R. v. M.(J.), 2020 MBPC 13

CITATION: R. v. M.(J.), 2020 MBPC 13 Date: 2020 03 16 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Jennifer L. Comack & ) Matthew R. Dueck ) for the Crown ) ) and ) ) ) ) ) M. (J.) ) Sandra L. Bracken ) for the Accused ) ) ) ) ) ) ) ) Reasons for Decision delivered: ) March 16, 2020 Restriction on Publication: Please note that the Youth Criminal Justice Act , section 110(1), which prohibits the publication of any information that may identify a person as having been dealt with under this Act , applies to this judgment.

TABLE OF CONTENTS INTRODUCTION....................................................................................................................... 1 AGREED STATEMENT OF FACTS........................................................................................ 2 THE EVIDENCE........................................................................................................................ 5 A. Exhibits............................................................................................................................ 5 B.

Viva Voce Evidence....................................................................................................... 6 C. Description of Exhibits.................................................................................................. 7 1. Pre-Sentence Report prepared by Probation Officer Barbara Ross on May 25, 2018 for the purpose of sentencing the offences of carry concealed weapon, robbery, and assault 7 2. Supplementary report prepared by Probation Officer Leann Mastin on June 20, 2019 for the housebreak enter and commit armed robbery with an imitation firearm sentencing 12 3.

Supplementary pre-sentence report for the offence of second degree murder written by Jerilynn Habon compiled September 23, 2019.................................................................. 15 4. Forensic Assessment by Dr. Garry Fisher, Psychologist, assessment date September 18 and 25, 2019.......................................................................................................................... 18 5. Psychological assessment Dr. Kent Somers, June 21, 2019............................. 21 6.

Manitoba Corrections Incident Reports prepared by various authors printed on August 16, 2019 referring to events from October 16, 2018 to July 7, 2019.............................. 25 7. Intensive Rehabilitation Custody and Supervision (IRCS) Treatment Plan report prepared November 14, 2019 by Provincial IRCS Coordinator Jennifer Harlos, co- signed by Provincial Director Shauna Appleyard................................................................................... 27 8. WPS photobook with 14 colored photos of the crime scene............................ 28 9.

Photographs of the injuries sustained by James Barrington Olson ................ 28 10. Victim Impact Statement of the Olson family together with photos of Mr. Olson and his

family.................................................................................................................................. 28 11. DVD of video from 456 – 460 Redwood Avenue............................................ 29 D. The Witnesses............................................................................................................... 29 1. Jerilynn Habon........................................................................................................ 29 2. Dr. Garry Fisher....................................................................................................... 30 3.

Jennifer Harlos........................................................................................................ 32 4. Dr. Kent Somers...................................................................................................... 34 THE LAW................................................................................................................................. 36 POSITIONS OF COUNSEL..................................................................................................... 39 A.

Position of the Crown.................................................................................................. 39 B. Position of the Defence............................................................................................... 46 ANALYSIS............................................................................................................................... 51 A.

Is the presumption of diminished moral blameworthiness or culpability of the young person rebutted?....................................................................................................................... 51 i. mental illness or some other form of cognitive limitation................................. 52 ii. Gladue factors......................................................................................................... 59 iii. Other factors........................................................................................................... 63 B.

Whether the Court is persuaded that a Youth Sentence imposed in accordance with the purpose and principles set out in subparagraph (3)(1)(b)(ii) and

section 38 would not be of sufficient length to hold the young person accountable for his offending behaviour........................ 67 DECISION................................................................................................................................. 73

PULLAN P.J. INTRODUCTION [ 1 ] The young person, referred to as J.M., entered a guilty plea on August 15, 2019 to the following offence: (1) that J.E.T.M. a young person within the meaning of the Youth Criminal Justice Act on or about the 23 rd day of September in the year 2018 at the City of Winnipeg in the Province of Manitoba did unlawfully kill James Barrington Olson and did thereby commit murder in the second degree contrary to Section 235(1) of the Criminal Code of Canada [ 2 ] J.M. has been in custody since September 23, 2018. On August 23, 2018 he committed the offence of housebreak enter commit robbery.

On June 28, 2019 he was sentence to three years custody and supervision (two years secure custody and one year community supervision), a sentence he is currently serving. At the time of both the housebreak enter and commit robbery, and the charge of second degree murder the subject of this application, J.M. was subject to an 18 month supervised probation order imposed June 7, 2018. J.M. was born […], 2003 and was 15 years of age at the time of the commission of the second degree murder the subject of these proceedings.

As a consequence, his sentencing for the charge of 2nd degree murder is governed by the provisions of the Youth Criminal Justice Act ( Y.C.J.A. ). [ 3 ] The Crown has applied, pursuant to section 64(1) of the Y.C.J.A. , for an order J.M. be sentenced as an adult for the September 23, 2018 charge of 2nd degree murder. [ 4 ] Pursuant to s. 72(1) of the Y.C.J.A. I must make an order an adult sentence be imposed if I am satisfied that: (

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

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

section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. AGREED STATEMENT OF FACTS [ 5 ] The following facts were agreed to by counsel, filed as an exhibit in this proceeding, and reproduced below: 1. J.M. was born […], 2003. He was 15 years old at the time of the offence. 2. James Barrington Olson (age 73 years) was unknown to the Accused. 3. On September 23, 2018, at roughly 2:00am, Olson was walking down Redwood Ave. There is video surveillance of the interaction in front of 464 Redwood Ave.

The video surveillance was seized from 456/460 Redwood and faces west on Redwood Ave. The video is not time stamped. On the video J.M. runs across the street at Olson. There are only a few seconds where the men are facing each other, and then J.M. begins to assault Olson by pushing him to the ground, punching, and kicking him. 4. The assault carries into the yard and up onto the porch directly in front of 464 Redwood Ave. Garry Stupak (age 71 years) was sleeping when he was woken up to a commotion coming from outside. He looked out his window and saw two males fighting on his front landing in front of his door.

He heard the taller male (J.M.) say: “I’m going to kill you, I’m going to beat you.” The smaller male (Olson) was trying to get away but tripped and fell down the front steps. The taller male (J.M.) went down the stairs and began kicking and stomping on Olson’s head and chest area. Stupak opened his front door and shouted at J.M. to stop. J.M. ran at Stupak’s door, but he closed it quickly and called 911. The assault by J.M. on Olson continued outside while Stupak is on the phone with the 911 operator. Stupak’s call was placed at 02:17am. 5. J.M. drags Olson toward the gated fence in Stupak’s front yard.

The portion of the assault that took place on Stupak’s porch was not captured on video. Once Olson is dragged near the gate, both are visible on the video surveillance again.

6. J.M. continues to assault Olson by stomping on his head and body repeatedly. Olson is on the ground not moving. 7. WPS officers Lambert and Penner were driving near the area of Salter/Redwood when they were dispatched and arrived on scene within seconds of Stupak’s call. As they pulled up both officers observed J.M. stomping on Olson’s head. They observed 4-5 kicks that they described as: (J.M.) bringing knee to his chest and using full downward thrust, full force. Olson was observed lying on the ground motionless.

The officers exited the car, and yelled, “Stop.” J.M. turned to face the officers for a second before he bolted down the street. Lambert had already drawn his Taser and deployed a set of probes, which hit J.M. in the rear right thigh. The probes were ineffective and Penner gave chase. After approximately 15-20 feet J.M. stopped and laid down on the sidewalk on his own, face down. He was arrested. 8. Officer Lambert had stayed behind with Olson. Olson appeared badly beaten, his skull appeared caved in and there was blood coming from his eyes, nose and mouth. Brain matter appeared to be coming out of his nose.

Olson was not breathing. Lambert called for an ambulance and began CPR. An ambulance arrived and paramedics took over. Olson was transported to the Health Sciences Center where he was identified by his fingerprints. Olson died overnight. 9. An autopsy was conducted by Dr. Charles Littman on September 26, 2018. The cause of death was blunt force trauma to the head. The following findings were made: massive facial trauma, acute brain trauma, multiple rib fractures and bruising of the neck and fractures of the hyoid bone. There were 34 physical notifications made of trauma to the body. 10.

