His Majesty the King - v. -, 2023 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2023 SKPC 14 Date: January 20 , 2023 Information: Y364961 Location: Nipawin _____________________________________________________________________________ Between: His Majesty the King - and - D.K. Appearing: Wade Rogers For the Crown Mark Brayford, K.C. and Brian Pfefferle, K.C.

For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . SENTENCING DECISION L.W. STANG , J Introduction [ 1 ] Shortly after midnight on September 24, 2021, at her home in Choiceland, Saskatchewan, M.K. was physically attacked and killed by her son, D.K. He was 13 years old.

On September 7, 2022, D.K. appeared in Youth Justice Court and pled guilty to one count of second-degree murder, and I directed the preparation of various reports for use during the sentencing process. These reports, along with

various other exhibits and submissions of counsel were presented to the court during the sentencing hearing held on December 13, 2022. The matter was then adjourned until today for this sentencing decision. Issue [ 2 ] The primary issue being determined in this decision is the appropriate sentence to be imposed on D.K. As discussed in more detail below, an important aspect of determining the appropriate sentence in this case is my application of s. 38(3) (

d) of the Youth Criminal Justice Act, SC 2002, c 1 [ YCJA ] which requires that I “take into account” the pre-sentence time that D.K. has already spent in custody. Sentence [ 3 ] For the reasons set out herein I hereby sentence D.K. to serve an intensive rehabilitative custody and supervision (IRCS) order for a period of 6 years and 8 months, which order will be comprised of a committal to intensive rehabilitative custody for a period of 2 years and 8 months and a subsequent placement under conditional supervision for a period of 4 years. [ 4 ] I also make the following ancillary orders: a.

Firstly, pursuant to s. 490.1 of the Criminal Code I order the forfeiture of all offence related property listed in Appendix “A” to the draft order filed by Crown counsel; b. Secondly, pursuant to s. 51(1) of the YCJA I make an order prohibiting D.K. from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, which order starts today and ends 15 years after D.K. has completed the custodial portion of the sentence imposed today; and, c.

Thirdly, pursuant to s. 487.051(1) of the Criminal Code I make an order, in form 5.03, authorizing the taking of samples of bodily substances from D.K. that are reasonably required for the purpose of forensic DNA analysis.

Summary of circumstances of the offence [ 5 ] The morning of September 23, 2021, D.K. argued with M.K., he then went to school, and in the early evening they argued again. The ongoing subject matter of their arguments was D.K.’s father, and more specifically, D.K.’s wish to move back to the farm and live with his father. D.K. stayed up that night until after his two younger siblings and M.K. were in their beds sleeping. M.K.’s partner R.B. was not there this night as he was away from home for work.

For several hours prior to the offence D.K. dwelled on the issue of not being able to return to the farm to live with his father and became very angry. He blamed and held M.K. responsible for this. He decided to physically attack and kill her.

The writer of the pre-sentence report (PSR) wrote the following about this moment: “[D.K.] stated he felt his mother would never let him return to live with his father, and at the time of the offence, he felt he had no other choice but to kill her.” [1] [ 6 ] On September 24, 2021, shortly after midnight, D.K. armed himself with an aerosol can of insect spray, entered M.K.’s bedroom, and physically attacked her by striking her in the head with the aerosol can. He struck her in this manner at least 10 times and he struck her with other random items.

He also used a charging cord to strangle her for a period of time and then used his hands to strangle her for over a minute. As a result of this attack M.K. was seriously injured and she died from these injuries. As a result of her death her unborn child, due to be born in approximately one week, also perished. [ 7 ] After the attack, at approximately 1:45 a.m., D.K. telephoned his uncle, W.K., who in turn contacted the police. W.K. also immediately went to M.K.’s home and attempted to provide emergency care to her until police and EMS personnel arrived. D.K.’s older

sister also attended and took D.K.’s younger siblings away from the residence. Upon their arrival, the police found D.K. standing outside on the driveway. He admitted to them that he was the person responsible for his mother’s death and the police then arrested him.

