R v RJ, 2023 MBPC 9

CITATION : R v RJ , 2023 MBPC 9 THE PROVINCIAL COURT OF MANITOBA Steinbach, Manitoba BETWEEN His Majesty the King ) I. Singh ) for the Crown – and – ) ) R. J. ) C. Olson (young person) ) for the Accused ) ) ) Delivered: ) February 16, 2023 No person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. See the Youth Criminal Justice Act , s.110(1). ALLEN, P.J. [ 1 ] RJ has entered guilty pleas to dangerous operation of a motor vehicle causing bodily harm (

Section 320.13(2) , Criminal Code ) and assault with a weapon (

section 267 (a), Criminal Code ), both from December 17, 2021. He is 18 years old. At the time of the offences he was 16. [ 2 ] The facts in this case are set out in an Agreed Statement of Facts. [ 3 ] Included within that document is the following: Based on their witness interview the RCMP were able to determine that earlier in the evening both groups of people were at the Solomon’s parking lot.

The first interaction between the groups took place when the victims drove up to the Accused and [JT] while they were in the Accused’s Ford Explorer. [JR] was driving and asked if the Accused and [JT] were police officers because the Accused’s SUV was similar to the ones the RCMP used. The Accused and [JT] initially laughed at this, and [JR] responded by saying screw you to them before driving off. The victims didn’t perceive this as a threat or in an aggressive way, but the Accused didn’t see it that way. Afterwards there was another interaction between the two groups where the name Kevin came up.

There was some yelling between the two vehicles, although it is unclear who was saying what, and the Accused left the parking lot. Some time later (unclear exactly how much time passed) the Accused returned to the parking lot. The Accused was driving in the parking lot and at points was coming close to [JR’s] vehicle. [EK, KK] and [JR] were worried at points that the Accused might potentially collide with him, so [JR] wanted to talk to the Accused. [JR] followed the Accused from the parking lot after he left.

After leaving Solomon’s parking lot both vehicles travelled on Main street with [JR] driving behind the Accused. [EK] recorded a small portion of this. The [EK and KK] advised that their vehicle tried to pass the Accused at points, but that the Accused was blocking them.

From the short video clip the Accused is observed changing lanes when reacting to [JR]’s vehicle travelling behind, however it’s also apparent that [JR] chose to follow the Accused when they reached the intersection instead of travelling in another direction. ( sic ) Both vehicles separated after this and [JR] drove to the Emmanuel Evangelical Free Church on McKenzie Street in Steinbach.

After arriving there they observed the Accused’s vehicle again, and [JR] resumed following the Accused’s vehicle. [JR] continued to follow the Accused for some time, so the Accused contacted [FF] to see if he could defuse the situation. [FF] told the Accused to go to the SRSS which he did. Both vehicles went to the SRSS parking lot, with the Accused parked at one end of the lot and the victims vehicle at the other end of the lot. The victims’ vehicle was parked perpendicular to stalls and was not blocking the exit.

The victims were joined by [FF] and began walking towards the Accused’s vehicle on foot. ( sic ) The incident was captured on the SRSS video surveillance system from a distance. As [EK], [K], [JR], and [FF] approached the Accused’s vehicle he accelerated and drove at them. [EK] was struck by the Accused’s vehicle, while the others jumped out of the way to avoid him. This collision resulted in injuries that amounted to “bodily harm” to [EK]. Afterwards [FF] called the Accused and told him to come back. [FF] and [JR] assaulted the Accused when he returned and detained him

until the RCMP subsequently arrived. [ 4 ] [RJ] has no previous criminal involvement. [ 5 ] The Crown seeks a youth custody/supervision order of eight months of closed custody followed by four months of community supervision. That sentence would be followed by 12 months of probation. Additionally, the Crown seeks an 18-month driving prohibition.