James Barrington Olson’s blood was taken when he was first admitted to the hospital on September 23, 2018. His blood was negative for drugs, alcohol or similar volatile compounds. 11. Following the arrest, officers Lambert and Penner observed signs of impairment with respect to J.M. He had poor balance, swayed side to side and had slurred speech. He admitted to drinking half of a ‘’26”. J.M. was placed under arrest for Aggravated Assault and identified via Niche photo at 02:21am. He was also advised the charges may be upgraded to murder. 12.

J.M. was transported to WPS Headquarters where he spoke with his mother and requested Sandra Bracken. Bracken attended the station and was present during the video statement of J.M. J.M. declined to comment. 13. WPS Ident officers attend during the statement to photograph and seize his clothing. J.M. was able to follow their instructions. 14. A DNA comparison was done of several exhibits and scene swabs. This report is dated December 21, 2018, by Mari-Eve Bonicalzi. The findings include: a. The blood of James Barrington Olson was found on the jeans of J.M. b.

The blood of James Barrington Olson was found on the right shoe of J.M. c. The blood of James Barrington Olson was found on the right hand thumb of J.M. d. The blood of James Barrington Olson was found inside the fenced yard of 464 Redwood Ave north of the pathway and west of the railing. e. The blood of James Barrington Olson was found outside the fenced yard of 464 Redwood on the sidewalk east of the gate in front of 466 Redwood Ave.

f. The blood of James Barrington Olson was found on the east gate pole of 464 Redwood Ave. The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 12 quintillion. 15. J.M. has been in custody since September 23, 2018. He did not apply for judicial interim release. 16. On June 28, 2019, J.M. was sentenced to 3 years Custody & Community Supervision (2 years secure/1 year community supervision) on a House Break Enter Commit Robbery. The offence occurred August 23, 2018. THE EVIDENCE A.

Exhibits [ 6 ] The Court had the benefit of reports and other information to assist in assessing the issues. They are: • Forensic Assessment by Dr. Garry Fisher, Psychologist, Court ordered pursuant to s. 34 of the YCJA . The assessment dates were September 18 and 25, 2019. The report was prepared for the purpose of this application. • Supplementary report prepared by Jerilynn Habon (Y.C.J.A.

Provincial Court report writer) compiled September 23, 2019 for the purpose of this application. • Supplementary report prepared by Probation Officer Leann Mastin on June 20, 2019 for the Housebreak Enter and Commit Armed Robbery committed August 23, 2018 sentencing. • Pre-Sentence Report prepared by Probation Officer Barbara Ross on May 25, 2018 for the purpose of sentencing the offences of carry concealed weapon, robbery, and assault, sentencing date June 7, 2018. • Manitoba Corrections Incident Reports prepared by various authors printed on August 16, 2019 referring to events from October 16, 2018 to July 7, 2019. • Intensive Rehabilitation Custody and Supervision (IRCS) Treatment Plan report prepared November 14, 2019 by Provincial IRCS Coordinator Jennifer Harlos, co- signed by Provincial Director Shauna Appleyard. • Photobook prepared by Winnipeg Police Service of the scene at 464 Redwood Avenue, Winnipeg. • Photographs of the injuries sustained by James Barrington Olson. • Report of Dr.

Kent Somers, Registered Psychologist, prepared June 21, 2019. • Victim Impact Statement of the family of James Barrington Olson together with a photo collage of Mr. Olson and his family. • DVD video depicting events of September 23, 2018. B. Viva Voce Evidence • Jerilynn Habon • Dr. Garry Fisher • Jennifer Harlos • Dr. Kent Somers • Jason Olson accompanied by six family members while he read the Victim Impact Statement to the Court. [ 7 ]

Section 71 of the Y.C.J.A. requires “the parents of the young person shall be given an opportunity to be heard at the hearing.” L.M., J.M.’s mother, although not present on the first day of the hearing, was present on the second and final day of the hearing. She was invited to address the Court if she wished. After some reflection, L.M. declined to speak at the hearing. C. Description of Exhibits 1.

Pre-Sentence Report prepared by Probation Officer Barbara Ross on May 25, 2018 for the purpose of sentencing the offences of carry concealed weapon, robbery, and assault [ 8 ] On May 25, 2017 the then 14 year old J.M., together with his Aunt who was one year older, upon seeing the victim with whom they had differences, exited the taxi in which they were riding and became involved in an assault on the victim. J.M. joined the assault by kicking the victim in the head knocking her to the ground, and with the co-accused continued to kick her about the head while

she was on the ground. The assault was interrupted by an unknown passerby. Injuries to the victim included a black and swollen right eye, and cuts to her lips. On December 8, 2017, the still 14 year old J.M. was arrested while subject to an undertaking imposed for earlier offences, in possession of a large machete with a 15 inch blade and taped handle stuck into the front of his waistband. While pending on the previous two matters on January 13, 2018 he robbed another youth he knew, punching him in the face, knocking him to the ground, and stealing his jacket, hat, and backpack.

The victim was transported to hospital for minor treatment. [ 9 ] At the time of sentencing, J.M. had no previous record. [ 10 ] The Pre-Sentence Report disclosed no contact with his father and residence with his mother, her partner, and two adopted siblings, the daughters of his mother’s sister. He had always lived with his mother mostly in Winnipeg, except for a time residing with his grandparents in Berens River First Nation. [ 11 ] J.M. said although he loved his mother and got along with her most of the time, he did not listen to her. He reported that he did what he wants.

Her partner also tried to talk to him, but J.M. did not listen to him. [ 12 ] His mother recounted numerous problems with J.M.’s attitude and behaviour over the past two years. Mother and her partner have been in and out of a relationship for the past 15 years, and her partner was more of a father to J.M. than his own biological father.

Both mother and her partner have had numerous difficulties with the law, and have been in and out of custody. [ 13 ] Mother told the report writer Child and Family Services were involved with the family and her children were apprehended for a period of two to three months related to housing issues. During that time J.M. was placed in an emergency shelter and his mother noticed a change in him when he was returned to her. Prior to the apprehension, J.M. was a “good kid”. When he returned he started skipping school and associating with a negative group of youth. He did not come home at night.

He seemed angry and depressed all the time. He started using substances and not listening to her. His mother noted other influences might have included his grandfather passing away, and a relationship with a former girlfriend ending. [ 14 ] His friends were not permitted in the house, but he let them in anyway. The report writer wrote that mother said J.M. told her “I was hurt and now I want to hurt others”, but would not explain why he said this. [ 15 ] He last attended school for the 2016-2017 school year, but did not return in the fall because he was to repeat grade seven and did not want to.

He said “I just gave up”. He skipped school and had trouble completing his work. At the time of interview he had no interest in returning to school, describing himself as incapable of doing the work. [ 16 ] The guidance counselor reported he stopped attending around October or November, and was withdrawn in December of 2016. The report writer indicated the guidance counselor said J.M. had to repeat grade seven, attributable to not attending classes.

He was often seen in the school and on school property, but not attending class. [ 17 ] He was suspended for bringing weapons onto school property and staff were aware he was involved in negative activities including gang involvement. The guidance counselor said J.M. was “smart enough to keep it outside the school.” [ 18 ] The teacher at the Agassiz Youth Centre said J.M. was currently working on upgrading basic math skills, and had weaknesses in basic math concepts. After some review, he was tested and received 91% on math skills.

He was “quite pleased with himself.” [ 19 ] He should have moved on to learning different concepts but the teacher was away. J.M. asked the substitute if he could complete the workbook just completed because he wished to better his mark beyond 91%. [ 20 ] His basic writing skills were weak. He was very quiet in the classroom, appearing lost in thought. [ 21 ] When first asked about gang activity by the report writer, J.M. denied it. When confronted with collateral information suggesting the contrary, J.M. admitted to being a member of the Clout Street Gang since the age of 13.

