) ) HER MAJESTY THE QUEEN ) Steve Toews, ) For the Crown - v. - ), 2013 MBPC 63

2013 MBPC 63 THE PROVINCIAL COURT OF MANITOBA THOMPSON CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Steve Toews, ) For the Crown - and - ) ) T .C.R. ) Daniel Manning, ) For the Accused ) ) Reasons for Decision on Sentencing ) delivered on the 22nd day of ) November, 2013. THOMPSON, M.P. P.J, 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). Introduction [ 1 ] T.C.R. has pled guilty to manslaughter in relation to the stabbing death of Charles Robert Beardy (Mr.

Beardy) in Shamattawa on November 27 th , 2011. He also pled guilty to a charge of theft motor vehicle from July 7 th , 2011. The accused, who was 16 years old at the time of the motor vehicle offence and had just turned 17 at the time of the manslaughter offence, was charged under the Youth Criminal Justice Act as a young person. [ 2 ] After a review of the police investigation, the Crown laid a charge of manslaughter. In the context of this case, the manslaughter charge involved a homicide resulting from an unlawful act; the stabbing of the deceased by T.C.R..

The actions of the accused fell short of murder due to a combination of factors where the Crown could not prove beyond a reasonable doubt he had the requisite intent to kill. Those factors included provocative acts by the deceased, intoxication of the accused as well as elements of self defence that fell short of a legal defence to the homicide. In my view, the Crown decision to charge manslaughter and not murder was the correct one.

[ 3 ] T.C.R. was subsequently charged as an adult for two breaches of his court ordered curfew while on bail. He remains in custody on the second of those breach charges. He has pled guilty to those two charges and is also to be sentenced on those offences. [ 4 ] A pre-sentence report was prepared and considered. On November 1 st , 2013 the court heard sentencing submissions in Thompson. T.C.R.’s parents as well as a former Awasis case worker were present and the Awasis worker testified at the invitation of the Court. The Court reserved its decision on sentence until today.

Principles of Sentencing [ 5 ] Sentences for manslaughter can range greatly, depending on the circumstances of each case and the moral culpability, or blameworthiness of the offender. In the case of a young person being sentenced pursuant to the Youth Criminal Justice Act (YCJA), section 42(2)(

o) sets out that the Court must make a custody and supervision order for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first part of the sentence and to serve the remainder of the sentence under conditional supervision in the community. [ 6 ] As my late colleague Judge Meyers determined in the case of R. v. B.W.P., 2003 MBPC, the YCJA does not mandate that two thirds of any sentence imposed pursuant to section 42(2)(

o) of the Act must be served in custody. The court has discretion to determine the proper amount of custody. In B.P.W. the Court imposed a one day open custody sentence, which was the day sentencing took place, followed by 15 months of conditional supervision and a further one year of supervised probation. [ 7 ] Judge Meyer’s approach to interpreting section 42(2)(

o) was affirmed as the correct one by the Supreme Court of Canada in an appeal of his decision. In R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941, 2006 SCC 27 the Court stated the following at paragraph 43: “Section 42(2)(

o) only applies to offences of manslaughter, attempted murder and aggravated sexual assault. Under its terms, the custody and supervision order cannot exceed three years; however, there is no restriction on what part of the time can be spent in a custodial setting. Indeed, nothing is said about the respective duration of the custody and supervision portions of the order.” [ 8 ] As my colleague Judge Redhead wrote in R. v. D.E.C., 2008 MBPC 17 , the Youth Criminal Justice Act (“YCJA”) sets out a number of principles which the court must consider when sentencing a youthful offender.

These principles will be reviewed. [ 9 ] The purpose of youth sentencing is to hold a young person accountable for the offence by imposing just sanctions that have meaningful consequence for the young person and promote the young person’s rehabilitation and re-integration into society thereby contributing to the long-term protection of the public (s.38 (1)). [ 10 ] Section 38 (2) provides the following youth sentencing principles: (

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

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

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

d) all available alternatives to custody that are reasonable in the circumstances should be considered; and (

e) subject to the factors listed in 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 acknowledgement of the harm done to the victims and the community.

