Her Majesty the Queen ) Ms. E. Dolcetti, ) ) ) Mr. C. Boiteau-Marr, for the Crown - v. –, 2019 MBPC 12

Citation: 2019 MBPC 12 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Ms. E. Dolcetti, ) ) ) Mr. C. Boiteau-Marr, for the Crown - and – ) H.J.R., ) ) Ms. S. Soldier, for the Accused Accused ) ) ) ) ) ) Judgment delivered: February 6, 2019 ) Restriction on Publication : This judgment is subject to s. 110(1) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”), which prohibits the publication of any information that may identify a person as having been dealt with under the YCJA . MARY KATE HARVIE, P.J. Introduction [ 1 ] This is a Crown application for an adult sentence.

The young person, H.J.R., was convicted after trial of a series of offences committed on September 15, 2017, the details of which are set out in R. v. H. J. R , 2018 MBPC 40 . Pursuant to s. 64(1) of the Youth Criminal Justice Act ( “ YCJA ” ), Crown counsel applies to have H.J.R. sentenced as an adult on the most serious of those offences, that being break enter and commit aggravated assault. H.J.R. was 15 years old at the time of the offence and is now 17 years old. [ 2 ] Crown counsel seeks a sentence of six years.

If the Court sees fit to grant credit for time in custody at the rate of 1.5 to 1, the effective sentence would be approximately four years on a “go forward” basis. Defence counsel argues for the maximum YCJA sentence of two years custody and one year of community supervision, less credit for time in custody.

This would effectively mean a further nine months in custody, followed by community supervision. [ 3 ] Both counsel agree that the Court can apply all, some or none of the time in custody to the ultimate sentence, taking into account traditional factors such as behaviour while on remand and access to or completion of programming. Counsel agree that there is added flexibility when assessing credit for time in custody in relation to a youth sentence.

This is particularly relevant when considering whether a youth sentence can be of sufficient length to hold the young person accountable. [ 4 ] The materials before the Court on this application include a Pre-Sentence Report (“PSR”), two Forensic Reports, an FASD assessment, a Bail Conference report dated October 2, 2017, and a copy of the Manitoba Corrections Incident Reports and Running Record (the “running record”). Included as well is a copy of H.J.R’s criminal record and the undertaking he had been released on approximately one month prior to the incident.

A Brief Overview of the Offences [ 5 ] On September 15, 2017, at approximately 7:30 a.m., a group of four males attended to a residence and attempted to force

entry through a side door. In the course of the attempted break-in, pepper spray was discharged into the residence and one of theoccupants was shot in the arm. Crown was unable to prove beyond a reasonable doubt that H.J.R. was part of the group that attended tothe side door and attempted to force entry, or that he was in actual possession of the firearm or the pepper spray. However, they didestablish that he was part of the group seen by neighbours in the front yard of the house immediately prior to the incident, all of whomhad their faces covered.

A number of accused have been charged as a result of this incident. H.J.R. is the only one facing youth charges,all others being adults at the time of the offence. [6] It is clear that the circumstances of the offences are very serious. There appears to be a degree of pre-planning on the part ofat least some of the participants, as both a firearm and pepper spray were used during the attempted entry. Although the motive for thisoffence is unclear, the accused was a gang member at the time of the incident, as was at least one of the other accused.

And while it isnot alleged that H.J.R. played a leadership role in the commission of this offence, he and others were seen with their faces covered justprior to the incident. A young girl, present in the residence with the complainant and her sister, witnessed at least part of the attack. Thecomplainant who was shot had to be taken by ambulance to the hospital, where she received medical treatment. [7] The complainant and her sister did not attend for the trial of this matter, despite having been subpoenaed.

While they testifiedat the preliminary inquiry of the three adult accused, heard after the trial of this matter but prior to this sentencing hearing, they did notrespond to requests to provide Victim Impact Statements. The Applicable Law [8] Section 72(1) of the YCJA sets out the test to be applied in an adult sentence application. The

Section states: 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 notbe of sufficient length to hold the young person accountable for his or her offending behaviour. [9] The Crown bears the onus of satisfying the Court that the presumption of H.J.R.’s diminished moral blameworthiness hasbeen rebutted and that a sentence imposed under the YCJA would be of insufficient length to hold him accountable for his offendingbehaviour. The evidentiary test is neither proof beyond a reasonable doubt nor proof on a balance of probabilities.