He declined to say what he did for the gang except “hang around” with them. J.M. reported drinking alcohol from age 13, and drinking a lot with his friends. He told the report writer he cut down to once or twice a week. He also reported a drug history including an overdose and three day hospitalization in a coma. He reported memory loss from that experience. He had never attended substance abuse treatment and did not believe he required help. He said he could stop substance use on his own. [ 22 ] He denied any mental health issues or learning disabilities.

He told the report writer after the hospitalization for an overdose on sleeping pills he was to see a psychiatrist but “took off” from hospital before seeing him. He refuses to see anyone. [ 23 ] His mother reported a suicide attempt the past fall and admission to Children’s Psychiatric Ward at the Health Sciences Centre. His mother confirmed he left hospital before the psychiatrist could interview him. He refused to attend the follow up appointment. [ 24 ] As to the offences, he denied intoxication during any of them. He carried the machete for protection because of the nature of the area he lived in.

When asked why he committed the assault he at first said his Aunt had a “beef” with the victim, but also added he had been in a short relationship with her, she had stolen from him, and he was angry so he attacked her. [ 25 ] Regarding the robbery he said the victim was a friend. At first he said he could not recall what happened, but later explained it was retaliation because the victim had pulled a knife on his ex-girlfriend. A May 23, 2018 report by the Agassiz Youth Centre case manager described him as easily manipulated into bad behaviour, rude and disrespectful towards staff and peers.

He struggled with an “I don’t care” attitude which caused problems in the group. [ 26 ] In the EQUIP program, staff noted he was not willing to respond to questions in the program, and said he does not care about any of his victims as he does not know them. Although his engagement with various components of the EQUIP program was variable, he did, in some circumstances, present with mature responses but generally presented with minimal participation. He did not take

part in any Indigenous ceremonies or follow any traditions.

[ 27 ] Child and Family Services reported there was a protection file with respect to mother. There was concern with mother’s use of prescription painkillers. The social worker had not met J.M. and did not have any concerns with mother parenting him. The worker was not considering apprehending the children. [ 28 ] The report writer noted J.M. answered her questions with limited information and was evasive. He expressed no remorse or concern for his victims.

His mother told the writer J.M. now has agreed to cooperate with obtaining help, despite his earlier rejection of attending his psychiatrist appointments. [ 29 ] The report writer assessed J.M. as a high risk to reoffend, and identified substances as an issue for J.M., as she felt he used them to cope with depression and anger. The writer recommended he return to Health Sciences Centre or be referred to Youth Forensic Services for an assessment to determine the best care plan for him, noting his suicide attempt. She suggested the Child and Family Services agency contract with an action therapist for him.

The writer also recommended he participate in the Culturally Appropriate Program (CAP) to address his unique personal background and systemic factors that have affected him. 2. Supplementary report prepared by Probation Officer Leann Mastin on June 20, 2019 for the housebreak enter and commit armed robbery with an imitation firearm sentencing [ 30 ] J.M. was released from custody June 7, 2018. He was 15 years old. Two months after his release from custody, on August 23, 2018, L.M., J.M.’s mother, was at the victim’s home across the street from her residence.

She asked the 52 year old victim if she could have some of her Percocets. The victim declined, and L.M. left. Later that evening, an unknown female knocked on the victim’s door and asked if she had drugs for sale. The victim tried to close the door when J.M. kicked it in demanding pills. He had what looked like a sawed off shotgun with him. He hit the victim with the front end of the weapon multiple times in the face and head. The victim said she did not have pills. J.M. cocked the gun and pointed it at her head saying “I’ll fucking kill you”. She gave him all her pills.

J.M. told her not to call police or he would kill her, and left. The victim was bleeding from her face and head and a citizen helped her by calling 911. A warrant was issued for J.M. on August 24, 2018 and he was arrested September 23, 2018. [ 31 ] J.M. was subject to the Intensive Support and Supervision Program (ISSP) as a probation condition upon release June 7, 2018. He was compliant generally with probation conditions, and referred to the Addictions Foundation of Manitoba (AFM) for an assessment. He missed two AFM sessions but did attend four. The assessment was incomplete.

He was also referred to the Gang Action Interagency Network (GAIN) program and paired with a mentor. He attended one meeting with the mentor before ceasing contact with both Probation Services and the program. Probation’s last contact with J.M. was mid August 2018. He missed a telephone and at home curfew check. An Allegation of Non-Compliance was submitted to Court. His whereabouts remained unknown until his arrest September 23, 2018. At the time of writing of the report, institutional staff reported an “I don’t care” attitude, and treating issues in the group as a joke.

He did not take being held accountable by either staff or peers seriously. [ 32 ] He has shown as being capable of making positive contribution to the group. Since a move to another group he was doing better. [ 33 ] The report writer was unable to locate his mother. She did speak with J.M.’s maternal grandmother. Grandmother reported J.M.’s two sisters were apprehended because mother was “into bad things and is struggling”. [ 34 ] Grandmother said that upon his release, his old friends located him and influenced him. Grandmother thought he needed to return to school and stay away from alcohol and drugs.

His grandmother expressed fear for his future. [ 35 ] J.M. spoke fondly to the writer of his great-grandmother who passed away when he was 12. He recalled her care for him. He expressed sadness over the apprehension of his sisters and believed his mother had resumed use of alcohol and drugs. He expressed desire to have contact with his sisters. The report writer called the social worker who did not called back despite messages left. [ 36 ] J.M. reported after the first month or two post release, he began to reconnect with old friends and resumed drug and alcohol use.

He never used the recreation pass he was given as a way to develop healthy activities. He looked forward to reconnecting with his GAIN mentor. He attributed his missed curfew check to giving up. He increased his alcohol and drug use, and stayed away from home, only going home to eat, shower, and change. [ 37 ] While at AYC, he started work on grade nine science and social studies.

The teacher reported that on some days he is productive, and other days not, but he is, overall, responding well in a small setting with increased access to teachers. [ 38 ] J.M. told the report writer he continued to associate with the gang when he was released last summer. He sold drugs, and provided a portion of drug revenue to the gang. He used other portions of the money to buy cigarettes for his mother, and believed his mother knew how he got his money. He reiterated his desire to remain a member of the gang.

He was open to resuming counselling sessions with the AFM worker, who has an office at the probation office, and believed his alcohol and drug use to be manageable. [ 39 ] Although he had been to Long Plain First Nation and Berens River First Nation, he did not feel a connection to either community. He attended meetings with the Indigenous Spiritual Advisor, and was learning more about traditions and teachings. He enjoyed the Pow-Wow at AYC. [ 40 ] He explained the offence by his regular use of Percocets and wanting more. He said the neighbour victim used to sell him Percocets, and he knew she had them.

He hit her because she did not want to give him pills. He was able to articulate empathy for the victim. [ 41 ] Ms. Mastin observed J.M.’s early years involved witnessing substance abuse in his home, which she thought might contribute to seeing his own use as normalized. His desire to obtain drugs partially motivated his crime. Ms. Mastin recommended he re-engage with the Addictions Foundation of Manitoba upon return to the community. In custody, he could work on CBT booklets, and attend programs to address substance abuse. He is not interested in leaving the gang.

He observed he developed a sense of family and support by joining the gang at age 12. Ms. Mastin noted some progress academically at AYC, and suggested a smaller class setting enhancing his chances

of success. He could be referred to an alternative academic program. He scored as a very high risk to reoffend. [ 42 ] As did Ms. Ross, Ms. Mastin recommended JM attend the Culturally Appropriate Program when offered either in the community or in custody. [ 43 ] Ms. Mastin recommended J.M., at the time of writing, was not a suitable candidate for community disposition. She recommended he benefit from some of the opportunities to attend programming to prevent relapse. 3.