Summary of D.K.’s circumstances [ 8 ] At time of the offence D.K.’s age was 13 years and four months. He is now 14 years and eight months old. The victim, M.K., was his mother and his father is D.K. senior. D.K. is the oldest of their three children and D.K. also has a maternal half-sister who is several years older than him. D.K.’s parents separated in October 2020. M.K. and the children moved from the family farm, near Choiceland, to the residence of a family friend.

They stayed in this residence for a relatively short period of time and then M.K. and her children moved into the Choiceland residence of her new partner, R.B. [ 9 ] At approximately the same time of D.K.’s parents’ separation, D.K. senior was charged criminally and then convicted for an assault committed against D.K. As a result of his conviction D.K. senior was placed on probation for a year and for the first six months of that probation order he was bound by a condition that prohibited him from having any contact with D.K.

This complete absence of contact with his father for several months was undoubtedly difficult for D.K. Unfortunately, D.K. apparently did not understand that this was a result of his father’s offence, and he blamed M.K. for the fact that he was unable to have contact with his father. [ 10 ] It is clear from all the information presented during the sentencing hearing that during the year of October 2020 to September 2021, D.K. was more than unhappy. He was miserable. He did not get along with R.B. and did not want to live in R.B.’s home. He was prevented from having contact with his father.

He was unable to return to live on the farm with his father which is something he desperately wanted. All of this was completely out of his control and resulted in resentment and acute anger towards his mother. [ 11 ] In general, D.K. is physically healthy and appears to be an ordinary young teenager. However, below the surface there were and are significant learning and mental health challenges. [ 12 ] In June of 2019, when D.K. was 11 years old, he was assessed by a school psychologist. A copy of that psychologist report was not provided to the court, but it was reviewed by Dr.

Terry Nicholaichuk who considered it and commented on it in his psychological assessment report dated 16 May 2022. [2] In 2019, D.K. was having considerable difficulties with his schoolwork. His overall cognitive abilities were assessed to be well below average and his oral vocabulary, reading fluency, and mathematics skills were all assessed as being significantly below average. [ 13 ] In April 2022, when D.K. was almost 14 years old, Dr. Nicholaichuk was able to confirm D.K.’s ongoing learning difficulties.

He was informed by staff at the Prince Albert Youth Centre that D.K. struggled academically; he was very poor in math and was reading at just below a Grade 3 level. [ 14 ] In conducting his own assessment of D.K., Dr. Nicholaichuk noted that he had difficulty expressing himself verbally and that he “… presented as being less mature than most youths of his age and was somewhat naïve.” [3] And with respect to D.K.’s learning difficulties, Dr.

Nicholaichuk wrote the following: “Because of the concerns about [D.K.’s] ability to learn, I readministered the Weschler Intelligence Scale for Children – Fifth Edition – Canadian (WISC-V). The results of the testing were similar to those reported by the educational psychologist who prepared the June, 2019, psychological report.” [4] [ 15 ] In addition to considering and assessing D.K.’s intellectual status, Dr. Nicholaichuk’s assessment also addressed D.K.’s mental health.

He found that D.K. met the criteria for a diagnosis of Oppositional Defiant Disorder. [ 16 ] Immediately following D.K.’s guilty plea on September 7, 2022, I directed that a psychological assessment be conducted of him to assist the Court in determining if an IRCS sentence would be appropriate and to assist the Court in assessing the level of risk that D.K. might reoffend violently in the future. This assessment was conducted by Registered Psychologist, Ashley Viklund.

Her report, received by the court on October 20, 2022, is marked as Exhibit P-2 during the sentencing hearing. [ 17 ] As a result of her assessment of D.K., Ms. Viklund reported that D.K. was in a category of “Moderate Risk for violent

recidivism”. Additionally, she determined that, at the time of writing her report, D.K. met the criteria for diagnoses of Conduct Disorder and Adjustment Disorder with Disturbance of Conduct. She acknowledged the earlier diagnosis by Dr. Nicholaichuk of Oppositional Defiance Disorder at the time of the offence but found that D.K. no longer met the criteria for a diagnosis of this disorder. Lastly, she noted the possibility of Autism Spectrum Disorder and recommended further specialized assessment regarding same. [ 18 ] Ms.

