R. v. J.J.D ., 2020 MBPC 54

CITATION: R. v. J.J.D ., 2020 MBPC 54 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) J. Ryle for the Crown ) - and – ) ) J.J.D. ) H. Tasche for the Accused (Young person) ) ) ) Decision on Sentence Judgment delivered: ) October 22, 2020 RESTRICTION ON PUBLICATION : No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act. See the Youth Criminal Justice Act, s. 110(1). M. P. Thompson, P.J.

Introduction [ 1 ] This is a sentencing decision involving a 15-year-old aboriginal male who has no prior criminal record. [ 2 ] J.J.D., who was fourteen-years-old at the time of this offence, is charged under the Youth Criminal Justice Act (The Act) as a young person. Originally charged with manslaughter in the death of Neilson Catcheway, aged forty-years-old on October 16, 2019, the Crown accepted his guilty plea to a reduced charge of assault causing bodily harm. [ 3 ] J.J.D. has also pled guilty to four counts of breaching his curfew on his Release Order; in December and April, 2019 and twice in May, 2020.

After the May breaches, his bail was denied. He has spent 251 days in pre-trial detention as of today’s date. [ 4 ] At the sentencing hearing on September 11, 2020, the following documents were filed as Exhibits: S-1. DVD of surveillance video; S-2 to S-8. Seven Victim Impact Statements S-9. Pre-Sentence Report dated July 28, 2020; S-10. Court-ordered Forensic Assessment dated June 26, 2020; S-11. Corrections Running Record Report of J.J.D.’s behaviour in-custody; and S-12.

Case Conference Report dated September 4, 2020. [ 5 ] In addition to these documents, the Court viewed the surveillance video of the attack, received sentencing submissions and heard Neilson Catcheway’s sister read aloud her Victim Impact Statement. The Court also heard from J.J.D’s mother. [ 6 ] The Court’s sentencing decision was reserved until today. Crown Position on Sentencing [ 7 ] The Crown proceeded by indictment and sought the maximum youth sentence, two years secure custody, less credit for time spent in pretrial custody.

The Crown argued that an appropriate sentence ought to reflect the gravity and seriousness of this offence, as well as the accused’s on-going risk to the public.

Defence Position on Sentencing [ 8 ] Defence submitted that an appropriate sentence would be supervised probation or, in the alternative, a portion of the time spent in pre-trial custody followed by supervised probation. The Defence requested enhanced credit of 1.5 days for each day of pre-trial custody. [ 9 ] As of today’s date, J.J.D. has spent 251 days in custody, or eight months and one week of actual time. Eligibility for Custody [ 10 ] Because this is a violent offence as defined by s. 2(1) of The Act , J.J.D. is eligible for custody pursuant to s. 39(1)(

a) of The Act . Maximum Sentence [ 11 ] Parliament has set a maximum penalty of two years combined custody and supervision order for a young person pursuant to s. 42(2)(

n) of The Act, for this offence. [ 12 ] Two thirds of any custody and supervision order must be served in custody while the remaining one-third is served under supervision in the community. Time in Custody is Not a Sanction [ 13 ] Time in custody is not one of the available sanctions found in

section 42 of The Act . The Manitoba Court of Appeal in the case of R. v. T. (G. A.) , 2007 MBCA 88 , at paragraph 8 held: … that pre-sentence custody, while a factor in determining the sentence, cannot form part of a youth sentence. [ 14 ] In R . v.

P. (N.W.), 2008 MBCA 101 the Manitoba Court of Appeal held that, while pre-sentence detention is a consideration in determining what sentence is appropriate, it does not preclude the imposition of the maximum sentences set out in The Act. [ 15 ] To summarize, while the Court must take into account time spent in custody for youth, it does not form part of the formal sentence, which only commences once imposed. [ 16 ] In addition the Court has discretion as to how much to credit a young person for pre-sentence custody.

It can vary from no credit in exceptional circumstances, to 1-1 credit, to 1.5 days for each day served, which is typically the case for adults. This flexibility is contextual. Principles of Sentencing [ 17 ] Sentences for assault causing bodily harm can range greatly, depending on the factual circumstances of each case and the moral culpability or blameworthiness of the offender. [ 18 ] The applicable sentencing principles are contained in The Act , which are unique to young persons. [ 19 ] As stated in R. v. D.