Supplementary pre-sentence report for the offence of second degree murder written by Jerilynn Habon compiled September 23, 2019 [ 44 ] This report was prepared in conjunction with this application. J.M. reported he did not like thinking about his offence, and acknowledged it was not an excuse he was intoxicated that night. He said if he were sober, he would not have done that especially considering how old the victim was. [ 45 ] He noted he had consumed alcohol before, but it never turned out like this.

He took full responsibility for this actions. [ 46 ] He explained that prior to the offence, he was at a friend’s home drinking alcohol and wrestling. He called his mother to meet him, but she declined and sounded mad. He did not recall committing the offence. He acknowledged the victim may have felt pain and fear “because I wasn’t stopping hitting him”. [ 47 ] He noted he should not have consumed alcohol, especially the vodka that was available, because he has a history of “blacking out” when drinking vodka.

He added he should have stayed home with his mother or his girlfriend. [ 48 ] As to lessons learned from the offence, he has learned he should not drink vodka. Going forward, he “may have a few drinks” but only at home and not to consume to the point of “blacking out”. He acknowledged he needs to control his anger, although he does not remember why he was angry. He is learning to control his anger through the EQUIP program.

He acknowledged he should “be in custody for life because of the age” of the victim, and his irresponsible drinking. [ 49 ] He identified a need to participate in substance abuse counseling, anger management programming, and attend school. He consumed alcohol a week after his most recent release and abused Percocets. [ 50 ] He identified a circle of family members for community support including an Aunt co-accused on earlier matters with whom he has a non-contact order. He agreed he does not have regular contact with most of the individuals he named.

He speaks to his grandmother L.P., but does not feel close to her and Ms. Habon was unsuccessful in connecting with her. He reaches his mother through a neighbour’s phone. Correctional reports indicate J.M. tries to call his mother twice a week and writes letters to her. He tries to call his grandfather C.B., but his grandfather disconnects the call and J.M. is unsure whether his grandfather knows it is him calling. [ 51 ] He does not participate in cultural activities, but likes to watch singing and drumming although not interested in participating.

He is not interested in learning more about his cultural traditions or meeting with Spiritual Caregivers available to him in custody. [ 52 ] His mother indicated her family, on her mother’s side was traditional while her father’s side of the family was not. She grew up attending various cultural events with her mother and grandmother, but when she was 10 years old her mother began struggling with alcohol leaving L.M. to look after younger siblings and herself. She discontinued participating in cultural events as a result.

She gave birth to J.M. when she was 16 years of age, and cared for him in addition to her younger siblings. [ 53 ] L.M. reported a family history of residential school attendance, but the family is not close so she did not hear stories of their experiences. She has not attended her home community since her grandmother’s funeral in 2017. [ 54 ] Reports from Corrections noted a transfer of units as recently as April 7, 2019 due to ongoing behavioural concerns. He has been doing better lately, focusing on reconnecting with family.

While in custody, he has completed programming. [ 55 ] By way of assessment and recommendations, Ms. Habon noted J.M. presented for interview for this report as polite and forthcoming. He was assessed, as before, as a very high risk to reoffend. Ms. Habon adopted the recommendations from the June 20, 2019 report to address his identified criminogenic needs. [ 56 ] She observed J.M. was under the influence of alcohol during the commission of this offence, and indicated he would still consume alcohol as long as it was not vodka.

She strongly recommended engagement with the Addictions Foundation of Manitoba and the Manitoba Corrections Coming To Terms program to support him addressing his issues with substances. She opined that if not surrounded by negative influences, he can behave differently and prioritize important things in his life differently. [ 57 ] Ms. Habon noted his appropriateness for the Intensive Support and Supervision Program (ISSP). Taking all factors into account, it was Ms. Habon’s opinion that J.M. is not a suitable candidate for community supervision at this time. 4. Forensic Assessment by Dr.

Garry Fisher, Psychologist, assessment date September 18 and 25, 2019 [ 58 ] Dr. Fisher prepared this report to assist in making a decision for this application. His assessment included two clinical interviews with J.M., and review of pre-sentence reports and Dr. Somers’ report. Dr. Fisher did not perform psychological testing, as Dr. Somers had performed it. [ 59 ] Dr. Fisher noted early developmental history marked by disruption and trauma. He stopped attending school consistently in grade seven, because he lost interest and had been held back academically.

He was in the regular academic mainstream, not diagnosed with any learning or attention difficulties. [ 60 ] Dr. Fisher considered the delays in verbally-based abilities, in combination with memory limitations. There are relative strengths in more visually based areas. This combination of features typically results in feelings of frustration and problems in learning

formal academic work. Individuals with similar profiles tend to act out impulsively. They often fail to profit from experience. JM is a “good fit” for traditional trade or vocational types of training. [ 61 ] J.M. was pleasant and cooperative in interaction with Dr. Fisher. He impressed Dr. Fisher as a quiet and “stoic” youth. He described his personal and social history clearly, with no evidence of confusion in thought process. He expressed anxiety concerning pending court, but denied depression.

He also denied suicidal ideation but reported a history of self injurious thoughts and attempted drug overdose resulting in hospital attendance. [ 62 ] J.M. recalled his sense of emotional neglect in his relationship with his mother. Difficulties in his family included an event in which he saw his mother trying to overdose and kill herself in front of him. He experienced challenges going to school because when his mother drank, as he wanted to be with her. Dr.

Fisher reported that school was likely difficult for J.M. arising from the combined impact of instability in his home and social relational challenges. [ 63 ] He described grief and a sense of loss surrounding the death of a grandparent when he was 12 years old. He noted his own functioning as declining after this loss, as his grandmother kept him motivated and made him breakfast to go to school. Since her passing, he described patterns of connections with negative peers, substance abuse, and gang involvement. [ 64 ] He described being out of control of adult authority.

J.M. did not impress as being markedly outstanding for what was typical of his age, although his cognitive processing limitations likely had a role in his poor decision making. [ 65 ] Dr. Fisher recommended programming designed to assist him in developing more prosocial attitudes, beliefs, value, addressing substance use issues, and vocational development. He noted his own negative behaviour in AYC in the context of getting mad and not caring.

As to what would help him do better, he thought resources and getting help would assist. [ 66 ] As to the second degree murder charge, when asked what factors contributed to the behaviour, he responded “I’m not sure, I don’t remember”, referring to his substance usage. He did express a sense of remorse and acceptance of responsibility. Dr. Fisher noted in recent presentence reports, consistent information about his reports of substance usage at the time of an offence, as well as remorse was reflected. At the time of his offence, he had adopted an unstructured daily lifestyle.

His self identity was strongly connected to the gang. Even while in custody, gang issues affected his decision making. Dr. Fisher noted “a mismatch” between his interview presentation and his peer-related context. In Dr. Fisher’s interview, he presented as a pleasant, likeable, and as a “positively motivated young adult”. In the peer related context, Dr. Fisher observed dislike for adult authority impacting his decision making, and “reflecting difficulties in demonstrating consistent and prosocial patterns of coping and problem solving”. [ 67 ] He told Dr.

Fisher he was interested in receiving individual counseling and would “attempt to derive benefit from it”, on the topic of his suitability for participating in an IRCS sentence. Dr. Fisher noted his history, clinical presentation and psychological test findings and concluded there was evidence of emotional disturbance and learning difficulties that played a role in his criminal justice system involvement. [ 68 ] Dr.

Fisher concluded: “Given his age, and seeming difficulty in easily integrating into a youth based institution and abiding by the expectations within such an institution, it is difficult to offer reassurance to the Court that long-term placement in a youth based correctional institution would seem advisable. Nevertheless, from a rehabilitation planning perspective, the length of incarceration that might be imposed consistent with a youth based sentence would likely provide ample time to assist in rehabilitative and vocational planning needs”. 5. Psychological assessment Dr. Kent Somers, June 21, 2019 [ 69 ] Dr.