Viklund also reviewed the program criteria for an IRCS sentence and found that D.K. met the criteria and she recommended that “…he would benefit from enrollment in the IRCS program”. Parties’ positions regarding sentence [ 19 ] The Crown recommends that I impose the maximum IRCS sentence available pursuant to the provisions of the YCJA , being a seven-year custody and supervision order consisting of 4 years in custody followed by 3 years of community supervision. Furthermore, the Crown recommends that no specific credit be given to reduce the maximum available sentence.

In making this recommendation, the Crown stresses the brutality of the circumstances of the offence and submits that only the maximum available sentence will be sufficient to hold D.K. accountable. [ 20 ] Defence counsel recommend that I consider the maximum available sentence but give appropriate credit for the pre-sentence custody that D.K. has already served.

Given the amount of pre-sentence custody already served defence counsel specifically recommended that I impose a 5 year custody and supervision order. [ 21 ] I note that as of the date of sentencing submissions D.K. had been in custody for 445 days and as of today, he has been in custody for 483 days. I also note that defence counsel took no issue with the ancillary orders and that both parties agreed that I should impose an IRCS sentence pursuant to s. 42(2)(r)(iii), rather than an ordinary custody and supervision order pursuant to s. 42(2)(q)(ii). Sentencing Provisions in the YCJA [ 22 ]

Section 38 of the YCJA sets out the purpose of sentencing, the sentencing principles, and factors I must consider and apply when deciding the appropriate sentence for [D.K.]. It reads as follows: Purpose 38

(1) 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. Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

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 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; (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if (

i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1), (ii) the young person will reasonably be able to comply with the condition, and (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; 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. Factors to be considered

(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. [ 23 ] I have also reviewed s. 39 of the YCJA which sets out additional requirements and factors to be considered when the potential sentence may include a period of custody. Additionally, s. 42(2) of the YCJA sets out that when sentencing a young person – as a youth – for offences of murder “…the court shall impose a sanction set out in paragraph (

q) or subparagraph (r)(ii) or (iii) …”. Consequently, since D.K. is being sentenced for the offence of second-degree murder, I must impose a sanction under s. 42(2)(q)(ii) or s. 42(2)(r)(iii). Aggravating and mitigating factors [ 24 ] The circumstances of the offence are, as the Crown emphasized, particularly brutal. A variety of weapons were used, and based on the description of the offence, and the injuries sustained by the victim, D.K.’s attack on her must have continued for a considerable amount of time.

In addition to considering the overall gravity of the sustained violence which caused the victims death, I also find the following specific factors to be aggravating: a. The victim was vulnerable because she was attacked while sleeping. She was also physically vulnerable because she was pregnant, and the pregnancy was close to full term; b. In addition to the victim’s loss of life, the offence committed by D.K. also resulted in the loss of life of the unborn child; c. D.K.’s younger siblings where present in the home when the offence occurred; and, d. The enormous impact that this offence has had on many victims.

This impact is apparent from the nine victim impact statements prepared by M.K.’s partner, family, and friends. Additionally, even though D.K.’s siblings did not provide victim impact statements to the court, I can and do consider that the loss of their mother will have a tremendous impact on them for their entire lives.

[ 25 ] There are also several mitigating factors which I have considered. I find the following factors to be mitigating: a. D.K. has no prior youth record; b. D.K.’s very young age of 13 years and 4 months at the time of the offence; c. D.K.’s personal circumstances, as detailed in the various reports presented at the sentencing hearing; including of course his learning challenges and mental health disorders; d. D.K.’s guilty plea and acceptance of responsibility; e. D.K.’s willingness to participate in programming; and, f.