The defence suggests that an 18-month conditional discharge is an appropriate sentence in this matter. [ 6 ] I am satisfied that the “door to custody” as set out in section 39(1) of the Youth Criminal Justice Act ( YCJA ) is open in this case, as these are violent offences. Defence counsel did not dispute that the offences herein have opened the possibility of custody. [ 7 ] Section 39(2) says that, when custody is available alternatives must be considered. That

section reads: If any of paragraphs (1)(

a) to (

c) apply, a youth justice court shall not impose a custodial sentence under

section 42 (youth sentences) 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 purpose and principles set out in

section 38. 39(3) Factors to be considered In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances. [ 8 ] In this case, the alternatives to custody that are available include probation, and the discharge provisions. [ 9 ] As to section 39(3)(b), as the youth has no previous youth offences and there appears nothing contraindicative in his background, I have no reason to believe that he would not comply with a non-custodial sentence. Subsection (

c) does not apply as he does not have a previous record. [ 10 ] The youth sentencing principles are set out in

section 38 of the YCJA . Section 38(1) sets out: The purpose of sentencing under

section 42 (youth sentences) 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. [ 11 ] At section 38(2)(

c) the Act says “the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence.” [ 12 ] As well, section 38(2)(

d) and (

e) reads: (d) [A]ll 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 purpose 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. [ 13 ] And finally, at section 38(3), the factors to be considered in sentencing are set out: 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. [ 14 ] Looking at those factors: As to (a); RJ is entirely responsible for the decision to direct the vehicle he was driving at the people on the parking lot that evening. He appears to have made a conscious decision to drive dangerously and this decision resulted in serious injuries, in particular to one of the complainants. [ 15 ] Subsection (

b) requires an examination of the harm done to the victims and whether it was intentional or reasonably foreseeable. As there is ample police evidence to establish that RJ’s vehicle had a lengthy run up and appears to have deliberately turned into the complainants, it is logical to assume that he intentionally endangered the complainants.

Significant injuries were clearly foreseeable from a vehicle accelerating into a group of pedestrians. [ 16 ] The harm done to the collateral complainants in this case is set out in the victim impact statements of KK and AW, KK and EK’s mother. [ 17 ] The following is from AW’s statement: Answering that phone call around 10:35 that night, I knew something bad had happened and my heart dropped. [KK] was crying so uncontrollably I could barely understand her. When she was finally able to get the words out she told me that [EK] was hit by a car.

I could hear [EK] crying out in pain in the background and I have never felt more of an urgency to get to my children. Hearing the pain and fear in your child’s cries is one of the most heartbreaking sounds. My husband and I raced to the SRSS parking lot . . . crowd of people gathered around . . . I knew I had to stay calm for [EK] and [KK] but seeing your daughter like that was the most heart wrenching situations I have ever been in. I kneeled down to take over stabilizing [EK]’s head and when I placed my hands on her head the warmth of the blood and intense pulse were overwhelming.

I looked own into her scared eyes and told her how she was going to get through this and she would be ok. . . . . . Most of the above describes the pain and trials my daughters went through and you might think “isn’t this supposed to be MY VIS?” but if you are a parent you will understand that your child’s pain IS your pain. Your child’s trials are YOUR trials. I have experienced many traumas in my lifetime but this one has been harder to work through.

The events of that night play in my mind very clearly when I allow it to creep in and the pain I experienced watching my daughters endure the physical, emotional and mental pain will stick around for quite some time. [ 18 ] From the victim impact statement of KK: When I got home that night i couldn’t sleep not knowing if my sister was okay or not, if she was going to end up dying or be home soon. Along with those thoughts keeping me awake, a replay of the event also kept me up. That went on until [EK] came home and after i knew she was alright, it was just the replay that wouldn’t go away.

Sometimes i still have dreams about it that wake me up, or i just can’t stop thinking about it . . . I missed the days of school leading up to winter break, but i went back after that, despite not wanting to go. I found it very hard to leave my sister alone and not be by her side, and to know if she was still doing the same as she was when i left in the morning. . . I struggle with anxiety and feeling of depression and they just got worse after the incident.

Having to watch my sister be in pain for so long made it hard for me to even enjoy christmas, i felt like i couldn’t actually enjoy anything for a long time . . . I get anxious a lot when I think about crossing the street at a crosswalk and before i couldn’t even do it along, it took about a month before i even tried. I’m scared that the cars won’t stop and my mom is going to get another phone call like the one i gave her. ( sic ) [ 19 ] And, from the victim impact statement of EK: December 17, 2021 was a life changing night for me. I was hospitalized for 4 days . . .

I was rushed to HSC where they did assessments, MRI’s, X-rays and they determined that my pelvis was broken in 4 spots, my ankle was fractured which required surgery to have screws put in to help the bones fuse back together. There was an open wound, approx 6 inches long, across my buttocks, lacerations on my forehead which required stitches as well as many other cuts and bruises down my body. Being in the hospital was hard and emotional. I couldn’t sit up, lay down or even move without being in pain. I couldn’t have visitors and me being a people person, I found this hard. . .