Somers was retained by Defence to generate an opinion with respect to “his intellectual abilities, his mental health, and his current mental status”. Dr. Somers met with J.M. twice at AYC. Collateral information considered by Dr. Somers included the Winnipeg Police Service arrest report and narratives, along with a pre-sentence report from a prior set of convictions. Relying on report chronology, the only report available to him at the time, although not specifically referenced in Dr. Somers’ description of collateral information, must have been the May 25, 2018 Barbara Ross report.

He spoke with AYC staff informally and through telephone interview, J.M.’s classroom teacher at the time and his Probation Officer Leann Mastin. He was unsuccessful in an attempt to contact family members. Dr. Somers connected with personnel from his community high school, but was unsuccessful in obtaining school records. [ 70 ] Dr. Somers, in his report, reserved the right to alter his opinions upon introduction of relevant data otherwise not available at the time of writing. J.M. was respectful and cooperative in the interview process.

In interview, his speech was clear and intelligible, he spontaneously reported and volunteered information appropriate to the inquiry, and he repeated or clarified remarks without irritation or reservation. Although the content of his reporting was at times sparse, he did not appear to have gross impairment to his long term memory storage or retrieval. J.M.’s affect was even and serious. He expressed interest in learning more about his culture and that he enjoyed traditional Indigenous programming. [ 71 ] His teacher reported he presented as a “motivated student” working on grade nine curriculum.

He had done well in grade nine science, a typically difficult subject for students. J.M.’s math required remedial teaching, as he was below grade level in skills. [ 72 ] At the time of this assessment, Ms. Mastin reported nine behavioural incidents including none since April of 2019. Dr. Somers would not have been able to consider the impact, if any, of the events of July 7, 2019 as they had not yet occurred. [ 73 ] J.M related seeing his father, at his cousin’s residence, drinking alcohol and visiting with extended family. When sober, his

father would not talk to him, although he did speak to J.M. when drinking. He reported his stepfather was “an addict” using methamphetamine and did not treat his mother well. They separated while J.M. was in custody sometime in 2018. [ 74 ] J.M. said he observed his stepfather drinking and taking Xanax bars, ending up in a coma for four days when J.M. was 11 years of age. J.M., at age 14, similarly overdosed on Xanax bars and was in a coma for three days. His mother became opiate dependant when J.M. was seven years of age as a result of an accident.

As a consequence of her drug issues, J.M.’s sisters were placed in care for a year, and J.M. was placed in a group home for two or three months. He took off, and eventually returned home. [ 75 ] At the time of the interview J.M. reported his mother had been clean for a year through therapeutic use of methadone. He attributed his acting out to grieving the loss of his paternal great grandmother in grade seven. [ 76 ] J.M. explained his fighting as “being premised on his feelings, in the moment, of being justified …without any report of pleasure in hurting others…”.

While acknowledging AYC regarded him as gang affiliated, he said he was not gang affiliated while in the community. [ 77 ] He reported commencing drinking at age 11, crediting himself for not going to school drunk or high although missing school because of intoxication. [ 78 ] When his mother tried to ground him for using drugs, he simply left home out the bedroom window. He used drugs to escape from feelings from his mother’s hurtful comments, or the way they were living. He described a sense of family amongst the friends he retreated to. They bought and sold drugs, and encouraged each other’s use.

He was taking 13 Xanax bars per day at $10 each and worked hard to keep up financially with his habit. [ 79 ] Reporting on his intellectual functioning, Dr. Somers used the Wechsler Adult Intelligence Scale, 4 th Edition (WAIS-IV), a widely used standardized measure of general intellectual abilities. His score, reflecting his general intellectual ability, fell within the “Extremely Low” range for his age. His language based skills are significantly delayed.

He has a “limited fund of general knowledge about the world around him.” Based on his WAIS-IV scoring, with respect to speed and accuracy with which he works with symbols in print, he is at least somewhat more limited than his age based cohort. [ 80 ] On the Wide Range Achievement Test, 4 th Edition (a separate test from the WAIS-IV), contrary to expectations, his scores for word reading, word reading comprehension, and spelling fell within the low average range. His ability to sustain attention and recall information was tested using tasks from the Wechsler Memory Scale, 4 th Edition (WMS-IV).

He scored Extremely Low for his age. [ 81 ] In offering a provisional diagnosis of intellectual disability, Dr. Somers said the following: “Test scores from the WAIS-IV are consistent with presenting J.M. as having an Intellectual Disability which is a diagnostic category outlined in the Diagnostic and Statistical Manual of the American Psychiatric Association, 5 th Edition (or DSM 5, 2013: Note that this label supersedes use of the prior label for this disorder, that is “Mental Retardation”).

While he clearly meets two of three criteria for this diagnosis, reliable and valid measurement of his adaptive skills is not possible at this time; his residency in correctional custody does not allow him the potential for full range of activities of daily living available in the community (measurement of adaptive skills is part of the diagnostic criteria), and credible raters of his abilities at activities of daily living in the community – a parent, school personnel – were not available or otherwise did not provide information.

As such, the diagnosis of Intellectual Disability applies, albeit provisionally, with the caveat that J.M.’s adaptive skills should be reassessed upon his eventual return to a routine pattern of community living.” [ 82 ] Dr. Somers indicated he presented with capacity for understanding the generalities of his legal circumstances, “and for understanding conventional moral judgment, even while there is evidence that he is likely to have more difficulty with logical reasoning, problem-solving, and drawing inferences than do the majority of others his age.

As such, his decisions and actions cannot be readily or directly attributable to deficits in his judgement or reasoning”. [ 83 ] Dr. Somers recommended substance abuse specific interventions, and support to address his family history of emotional neglect and abandonment. [ 84 ] Dr. Somers concluded J.M. met the diagnostic criteria to apply the diagnosis of Intellectual Disability such as to include him as a Vulnerable Person by virtue of intellectual disability such as to meet criteria for services by Community Living disability Services (CLdS). 6.

Manitoba Corrections Incident Reports prepared by various authors printed on August 16, 2019 referring to events from October 16, 2018 to July 7, 2019 [ 85 ] Not all of the reports submitted by the Crown are of assistance in determining the issues currently before the Court. It is my intention here to simply refer to those aspects of assistance. The reports are comprised of individual submissions of incident observation referred to by correctional staff at Agassiz Youth Centre. [ 86 ] On October 16, 2018 J.M. refused to take

part in the EQUIP programing. He requested a break and was granted it. When residents checked on him, he became emotional and then angry. He reported to a staff member he had a difficult telephone call with his mother, she was crying on the phone, and he had been thinking about this event since last night and needed time to gather his thoughts. He told staff his break within the group was insufficient, and he could not keep the group safe. He expressed concern he was going to hurt someone in the group and could not manage his anger or emotions. He was placed in the Quiet Room.

[ 87 ] On October 23, 2018 J.M. was noted with a fresh tattoo on his right hand. He at first denied it and ultimately reported using a tack and blue pen ink at school yesterday to tattoo himself. He advised a staff member he had been upset over a few days, and the reality of the consequences of his charges have started to bother him. The tattoo was the letters “CB”, which stands for “Clout Boyz”. [ 88 ] On October 28, 2018 J.M. was again placed in the Quiet Room. He told staff that he “doesn’t care about anything and all he wants to do is hurt someone so that he can feel better”.

Although he struggled to keep a serious tone, throughout the conversations staff reported he would smile or laugh. [ 89 ] On November 13, 2018 J.M. was seen by staff to be the aggressor and trying to fight another youth on the basketball court. [ 90 ] On November 23, 2018 J.M. was placed in Lakewood Unit as Quiet Room Status. He told staff that he was thinking about punching out a named staff person as he did not like “getting punked out” or being held accountable.

He was moved to the Quiet Room due to his unpredictable, challenging, and disrespectful attitude. [ 91 ] On March 30, 2019 staff reports indicate J.M. was accidently hit by another resident in the face with a basketball. The two residents squared off to fight but no punches were exchanged. The other youth was placed in the Quiet Room, and the group addressed J.M.’s behaviour after leaving the basketball court.