[ 11 ] Section 38 (3) provides that in determining a youth sentence, the 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 the victims and whether it was intentional or reasonably foreseeable; (

c) Any reparation made by the young person to the victims 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. [ 12 ] Section 39 (1) provides that the court shall not commit a young person to custody under

section 42 unless: (

a) The young person has committed a violent offence; (

b) The young person has failed to comply with non-custodial sentences; (

c) The young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act,

chapter Y-1 of the Revised Statutes of Canada, 1985; or; (

d) In exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38. [ 13 ] Section 39 (2) states that if any of paragraph (1)(

a) to (

c) apply, 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 [ 14 ] The Court was provided with a copy of the Prosecutor’s Information Sheet, which summarized the police investigation. Shamattawa RCMP received a report of a stabbing at 3:13 am at a residence on the date in question. They received two reports; one that T.C.R. was responsible and a second that Mr. Beardy’s spouse had stabbed him. Mr. Beardy was located unresponsive on the roadway with a visible stab wound to the chest.

He was transported to the nursing station and pronounced dead at 3:30 am. [ 15 ] Police investigation revealed a drinking party had been held by T.C.R.’s mother at her home. Several family members and relatives were present. Both T.C.R. and Mr. Beardy’s spouse were among several people detained or arrested. [ 16 ] As was his right, T.C.R. wished to have legal counsel present when providing his statement to police. Due to the remoteness of the community, legal counsel could not be arranged. As a result, no statement was taken and he was released without charge. [ 17 ] Several partygoers advised police that Mr.

Beardy had a fight with his spouse in the bathroom. Shortly afterwards, Mr. Beardy’s wife and T.C.R.’s mother had a verbal and physical altercation in which Mr. Beardy intervened. [ 18 ] Not surprisingly, the events that followed and led to Mr. Beardy’s death vary according to witness accounts. [ 19 ] Most described a chaotic scene where Mr. Beardy attacked T.C.R.’s mother with a 2 foot board which was used to secure the door, striking her in the head more than once and knocking her out cold. Witnesses also described Mr. Beardy hitting another adult male in the ear with the same board. Mr.

Beardy was at some point ejected from the house and then attempted to force his way back in, first

breaking at least one window with the board and then pushing on the front door. Most witnesses advised that the blue handled knife, which was used in the stabbing, was retrieved from the kitchen by T.C.R.’s mother. At some point T.C.R. was in possession of the blue handled knife. T.C.R. was inside the residence. Mr. Beardy was outside of the residence, on the other side of the door. Two males were attempting to prevent Mr. Beardy from entering the home by pushing against the door from the inside, while Mr. Beardy attempted to push his way back inside through the door way. [ 20 ] T.C.R. stabbed Mr.

Beardy through the partially opened door. One witness attributed the following comments to T.C.R. immediately after the stabbing: “I got him”; “That’s for beating up my Mom”; and “I tried to scare him off, I think I caught him” The Young Person’s Involvement with the Legal System [ 21 ] T.C.R. is now 19 years of age (as of the fall of 2013) and had just turned 17 years of age two months prior to the manslaughter offence. Prior to the charge of manslaughter, he had no prior criminal record. [ 22 ] In the confusion following Mr.

Beardy’s death on November 27 th , 2011, it was not immediately clear to RCMP investigators who had stabbed him. As a result T.C.R. was not arrested and charged until January 6 th , 2012. He was remanded into custody at the Manitoba Youth Centre in Winnipeg on that date and remained there until March 23 rd , 2012. He was then transferred to the Agassiz Youth Centre in Portage La Prairie until his release on bail to a representative of the Awasis Agency of Northern Manitoba on May 8 th , 2012. [ 23 ] On June 20 th , 2013, T.C.R. was arrested and taken back into custody for a violation of his curfew.

As he had turned 18 years old, he was held at the Winnipeg Remand Centre and then at Milner Ridge Correctional Centre. He was subsequently released from custody on June 28 th , 2013 and placed in the Youth Bail Management Program in the City of Winnipeg. [ 24 ] On October 4 th , 2013 police were called when he failed to return home for his 8:00 pm curfew. He was arrested when he subsequently returned home at 2 am and has remained in custody in the Adult population since that time. He has served a total of 6 months and 3 days of pre-trial detention. The Deceased [ 25 ] The deceased, Mr.

Beardy, was closely related to T.C.R. on his mother’s side of the family. At age 39 years, he was considerably older than T.C.R. [ 26 ] Mr. Beardy was a violent man who had a criminal record with convictions in each and every year from 1997 until his own violent death in 2011. The 32 violent offences he was convicted of included 20 counts of simple assault, 4 counts of assaulting a police officer, 4 counts of resisting arrest, 3 counts of assault with a weapon and 1 count of uttering threats to cause death or bodily harm.