I was discharged right before Christmas and was able to be home with my family for the holidays. I was grateful but it was not easy. On the way home from the hospital I had panic attacks when a vehicle passed and the headlights were coming towards us. When I got home I wasn’t able to move about pain free so I was either in my bed or on the couch. When school started back up in the new year I was in no shape to return. I stayed home and my mom and boyfriend did everything for me. . . Every little thing I needed, someone else had to help me. . . In February I went back to school.

It was scary because the incident happened at the school and I had panic attacks when I would go near the parking lot. I found it hard to be at school as the thoughts of what happened replayed in my mind often . . . the level of trauma I had suffered made it hard for my brain to retain any information I learned in class and my grades were dropping. . . MPI was able to set me up with a psychologist who specialized in trauma therapy and not long after I was diagnosed with depression, anxiety and severe PTSD.

Hearing this was not easy considering I have never dealt with anything like this and I did not know what to expect or what this would mean for me.

During the summer I wanted to do regular teenager things like hang out with my friends and family, go driving, swimming at the pits and so much more. But I felt very mentally and physically restricted. I couldn’t swim because my ankle wasn’t healed enough, I was scared to drive at night as headlights were a huge trigger of a panic attack for me. Nothing seemed the way it used to. In late summer I had surgery to remove the screws from my ankle. I was stuck doing limited activities as my ankle healed yet again.

The incision area has left a big, thick, dark red scar which the doctor isn’t quite sure if it will ever fade. As summer came to an end I started a new job as a server. . . One of the biggest challenges for me was meeting so many new people and being skeptic of all these strangers, my though process was one stranger hurt me in the past so why should I trust these ones? I also wasn’t able to work full time or long hours as my ankle would throb in pain after being on my feet too long. . . Sometimes the scar on my ankle even opens up and bleeds.

Throughout all of 2022, and some currently, I received treatments that include chiropractic, acupuncture, physical and occupational therapy, trauma therapy and hospital visits with the surgeon to check in. Some of these treatments, especially the acupuncture and physical therapy, cause a great deal of pain that sometimes lingers for a couple days. In total I had about 20 stitches which have resulted in permanent scars. The scar across my buttocks is the most significant and in my opinion ugly. It has prevented me from enjoying pool and beach time with my family as I was self conscious of what other would think.

When I finally did have the nerve to swim in public, the looks and stares from others confirmed my feelings. This scar is large and deep and has disfigured my buttocks area. The surgeon said I would have to consider reconstructive surgery to try and diminish this scar. I don’t remember a lot of details from that night but one of the things I remember vividly is me telling my sister [KK] to call my mom and boyfriend because I honestly though I was going to die. I recall asking her several times if this is for real or if I was dreaming. I also recall asking my mom if I was going to die.

Remembering this so clearly and thinking that I was actually dying is something that I have been working through as it truly traumatized me. The aftermath of the trauma will linger and will require me to continually work through the emotions but I know I will get through this. [ 20 ] Clearly, there was significant harm done to these victims and this is something that RJ will live with for the rest of his life. [ 21 ] YCJA Section 38(3)(

f) reads, “[A]ny 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.” [ 22 ] Clearly the intent to drive at someone is the principal aggravating factor in this sentencing. In effect, as suggested by the Crown, RJ used his vehicle as a weapon. [ 23 ] In order to look at mitigating factors, it is necessary to examine the pre-sentence report (PSR) and forensic reports that were filed in this case. [ 24 ] The forensic report, marked as exhibit 5, is dated August 31, 2022.

This report and the PSR both relate that RJ experienced bullying in school. They suggest that the bullying came about because as a child he suffered from speech difficulties which resulted in his receiving speech therapy until grade five. [ 25 ] The forensic report said that as a result of the bullying RJ had difficulty attending school in Landmark, his hometown. He eventually transferred to the high school in Steinbach in grade 10.

He did so as he was particularly interested in vocational training that was available in that school, but not in Landmark. [ 26 ] One of the consequences to RJ of these charges, is that he was not permitted to continue in school for the balance of the 2021- 2022 school year and although back in school this year, has not been permitted back into the Steinbach Regional Secondary School (SRSS). [ 27 ] Both the forensic and the PSR state that RJ is neither an alcohol drinker nor a drug user. [ 28 ] The forensic report does relay his contention that on the night of the offences he felt threatened by the group of people following behind his car.