Despite taking responsibility for his actions, staff report J.M. aggressively said “fine, put me in the Quiet Room then”. [ 92 ] On April 6, 2019 J.M. and another resident had a physical altercation on the basketball court. The other youth was receptive to receiving help about resolution of the issues from group members. J.M., as reported by staff, was not willing to take responsibility to discuss his anger problem or come up with solutions to handle it. After 30 minutes of unsuccessful intervention from staff and peers, he was removed from the group for safety and security and placed in the Quiet Room.

The latest report submitted on this incident indicated continued resistance to accepting intervention and change. The staff member reporting indicated he was “demonstrating he will physically act out against his peers” and at that time needed to stay in the Quiet Room for review. [ 93 ] On July 7, 2019 J.M. was observed by staff to be in a physical altercation with another youth. Staff described the altercation as “J.M.’s attack” on the other youth when the youth’s back was turned. J.M. was able to land numerous punches and kicks on the other youth. Both youth were placed in the Quiet Room. 7.

Intensive Rehabilitation Custody and Supervision (IRCS) Treatment Plan report prepared November 14, 2019 by Provincial IRCS Coordinator Jennifer Harlos, co- signed by Provincial Director Shauna Appleyard [ 94 ] This report reflects the plan developed by the IRCS Treatment Team at a meeting October 16, 2019. The team included Leann Mastin (Probation Officer), Ryan McIvor (Senior Unit Officer, Agassiz Youth Centre), Paul Nikkel (Unit Manager, Agassiz Youth Centre), Dianne Dunning (Mental Health Nurse, Agassiz Youth Centre), Jennifer Harlos (IRCS Coordinator) and J.M.

The report notes the team will meet every 12 weeks should J.M. receive an IRCS sentence, or more frequently as required. [ 95 ] The report says that since the pre-sentence report was written, J.M. was involved in a serious incident in which, in a dispute over food portioning, he broke the nose of another youth. Although J.M. gets along well with institutional staff, he presents as a closed and quiet individual who is hard to read. In the meeting, staff confirmed there has been no change in his commitment to his gang, and he said he had no plans to leave his gang.

He said he had never contemplated leaving his gang. When asked if he would be interested in doing so with a proper supports, he repeated his intention to not leave the gang. An Action Therapist was recommended to work with J.M. Although he is not committed to leaving the gang, the therapist could work with him to encourage and support change.

J.M. agreed to accept this service to support access to cultural events and activities, and work with community organizations to involve J.M. in giving back to the community. [ 96 ] J.M. had been previously connected to a mentor from Gang Action Interagency Network (GAIN), and this could be a resource as well. [ 97 ] Additionally, resources to support substance abuse intervention are available. Mental health supports, recreational support including funding for hockey, and support for his interest in music so long as it is prosocial, is available.

He indicated he was not interested in participating in cultural events. [ 98 ] Grief counseling is available, and the referral to CLdS could be completed by Corrections. [ 99 ] The first treatment concern in the report is gang involvement. J.M. is not interested in support in this area. 8. WPS photobook with 14 colored photos of the crime scene [ 100 ] These clear photographs assist in placing the offence in context. 9. Photographs of the injuries sustained by James Barrington Olson [ 101 ] These photos clearly depict the extent of injuries. 10.

Victim Impact Statement of the Olson family together with photos of Mr. Olson and his family [ 102 ] It is clear from the Victim Impact Statement, and the reading of that statement by Jason Olson, on behalf of his family and accompanied by them, that James Barrington Olson was much loved. His family is suffering terribly from both his loss, and the circumstances and brutality in which is occurred. His kindness and generosity are sorely missed by those who loved him. The family misses him tremendously.

The victim impact here is significant. [ 103 ] The photo collection provided to the Court to accompany the Victim Impact Statement presents a beautiful photo journey

including Mr. Olson enjoying his hobbies, in his youth, and, most importantly, includes pictures of him with people who loved him. 11. DVD from 456 – 460 Redwood Avenue [ 104 ] This video of events September 23, 2018 that are the subject of the second degree murder charge, although recorded by a camera some distance away, and in the dark, is clear enough to depict some of the events as they were transpiring and assist in an understanding of the events as they were occurring. D. The Witnesses 1.

Jerilynn Habon [ 105 ] Jerilynn Habon, author of the supplementary report completed September 23, 2019 in anticipation of these proceedings was called as a witness for the purpose of examination by Defence. The Crown had no questions of her. She said she reviewed all previous pre- sentence reports, and the information in them should be considered valid. She agreed the information in the Corrections behaviour summaries she reviewed was based both on staff reports, and thoughts and suspicions of staff. [ 106 ] When referred to a list of institutional incidents at page 7 of her supplementary report, Ms.

Habon was asked to comment on a July 7, 2019 incident reporting J.M. “attacked resident from behind as a gang related incident. He was sent to the QR”. The gang related characterization, she testified, would have been based on descriptions from staff reports. When Ms. Habon was asked about the foundation for the characterization of the incident as gang related, she could not recall precisely where the information came from. Referring to programs J.M. has taken in custody, Ms.

Habon elaborated on the content of the programs listed in the report. [ 107 ] The Crown concedes there is no evidence the July 7, 2019 incident is gang related. 2. Dr. Garry Fisher [ 108 ] Dr. Fisher has been a psychologist with Manitoba Adolescent Treatment Centre (MATC) for 23 years. Part of his role is to perform assessments as ordered by the Youth Justice Court. He was assigned to complete the assessment of J.M. and write a report to assist in these proceedings. He interviewed J.M. on two occasions, having reviewed previous reports, Manitoba Corrections records, and a psychological evaluation from Dr. K.

Somers. [ 109 ] Psychological testing was not done because Dr. Somers had recently done it, and the testing Dr. Somers did was the same as would be done by Dr. Fisher’s office. In addition, if the same testing is repeated one runs the risk of “practice effects”. Individuals can become familiar with the testing, and the score elevated. Results could be skewed as a result, impacting validity of the resultant scores. [ 110 ] Dr. Fisher commented that although the term “emotional disturbance” is found the Y.C.J.A. , it is not generally evident clinically. This language is not often used.

The term “emotional disturbance” is not found in the Diagnostic and Statistical Manual, 5 th Edition (DSM-5), a publication of the American Psychiatric Association describing psychiatric diagnoses. [ 111 ] In J.M.’s case, he observed emotional difficulties that were the consequence of challenges in his upbringing. When interviewed J.M. was emotionally distant. He came across as “stoic”. This presentation was in contrast to challenges with emotional regulation particularly in the peer context.

He might have difficulty identifying difficulties emotionally, and communicating his difficulties to others. [ 112 ] There was evidence of learning disability which is a psychological disorder. Dr. Fisher was asked to comment on Dr. Somers’ finding J.M.’s test results met a provisional diagnosis for Intellectual Disability. Dr. Fisher noted one diagnostic component missing to complete the diagnosis. This was a gap in the ability to measure adaptive functioning, day to day living skills including social skills, decision making, and communication abilities.

The day to day decision making is best analyzed in the community, rather than in a Correctional context. The environment in a Correctional setting is not “well mirrored” by the environment one would find in the community. Dr. Fisher would be inclined to add the adaptive functioning component to make a more complete diagnosis. [ 113 ] In elaborating on his description of J.M. as stoic, Dr. Fisher said when individuals have a negative history, and are being assessed for a report for Court, they may try to hold emotions in and not dwell on them. J.M. was open to talk to Dr.

Fisher about his earlier experiences, but did not appear overly bothered by them in interview. A consideration of the presence of Emotional Disturbance includes a view of the individual, and their background, in totality. His history of poverty, abuse, and trauma were taken into consideration. [ 114 ] In his report, Dr. Fisher noted J.M.’s challenges integrating into a youth institution and abiding by expectations. In preparation for his evidence, Dr. Fisher updated himself on recent Corrections reports of J.M.’s behaviour.