He was also convicted of 3 counts of possessing a weapon dangerous to the public peace, 3 counts of escape lawful custody, 1 count of flight from police as well as 25 counts of breaching bail or probation orders in addition to several other criminal code offences. [ 27 ] Without exception, Mr. Beardy had been sentenced to a period of jail on each of these convictions, indicating that they were viewed by the Court as serious offences.

At the time of his death he was subject to two separate court orders prohibiting him from owning or possessing weapons, including firearms. [ 28 ] Defence counsel advised the court that T.C.R. had previously witnessed acts of violence by Mr. Beardy including one in which he threw a man into a bonfire during a drunken altercation.

[ 29 ] T.C.R. pled guilty to manslaughter based on his stabbing Mr. Beardy who was attempting to enter the home, despite the fact that there were two men holding the door shut from the inside. Defence counsel while acknowledging criminal responsibility, asked the Court to be mindful of the context that T.C.R. was a 17 year old, who was terrified of the actions of Mr. Beardy that night. Response to Offences [ 30 ] While T.C.R was in custody at the Manitoba Youth Centre, staff reported no real issues with his behavior. He successfully completed all nine sessions of the thinking awareness group.

Moreover, it was noted that he was mature and respectful. Staff noted he was a capable student but indicated he was quiet and they suspected he did have some trouble with English. It should be noted that Cree is his first language. [ 31 ] During the time that T.C.R. has been supervised in the community on release, there were two issues with compliance of his court ordered curfew condition. His bail worker indicated there have been no other problems. In his August 1, 2013 Youth Bail Management Progress Report, it indicated T.C.R. had met all of the reporting conditions for the program.

Concerns were expressed that T.C.R. was not involved in any programming in the community nor was he registered or attending school. [ 32 ] His Awasis Agency worker, who attended as support for the family at the sentencing hearing, was invited by the Court to provide updated information regarding T.C.R.’s status with the Agency. She advised that T.C.R. was ineligible to attend high school in Winnipeg due to the nature of the charge outstanding against him. She advised that the Agency had applied on his behalf for admission to school in Winnipeg but that his application had been refused.

She advised that they filed a complaint with the Child Advocate on his behalf to no avail. Further, she advised that due to an administrative mix up by a supervisor, the application for renewal of extended care for T.C.R on his nineteenth birthday was not filed prior to the deadline for same. As a result, he is no longer eligible for extended care and is no longer a ward of the Awasis Agency. His former case worker opined that it was doubtful that his application for extended care would have been renewed in any event, given that he was not in school and was not eligible for school until he had been sentenced.

Regardless as to how it happened, the Awasis Agency is no longer involved in planning for his life and regrettably it seems, T.C.R has fallen through the cracks of the child welfare system. [ 33 ] There are limited pro-social activities in Shamattawa. T.C.R. reported that there is really nothing else to do in Shamattawa but to consume alcohol or intoxicants. T.C.R. has done remarkably well given that he has a partial grade eleven/grade twelve academic level. He is intelligent and academically inclined. He has never sniffed solvents. Prior to his seventeenth birthday he had no record whatsoever.

He is described as polite and cooperative throughout the pre-sentence report both by the author of the report and staff at Manitoba Youth Centre. He did not present any problems or behavioural issues while in custody. T.C.R was described on the last page of the pre-sentence report as follows “Overall, T.C.R. is not favorable towards crime and he does not have a propensity towards violence. He recognizes the impact his actions had on himself, his family and his community”.

When the writer interviewed T.C.R it was clear he was in turmoil and was remorseful. [ 34 ] The Crown reminded the Court that the accused had pled guilty to a charge of manslaughter which was quite properly the charge laid and that reduced charge already took into account factors of intoxication and provocation. Counsel for the Defence succinctly stated that the Court must assess moral blameworthiness of T.C.R and that assessment must be contextual. In other words, the Court must take into account what was happening at the time when the killing took place. Defence asked me to consider T.C.R’s lack of record, Mr.