Rather, a sentencingjudge should exercise its judgement and make a reasonable prediction of the young person’s future based on an evaluation of all of theevidence. (see R. v. O(A), (2007), 2007 ONCA 144 , 218 C.C.C. (3d) 409 Ont. C.A.). [10] These provisions must be read in conjunction with YCJA s. 3(1) which sets out the principles of the Act and s. 38(1) which setsout the sentencing principles and factors the Court must consider in determining an appropriate sentence.

The Presumption of Diminished Moral Blameworthiness Position of the Parties [11] An evaluation of moral blameworthiness is an “offender-centric” exercise requiring a sentencing judge to consider factorsranging from actual involvement in the offence to more personal circumstances that may have contributed to the offending behaviour.While acknowledging H.J.R.’s personal circumstances, Crown counsel argues that the offence reflects a concerning degree of planning,pointing to the disguises which the accused and others were wearing, and to the presence of weapons.

He argues the fact that H.J.R. wasarrested the following day in possession of a weapon, coupled with his comments to the PSR author, confirms his entrenched criminallifestyle. He argues that the commission of an offence by a group of admitted gang members heightens H.J.R.’s moral blameworthiness. [12] Defence counsel acknowledges the serious nature of the offence, but argues his conviction as a party to the offence tempers hismoral culpability. She submits that his conduct is consistent with, and informed by, H.J.R.’s personal circumstances set out in the PSRand other materials.

As such, she argues that the Crown has not rebutted the presumption. [13] Both Crown and defence counsel acknowledge the comments of Mainella, J.A. in R. v. J.M.O., 2017 MBCA 59 in relation toan assessment of moral blameworthiness for an offender with cognitive limitations at para. 73: Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful andconsiderate exercise. Sentencing judges must avoid committing one of two obvious errors in principle.

The first is being indifferent tothe question of whether an offender’s mental circumstances affected his or her degree of responsibility. The other error in principle isthe reverse situation, namely, assuming an offender’s moral blameworthiness for an offence is reduced automatically because he or shehas a mental illness or other cognitive limitation. It is suggested that, when sentencing offenders with a mental illness or some otherform of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions: 1.

Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made asto the relationship, if any, between those circumstances and the criminal conduct? 3. Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence takinginto account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. Anaylsis

[14] H.J.R. was 15 years old at the time of the offence, and is now 17 years old. He has remained in custody since his arrest the dayafter the incident. H.J.R. met with Forensic psychologist Dr. Gary Fisher both before and after the trial, and the two reports prepared forthe Court provide helpful information regarding his level of functioning. Read in conjunction with the FASD assessment, the “runningrecords” and the PSR, the Court is presented with a picture of a young man with significant cognitive and personal challenges.

Dr.Fisher’s report completed in January, 2018, describes H.J.R.’s overall level of intellectual functioning as falling within the “BorderlineRange (a range falling between 70-79)”.

This is consistent with the findings of the FASD assessment, also completed in January, 2018.Because he presents with normal pre and post natal growth features, the report concludes that H.J.R. does not meet the medical criteriafor an FASD diagnosis, despite the finding that H.J.R. presents with “significant impairment in attention regulation, adaptive functionand executive function.” The report describes “significant impairment in capacity to inhibit impulsive responding, shifting, and initiatingactivities and self-monitoring.” [15] All of the forgoing is consistent with the finding that H.J.R., the youngest of the group, was a party to the offence.

There is noevidence that he was involved in the planning of this incident. While none of this lessens the seriousness of the actual offence, it isrelevant in assessing H.J.R.’s moral blameworthiness. [16] The findings in the medical reports provide important context to the admittedly concerning comments made by Dr. Fisherregarding H.J.R’s “sense of being disconnected from family members” due to long term foster placements. Dr.

Fisher notes that this hascreated in H.J.R. “a sense of self-identification through association with delinquent friends and family members, leading to what heacknowledges to be relatively strong gang-related alliances.” While Dr.

Fisher describes H.J.R. as “pleasant, likeable, and positivelymotivated in a one-to-one interview type of format, where he is absent from negative influences including peers and substance usage”, healso acknowledges that H.J.R. “is likely to have much more difficulty in not being ‘led astray’ in more typical community-basedsituations.” [17] When assessing moral blameworthiness, the Court must also consider the Gladue factors outlined in the PSR. Both theCriminal Code and the YCJA mandate consideration of the circumstances of Aboriginal offenders.