L . (No. 3), 2005 ONCJ 386 , a 2005 decision of the Ontario Court of Justice: 20 First, quite apart from any statutory provisions, it appears to be almost universally accepted that youth should be treated differently from adults in respect of punishment for crime. Their degree of responsibility and blameworthiness is less because of their immaturity, their susceptibility to negative influences, and their natural tendency to impulsive ill-considered behaviour.

Further youthful offenders possess greater potential for rehabilitation because their character is not well formed and there is greater chance that deficiencies can be corrected. These factors lead to the accepted conclusion that youth sentencing should be less severe than for adults and that the emphasis should be placed on rehabilitation. 21 On the other hand, youth are not completely lacking in the capability of moral judgement and must be taken to bear responsibility, albeit to a lesser degree, for their choices and actions which, at times, can cause very great harm. [ 20 ]

Section 38 of The Act sets out the purpose and principles of a youth sentence are to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote their rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 21 ] A Court that imposes a youth sentence on a young person must determine the sentence in accordance with the principles in section 38(2): (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (

e) subject to paragraph (c), the sentence must ▪ (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), ▪ (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and ▪ (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (

f) subject to paragraph (c), the sentence may have the following objectives: ▪ (

i) to denounce unlawful conduct, and ▪ (ii) to deter the young person from committing offences.

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 22 ] Even though a young person who commits a violent offence is eligible for custody, section 39(2) sets out that a youth justice court shall not impose a custodial sentence unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purposes and principles set out in

section 38. The Facts [ 23 ] The fact that a defenseless man was randomly attacked and killed on Main Street in Winnipeg is undeniably tragic and senseless. As the Court heard from the Victim Impact Statements, Neil Catcheway’s sudden and violent death has had a lasting and profound effect on family, friends and loved ones. In addition to their personal grief and loss, the community itself has felt a loss of its sense of safety and security. [ 24 ] This was a senseless, two on one, unprovoked attack on a stranger.

While L.T., his 13-year-old co-accused was the clear instigator, J.J.D. turned, followed and participated in the attack at L.T.’s request. [ 25 ] J.J.D. delivered a kick to the head of the victim after he had already been knocked to the ground and kicked by L.T. J.J.D.’s kick did not cause the death of Neil Catcheway. L.T. caused Mr. Catcheway’s death when he tried to crawl up the railing to escape and L.T. shoved him violently causing him to fall a considerable distance onto Main Street striking his head. He was rendered helpless by that fall and subsequently struck by a car.

The driver of that car was unaware that he had struck a person and did not stop. [ 26 ] As I understand it, Mr. Catcheway died from severe blunt force injuries. A contributing factor, but not causing his death was the collision with the car. It was concluded that the car did not kill him, as it appears the impact of the fall caused his death. [ 27 ] The whole event took place very quickly, 18 seconds from the beginning of the attack until the time Mr. Catcheway was rendered unconscious by the fall to Main Street. The boys fled and did not render assistance. J.J.D. was arrested on October 17, 2019.

He was remorseful to police, said that he was sick about it and that he was sorry to the deceased’s family. [ 28 ] The Crown indicated that the accused pleaded guilty to assault causing bodily harm in return for the Crown agreeing not to seek an adult sentence. The accused’s involvement was more limited than his co-accused who has yet to be sentenced for manslaughter. The accused’s level of involvement, while impulsive, is still significant. Mr.

Catcheway was killed when trying to escape from this two on one attack. [ 29 ] The circumstances of his curfew breaches are as follows: • In December the accused left the house on December 28, 2019 one hour before midnight in breach of his curfew and did not call in as required on December 29.