Beardy’s (the deceased’

s) very significant history and record for violence, that Mr. Beardy had knocked T.C.R.’s mother out cold when she intervened in the dispute with his wife, that Mr. Beardy used a weapon – a two foot piece of board to break a window, to strike T.C.R’s mother and another man in the head and then tried to force his way back inside the home with two men holding the door shut. Mr. Beardy sustained one stab wound that almost immediately resulted in his death. [ 35 ] The Court was also informed that years of alcohol abuse have caught up to T.C.R’s mother.

Her liver is failing and she now has less than six months to live. His father also has health difficulties and is going blind. Neither is consuming alcohol at present due to their medical difficulties. Their ongoing sobriety was confirmed by the Awasis worker at court. [ 36 ] With the non-renewal of his extension of care, the Awasis agency is no longer involved in planning for T.C.R. As a result, the plan advanced by Defence is for T.C.R. to return home to live with his parents in Shamattawa. Gladue Factors

[37] The LS/CMI or Level of Service/Case Management Inventory is an assessment tool that measures the risk and need factors of lateadolescent and adult offenders. According to the author of the pre-sentence report, an LS/CMI inventory was completed on August 23,2013 and T.C.R. was assessed as a high risk to re-offend. However, this tool does not appear to factor in the context of his upbringing orcommunity.

As a result, I do not agree that T.C.R. is a high risk level to re-offend and I place little weight on the LS/CMI inventoryassessment. [38] As T.C.R. is Aboriginal, there are Gladue factors which I must consider. It is clear that systemic factors have contributed to himbeing before the court.

Section 718.2 Sentencing Principles of the Criminal Code 718.2(

e) sets out that; “All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of Aboriginal offenders. In the case of R. v. Gladue, (SCC), [1999] 1 S.C.R.688, 23C.R.(5th)197 “Section 718.2(

e) is remedial in nature, not simply a reaffirmation of existing sentencing principles”. In all cases judges must take into account any relevant systemic or background factors when sentencing Aboriginal offenders. [39] Background considerations regarding distinct situations of Aboriginal peoples in Canada include a variety of uniquecircumstances, in particular: i. Unique systemic or background factors which may have played a role in bringing the offender before the courts; and ii.

The types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his/her particular Aboriginal heritage or connection. R. v. Ipeelee 2012 SCC 13 , 2012 1S.C.R.433,91 C.R.(6th)1 “Whensentencing an Aboriginal offender, a judge must consider the Gladue factors. Systemic and background factors may bear on anoffenders culpability to the extent that they shed light on the offenders moral blameworthiness.” [40] T.C.R.’s father attended Indian Residential School but does not talk about his experience.

His father did state that his family wasdirectly impacted by residential schools and colonization. His father shared that his community is dealing with loss of their culturalidentity and their ability to speak their language. Many of the younger people do not speak their language.

The author of the pre-sentence report wrote, “The writer of this report clearly sees the inter-generational impacts affecting this family.” Aboriginal People [41] Aboriginal Justice Inquiry of Manitoba Report provides a good synapse of the Issues with regard to Aboriginal people: Aboriginal people face greater socio-economic problems than does any other segment of Canadian society. Because official statisticsgenerally report only for status Indians, these are the figures we present.

We believe the conditions of all Aboriginal people in Manitobahave strong similarities, although there are some significant differences between life on and off reserves. Aboriginal people living onManitoba reserves experience the most crowded housing conditions in Canada. The majority of homes on reserves are heated by cookstoves and space heaters, less than half of on-reserve homes in Manitoba have indoor plumbing. Indians are twice as likely as otherManitobans to have less than a grade nine education, three times less likely to complete high school and six times less likely to receive auniversity degree.

The unemployment rate for Indian people is four times higher than for non-Indian people. These statistics greatlyunderestimate the true state of Aboriginal unemployment, since they only consider those persons actively looking for work. Becausethere is so little employment available, many Aboriginal people do not “actively look” for what is not there and, therefore, are notcalculated in the official unemployment rate. Manitoba’s Indian population has among the highest rates of welfare dependency inCanada, at close to 80% for reserve resident.

The Indian death rate for persons between 25 and 44 years of age is five times the non-Indian rate. The average age of death for Indianmen is 25 years younger than for non-Indian men. The average age of death for Indian women is 28 years younger than for non-Indianwomen. Tuberculosis, known as a disease of poverty, occurs seven times more frequently in Manitoba’s Indian population.