He told the interviewer that his actions resulted from him being fearful for his safety and panicking. [ 29 ] The forensic said also, that RJ has suffered with considerable remorse and emotional distress following the incident.

He described in detail to the interviewer how the incident has emotionally impacted his life. [ 30 ] The forensic report also detailed how RJ has been very conscious of his release restrictions and has been completely compliant with those instructions. [ 31 ] The forensic examiner stated the following: [RJ] impressed as a young man who experienced significant regret and a willingness to take responsibility for his actions, despite the consequences. He endorsed symptoms consistent with a significant traumatic stress reaction after he hit his victim with his vehicle.

His version of events suggested that his actions were motivated by fear and did not have the intended outcome he desired. By his reports, he has been compliant with his restrictions, has ceased contact with the antisocial peer, and continues to receive support of his family and a girlfriend. Although he has some historical risk factors that would moderately increase a risk of future violence, such as physical altercations and suspensions from school when younger, these are likely outweighed by the remainder of known historical, social, and individual risk factors for future violence or offending being low.

As well, he displays various protective factors against future recidivism, such as prosocial involvement, strong social support, strong connections, positive attitude towards authority, a strong commitment to school, and personal resilience.

[ 32 ] The PSR filed in these proceedings includes comments from the youth’s mother and grandfather as to the guilt and regret voiced by the young man subsequent to this event. [ 33 ] As to his background, RJ lives with his mother, father and younger brother in Landmark, Manitoba. They have lived in the same home for 16 years. Although the information provided to the PSR reporter led to the observation that RJ has few friends and is somewhat isolated, it nevertheless appears that he has a good relationship with his parents, grandparents, and other relatives.

The boy’s maternal grandfather told the reporter that his grandson is “caring” and that “he often sees him helping his elderly neighbour, and is always looking to help his grandparents” (page 4 of PSR). [ 34 ] RJ has been working for a stucco company since January of 2022, as his school hours permit. At present he works only on Saturdays. His stated career goal is to become an electrician and work for Manitoba Hydro. The young man’s grandfather gave a fairly thorough assessment as to the emotional status of the offender.

That assessment included his observation that RJ “‘can be easily influenced’ and was of the opinion some of the peers he was associating with from his work . . . were not good influences” and these “were some of the individuals he was with at the time of the offence” (page 8 of PSR). [ 35 ] Although RJ is Métis, it does not appear that either he or his father (who is also Métis) have been involved in Métis cultural activities other than having gone “a couple of times to Louis Riel Day events in St.

Boniface.” None of the family members interviewed for the PSR reported having experienced racism. [ 36 ] It is notable that subsequent to the events before the court, RJ has taken a defensive driver’s course. It would appear that other than RJ Sr.’s parents having been in residential school, there are few – if any – significant Gladue factors in this young man’s life.

It is noted that RJ Sr. has not had any contact with his family subsequent to his children being born. [ 37 ] The PSR ultimately assessed this offender as being a very low risk for re-offending behaviour. [ 38 ] In my opinion, there is nothing noted in the report, or apparently found in his past history, to indicate a propensity towards aggression or violence towards others.

Similarly, there is nothing in his background to show inclinations towards anti-social behaviour or criminality. [ 39 ] In any sentencing of this nature in Canadian courts, it is fundamental that dispositions should be similar to earlier cases wherein the facts and circumstances are similar. To that end, the defence cited a number of cases, including R v Kevin Creft , from the Ontario Court of Justice, 2022 ONCJ 572 . [ 40 ] In that case, the offender was driving a borrowed car in an underground parking garage. He was driving haphazardly in a manner designed to impress his passengers.

At some point he lost control of the car, which then crashed and pinned a pedestrian against a concrete wall. The victim was left pinned and Creft left the scene without assisting the victim. The victim suffered long lasting, significant injuries. Mr. Creft was not a qualified driver. He was 23 years old. He received a seven month conditional sentence order (CSO). [ 41 ] There are two significant differences between that case and the matter at bar. The Creft case was in adult court and that was a case of negligent use of a motor vehicle.