• He was subsequently arrested on January 4 when found highly intoxicated on the street, had vomited and had to be cleared at the hospital. • In April of 2020 between April 24 and 26 he did not respond to curfew checks. • On May 16, 2020 he did not answer the phone saying that the ringer was off when he went to bed. • On May 22, 2020 despite the fact that he had a 9:00 p.m. curfew, during a phone check he was not at home that evening. He made it home about one hour after curfew. • On May 31, 2020 he turned himself in. Similar Cases in the Region [ 30 ] Section 38(2)(

b) of the Youth Criminal Justice Act requires that the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offences committed in similar circumstances. [ 31 ] The Crown provided one case, R. v. A.M.K. , 2016 MBCA 87 . A first-time young offender threatened to kill, then seriously assaulted a fellow student. After being released on conditions, the accused breached those conditions, returned to the school and assaulted a second student.

The youth pled guilty to uttering a threat, assault causing bodily harm, assault and two counts of failing to comply with an undertaking. The Court of Appeal reviewed the sentence and determined that a six month jail sentence on the assault causing bodily harm was a fit and proper sentence. There were consecutive sentences for the assault and uttering threats, together with two years of supervised probation. [ 32 ] Defence counsel provided a number of cases for the Court to consider.

Defence highlighted an issue in Manitoba that there is no way to research youth cases in Manitoba unless they are reported decisions and there are very few reported decisions in Manitoba, which makes it difficult to obtain similar cases in the region to assist in making sentencing submissions to the Court. [ 33 ] As a result, Defence searched cases outside of Manitoba. Using specific search words on a sentencing search engine, counsel was able to find five results from across Canada involving cases where the accused was a young Indigenous adult with no record, who had pled guilty to Assault Causing Bodily Harm.

Each of those five cases were contained in the casebook filed with the Court. [ 34 ] In R. v. R.S. , [2018] O.J. No. 5793 , the accused was a 22-year-old Indigenous first offender who pled guilty to assault causing bodily harm. The Court imposed a sentence of probation for three years. [ 35 ] In R. v. Wesley [2017] A.J. No. 864 , the accused was 27 years old, Indigenous and a first offender. He plead guilty to manslaughter and assault causing bodily harm. He was sentenced to a combined three years jail, which included nine months for the assault case bodily harm conviction. [ 36 ] In R. v. Power , [2016] N.S.J.

No. 185 , the accused was a 19- year-old Aboriginal male who pled guilty to assault causing bodily harm. He was sentenced to 22 weeks of incarceration for the assault causing bodily harm; effectively a five and a half month sentence. [ 37 ] In R. v. Sowden [2011] O.J. No. 2130 , the accused was an Aboriginal male, 21-years-old with no prior record who pled guilty to assault causing bodily harm. The Court imposed a conditional discharge with 12 months probation. [ 38 ] In R. v. Ray , [2008] O.J. No. 4185 , the accused was a 22-year-old aboriginal male with no prior record.

He plead guilty to assault causing bodily harm and received a 12 month conditional sentence order with six months of probation. [ 39 ] Defence argued that while the context of the offences in those cases were different, they showed the range for assault causing bodily harm for a youthful, adult first-time aboriginal offender who plead guilty was far below the two year custody sentence requested by the Crown.

As referenced in s. 38(2) of The Act the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult, convicted of the same offence in similar circumstances. Personal Circumstances of the Accused [ 40 ] J.J.D. has no prior criminal record. The accused is now 15-years-old, and has now spent 8 months and 1 week of actual time in custody. [ 41 ] J.J.D. has accepted full responsibility for his actions. He has expressed regret and remorse. He made an apology for his actions to police upon arrest and provided a full confession of his involvement.

His guilty plea can be taken as a sign of remorse. [ 42 ] A Pre-Sentence Report together with a Gladue assessment was prepared by a Youth Probation Officer to provide some background and insight into the offender. [ 43 ] That Pre-Sentence Report dated July 28, 2020 took note that J.J.D.’s immediate and extended family has an extensive history of residential school involvements, suffering from sexual and physical abuse, addictions, child welfare and justice involvement.

J.J.D. was involved twice in the child welfare system, for a total of two years, both times having been separated from his siblings. [ 44 ] Due to moves, J.J.D.’s academic history is marked with frequent school changes, very poor attendance these last few years, behavioural outbursts and literacy issues. [ 45 ] Substance abuse presents as a need that J.J.D. has self-identified. Similarly the young person has identified anger management deficits that appear to manifest more within a custody and school environment.