Specifically, YCJA s. 3(1)(c)states: within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should …. (iv) respect gender, ethnic , cultural and linguistic differences and respond to the needs of aboriginal young persons and of youngpersons with special requirements; . . . .. [18] It is well accepted that Gladue factors should not result in an “automatic” reduction in sentence for any offender, whether youthor adult.

In assessing the role of Gladue factors in relation to an offender’s moral culpability in an adult sentence application, I ammindful of the comments of Mainella J.A in R. v. Anderson, 2018 MBCA 42 (at para.62-63): One of the key aspects of deciding whether the presumption of diminished moral blameworthiness or culpability has been rebutted is thecircumstances of the offender (see DB at para 77).

Given the importance of the principle of restraint under the YCJA and relatedprinciples, such as the prospects for rehabilitation and safe reintegration into society, in my view, Parliament’s intention for deliberatelychoosing to incorporate

section 718.2(

e) of the Criminal Code into the YCJA was so that it would be mandatory that Gladue factors thatmay have played a

part in bringing the Indigenous young person before the courts, as well as sentencing procedures and sanctions thatmay be appropriate because of the offender’s Indigenous background, would have to be considered in any sentencing proceeding underthe YCJA, including both requirements for an adult sentence under section 72(1) of the YCJA.

Such an approach is consistent withParliament’s general desire to ameliorate the problems of overrepresentation of, and discrimination against, Indigenous people in thecriminal justice system (see Sherri Davis-Barron, Youth and the Criminal Law in Canada, 2nd ed (LexisNexis, 2015) at 357-65). It is noteworthy to point out that there are two traps that can ensnare a sentencing judge in his or her application of Gladue principles. One is to automatically reduce a sentence or warranted period of incarceration simply because an offender is Indigenous without someprincipled reason (see Ipeelee at para 71).

The other is to avoid the legal duty imposed by statute to apply Gladue principles robustly bytaking too narrow an approach as to what Gladue factors have to be considered and weighed to arrive at a proportionate sentence or byforegoing a proper analysis altogether due to the severity of the crime (see Ipeelee at paras 83-85). [19] The PSR identifies significant Gladue factors. H.J.R. has been a ward of Sandy Bay Child and Family Services since 2004.His immediate family has suffered significant tragedies, including the deaths of two of his siblings as very young children.

When policewere called to investigate the death of one of the children, the family was found to be living in a house with no heat, with the stove beingused as the main heat source. The report identifies concerns related to “parenting skills”, and that H.J.R.’s mother struggled withdepression and addictions issues as well as issues of domestic violence.

The PSR confirms that the family continues to be significantlyaffected by some members’ Residential School experiences. [20] The accused lived from age 7 to 15 in a group home outside of Winnipeg, until the placement broke down due to an inability tomanage his behaviour. It appears that once he was placed in Winnipeg, problems escalated, including periods of unexplained absencesand drug use. Counsel reports that it was during this time that H.J.R. began his gang associations.

While gang association is clearlyunacceptable, it is not surprising given the concurrence of family dysfunction, a lack of structure in the community, and the deficitsidentified in the reports.

Recognizing that the motive for this offence remains unclear, if H.J.R.’s gang involvement played a role, thematerials filed support the conclusion that there is a link between his deficits, whether Gladue or cognitive related, and his participationin the gang. [21] Although there are some positive notes in the PSR, it is unfortunate that his gang affiliation, drugs use and lack of stabilityinterfered with what were promising athletic activities.

In 2016, H.J.R. played basketball for Team Manitoba for approximately eightmonths and was accepted to play in the North American Indigenous Games basketball team in Toronto, Ontario. Given his sporadicattendance at practices, he did not end up attending the tournament. [22] Unlike some offenders, for whom inter-generational tragedies have resulted in a loss of cultural connections, H.J.R. identifies

as “Aboriginal” and “Ojibway” and has been involved in cultural activities such as singing at pow wows, sweats, pipe ceremonies andsmudging. He describes feeling a “strong connection” to the communities of Sandy Bay First Nation and Lake Manitoba First Nation,although candidly acknowledges that his actual connections to these communities have been limited. [23] Since apprehension, H.J.R.’s relationship with his parents has been inconsistent, marked by significant periods of time wherethere was no contact with one or the other parent.