Family support for D.K., in particular the ongoing support of his father. [ 26 ] In this case I do not find remorse to be a mitigating factor. As noted in the PSR, D.K. did not express real remorse and felt justified in his actions. He also had little understanding of how the offence could negatively impact other people. This lack of insight on his

part is not thoroughly explained but it seems logical that it may be related to his mental health disorders and his intellectual limitations. I note that during the sentencing hearing D.K. did apologize, however, in all the circumstances, I am unable to find that this apology was an expression of true remorse.

Notwithstanding the foregoing, in my view D.K.’s willingness to verbally apologize in open court is a good sign that with time and additional maturity he may come to be genuinely remorseful for what he has done. [ 27 ] During the sentencing hearing some submissions were made about a prior incident where D.K. brandished and/or threw a knife at M.K. In this case I do not consider this incident to be a specific aggravating factor for several reasons. The specific details of this incident were not made known to me, and it appears that the incident occurred approximately 10 months prior to the offence date.

Moreover, D.K. was not convicted of any criminal offence from this incident nor was the incident proven beyond a reasonable doubt at the sentencing hearing. Consequently, it is difficult to see how I could properly assess this circumstance as a specific aggravating factor; thus, I decline to do so. This does not mean, however, that the incident has not been properly considered by me. Dr. Nicholaichuk, Ms. Viklund, and the writer of the PSR were all aware of this incident and they all mentioned it in their reports. Therefore, it was considered by them and me as part of D.K.’s background and personal circumstances.

Additionally, it would most certainly have been considered by Ms. Viklund in her assessment of the risk of D.K. reoffending violently in the future. Jurisprudence filed by counsel [ 28 ] D.K.’s counsel have filed 18 cases. I have read all the cases and note that many of them are sentencing decisions for adults, and some are for young persons who were being sentenced for offences other than murder.

The message I take from this jurisprudence as a whole is that it is normal to give credit for pre-sentence custody when sentencing adults and young persons, and that the courts across Canada have done so in a variety of ways. I will specifically comment on a few of these cases that I found to be the most relevant and helpful. [ 29 ] In R v Van Buskirk , 2007 BCSC 1924 , the Supreme Court of British Columbia sentenced Mr. Van Buskirk, as a youth, for the offence of first-degree murder. He was 17 years old at the time of the offence.

He entered a guilty plea and the parties agreed that he ought to be sentenced as a youth rather than as an adult. They also agreed that the maximum sentence available under the YCJA was appropriate, but they disagreed as to what credit, if any, ought to be granted for pre-sentence custody. Credit was granted on a one-to-one basis as against the custodial portion of the sentence. [ 30 ] In R v C.J.M ., 2010 SKQB 103 [ C.J.M .], the young person entered guilty pleas to two counts of second-degree murder and three counts of attempted murder. He was 15 years old when the offences occurred.

At the time of sentencing, he had been in pre- sentence custody for 26 months. There was no application for an adult sentence as the parties agreed that a youth sentence was appropriate. The parties also agreed that the maximum sentence of a 7 year custody and supervision order – including 4 years of custody – would be appropriate, however, they disagreed as to what credit, if any, should be given for the young person’s time in pre-sentence

custody. [ 31 ] In C.J.M. Justice McMurtry decided to grant substantial credit for the young person’s pre-sentence custody at a rate of somewhat less than one-to-one. She imposed a 5 years and 2 months custody and supervision order, which consisted of 2 years and 2 months custody followed by 3 years of community supervision. The first two paragraphs of Justice McMurtry’s conclusion in C.J.M. , at page 14, read as follows. The Crown and defence are agreed that C.J.M. should be sentenced as a youth, not as an adult, and he has been in custody for over two years awaiting a disposition.

If he receives credit for his time on remand, he will still serve the maximum sentence Parliament has allowed for second degree murder and attempted murder when committed by a youth. I am not satisfied that this is one of those exceptional cases referred to by the Ontario Court of Appeal in R. v. L.(E.), supra, given C.J.M.’s short criminal history, his minimal involvement in these offences, and his potential for rehabilitation.