He noted an incident with concerned interaction a month previous to his evidence, but overall it appeared J.M. feels more settled. There seems to be an improvement in behaviour. [ 115 ] Dr. Fisher was asked about recommended treatment for Emotional Disturbance. He noted J.M. was willing to participate in counselling, and individual counselling would be Dr. Fisher’s recommendation. In addition, he may benefit from assistance educationally as he was behind academically and there were concerns about moving him towards vocational training. 3. Jennifer Harlos [ 116 ] Ms.

Harlos was asked to testify at the request of Defence. The Crown had no questions of her. In response to questions by Defence, Ms. Harlos described the IRCS sentence as unique including a federal government funding component. The funding is to be dedicated to intensive rehabilitative programming specific to the needs of the youth. The goal is to attempt to prevent future conflict with the law and funding is available for the duration of the sentence. There are two streams of funding to support individuals subject to an IRCS, federal and provincial.

[ 117 ] Support has, in the past, come from occupational therapists, action therapists, art therapists, and music therapists as examples. The funds can also be used to support recreational activities to engage prosocial conduct in the community. In developing the IRCS plan, considerations include the young person’s background, a review of previous presentence reports, and Forensic reports. The young person participates in the treatment team meeting. [ 118 ] A critical component of the success of the treatment plan is the young person’s willingness to engage.

If the young person is not willing to engage, an application for IRCS sentence funding will not proceed. On October 16, 2019 a meeting was held at Agassiz Youth Centre which included J.M and the IRCS Treatment Team. [ 119 ] Ms. Harlos’ report concludes the Provincial Director has determined an IRCS sentence is available and appropriate, should this court consider J.M. for an IRCS sentence. Should an IRCS sentence be imposed, the goal would be to commence therapy while J.M. is still in custody. Services delivered can transition into the community once J.M. is released, and adapted to his special needs.

After the imposition of the sentence, treatment team meetings including J.M. continue on a regular basis to monitor progress and adapt the program plan. Team member collaboration continues between meetings to ensure the dynamic needs of the youth are met. [ 120 ] In view of J.M.’s current status serving a sentence, upon expiry of the existing sentence, the IRCS sentence would commence, and specialized resources engage at the commencement of the IRCS sentence and not before. If the IRCS sentence were to run concurrent to the existing sentence, Ms.

Harlos would await sentence calculation in order to determine when IRCS services would begin and end. [ 121 ] Diane Dunning, the mental health nurse at Agassiz Youth Centre where J.M. is currently placed, is an IRCS team member. Although, at the time of the hearing, J.M. had been in custody there for a year, Ms. Dunning had only seen him once. J.M. had not requested assistance from Mental Health, and was not “on their radar”. The only interaction she had with him was in preparation for the October 16, 2019 treatment team meeting. Absent that meeting, it was Ms. Harlos’ impression Ms.

Dunning would never have met J.M. [ 122 ] The first treatment concern on Ms. Harlos’ list in her report was gang involvement. The issue was addressed with J.M. in the meeting. He was not interested in tackling that issue, and not prepared to consider leaving his gang at the time of the October 16, 2019 meeting. 4. Dr. Kent Somers [ 123 ] Dr. Somers has been a registered psychologist since 1998. He was retained by Defence to provide a report to the Court concerning J.M. As part of his assessment, Dr. Somers administered the Wechsler Adult Intelligence Scale 4 th Edition (WAIS – IV).

He selected the adult test, rather than administering the children’s test. At 16 years of age at the time of test administration, J.M. was at the “bottom end” of the scale for the adult test, and the test for children is designed for subjects age 6 to 16. In selecting the adult test, Dr. Somers considered that if his skills were stronger than a typical 16 year old there would be greater room for measurement. With adolescents, Dr. Somers generally prefers the adult scale.

He predicted that if the children’s scale were used it would result in comparable results. [ 124 ] Because the test is standardized, results can be compared to those of other individuals. After explaining the components of the test, Dr. Somers clarified his “provisional diagnosis” of Intellectual Disability with the caution J.M.’s adaptive skills should be reassessed upon return to community living. His intellectual capabilities are significantly weaker than others his age. For there to be a diagnosis there must be demonstration of impaired intellectual functioning before the age of 18.

The third criterion is adaptive functioning which is difficult to assess in a custodial setting. Notwithstanding, the evidence of impaired intellectual functioning is clear from the testing. [ 125 ] There is a subjective component to assessment of answers given to questions on the WAIS – IV in that answers are rated by the test administrator as a component of analysis of score results. The results are measured against a control group supplied by the company that controls the test. J.M.’s scores were measured against a Canadian normative population.

The normative population would include, but not exclusively be, 16 year olds. Dr. Somers was not certain whether the single Indigenous person in the sample was in the 16 to 17 year old age group. Dr. Somers agreed intelligence tests like WAIS – IV are only one means of measuring intelligence. Personal, social, and emotional issues can impact on the measurement of intelligence. [ 126 ] In preparation for his assessment of J.M., Dr. Somers did not have the Agreed Statement of Facts as the assessment was performed prior to J.M.’s guilty plea.

He had no benefit of collateral information from family members, and no information from J.M.’s school. The two in custody meetings with J.M. were two and a half to three hours each. Of the assessment time, testing comprised two hours in total broken up over the two meetings. [ 127 ] Dr.

Somers explained the diagnosis of intellectual disability provisionally in the early part of his report, escalating to an unqualified diagnosis of intellectual disability such that he would be recognized by the Province of Manitoba as being a vulnerable person later in the report, as directed towards supporting consideration for services by Community Living Disability Services (CLdS). On an application form for resources, the absence of adaptive functioning analysis would be evident and the clinician would supply a rationale for supporting the application despite the gap. Dr.

Somers was aware other individuals had been accepted for service on that basis. [ 128 ] With respect to the applicability of the WAIS – IV test to Manitoba’s Indigenous population, Dr. Somers was unaware of any widely used tests specific to Indigenous people. [ 129 ] The measurement of adaptive functioning comes in part from collateral information from parents, guardians, school personnel, and the subject themselves if appropriate, that describe functioning in a range of activities of daily living. Adaptation to the environment, or changes in the environment, is a component of that analysis.

Finding appropriate and credible collaterals to assist with observations of adaptive behaviour can be an issue. THE LAW

[ 130 ] As the Crown has applied for an adult sentence in this case, the determination must be considered through application of

section 72 of the Youth Criminal Justice Act as follows: Order of adult sentence 72

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

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

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

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

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed. Onus

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General. Pre-sentence report

(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report. Court to state reasons

(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision. [ 131 ] Counsel referred to many authorities in support of their respective positions. In my view, many of the principles applicable to this application are squarely addressed by the helpful and binding decision of the Manitoba Court of Appeal in Regina v.

Okemow , 2017 MBCA 59 . [ 132 ] Mainella J.A., for the Court, described the starting place for this application as a presumption of diminished moral blameworthiness as follows: 49 The common theme that distinguishes the differing features of the criminal justice system for adults from that which applies to those between the ages of 12 and 18 is that young persons are presumed to have diminished moral blameworthiness or culpability (see B. (D. ) at paras 41-45).

As was explained in B. (D.) , a separate criminal justice system for youths is based on the concept that, "because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment" (at para 41). Accordingly, the sentencing of young persons must begin from the presumption of diminished moral blameworthiness or culpability, but that presumption is rebuttable (at para 45). [ 133 ] The accountability analysis required in a section 72(1) consideration, was described as follows: 50 The principles in section 3(1)(

b) of the YCJA work to qualify the operation of the principle of accountability in section 3(1)(a)(

i) of

the YCJA (see Bala & Anand at 120). A young person is presumed to be less accountable for his or her offending behaviour than would be an adult committing the same crime. Accordingly, ascertaining fair and proportionate accountability is an exercise of judicial discretion that requires consideration of the presumption of diminished moral blameworthiness or culpability in light of the circumstances of the offence and offender to decide to what degree, if at all, the presumption has been rebutted.