There seems to be recent improvements, with the PSR reporting that his mother hasstabilized, and that the relationship between the two is improving. This is significant, given that H.J.R. hopes to return to the Sandy BayFirst Nation upon his release, where he plans to reside with his mother and continue school. Conclusion - Presumption of Diminished Moral Culpability [24] In order to assess whether the Crown has rebutted the presumption of diminished moral blameworthiness, the Court mustevaluate all of the evidence in order to assess the young person’s future, as it relates to the sentencing process.

From the materials beforethe Court, I am not satisfied that the Crown has rebutted the presumption. In reaching this conclusion, I am taking into account all of theforgoing and striking a balance between H.J.R.’s party liability for the offence and the seriousness of the offence in light of the medicalinformation and the Gladue factors which help to frame his offending behaviour. I am satisfied that there is a nexus between hisoffending behaviour and the deficits identified, and that those deficits actually confirm his diminished moral blameworthiness, ratherthan rebut it.

The Length of Available Sentences - Youth Sentences and Accountability [25] The Court must also consider the length of the sentences available under the YCJA and the Criminal Code. If the sanctionsavailable under the youth regime are not sufficient to “hold the young person accountable,” then the Court must consider an adultsentence. [26] In R. v.

H. (C.T.), 2015 MBCA 4, Steel, J.A. discussed accountability in the context of the length of a sentence, noting (at para.25): For a sentence to hold a young person accountable, it must achieve two objectives: it must be long enough to reflect the seriousness ofthe offence and the offender’s role in it; and it also must be long enough to provide reasonable assurance of the offender’s rehabilitationto the point where he can be safely reintegrated into society. Reasonable assurance does not mean proof beyond a reasonable doubt orabsolute certainty.

It means a reasonable prediction of future behaviour based on an evaluation of all the evidence. If the sentencingjudge finds that a youth sentence would not be long enough to achieve both of these goals, then an adult sentence must be imposed (seeR. v. Z.T.S., 2012 MBCA 90 at para. 65, 284 Man.R. (2d) 55). [27] An assessment of what is an appropriate sentence in any case involves consideration of a wide range of factors, central to whichare the circumstances of the offences, conceded by all to be extremely serious. The assailants used both a gun and pepper spray in theirattempts to enter the residence.

One female occupant was shot in the elbow. The attack took place at a time when it would be reasonableto expect that the residents would be home. A young girl was present and witnessed at least part of the attack. While Victim ImpactStatements were not tendered, the videotape statements taken shortly after the incident capture the terrifying nature of the attack. [28] There are some aspects of the offence that present ongoing concerns for this young person. The first relates to involvement ofgang members in this offence, recognizing that the motive for this attack was never clearly established.

The running record, the PSR andDr. Fisher’s reports show that H.J.R. continues to struggle with gang affiliation. He seems to recognize the negative aspects of gangaffiliation, but continues to be drawn to his gang associates. Crown counsel argues that this represents an ongoing risk factor for H.J.R. Defence points to his efforts to reconnect with his family and to sever his gang connections by returning to Sandy Bay. While this desireis a positive one, there are ongoing concerns, recognized even by H.J.R. himself, that he is at risk of reuniting with his gang friends inWinnipeg.

It is important that any sentence be of sufficient length to have the dual effect of condemning gang-related behaviour andallowing for programming and rehabilitation. [29] Added to this challenge is H.J.R.’s attitude towards the offence. On one hand, his comment that he has “no remorse” for theoffence is very troubling. He struggles to express victim empathy, expressing a desire to “move on” from the events, and suggests thatthe complainants have likely done the same.

Having said that, the PSR also states that H.J.R. “accepts all responsibility for his actions.”It is not entirely clear whether this dichotomy can be explained by his cognitive challenges, but it is clear that these factors must beconsidered when assessing the appropriate sentence from both a punitive and a rehabilitative perspective. [30] A second and ongoing concern relates to H.J.R.’s addictions issues. He admits to having consumed a significant amount ofdrugs prior to this incident and that prior to this offence drug use was common for him.