At bar, we have a direct intentional act of driving in a manner that very foreseeably could cause harm to the victims. [ 42 ] Similarly, in the Provincial Court of Alberta case of R v MAB , 2012 ABPC 87 , the offender’s dangerous driving resulted from negligent driving. The driver was travelling at 182 kilometres per hour in an 80 zone; he hit a bump and lost control of the vehicle. In the resulting rollover, his passenger was killed. The offender in that case was 17 years old. The offender received a two-year period of probation, 240 hours of community service and a five-year driving prohibition.

The Court concluded that the only aggravating factor was the excessive speed. [ 43 ] The defence also provided the case of R v Onkar Singh Mann , 2014 BCPC 138 . In that case, the offender deliberately drove his vehicle at, and struck the victim as she crossed at an intersection. He then drove home and called police. The victim, who was unknown to Mr. Mann, suffered significant injuries. Mr. Mann had numerous previous driving violations and prohibitions. A psychiatric report was prepared for his sentencing. This report stated that he suffers from persecutory delusions and he has a psychotic disorder.

He was found to be schizophrenic. The report said that his schizophrenic symptoms are related directly to the commission of the offence. It appears that his actions were triggered by thinking the victim was his ex-girlfriend, who had stabbed him previously and was stalking him, or that she was a spy and he was to hunt spies. He also told investigators that, as she was rushing across the road, it triggered a chase response in him. [ 44 ] Clearly Mr. Mann’s mental status, both at the time of the offence and ongoing, played a role in his sentencing.

Particularly notable is this statement from paragraph 20 of the judgment: “All parties agree his continued psychiatric and psychological rehabilitation, counselling or treatment is not best served in a custodial situation.” He received a 90-day jail sentence and three years probation. [ 45 ] Once again, in the case of R v Kyle Devos , 2022 MBKB 185 , the driving involved was of a negligent nature. Mr. Devos was doing “donuts” in a frozen field at night. His truck flipped and his passenger was killed. The 18-year-old offender had been drinking prior to this incident; he had no criminal record.

He was sentenced to six months in jail, followed by three years of probation. Again, the major distinctions from this case and the matter at hand: The Devos sentencing (which is pending appeal), was in adult court and the harm done resulted from negligent driving. [ 46 ] In this case, it is mitigating that the offender has no prior involvement with the youth justice system.

It is also mitigating that he has expressed remorse for this incident and that by entering a guilty plea, has spared the complainants from having to testify. [ 47 ] It is also noteworthy that RJ has already suffered consequences resulting from his actions. He was beaten on the night of the incident. He has apparently experienced animosity in the community and he lost his placement in the vocational training program that he

had been enrolled in at the Steinbach high school. Additionally, RJ has been on bail conditions for more than a year and has been apparently diligently compliant. [ 48 ] It is also noteworthy that this young man has strong support from the community, as set out and demonstrated in the letters of support filed on his behalf.

It is aggravating that in this case, the driving involved appears to have been intentional use of a motor vehicle in a manner which was highly likely to cause significant harm. [ 49 ] Although RJ says that he did not intend to hit the complainants in this case, his actions were such that grievous harm was very likely. The facts before the court indicate that his vehicle was at one end of the school parking lot; the complainants were at the other. He then accelerated and drove right at them. He was not surrounded by the four complainants. They appear to have been a significant distance apart.

If RJ was intimidated, as he says he was, he could have driven out of the parking lot and gone to the centrally located RCMP detachment, or he could have gone home. Instead, he chose to accelerate and drive right at the complainants. This is not negligent driving, this is deliberate driving. [ 50 ] Section 42(1) of the YCJA reads as follows: A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under

section 41, any pre- sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court. [ 51 ] In this case, the submission by counsel for RJ is that he should be sentenced by way of an 18-month conditional discharge with six months of probation to follow. [ 52 ] Section 42(2) of the YCJA provides that in imposing the Court shall impose any of a number of sanctions.