The practical effect of Parliament's use of this statutory language is that the starting point in sentencing young persons is that they will receive a less severe sentence than would a similarly situated adult offender (see Sherri Davis-Barron, Youth and the Criminal Law in Canada , 2nd ed (LexisNexis, 2015) at 162-63). [ 134 ] The Crown bears the onus of proof on a standard of “satisfaction”. [ 135 ] Mainella J.A. applied the Okemow analysis in Her Majesty the Queen and Bo Anderson , 2018 MBCA 42 .

On the issue of consideration of whether the presumption of diminished moral blameworthiness or culpability had been rebutted, he said: 48 In Okemow , this Court explained the analysis on the question of whether the presumption of diminished moral blameworthiness or culpability has been rebutted in the following manner (at paras 62-63): On the question of the first requirement of section 72(1) of the YCJA , rebutting the presumption of diminished moral blameworthiness, "the Crown must demonstrate to the court's satisfaction that the young person had the moral capacity of an adult at the time of the offence(s).

Relevant are the circumstances of the offence(

s) and the young person" ( BL [2013 MBQB 89] at para 38) as to whether adult- like judgment was exercised (see DB [2008 SCC 25] at para 77; MW [2017 ONCA 22] at paras 96-98; and R v JFR , 2016 ABCA 340 at para 25 ). [ 136 ] On the issue of whether the Crown can demonstrate a youth sentence would be of sufficient length to hold the young person accountable, Mainella J.A. explained accountability as follows: 83 Accountability, as explained in H. (C.T.) , is not just about either proportionality or the prospects for rehabilitation and safe reintegration into society; it is about the "relationship" between these two objectives, a determination that requires the judge to reasonably weigh the circumstances of the offence and the offender in light of the principles of the YCJA enumerated in section 72(1)(b) ( Okemow at paras 64-67, 70, 95 ).

As Huscroft JA recently observed in R. v. Ellacott , 2017 ONCA 681 (Ont.

C.A.) , a case of a middle- aged offender who went several decades without coming into trouble with the law before being apprehended for a murder he committed at age 15, "[r]ehabilitation and reintegration are important considerations in the accountability inquiry, but, contrary to the appellant's suggestion, they are not determinative of that inquiry: O. (A.) at para 57" (at para 36). [ 137 ] Should a Youth Justice Court Judge find the Crown failed to rebut the presumption of diminished moral responsibility, the Court need not engage in an analysis of whether a youth sentence would not be of sufficient length to hold the young person accountable.

Should the Crown, however, rebut the presumption of diminished moral blameworthiness, the Court must go on to determine whether a youth sentence is sufficient to hold the young person accountable in accordance with section 72(1)(

b) of the YCJA . The Court, embarking on this inquiry, must determine what a youth sentence would be and then consider whether it is long enough to hold the young person accountable. The Court must consider all the applicable principles in the Youth Criminal Justice Act relating to sentence. POSITIONS OF COUNSEL A. Position of the Crown [ 138 ] The consideration is whether the Court is satisfied the presumption of diminished moral blameworthiness is rebutted. Because of their age, young people have heightened vulnerability, less maturity, and a reduced capacity for moral judgement.

The presumption, however, is rebuttable. In order for the presumption to be rebutted, the Court must be satisfied that J.M. had the moral capacity of an adult at the time of the commission of the offence. Relevant considerations include the circumstances of the offence, and the offender. [ 139 ] Firstly, considering the circumstances of the offence, the Crown highlights despite that many youth offences occur in the company of other youth, in this case J.M. acted alone. In R. v.

M.(R.R.) (December 19, 2016), Winnipeg (MB QB) Chartier J. considered the case of a youth who was a follower, prone to the influence of others. In R. v. S.(B.D.) and M.(J.J.) (March 19, 2015), Winnipeg (MB QB) the accused were gang members who committed the offence together. [ 140 ] In B.L. ( 2013 MBQB 89 ), H.C.T. ( 2015 MBCA 4 ) and Okemow , all committed their offences in the context of a youth group. Anderson , supra, was the only other youth whose case the Crown could find where the youth acted alone.

All cases submitted by Defence involved youth acting in groups. [ 141 ] The Crown emphasizes J.M.’s solo behaviour as significant in this case. Naive and immature youth often follow their friends, getting carried away within the group environment. He, alone, attacked and threatened Mr. Olson. [ 142 ] The Crown stressed the circumstances of this offence, and urges the court to note how many opportunities, as depicted in the video, J.M. had to reflect and walk away. The gratuitous nature of the violence here, and its brutality, the Crown submits are noteworthy. [ 143 ] The attack was lengthy, vicious and senseless.

There were 34 indications of trauma to Mr. Olson’s body generally, and he

suffered acute brain injury. The Crown urges the protracted 25 minute nature of the assault be considered by the Court. In addition, Mr. Olson was dragged down stairs, defenceless, and the attack continued. [ 144 ] The Crown notes this attack as unprovoked, random, and senseless. From a public safety perspective, this causes the Crown profound concern. Mr. Olson was walking down the street and J.M. ran at him, attacking him seemingly out of nowhere. Mr.

Olson, at 73 years of age, was defenceless from this attack by a healthy 15 year old. [ 145 ] In considering the circumstances of J.M., the three pre-sentence reports, IRCS report, Forensic report, report by Dr. Somers, together with viva voce evidence and Corrections records ought to assist the Court here. As reflected by his record, his level of violence is escalating. He had behavioural problems at school, including being disciplined for bringing a weapon to school. He stopped listening to his mother, and did what he pleased. He started hanging out with his gang, drinking and doing drugs.

Nevertheless, J.M. indicates he was sober during the first three offences resulting in the sentence he was subject to at the time this offence occurred. [ 146 ] He was sentenced June 7, 2018, for all three offences, to 18 months of supervised probation for the charge of carry concealed weapon, 15 days of pre-sentence time on the assault, and 90 days of presentence custody on the robbery plus probation concurrent. [ 147 ] He was subject to a strict probation order with multiple conditions and released from custody.

Despite initial compliance with the probation order, within two months he was whereabouts unknown until he was detained on the offence before the Court. [ 148 ] While at large, he committed a home invasion August 23, 2018 involving violence and weapons. The victim was a 52 year old neighbour. He was subject to an outstanding warrant for that offence at the time of this homicide. [ 149 ] In the pre-sentence report for the home invasion, J.M. confirmed he was a gang member, not interested in breaking ties, and has sold drugs to earn money.

His risk assessment, as determined by Probation Services, had escalated from high risk, to very high risk. [ 150 ] The pre-sentence report prepared for this offence confirms his very high risk status. His institutional offences, while pending on this matter include a self inflicted gang related tattoo, various physical altercations with residents and an attack on another youth while his back was turned. He broke the nose of another youth.

He continues to support the gang. [ 151 ] The Crown highlights the attack on another resident when his back was turned, including punching and kicking, as bearing resemblance to the matter before the Court. [ 152 ] As to Gladue considerations, the Crown notes the importance of these factors in the analysis. The Gladue factors impacting himself and his family played a role in bringing him before the Court today. These factors, the Crown says, did not put him with Mr. Olson that night. These factors do little, if anything, to assist the Court in understanding the senseless violence he perpetrated.

In these circumstances, the Gladue factors do nothing to diminish his moral culpability for this offence. [ 153 ] Expert evidence can be helpful, and the Court has two psychological assessments before the Court. That J.M. has low scores, and a provisional diagnosis of intellectual disability does not, in and of itself, reduce his moral culpability for the offence before the Court. This argument was rejected in Okemow .

Adult sentences have been imposed for serious violent crimes on youth offenders who have psychiatric and psychological diagnoses, and cognitive limitations. [ 154 ] In accordance with the test in Okemow at paragraph 73 that must be applied when sentencing offenders with a mental illness or some other form of cognitive limitation, in this case the Crown says the evidence that he suffers from a recognized mental illness or some other cognitive limitation is not suff

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