If C.J.M. were to be denied credit for the time that he has spent in detention since January 4, 2008, he would serve a sentence that is almost two years longer than the maximum provided by Parliament under the YCJA . The Crown has not satisfied the heavy onus upon it to demonstrate why that is necessary after agreeing that C.J.M. ought to be sentenced as a youth. [ 32 ] In R v J.E.O ., 2013 SKCA 82 , 417 Sask R 244 [ J.E.O .], our Court of Appeal, directly addressed the issue of how credit for pre-sentence custody should be dealt with when imposing youth sentences in Saskatchewan.

At paragraphs 35 to 49 of this decision the Court of Appeal set out five important and helpful points to consider and apply when a youth court judge is “taking into account” pre- sentence custody is a factor. Paragraph 38, in particular, reads as follows. [38] The duty to “take into account” means that time spent in pre-sentencing custody must be a consideration in fashioning an appropriate sentence.

It will normally reduce the severity of what the sentence would have been in the absence of such custody. [ 33 ] Crown counsel filed five cases, four of which are sentencing decisions for young persons sentenced to “youth” sentences for the offence of second degree murder. I note that in all four of these decisions the sentencing judge was also required to first decide if it was appropriate to impose a youth sentence or an adult sentence because the Crown had made applications for adult sentences.

In all four of these cases the sentencing judges decided in favour of imposing youth sentences and then went on to impose the maximum available sentence without reduction for time spent in pre-sentence custody. Analysis [ 34 ] The cases submitted by the Crown provide support for the Crown’s sentencing position in this case.

However, in addition to the fact that the factual circumstances of murders and the personal circumstances of young persons can be extremely different, there are two distinct factors which distinguish the cases submitted by the Crown from this sentencing. [ 35 ] Firstly, there is the significant issue of age, particularly the young person’s age at the time of the offence. In R v L.M ., 2017 SKQB 336 [ L.M .], the young person was 16 years old. In R v P.H ., 2017 BCSC 1105 , the young person was 16 years and 8 months old. In R v T.F.D ., 2019 ONSC 3389 , the young person was 15 years and 9 months old.

In R v A.M ., 2016 MBQB 161 , the young person was 17 years old. D.K. was only 13 years and 4 months old when he committed the offence for which he is being sentenced today. [ 36 ] Secondly, as indicated above, in the four cases just mentioned, each of the sentencing judges had to adjudicate the Crown’s application that an adult sentence be imposed prior to imposing sentence.

There has been no such application in this case. [ 37 ] As the cases submitted by the Crown demonstrate, it is possible for a young person to be sentenced to the maximum sentence under the YCJA , even though the young person has already been in pre-trial custody for a long period of time. However, in cases where this has been done the young person was to my knowledge invariably facing the possibility of an adult sentence.

In such cases, the sentencing judge is able to consider the possibility of a maximum “youth” sentence in addition to pre-sentence custody as a relevant factor in their decision to deny the Crown’s request for an “adult” sentence. With that factor in the mix judges have been able to find that the maximum “youth” sentence would be sufficient to hold the young person accountable.

[ 38 ] In other words, in these other cases the overall context included the possibility of an adult sentence meaning that the young person could potentially be sentenced to something longer or harsher than the maximum possible “youth” sentence.

The formal sentences in those cases do not include any specific reduction for credit for pre-sentence custody, however, it is arguable that “credit” in general was given to the young person at the stage when the decision was made to impose a “youth” sentence. [ 39 ] In contrast to these other cases, in this case there is no “issue” or “possibility” that D.K. could be sentenced to an “adult” sentence. Pursuant to s. 64(1) of the YCJA the Crown can only apply for an “adult” sentence if an accused young person was at least 14 years old when the offence was committed.

Since D.K. was only 13 years old when he committed this offence there is not, and there never was, any possibility of him being sentenced to an “adult sentence”. [ 40 ] In my view this is a very important distinction. By way of the terms of s. 64(1) and other provisions of the YCJA the Parliament of Canada has essentially recognized that there may be situations where the maximum “youth sentence” may not be sufficient to hold 14 to 17-year-old young persons accountable; and thus, have provided for the possibility of an “adult sentence” in those situations.

