R. v. C.P., 2020 MBPC 45

CITATION: R. v. C.P. , 2020 MBPC 45 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) V. Mitrovic, for the Crown ) ) ) - and - ) ) ) ) C.P. Young Person ) ) L. Labossiere, for the young person ) ) ) ) ) Judgment delivered: September 30, 2020 Restriction on publication: By court order under subsection 110(1) of the Youth Criminal Justice Act prohibits the publication of any information that may identify the young person having been dealt with under this Act. C.A. DEVINE, P.J.

Introduction [ 1 ] C.P. pleaded guilty to robbery, carrying a concealed weapon, theft, and failure to comply with a curfew which was a condition of his release on previous charges. He was 17 years old when he committed the offences. The robbery and weapon offence occurred on August 27, 2019; it involved an armed robbery of a convenience store by pointing an imitation handgun at the owner. The theft took place a few days later, on September 9, 2019, when C.P. went into a pawn shop, asked to see a cell phone and then left the store with the cell phone without paying for it.

The breach of his curfew took place between September 11 and 12, 2019. The robbery is the most serious offence. The Crown proceeded by way of indictment and is seeking a custodial sentence of two years under the Youth Criminal Justice Act ( YCJA ), in the form of a custody and community supervision order, followed by a year of supervised probation.

The Crown argues that the sentence must reflect the objectives of denunciation and deterrence. [ 2 ] The defence is seeking a probationary sentence, citing the young person’s exceptional circumstances, and the primary objectives of rehabilitation and long term safety of the public. C.P. is an Indigenous youth who has suffered many of the sequelae of colonialism and residential schools in his family.

He has a history of mental health problems, including bipolar disorder, a history of substance abuse, a low I.Q., and diagnoses of Fetal Alcohol Spectrum Disorder (FASD) and Attention Deficit Hyperactivity Disorder (ADHD). He has consented to an extension of care through Anishinaabe Child and Family Services where he has been a permanent ward since 2018, although the agency has been involved with his family for C.P.’s entire life.

Since 2015, specialists have strongly recommended structure and supervision for C.P. that is available only in a Level 5 placement. [ 3 ] In the absence of this type of support, his offending began in 2015 or 2016. It was not until the day before he was arrested on these offences, September 17, 2019, that he was placed in a Level 5 foster home, in the country, with a strong foster parent who is also a Probation Officer, and who is licensed and has staff to support his special needs.

He was arrested on September 18, 2019 at this placement and spent over a month in custody, before he was released by a judge on October 12, 2020. Since that time, he has been on an absolute curfew, with abstain conditions and other conditions.

[ 4 ] At the time of the sentencing hearing on September 3, 2020, there had not been a single breach of his conditions. Because significant emphasis had been placed on C.P.’s lack of charges subsequent to his release on bail about a year ago, defence counsel advised the Court and Crown when a subsequent charge was laid on September 12, 2020. C.P.’s foster parent, Ms. Ursula Backe discovered some cannabis-related paraphernalia in his bag, he became upset, and it is alleged he banged his head on the kitchen counter, punched the fridge and smashed the patio window.

Police were called, he was arrested and charged with mischief. He was held in custody at the Winnipeg Remand Centre and released September 14, 2020 on the same conditions as before. Ms. Backe allowed him back to her home. [ 5 ] The defence argued, and it is apparent in observing the chronology of C.P.’s life and his youth record, that his offending behavior is clearly and mainly linked to a lack of appropriate supervision and structure in his living situation. Issue [ 6 ] The main issue in this case is whether a non-custodial sentence can satisfy the relevant purpose and principles of in the YCJA .

Factual Circumstances of the Offences [ 7 ] The Crown showed the video of the robbery in court. It shows Mr. Kwon, the store owner, standing behind the counter in the small, family convenience store. C.P. walks into the store. He is not wearing a disguise. His identity is clear. He walks up to the counter and pulls what appears to be a handgun out of his pocket and points it directly at Mr. Kwon’s face. Mr. Kwon starts, then turns to his right to obtain his cell phone and appears to be calling the police. C.P. left immediately upon Mr. Kwon turning to get the phone.