He spoke about struggling with the structure and direction given to him within these environments, which also displayed itself in his non-compliance with community conditions and

comments made about his youth bail management program worker. The report writer had some concern about the young person’s lack of appreciation for the seriousness of his offence and the lack of victim empathy. [ 46 ] According to the youth level of service/case management inventory, the young person was assessed as a high risk to generally reoffend. The probation officer noted that while J.J.D. lacked in criminal history, he came before the Court for his involvement in a serious offence and demonstrated ongoing non-compliance with community conditions.

The report writer opined on July 28, 2020 that given his high risk to reoffend J.J.D. could not be effectively supervised in the community and he would not be a suitable candidate for community supervision at that time. [ 47 ] Before coming into custody, he was living with his mother and his stepfather. His mother was having trouble controlling his curfew and she had told him not to associate with L.T. who she viewed as a negative influence. [ 48 ] He has used marijuana and alcohol in the past.

He was under the influence of marijuana the time of this offence and was out on the streets with a group at midnight. [ 49 ] J.J.D. was diagnosed with Attention Deficit Hyperactivity Disorder ADHD. He was not taking his medication in the time leading up to the offence. Gladue Factors [ 50 ] J.J.D. identifies as an aboriginal person. [ 51 ] In all cases, Judges must take into account any relevant systemic or background factors when sentencing Aboriginal offenders. [ 52 ] In regards to Gladue factors, J.J.D.’s family has been directly affected by the legacy of the residential school system.

His maternal grandfather attended Residential School where he reported being physically and sexually abused. His mother attended Residential Day School. She suffered familial sexual abuse as a child and began to run away from an early age. A history of involvement with substance abuse and physically abusive partners is noted. [ 53 ] The maternal side of J.J.D.’s family has suffered a great amount of tragedy and loss.

There are three women in that family who are included in the many missing and murdered Indigenous women in Canada. [ 54 ] J.J.D. shared that when his Aunt went missing that is when his mother began to drink heavily. [ 55 ] His mother has since turned her life around and is in a stable relationship with her partner. She is living a life of sobriety and pursuing her education as a social worker. Forensic Report and Risk Assessments [ 56 ] Filed with the Court as Exhibit S-10 is a Forensic Assessment prepared on J.J.D. Dr. Hildahl, a psychiatrist, prepared the report dated June 26, 2020.

The results of that assessment suggested there was no evidence of an anger management problem. However, the Pre-Sentence Report at page 3 of 25 together with the AYC

summary and the running record

summary provide evidence of J.J.D.’s anger issues that strongly contradicts this conclusion. [ 57 ] Dr. Hildahl remarked that J.J.D. had a very difficult early upbringing in which he was exposed to considerable violence in the home. He was physically abused by his biological father who later stalked the family over a long period of time after his mother remarried. It concluded that he has ADHD which has interfered with his school, eventually causing him to drop out of school in grade eight. He has a good attachment to both his mother (who has attended Court proceedings with him) and his stepfather.

He does not appear to endorse a pro-criminal value system although he has behaviorally acted out. [ 58 ] He noted that J.J.D. had expressed a desire to restart on medications for his ADHD to improve his focus and concentration. Recommendations were made for an appropriate disposition should the Court decide that a community sentence is appropriate. Analysis and Decision Mitigating Factors Include: [ 59 ] The accused’s guilty plea; [ 60 ] The accused degree of participation in the offence.

He was not the instigator, but appeared to follow the lead of his younger co- accused, L.T. [ 61 ] This is a youthful offender: the offence took place when he was 14. The accused is still only 15-years-old; [ 62 ] At the time of this offence he had no convictions; [ 63 ] The accused has shown remorse as evidenced by his guilty plea, his comments contained in the Pre-Sentence Report and his apology made to police; and [ 64 ] The accused is Indigenous: I refer to the Gladue factors reviewed above, of which there are many. Aggravating Factors Include: [ 65 ] This was a two on one unprovoked assault of a passer by;

[ 66 ] The context includes an extremely serious end result: a life was lost, although not directly caused by JJD; and [ 67 ] The accused’s behaviour after being charged and released, including his curfew breaches and running record. The Sentence [ 68 ] Neil Catcheway was beloved by his family and his friends. Family were present at Court on September 11th and again today. They miss him terribly. The sentence imposed by the Court today is not and cannot be a measurement of his life. It is important to understand the accused has not been convicted of causing Mr.