In limiting this possibility to young persons who are 14 or older, the corollary conclusion is that Parliament intended that for 12 and 13-year-old young persons there is no need for any possible sentence in excess of the applicable maximum sentences provided for in the YCJA . [ 41 ] I find support for the forgoing in the following comments of the Ontario Court of Appeal at paragraph 78 of their decision, R v M.W ., 2017 ONCA 22 [5] : … but the judge is not required to actually deduct pre-sentence custody when crafting an appropriate sentence.

Whether and to what extent credit is given for pre-sentence custody against a youth sentence is within a youth court judge's discretion, particularly in the context of a Crown application to sentence a youth as an adult: D.W. , at para. 3; R. v. M.B., 2016 ONCA 760 , [2016] O.J. No. 5365 . In such cases, pre-sentence custody can be taken into account as a consideration in determining whether the young person would serve an adult or youth sentence as opposed to through an actual credit to length of sentence imposed. Other appellate courts have come to the same conclusion: R. v. N. W.P. , 2008 MBCA 101 , 231 Man.

R. (2d) 61 , at para. 23 ; R. v. R.R.J. , 2009 BCCA 580 , [2009] B.C.J. No. 2519 at para. 60 ; R. v. D.D.T. , 2010 ABCA 365 , 493 A.R. 167 , at paras. 57 , 59. [Emphasis in bold added] Additionally, I note the following comments of Justice Schwann in L.M. , at paragraph 226 : … The sentencing judge is not required to deduct pre-sentence custody.

It is a discretionary matter, particularly so in cases where the Crown applies to have the youth sentenced as an adult ( R v J.E.O. , 2013 SKCA 82 , 417 Sask R 244 ; R v M.(W.) ; R v M.B . , 2016 ONCA 760 , 342 CCC (3d) 34 ). [Emphasis in bold added] [ 42 ] In this case it is not possible for me to “take into account” D.K.’s pre-sentence custody at a hearing to determine if there should be an adult or youth sentence, because such a hearing is legally impossible.

Additionally, in appropriate cases it is possible to take into account pre-sentence custody by adjusting the type or level of custody imposed [6] ; however, adjusting the level of custody is not an available option when the Court imposes an IRCS sentence pursuant to s. 42(2) (

r) of the YCJA . Consequently, in the case before me since I agree with both parties that an IRCS sentence is appropriate taking D.K.’s pre-sentence custody into account by adjusting the level of custody is not an option that is available to me. Therefore, I find I must take D.K.’s pre-sentence custody into account at the stage of determining the appropriate duration of the IRCS order to be imposed. The Crown suggests that I can do this by considering the pre-sentence custody but then allocate no credit of any kind for it.

In my view, if I were to do so in this case, I would not be “taking into account” that time in custody in any meaningful way. Given all the circumstances of this case, including the various mitigating and aggravating factors, and considering the directions of the Saskatchewan Court of Appeal in J.E.O. , I am not prepared to do that, and have decided that it is appropriate to give credit for D.K.’s pre-sentence custody. [ 43 ] Having decided to give credit for the time D.K. has spent in pre-sentence custody, I must further decide, in my discretion, on the quantum of that credit and how it is to be allocated.

I find that in this case it is appropriate to give credit of almost exactly one day for each day spent in pre-sentence custody, and that such credit be applied solely as a reduction to the maximum custody portion of the IRCS order. However, as I will explain this does not necessarily mean that the entire duration of the IRCS order will be reduced by that same amount of time. [ 44 ] D.K.’s 483 days of pre-sentence custody is almost the exact equivalent of 16 months.

Consequently, rather than imposing an order that includes the maximum of 4 years custody, the custody portion of the order will be 2 years and 8 months.