An adult co-accused can be seen lurking outside. [ 8 ] On September 9, 2019, C.P. walked into a pawn shop, asked to see a cell phone and then walked out with the phone without paying. [ 9 ] On September 11 and 12, 2019 while on charge for other offences, for which he has subsequently been sentenced, C.P. breached his curfew. He was found on September 13, 2019 at the Holiday Inn on Ellice Avenue. [ 10 ] It should be noted that the offences all took place in the West Broadway area in Winnipeg. It is an area fraught with methamphetamine use and crime.

C.P. was living in the area at the time, with little to no supervision. He was on a methamphetamine binge and committing thefts to score more drugs. [ 11 ] When he was arrested at his new foster home on September 18, 2019, C.P. admitted to all the offences and was cooperative with the police. He entered guilty pleas early. Sentencing was delayed due to COVID-19 pandemic. The Seriousness of the Robbery [ 12 ] The Crown pointed out that the maximum adult sentence for robbery is life in prison. The maximum youth sentence is three years.

The defence conceded that a deferred custody order is not available, because of the psychological harm caused to Mr. Kwon as outlined in the Victim Impact Statement (VIS) ( R. v. V.J.T. et al , 2007 MBCA 45 at para. 31 ). [ 13 ] Pointing a firearm, even an imitation firearm, at a lone worker in a convenience store is a serious offence which has been the subject of considerable jurisprudence that recognizes the particular vulnerability of such victims.

Adult offenders committing such a robbery would be facing a considerable jail sentence, including the possibility of a penitentiary sentence. [ 14 ] In this case, Mr. Kwon filed a VIS that details the psychological harm he has suffered, and how the robbery has impacted his entire family. Because he is too fearful to work alone, other family members have to work in the store as well, which has disrupted their previous operation as a family, and it has put strain on their family. The VIS stated that Mr.

Kwon “cannot describe the feeling of terror he felt during [the] robbery.” He thought he would die when the gun was pointed at him. Personal Circumstances of C.P. and Circumstances of his Indigeneity [ 15 ] I have the benefit of an extensive pre-sentence report and forensic report from Youth Forensic Services which were filed as exhibits in the sentencing. C.P. is now 18 years old. He is an Indigenous person from Lake Manitoba First Nation who grew up without a biological father and a mother who suffered from substance abuse and was physically violent towards him.

He remembers a lot of alcohol, pills, cocaine and violence as a very young child. When he was nine years old, his mother tragically died in a motor vehicle accident. He and his two sisters went to live with his maternal great grandmother, but due to behavioural difficulties, C.P. was placed in foster care and then the Knowles Centre, followed by several other placements.

He suffered physical and sexual abuse by family members. [ 16 ] C.P. could not live with his maternal grandparents, as they died tragically as well – one by suicide and one also in a car accident. [ 17 ] His great grandfather was the only father figure he had, but he too died when C.P. was only 13 years old. [ 18 ] His great grandmother described a “beautiful life” living with her grandparents in Lake Manitoba First Nation as a young child, until her life was “interrupted” when she was taken from her home and placed in the Sandy Bay Residential School between the ages of five and 13 years old.

For her, the experience was like going to “Hell,” where she experienced verbal, emotional, physical and sexual abuse, and where she tried to protect her younger siblings at a cost to herself. She lost one of her own children to the “60’s Scoop”; the child was abducted from the babysitter when she was at work. She miraculously reunited with her son who was raised in another province, when he was 18 years old. C.P.’s great grandmother continues to parent her grandchildren and great grandchildren at the age of 82.

She loves her grandson deeply, but because of his special needs, she recognizes that it is best for him and everyone that he continues to live with Ms. Backe.

[ 19 ] Between 2016 and 2019, C.P. was in 29 placements, including group homes, foster homes, emergency shelters and the Children’s Hospital. He attempted suicide at the Knowles Centre. [ 20 ] C.P. told the pre-sentence report writer that he first “smoked a joint” at age four and by age 12 he was using cannabis daily. He first tried alcohol at age seven and was regularly drinking by age 13 with his highest consumption at age 16, when he would drink a 60-ounce bottle of spirits per week. He was using Xanax, Percocet and Tylenol 3’s by age 12 and his early teens.

He tried cocaine at a family placement at age 16, but found it too expensive. He also tried crack cocaine and ecstasy. He started methamphetamine use at age 17 and quickly became addicted to it. He described to the presentence report writer how he enjoyed the high, but then became ill and would feel sick and sleepless, which would lead him to get more of the drug. He was using methamphetamine daily for the three months before these offences, committing thefts to get money to buy more methamphetamine. [ 21 ] His education has been limited.