According to the PSR, his drug use began whenhe was seven years of age, and he admits to experimenting with marijuana, cocaine, mushrooms and crystal methamphetamine. Whileacknowledging a problem, he also says that he “doesn’t believe in therapy”. [31] In assessing rehabilitative prospects, consideration is often given to an offender’s response to previous Court orders andsupervision.

At the time of this offence, H.J.R. did not have a criminal record, although he was bound by an Undertaking imposed justweeks prior to the incident pursuant to which, among other conditions, he was prohibited from carrying any weapons. Subsequent to hisinvolvement in November, 2017, he entered guilty pleas to two counts of failing to comply with an undertaking, one count of possessionof a weapon and one count of carrying a concealed weapon, and he was sentenced to 18 months of supervised probation.

As he has beenin custody on these matters, he has yet to be supervised in the community on this order. [32] While in custody, his behaviour demonstrates a gradual, although at times interrupted, improvement. The PSR and the runningrecord confirms his involvement in six institutional incidents while in custody, although for the most part they are of a less seriousnature.

For example, on one occasion, he was involved in a physical altercation, although the other resident was found to be theaggressor. [33] Concerns are expressed in the PSR about the supervision of H.J.R. in the community, stating that he is a “high risk” to

reoffend. The writer concludes that “he would benefit greatly from the resources available to him in custody to address his criminogenic and non-criminogenic needs prior to returning to the community. He has already credited AYC for assisting him in learning ways to manage his anger effectively.” [ 34 ] The materials before the Court reflect the efforts being made by a young man who is challenged by both Gladue factors and cognitive deficits, and yet is developing some insight regarding his need to change his behaviour and is struggling to maintain consistency in his efforts.

There is nothing in the materials which provides guidance as to how long the offender may need to address his needs. I am concerned that the sentencing recommendation made by defence counsel simply does not provide sufficient time for H.J.R. to address his rehabilitation by accessing programming in a custodial setting. If a youth sentence were to be imposed and credit were granted for the time he has spent in custody, as is suggested, H.J.R. would be released within eight months.

Given the magnitude of the issues identified, I am not convinced that such a sentence is of sufficient length to address both the gravity of the offence and the amount of time necessary for H.J.R.’s custodial programming and rehabilitation and, by extension, public safety. [ 35 ] However, there is no evidence to suggest that meaningful rehabilitation cannot occur during the time afforded by a youth sentence, particularly if credit for time in custody, now approximately two years, is not granted.

Unlike a similar sentence under the adult regime, I am mindful that a youth sentence does not allow for “earned remission” and therefore early release. If the maximum youth sentence were imposed H.J.R. would be subjected to a sentence of three years, either while in custody or under supervision. If considered with the time in custody, H.J.R.’s effective sentence would be five years. [ 36 ] Crown counsel suggests a sentence of six years, less some credit for time in custody.

If granted at enhanced credit, H.J.R. would receive a sentence of approximately four years, and would not be eligible for supervised probation. In order to craft a sentence which would include a probationary period, the court would have to consider an adult sentence in the range of four years, one that would be effectively less than what is available under the youth sentencing regime.

Conclusion and Sentence [ 37 ] Taking into account the test set out in YCJA s. 72(1) , I am not satisfied that the Crown has rebutted the presumption of diminished moral blameworthiness as it relates to H.J.R.’s involvement in this offence.

Further, given the flexibility with respect to the use of time in custody, I am not satisfied that the Crown has established that a sentence imposed under the YCJA sentencing regime would be of insufficient length to hold H.J.R. accountable. [ 38 ] I am ordering H.J.R. to serve two years in open custody, to be followed by one year to be served under supervision in the community subject to conditions. If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well.

You should also be aware that, under other provisions of the Youth Criminal Justice Act , a court could require you to serve the second period in custody as well.

The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence. [ 39 ] Under the circumstances, H.J.R. will not receive any credit for the time he has spent in custody, which I am told is 494 days of actual time, and if calculated at an enhanced credit of 1.5 to 1 would amount to the equivalent of 741 days, or just over two years. [ 40 ] As the offence is a primary designated DNA offence, H.J.R. will be required to provide a sample suitable for DNA analysis. [ 41 ] H.J.R. will be the subject of a two year weapons prohibition pursuant to s. 51 of the YCJA . [ 42 ] Counsel are invited to address the appropriate sentence for the remaining charges. “Original signed by” MARY KATE HARVIE, P.J.