Catcheway’s death. [ 69 ] When the Court imposes an appropriate sentence, it is about looking at the accused’s circumstances, the circumstances of this offence and comparing sentences to other young persons found guilty of the same offence in similar circumstances in this region to determine what is appropriate. [ 70 ] I have considered the aggravating and mitigating circumstances [ 71 ] In determining an appropriate sentence, I have considered: • that the purpose of youth sentencing is to hold a young person accountable for an offence through a sanction that has a meaningful consequence and will promote the long-term protection of the public; • that the sentence should be proportionate to the seriousness of the offence and the degree of responsibility; • case law with similar facts from the region; • all other sanctions other than custody, that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders; • that the sentence is the one most likely to rehabilitate the young person and reintegrate him into society; and • that the sentence will promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community. [ 72 ] This was

an act, by an immature 14-year-old, who was not the instigator, he was following the lead of his co-accused, L.T.

I am required to consider all available alternatives to custody that are reasonable in these circumstances; particularly considering the accused’s aboriginal heritage. [ 73 ] None of the comparable cases provided to the Court resulted in a sentence as lengthy as the time the accused has already served in custody. [ 74 ] Considering the 251 days of pre-trial detention served, given his negative behaviour while in-custody, the Court will only provide enhanced credit of 1.25 days for each of the 251 days in custody.

That equates to credit totalling 313 days, or 10 months and 1 week. [ 75 ] I find that a proportionate sentence would be 9 months given all the circumstances of this offence.

As a result, I make a finding that no further custody is required going forward after today. [ 76 ] Taking into account the time he has spent in custody, on the charge of assault causing bodily harm, J.J.D. will be subject to a supervised probation order for the next two years, subject to the following conditions: • You must, report to and be supervised by a Youth Worker (Provincial Director) as directed; • Attend, participate and complete any counselling, programs or assessments as directed by Probation Services; • Attend school regularly and not to be absent without a valid excuse; • Attend, participate and complete the Intensive Support and Supervision Program as directed; • Abide by curfew , only pursuant to the Intensive Support and Supervision Program ; • Attend to the front door of your residence or answer the telephone for curfew checks by Winnipeg Police Service, RCMP, and Probation Services or designate; • Abstain absolutely from the consumption or possession of alcohol, drugs, non-prescription drugs and other intoxicating substances, except in accordance with a medical prescription in your name; • Not own, possess or have control of any weapons; and • Have no contact or communication directly or indirectly with L.T.

[ 77 ] On the four counts of curfew breaches, the Court imposes a concurrent 8 month order of supervised probation. The only condition, in addition to the statutory ones, is that the accused complete 25 hrs of Community Service Work (CSW) as directed by his Youth Court Worker. This will act as a meaningful consequence for repeatedly breaching his court order.

This period of probation is intentionally longer than I would have otherwise imposed, in order that J.J.D. be able to complete the CSW hours during the Covid-19 pandemic. [ 78 ] Given the violent nature of this offence, the Court will make an order under s. 51 (1) of The Act , prohibiting the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance for a period of two years. [ 79 ] Assault causing bodily is a primary designated offence under s. 487.051 and under that section, the Court shall make an order authorizing the taking of DNA unless the young person can establish that the impact of an order on his privacy and personal security would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice by early detection, arrest or conviction of offenders.

I am not satisfied that that impact on the accused’s privacy and security would be grossly disproportionate to the public interest and I therefore make an order pursuant to s. 487.051(1)(

a) authorizing the taking of bodily substances for forensic DNA. J.J.D. must provide a sample of his DNA within 30 days. “original signed by” M. P. Thompson, P.J.