He was bullied at school on the reserve because of his fair complexion and hair, despite being Indigenous. During the 2019-2020 school year he was enrolled in The Infinity Program (TIP), an off-campus alternative to school. There were some behavioural problems noted, but he intended to continue there this fall and work toward his Mature Student Diploma. The presentence report notes that Dr.

Chaze from Manitoba Adolescent Treatment Centre (MATC) had suggested vocational training (life skills) might be more suitable to C.P. than a modified school program, and an educational assistant would be helpful to deal with possible impulsive acting out. [ 22 ] He did some work with the “green team” in his community when he was 16 years old and liked it and told me at the sentencing hearing that he would like to do lawn work and gardening in future. More recently, he worked at Chicken Chef. [ 23 ] The WISC-IV intelligence test was administered to C.P. in 2015; Dr.

Hildahl stated in his July 30, 2020 forensic report that C.P.’s brain functioning results are still accurate today. He has significant deficits in executive functioning, accompanied by marked deficits in his brain’s processing speed and working memory. In practical terms, this means that he may have conflict in social situations where he has to process information quickly and accurately. He might over-react in these situations.

In C.P.’s own words, “I keep making the same mistakes.” [ 24 ] C.P. was diagnosed with FASD in 2018. [ 25 ] In 2018 he also experienced a psychotic break and was diagnosed with psychosis connected to Bipolar Affective Disorder Type I. The psychosis has settled with anti-psychotic medication. He continues to take anti-psychotic medications for the bipolar disorder.

He was also diagnosed with ADHD in 2018, which presents with impulsivity, poor attention and poor focus. [ 26 ] The FASD professional currently working with C.P. described his brain functioning for the presentence report, which states: [C.P.] scores in the Borderline IQ range but his deficits present significantly in his adaptive functioning. Ms.

Foster describes how [C.P.’s] brain differences make it difficult for him to read others’ emotions or intentions or even understand conversations, to hold multiple thoughts (such as instructions) in his brain at one time or to be able to think through his actions to their consequences for himself or others. [C.P.] also scores in the Attention Deficit Hyperactivity Disorder (ADHD) domains, presenting as being impulsive. (at p. 15) [ 27 ] It is not surprising, given these circumstances, that C.P. has a youth record.

There is a direct link between the disruption in his home life and the commencement of his offending behavior. He was convicted of assault with a weapon and failing to comply with an undertaking in September 2016. He was convicted of three break and enters and two mischief offences in May 2018. He was convicted of two assaults and a failure to comply with his youth sentence in January 2020, but these offences were committed before the offences involved in this sentencing. Dr.

Hildahl stated in the forensic report that the bipolar disorder which presented with marked psychosis contributed to the charges he incurred in 2018. [ 28 ] Forensic and FASD professionals recommended medication and a strictly supervised and structured home environment. He did not receive that. He lived in the West Broadway area, was not supervised, and was introduced to methamphetamine by adults coming into the home. When these offences were committed he was missing from home and on a three-month methamphetamine binge.

He occupied himself by stealing to get money to buy drugs and doing drugs. [ 29 ] The presentence report also describes his vulnerability to being victimized and coerced into negative behaviours because of his FASD and other disabilities: . . . because [C.P.] does not appear to have a disability the way some clients can, he is actually more vulnerable as others approaching him will not respond to him through a disability lens or adapt their expectations in a realistic manner. Ms.

Foster also advised that [C.P.] struggles with the ability to say “no” to other people, making him more vulnerable to peers and concerning should he be in a compromised state due to substance use. (at p. 15) [ 30 ] Defence counsel argued that in

summary, despite recommendations from psychiatric and psychological experts in 2015 that C.P. required significant structure and supervision, he did not receive it. I agree. It is sadly ironic that when the police arrested him for these offences on September 18, 2019, he had just been placed, the day before, with Ms. Backe, a Probation Officer and Level 5 care provider. Aggravating and Mitigating Factors [ 31 ] The aggravating factors in this case relate to the robbery. The imitation hand gun appeared real. Mr.

