the community. The offence was extremely serious in normative terms, especially when one considers that B.J.M.’s particularized motive was to ensure that his name instilled fear in the community. [ 52 ] In order to complete the analysis of the first objective of accountability under section 72(1)(b), other factors must also be considered.

Aspects pertaining to the fault requirement for the offence, the role played by the offender in its physical commission, and the Gladue circumstances of the offender must be scrutinized. The fact that B.J.M. intentionally inflicted bodily harm upon Mr. Littlecrow, that B.J.M. had the subjective foresight that his death was likely to be caused by the shooting, and that B.J.M. was the sole architect of the attack, in the sense that there was no evidence that he was directed or encouraged by others to commit it and no one else physically took

part in it, indicates that B.J.M. possessed a substantial level of moral blameworthiness for the murder. Nevertheless, because B.J.M.’s Gladue factors so profoundly and directly impact his degree of moral culpability for the murder and significantly diminish his blameworthiness for it, I am left with serious lingering concerns that a youth sentence may be long enough to reflect the seriousness of the offence and the young person’s role in it. [ 53 ] However, I have no such concerns about whether the Crown has demonstrated that the second objective of accountability in section 72(1)(

b) is not met by a youth sentence. Despite some arguments raised by defence counsel, the only reasonable inference to draw from all of the evidence tendered at the sentencing hearing is that a youth sentence would not be long enough to make B.J.M.’s risks manageable in the community. Defence counsel contended that B.J.M.’s rehabilitative potential was difficult to gauge because the pandemic has limited the amount of programming he has been given. However, Crown counsel pointed out, as referred to in the psychological assessment report, that B.J.M. was seen by Dr. Torrens of the Saskatchewan Health Authority Young Offender Team

between April 2018 to July 2020, but that he did not take treatment seriously and rarely attended appointments when he was in the community. As a result, much of their time together was spent when B.J.M. was in custody. Dr. Torrens noted that, while B.J.M. had some awareness of issues contributing to his criminality, he was somewhat reluctant to explore those issues in any depth in counselling. Dr.

DeSorcy recounted how B.J.M. acknowledged that he needed to make changes to his lifestyle by addressing his substance abuse issues, lack of formal education and negative peer group, but he was unable to express how he could put such changes into action. [ 54 ] Indeed, a comparison of the 2018 PSR to the 2022 PSR reveals that B.J.M. has become even more entrenched in gang subculture. For example, in the 2018 PSR, B.J.M. indicated some interest in exploring how people left gangs, but there was no such interest expressed in the 2022 PSR.

In fact, in this later PSR, B.J.M. expressed a hesitancy to change his peer group. In the 2018 PSR, B.J.M. stated that he believed that police and laws made the community a safer place. But in the 2022 PSR, B.J.M. stated that we should not have police and laws in society and people need to learn from their own mistakes.

In the 2022 PSR, B.J.M. also remarked that, “[P]eople who have jobs or go to school are living a good life, and they do not know what it is like to be us[.]” (See page 6 of the 2022 PSR.) [ 55 ] The expert evidence presented at the sentencing hearing also addressed factors that make it less likely that an individual would leave gang life. Stan Tu’Inukuafe testified that the longer gang members stay incarcerated, the more reluctant they are to abandon their gangs.

Thus, a shorter youth sentence would be more conducive to B.J.M. cutting his ties to the gang and taking meaningful steps towards his rehabilitation. [ 56 ] However, the second objective of accountability in section 72(1)(

b) of the YCJA does not necessarily require that the Court impose the sentence most likely to be rehabilitative in nature. Concerns about protecting the public from the risk posed by the offender are central to the required analysis. [ 57 ] The psychological assessment report provides ample support for the conclusion that B.J.M.’s risk for future violent offending is high.

The scores that B.J.M. received on the Violence Risk Appraisal Guide revealed that 82% of individual’s in B.J.M.’s category of risk violently recidivated within an average of ten years. [ 58 ] B.J.M.’s own words suggest that imposing a youth sentence would be inimical to public safety.

In his journal, B.J.M. writes, “That’s why you won’t catch me Slippin, cause IM Always Huntin niggas down That are fuckin Skippin When IM done with them there’s Gonna be Blood Drippin[.]” [ 59 ] Stan Tu’Inukuafe also made clear in his expert testimony that the type of rehabilitation that offenders like B.J.M. need to undergo to eschew these predatory propensities and make them manageable risks in the community takes significant time and commitment. As far as B.J.M. is concerned, there is currently little evidence of the latter and no real prospect of him becoming committed to change by leaving gang life.

As Crown counsel noted, B.J.M.’s reluctance to leave his gang is understandable. He may very well need his gang connections to keep him safe during his incarceration. But, as Crown counsel also eloquently observed, while the gangs might keep him safe, B.J.M.’s continued involvement with the gangs does not keep the public safe. [ 60 ] In

summary, after careful consideration of all the relevant factors, including the high risk for future violence posed by B.J.M., the limited steps he has taken towards his rehabilitation despite being offered opportunities, and his poor attitude towards making any significant changes in his life, I am satisfied a youth sentence would not be long enough to provide reasonable assurance of B.J.M.’s rehabilitation to the point where he can be safely reintegrated into society. IV. CONCLUSION [ 61 ] As the Crown has satisfied the Court, to the requisite standard, that both prongs of the

section 72 YCJA test governing the imposition of adult sentences on young persons have been met, I am granting the Crown’s application under section 64(1) of the YCJA for an order that B.J.M. is liable to an adult sentence. ______________________________ S.S. Anand, ACJ