One of those sanctions is found at section 42(2)(c): [B]y order direct that the young person be discharged on any conditions imposed by the court in accordance with paragraph 38(2)(e.1) and may require the young person to report to and be supervised by the provincial director. [ 53 ] In determining whether such a sanction would be appropriate in this case, it is important to consider the previously set out purpose and principles of youth sentencing found in section 38(1), (2) and (3) of the Act. Of particular note in this sentencing, I highlight the following from

section 38: Firstly, the purpose of sentencing “is to hold a young person accountable through the imposition of just sanctions that have meaningful consequences ” (emphasis added). [ 54 ] From section 38(2)(

c) YCJA : “[T]he sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence.” [ 55 ] In this case, the sentencing decision comes down to whether a fit sentence is a custodial sentence or a sentence served in the community. As to the question of the meaningful consequences both alternatives can meet this criteria, obviously a period of custody and supervision can provide significant consequences, as can only be effected by loss of liberty. On the other hand, probation served in the community with community service hours can also arguably provide meaningful consequences. [ 56 ] As to section 38(2)(

c) requiring that the sentence be proportionate to the seriousness of the offence and the degree of responsibility of the offender: In this case, the serious nature of driving a car at sufficient speed that two people were not able to get out of the way is obvious. The injuries in this case could have been fatal. As to the degree of responsibility, no matter how upset or intimidated the offender was, it is clear that he had other options than the one he chose. He is solely responsible for the harm done to the complainants. [ 57 ] Going on with YCJA

section 38: Section 38(2)(

d) is a statement of principle that all other options rather than custody that are reasonable in the circumstances should be considered. In this case, the question is whether there are available options other than custody that fit these circumstances. Is a non-custodial sentence capable of achieving the overall purpose of sentencing as set out in section 38(1)? [ 58 ] Section 38(2)(e)(iii) says the sentence must “promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community”.

In this case, it is clear from the injuries suffered by EK, and the three victim impact statements, that there has been considerable harm done to the victims. [ 59 ] The harm done to the victims is also a factor in section 38(3), which outlines the factors to be considered in determining a youth sentence. YCJA section 38(3)(

b) reads: “[T]he harm done to victims and whether it was intentional or reasonably foreseeable”. [ 60 ] In this case I am satisfied that RJ’s actions were, if not intentional, reasonably foreseeable to bring about significant harm. As well, the degree of participation of the offender is also set out in section 38(3)(

a) as a factor to be considered. It is also a factor to consider that RJ has no previous findings of guilt. [ 61 ] Finally, the aggravating and mitigating factors are to be assessed in whatever way they are relevant to the sentencing principles. [ 62 ] In looking at all of these factors and considering all of the evidence before the court, including the submissions by counsel, the pre-sentence report, the forensic report, the support letters and the victim impact statements, I have concluded that the purpose and principles of sentencing under the YCJA would not be adequately met by either a conditional discharge or a non-custodial sentence.

[ 63 ] I do not believe that the sentencing sanctions available with either a conditional discharge or a period of probation would adequately hold RJ accountable for the crime. Additionally, I am of the opinion that only a period of incarceration will meet the requirements of the Act to provide sufficiently meaningful consequences. In my opinion, a non-custodial sentence would not be proportionate to the seriousness of this offence and the responsibility that this offender must bear. [ 64 ] Accordingly, RJ will be sentenced concurrently on both charges he has pled to, to a custody and supervision order pursuant to section 42(2)(

n) of the Act, which requires that he serve six months in custody followed by three months under supervision in the community. This sentence to be followed by 15 months of probation. [ 65 ] The three months period served in the community shall include the following conditions, as set out in section 97(1) of the Act: (

a) keep the peace and be of good behaviour; (

b) report to the provincial director and then be under the supervision of the provincial director, with conditions to be set by the provincial director; (

c) inform the provincial director immediately on being arrested or questioned by the police; (

d) report to the police, or any named individual, as instructed by the provincial director; (

e) advise the provincial director of the young person's address of residence and report immediately to the provincial director any change (

i) in that address, (ii) in the young person's normal occupation, including employment, vocational or educational training and volunteer work, (iii) in the young person's family or financial situation, and (iv) that may reasonably be expected to affect the young person's ability to comply with the conditions of the sentence; and (

f) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized in writing by the provincial director for the purposes of the young person participating in a program specified in the authorization. [ 66 ] The probation conditions will include: - Report to probation within 72 hours of getting out of custody and thereafter as required; - Complete any and all counselling as recommended by Probation Services; - No contact with EK or KK, and not to attend within 100 metres of where they live, work, or worship; except for incidental contact at the Steinbach Regional Secondary School. - Fifty (50) hours of community service work, to be completed by January 15, 2025; and, - Not to occupy the driver’s seat of any motor vehicle. [ 67 ] Additionally, there will be an 18-month driving prohibition pursuant to section 42(2)(

j) YCJA and under

section 320.24 Criminal Code . Original Signed by Judge Allen H. L. ALLEN, P.J.