Kwon was vulnerable, working alone in a small convenience store. [ 32 ] The mitigating factors are C.P.’s guilty plea and his particular circumstances, including the Gladue circumstances, which I have outlined. He was cooperative with the police from the time of his arrest and throughout. He has accepted full responsibility. The guilty plea demonstrates the acceptance of his culpability in committing the offence and allowing himself to be held accountable for his

offence. It is a first and major step in achieving the purpose of the YCJA . The other mitigating factor is his compliance with his strict release conditions up until very recently, for 11 months. He expressed considerable remorse for Mr. Kwon at the sentencing hearing. The Purpose and Framework for Sentencing under the YCJA [ 33 ] The Youth Criminal Justice Act came into force in 2003. It represents a complete restructuring and different approach to crimes committed by young people, in part to address the over-incarceration of young people under the previous Young Offenders Act . (Department of Justice Canada, 2003. The Youth Criminal Justice Act:

Summary and Background . Ottawa: Department of Justice Canada) The

Preamble to the YCJA contains this concern: . . . And WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability though meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons; [ 34 ] The principles and objectives of sentencing for young people are very different from the principles and objectives of sentencing for adults.

Section 50 of the YCJA explicitly states that

section 718 of the Criminal Code does not apply to youth sentencing. Accordingly, while the primary sentencing objectives engaged when sentencing an adult for robbery is usually denunciation and deterrence, it is not as clearly defined when sentencing a youth for the same offence. [ 35 ] The presumption in the YCJA is for non-custodial sentences. Custodial sentences are not even permitted, except in certain circumstances set out in

section 39 of the Act . [ 36 ] The framework for sentencing young people is very complex and is set out in sections 3 and 38 of the YCJA .

Section 3 sets out the policy for Canada with respect to young persons. The provisions that are relevant to sentencing young people are highlighted below: 3(1) Policy for Canada with respect to young persons The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by: (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour, (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time, (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should: (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements, and (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young

persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy andshould suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity toparticipate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged tosupport them in addressing their offending behaviour. 3(2) Act to be liberally construed This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out insubsection (1). [37] Subsection 38(1) provides that the purpose of sentencing is to hold a young person accountable for an offence through theimposition of just sanctions that: − have meaningful consequences; and − promote his or her rehabilitation and reintegration into society, − thereby contributing to the long-term protection of society. [38] Subsection 38(2) requires that an accountable sentence is achieved by determining it in accordance with the principles set out insection 3, which are further detailed in subsection 38(2).

The means by which that objective is to be achieved is to impose just sanctionsthat impose meaningful consequences and promote the young person’s rehabilitation and reintegration. A sentence that complies withthese requirements can make a contribution to the long-term protection of the public. [39] It should be noted that the protection of the public is a long-term outcome or result of a youth sentence, not an immediateobjective of a sentence. The Supreme Court of Canada held in R. v.

BWP; BVN, 2006 SCC 27 , [2006] SCJ No. 27 (SCC) that“protection of the public” is not an immediate objective of sentencing, but rather the long-term effect of a successful youth sentence. [40] Subsection 38(2) provides that a judge sentencing a young person shall determine the sentence in accordance with theprinciples in

section 3 above, and the following principles: A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles setout in

section 3 and the following principles:

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who hasbeen 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 offencecommitted 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 thatoffence; and

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders.

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

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

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 [41] Paragraph 38(2)(

c) requires that the sentence be proportionate to the seriousness of the offence and degree of responsibility ofthe young person for the offence. [42] Paragraph 38(2)(

d) provides that all available sanctions other than custody should be considered for all young persons, withparticular attention to the circumstances of Indigenous young persons. [43] Read in its totality, the YCJA emphasizes the use of non-custodial sentences rather than custody to hold young people

accountable. [44] Although treatment and rehabilitative services are usually available in custody, the negative influences of other youths with ahistory of offending and the fact that the youth’s problems cannot be addressed in their own environment result in it being more difficultto rehabilitate youths in custody than in community-based treatment and therapy. This is even more so during COVID-19. [45] Subsection 39(1) prohibits the court from imposing custody unless the case meets one of four criteria that generally restrictcustody to violent offenders and serious repeat offenders.

Subsection 39(2) not only requires the court to consider all reasonablealternatives to custody, it prohibits the court from imposing custody unless it has considered all reasonable alternatives to custody andhas determined that there is no reasonable alternative that is in accordance with the purpose and principles of sentencing. [46] Subparagraph 38(2)(e)(

i) provides that, within the limits of a proportionate response to the offence, the sentence must be theleast restrictive sentence that is capable of achieving the purpose of sentencing. In considering possible proportionate sentences, the courtmust choose the least restrictive alternative. [47] Amendments to the YCJA came into force on October 23, 2012. An amendment to subsection 38(2) allows a court to considerthe objectives of specific deterrence and denunciation:

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. [48] This amendment is permissive; it does not require the court to take specific deterrence and denunciation into account. Moreover, these objectives are limited by proportionality set out in paragraph 38(2) (c).