Home Community [ 42 ] Shamattawa is an isolated and remote northern community. The closest urban centre to it is Thompson some 365 kilometers south-west by air. Housing is lacking and what does exist is sub-standard. 61.3% of the housing stock is estimated to be in need of major repair. Water is delivered to homes by truck. 85% of the population lives on social assistance. There are few jobs. High school ends at grade ten. To obtain grade eleven or twelve, students must go off reserve to Winnipeg, Thompson or Cranberry Portage.

Only 5% of the population have obtained a grade twelve education, despite having a very youthful population. [ 43 ] The community of Shamattawa is plagued with numerous issues including substance abuse, domestic violence, sexual abuse, child abuse, child neglect, family breakdown and dysfunction, lack of foster homes, youth violence, shortage of housing, poverty, low income, lack of employment and educational opportunities. [ 44 ] Quoting from the pre-sentence report at page 5 of 19, it reads, “Youth face many challenges with regards to the inter-generational effects of physical, sexual, emotional and spiritual abuse that occurred to many Aboriginal people as a result of the government policies (including Colonization and Residential schools) the list of challenges and effects are staggering and include the following:” • Alcohol and drug abuse; • Fetal alcohol spectrum disorder (FASD); • Sexual abuse (past and ongoing); • Physical abuse (past and ongoing); • Psychological/emotional abuse; • Low self-esteem; • Dysfunctional families/Interpersonal relationships; • Parenting Issues; • Suicide (and the threat of self-harm); • Teen pregnancy; • Depression; • Rage and anger; • Eating disorders; • Chronic physical illness; • Unresolved grief and loss; • Unconscious internalization of residential school behaviours; • Patterns of misuse of power; • Lack of trust; • Disunity and conflict between individuals, families and community; • Flashbacks and associative trauma (including anxiety and Post Traumatic Stress Disorder); • Becoming oppressors and abusers of others; • Overt and covert racism; • Poverty; and • Cultural identity issues.

[ 45 ] Suicide levels reflect the bleak outlook in Shamattawa. In 2007, 74 youth attempted suicide. During the first five months of 2008, 47 people attempted suicide, this from an on reserve population base of less than 1500 people. Relevant History [ 46 ] It is not surprising that in this context of community and social dysfunction, that T.C.R. became involved with the Criminal Justice System. [ 47 ] A review of his personal history reveals that T.C.R is the oldest of five siblings. T.C.R. had an older brother who is now deceased. He died at approximately five years of age of a brain hemorrhage.

The pre-sentence report indicates that drinking and domestic violence problems started with T.C.R’s parents after their first son died of the brain hemorrhage. The report identifies that T.C.R. was particularly close to his grandparents and that they have passed. The date of their death is not indicated. T.C.R was raised from infancy by his maternal grandparents until ten years of age. It was described as a home of safety, comfort and love and the “backbone” of this family in the social history provided by the Awasis Agency of Northern Manitoba.

His grandparents were active in the community church and were Christians. Like many Aboriginal homes, grandparents and other relatives often helped take care of family members when relatives encountered difficulties or were unable to care for their children. [ 48 ] When T.C.R was around age eleven it indicates he lived with his parents for a brief time and then with an aunt “off and on.” Throughout this time the Awasis Agency became involved in his life and he was in and out of care. T.C.R’s father was employed at the water treatment plant.

Numerous collaterals indicated that his parents had issues with drinking and that they lost custody of their children to the Awasis Agency due to their substance abuse issues and domestic violence. T.C.R. has been in and out of Awasis Agency care since July 22, 2005 and all of his siblings are in the care of the Agency. [ 49 ] T.C.R was asked whether he or his family were affected by death or suicide in his family. He confirmed that they were. Specifically the deaths of his grandparents, his aunt and uncle, his cousins and his brother, have had a significant impact on him.

When asked by the author of the report, whether T.C.R had ever felt like hurting himself or taking his life, he stated “yes” in fact, the night prior to one of his pre-sentence report interview sessions, he had suicidal ideations. [ 50 ] T.C.R had been living for a significant period of time in an alternate placement home in the city of Winnipeg. Prior to his eighteenth birthday, the Awasis agency obtained a permanent order of guardianship on T.C.R with plans to obtain an extension of care past his eighteenth birthday. T.C.R has shown academic potential.

When in Winnipeg, he was enrolled in grade eleven courses and working on his grade twelve. In school he had marks of 80 to 90% with favorite subjects being math and science. Collaterals have stated that T.C.R. was bright but his substance use created problems and inhibited his school attendance. The presentence report stated, “Strength for T.C.R. is the potential for him to excel academically”. Alcohol and Drug Issues [ 51 ] T.C.R indicated he started drinking at age thirteen but does not get angry or violent when drinking.