[ 45 ] With respect to the community supervision portion of the order, in my discretion I find it to be appropriate to order its duration to be for a longer period of time than one might commonly find in a maximum sentence under s. 42(2) (q)(ii) or s. 42(2) (r)(iii) of the YCJA . The normal duration of the community supervision portion of such a maximum sentence would be 3 years.

However, these provisions do not directly limit the duration of the supervision portion of the custody and supervision order to any specific period of time. [ 46 ] The maximum duration of the community supervision portion of the order is controlled indirectly by the fact that the maximum duration of the entire order is 7 years, and within those 7 years the maximum duration of the custody portion of the order is 4 years. Consequently, the maximum possible duration of the community supervision portion is variable depending on the duration of the custody portion of the order.

This can easily be expressed as a math equation: 7 years, minus the duration of custody, equals the maximum possible duration of community supervision. [ 47 ] In this case, since I have decided that the custody portion of the order will be 2 years and 8 months, the community supervision portion of the order could be as long as 4 years and 4 months. For the reasons set out below, I have decided that the community supervision portion of the order will be for a period of 4 years. [ 48 ] This will result in a custody and supervision order with a total duration of 6 years and 8 months.

I find that this total duration of the order is needed because of the extensive treatment and structured living environment that will be needed to assist in D.K.’s rehabilitation, and to reduce his risk of reoffending. [ 49 ] In his report, Dr.

Nicholaichuk opined that D.K.’s commission of this offence “…appears to have been determined by his environmental circumstances rather than being a product of, or an ongoing interest in or comfort with violence.” [7] The writer of the PSR also observed that: “Due to the complexity of [D.K.’s] circumstances, he will require a great deal of structure and support to be successful with treatment.” [8] In her report, Ms.

Viklund observed that “[D.K.’s] motivation for and interest in treatment was below average.” [9] I have of course considered the entirety of these reports, but these citations serve to illustrate the point that in this case D.K.’s successful rehabilitation will require extensive treatment together with supervision and structure for a very long time. [ 50 ] With respect to the issue of D.K.’s potential risk to reoffend, which pertains directly to the issue of community safety, I note the following from Ms.

Viklund’s report. “Based on the available information [D.K.’s] profile on the [Structured Assessment of Violence Risk in Youth] constituted Moderate Risk for violent recidivism .” [10] And further that “Given the rapid developmental changes during adolescence and early adulthood, the potential for change in a number of risk factors, and limited research base it is important to reassess risk often and to interpret results with caution.” [11] [ 51 ] Therefore, even though D.K. may currently present as having moderate risk for violent recidivism, this could change over time.

The primary reason for “extending” the duration of the community supervision portion of the order to 4 years is to provide the authorities with that much more time to provide D.K. with the treatment and structure that he will need to reduce his risk of reoffending prior to the end of the order. [ 52 ] The possibility that D.K. could reoffend violently was understandably a very significant concern expressed by many of the victims in their victim impact statements. They, and perhaps the general public, may be upset or concerned that I have limited the custody portion of the sentence to 2 years and 8 months.

As such, I note that the sentence I am imposing today is, by law, subject to s. 104(1) of the YCJA . To be clear, this provision is not a factor that I have considered in deciding the appropriate sentence today. However, I mention it because it may help allay, to some small degree, the fear and concern of the victims. This provision provides that if, prior to the end of the custody portion of the sentence, there is sufficient concern about D.K.’s risk to reoffend violently, the authorities can apply for an order that D.K. remain in custody beyond the end of the custody portion of the sentence I am imposing today.

If that occurs the Court would hold a hearing, and if the presiding judge is then satisfied that there are reasonable grounds to believe that D.K. is likely to commit an offence causing the death of or serious harm to another person before the expiry of the youth sentence, the judge can then order that he remain in custody for an additional period of time. Conclusion [ 53 ] The sentence I am imposing today is somewhat unusual, but not unprecedented. [12] In the specific circumstances of this case,

for this young person, it is the required and appropriate sentence to give effect to the purpose and principles of sentencing young persons, as set out in s. 38 and s. 39 of the YCJA . _________________________ Stang, J