He indicated he use to drink all the time and since his reserve is a dry reserve they drink home brew. T.C.R also advised that he started using drugs at age thirteen and that he used marijuana daily. Moreover, he reported that he had blacked out in the past from use of alcohol. He attended at the Whiskey Jack Treatment Centre in Northern Manitoba when he was fourteen years of age. The report notes that with respect to Gladue factors, it is evident that problems related to substance abuse had affected T.C.R and his family both presently and in the past.

It was reported that this was a normal coping mechanism employed by T.C.R and his family to deal with grief. In particular, it was noted that when his older brother passed away, his parents’ substance abuse escalated. Crown Position on Sentencing [ 52 ] Pursuant to s. 65, the Crown gave notice that an adult sentence would not be sought with respect to T.C.R. The Court has ordered a ban on publication of information that would identify T.C.R. as having been dealt with under the Act. [ 53 ] The Crown submitted that, notwithstanding that T.C.R has no prior criminal record, that an appropriate sentence is a 3 year

custody and conditional supervision order. T.C.R. has already been in pre-trial custody, but the Crown takes the position that furthercustody is warranted. In support of it’s request for additional custody, the Crown argues that an appropriate sentence should reflect thegravity and seriousness of this offence.

The Crown has noted that T.C.R. has been identified as a “high risk to re-offend”, that he doesnot have the most functional family and that alcohol and marijuana use has been identified as an ongoing issue for him. [54] The Crown is also asking for a DNA sample pursuant to s. 487.051 of the Criminal Code and a weapons prohibition pursuant to s.51 of the YCJA. Defence Position on Sentencing [55] Defence submits that an appropriate sentence is the time spent in pre-trial custody (now 6 months and three days), followed by 2years supervised probation.

The Defence points out the context T.C.R.’s actions and suggests that the sentence reflect his reduced moralculpability taking into account that context, including the community in which he was raised and his family background, includingGladue factors. [56] The Accused also spoke to the Court. He initially was overcome with emotion and was unable to speak. After a recess, he wasable to regain his composure. He told the Court and his parents that he was deeply sorry for what happened and if he could take it allaway, he would.

The Sentence [57] Crown counsel provided a case book of authorities for the Court to consider. Defence counsel provided one additional case; R v.C. (M.D.), 2004 MBQB. [58] Section 38(2)(

b) of the YCJA states that the sentence must be similar to the sentences imposed in the region on similar youngpersons found guilty of the same offences committed in similar circumstances. [59] In R. v. M.D.C., 2004 MBQB 47 , in a case that took place in Winnipeg, the Accused was sentenced to 2 years supervisedprobation for manslaughter. In M.D.C, a 16 year old youth was involved in an altercation with his roommate. He grabbed a knife andstabbed the deceased once in the upper left of his back. The Accused initially left, but eventually returned to apologize and to see how thebad the situation was.

The roommate eventually went into cardiac arrest and died. [60] In M.D.C., the Accused had no prior record.

Based on the clinical interview and observations of the Accused, his psychologicaltest results and his background, the doctor who assessed the Accused found the incident involving the deceased to be an isolated incidentthat was extremely out of character and inconsistent with the Accused’s prior history, orientation and values. [61] In arriving at the decision, the court stated (at paragraph 14): Based on the extensive sentencing material before me, I am satisfied, that, despite the tragic consequence to Shrupka and his family, theonly reason to consider putting the accused behind bars would be for the principle of general deterrence.

I am not persuaded that generaldeterrence even exists as a sentencing criterion under the YCJA or that it serves the purpose of actually deterring would-be offenders…Itis clear that incarceration is not required either to specifically deter this young offender or to rehabilitate him. In fact, the incarceration ofthe accused might very well be catastrophic for him and militate against his becoming a useful and productive member of society. [62] In M.D.C., the court emphasized the rehabilitative potential of the Accused and that a custodial sentence would not be in his bestinterest.

There was also evidence to suggest that this was extremely out of character for the Accused. [63] I am alert to amendments to the YCJA, which in

part changed the purpose and principles of sentencing by adding the twinobjectives of denunciation and deterrence to S. 38.(2)(

f) that were previously absent, as noted in Judge Meyer’s seminal decision of

B.P.W.. However, those amendments did not receive Royal Assent until March 13 th , 2012 and do not apply retrospectively. As such, they are inapplicable in this case.

Conclusion [ 64 ] 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 his 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; ▪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; [ 65 ] In terms of moral blameworthiness, I find the circumstances of T.C.R.’s crime to be similar to that of the accused in the case of M.D.C.

The actions of the T.C.R. appear to be a one-time event given the unique circumstances he faced on the night in question. Given his lack of prior record, excellent behavior while in custody, non-violent attitude and genuine remorse, this very much appears to be an out of character incident.

With his mother’s terminal illness and his father’s declining health, I find that a further period of custody would not be in his best interest nor is it required for protection of the public or for T.C.R.’s rehabilitation. [ 66 ] Considering the 6 months and 3 days of pre-trial detention served, T.C.R. will be subject to an order of custody and conditional supervision as required in section 42(2)(

o) of the Act, with one day, today’s sentencing day, being served as one day in open custody, with the remaining 6 months of his sentence to be served under conditions of supervision in the community subject to the following conditions: ▪keep the peace and be of good behaviour; ▪appear before the youth justice court when required to do so; ▪report to and be supervised by the provincial director or a person designated by the youth justice court; ▪notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change or address or any change in the young person’s place of employment, education or training; ▪attend and complete all counseling as directed by the provincial director, including counseling for alcohol and drug abuse;

▪abstain from the consumption of alcohol or any other intoxicating substances; ▪not attend any licensed premises, an exception would be a licensed restaurant; ▪abstain from the consumption of illegal or prescription drugs, unless the prescription drugs are prescribed to you by your doctor; ▪ be at your home address between the hours of ten o’clock in the evening and seven o’clock in the morning; an exception will be in the event of a medical emergency involving you or a member of your family or if you have the written approval of your youth court worker in advance to be out past your curfew; ▪to come to the door of your home address or answer the telephone if the Police or youth court worker conduct a curfew check; ▪comply with any other conditions set out in the order that the youth justice court considers appropriate, including conditions for securing the young person’s good conduct and for preventing the young person from repeating the offence or committing other offences; and ▪not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order. [ 67 ] It is further ordered that T.C.R. will, after completion of the order of conditional supervision, be subject to a order of supervised probation for a further period of one year, the terms of which will be as follows: ▪keep the peace and be of good behaviour; ▪appear before the youth justice court when required to do so; ▪report to and be supervised by the provincial director or a person designated by the youth justice court; ▪notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change or address or any change in the young person’s place of employment, education or training; ▪attend and complete all counseling as directed by the provincial director, including counseling for alcohol abuse and anger management; ▪comply with any other conditions set out in the order that the youth justice court considers appropriate, including conditions for securing the young person’s good conduct and for preventing the young person from repeating the offence or committing other offences; and ▪not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order. [ 68 ] Given the violent nature of this offence and the use of weapons, the court will make an order under s. 51 (1) of the YCJA, prohibiting T.C.R. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance for a period of 5 years.

[ 69 ] Manslaughter 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 T.C.R.’s privacy and security would be grossly disproportionate to the public interest and will therefore make an order pursuant to s. 487.051(1)(

a) authorizing the taking of bodily substances for forensic DNA.

T.C.R. must provide a sample of his DNA within 14 days. [ 70 ] On the theft of motor vehicle offence, which essentially was a joy ride on an ATV which was later recovered undamaged, I sentence T.C.R. to complete 10 hours of community service work no later than Jan 31 st , 2014 and to report to and be supervised by a youth court worker until that time, as directed by the youth court worker. [ 71 ] With regard to his two adult convictions for violating the court ordered curfew on his recognizance, given that these are his first adult offences, that there was no suggestion he was intoxicated on those dates or otherwise committing substantive offences, and that he did return to his residence later that night, I impose fines of $100 on the first offence and $200 on the second offence for fines totaling $300.

These convictions predate the October 24 th , 2013 changes to the law imposing mandatory minimum victim surcharges and court costs. As T.C.R. is unemployed and will be on social assistance on his release from jail, I find that imposing the victim surcharge and court costs would be a hardship to T.C.R. and waive them in this case. In light of his inability to pay the fines, T.C.R. will have until December 13 th , 2013 to register with the Fine Option Program. M. P. Thompson, P.J.