As well, a sentence that has an objective ofdeterrence or denunciation must also be consistent with other mandatory principles in subsection 38(2), including the requirements thatthe sentence must: − be the least restrictive; − promote rehabilitation and reintegration; − promote a sense of responsibility and an acknowledgement of the harm done; − not be more severe than the sentence that an adult would receive for the same offence; and − be similar to youth sentences in the region in similar cases. [49] Thus, a sentence that promotes deterrence but does not promote the rehabilitation of the young person would not be inaccordance with the purpose of sentencing under the YCJA. [50] The objective of specific deterrence does not necessarily lead to a more punitive sentence.

A youth may be discouraged fromcommitting further offences through many of the sanctions available under the YCJA, such as community service. [51] Subsection 38(3) provides that, in determining a youth sentence, the court shall also 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 or mitigating circumstances related to the young person or the offence that are relevant to the purpose andprinciples set out in

section 38. Application of YCJA Sentencing Principles in this Case [52] Starting from the presumption of a non-custodial sentence, I must determine whether such a sentence would hold C.P.accountable for his offence by imposing a meaningful consequence that promotes his rehabilitation and reintegration into society,contributing to the long-term protection of the public. [53] The Ontario Court of Appeal in R. v.

O. (A.) (2007), 2007 ONCA 144 , 218 C.C.C. (3d) 409 explained how a judge isto determine whether a sentence will hold a young person accountable: ...for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does a retributive sentence, “themoral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by theoffender, and the normative character of the offender’s conduct”. We see no other rational way for measuring accountability.

The need to consider the normative character of an offender’s behaviour necessarily requires the court to consider societal values. (atparas. 47 – 48).

[ 54 ] The degree of intentional risk-taking involved in the robbery appears to be high on first blush – C.P. took a replica hand gun into a convenience store and pointed it at the store owner. However, the apparent intentional risk taking must be understood within the context of C.P.’s particular circumstances: he was in the clutches of a three-month methamphetamine binge at the time, and associating only with negative people who took advantage of his younger age and vulnerabilities.

He did not wear a disguise and robbed a convenience store in his neighbourhood that he had attended before and an adult co-accused was involved just outside the store. Added to those factual circumstances, are the long and painful experiences of his family as Indigenous people, which he inherited, including brain damage caused by prenatal alcohol consumption.

He has a low Intelligence Quotient, his FASD affects his executive functioning, in a sense, his “common sense”, and his ADHD and FASD cause him to be impulsive and unable to foresee the consequences of his actions. [ 55 ] In considering his circumstances as an Indigenous young person, I agree with defense counsel’s observation that C.P. has experienced in his young life and that of his ancestors every feature of post-colonial life. He was born with FASD, the direct legacy of the horrors his maternal great grandmother experienced in residential school where she went for eight hellish years.

His family and he have experienced premature deaths, substance abuse, violence, child abuse, family disruption, lower education and employment achievements and involvement with the criminal justice system. In three short years as a teenager, he was moved to 29 different placements.

For a boy who requires “structure and supervision” and medication, this is anathema. [ 56 ] This constellation of factors led him to attempt to rob his neighbourhood store and attenuates what appears to be intentional risk taking behaviour. [ 57 ] I have discussed the harm caused by his offence and the normative character of the offence above. Sentences for Similar Offences in the Region [ 58 ] Paragraph 38(2)(

h) is the YCJA ’s expression of the principle of parity: (

h) 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; [ 59 ] The Crown stated that similar offences in the region have resulted in custodial sentences of three years, which is the maximum youth sentence. Crown counsel filed two cases in support of his argument. Both are distinguishable. I am not sure they can stand for the proposition that youths in this region receive the maximum youth custodial sentence of three years for robberies with imitation firearms. The first case, R. v.

S.A. , 2014 MBPC 17 , involved a real firearm that was loaded. The second case, R. v. J.H.S. , 2019 MBCA 24 , involved four robberies and the sentence imposed was in acceptance of a joint recommendation. [ 60 ] Although S.A. dealt with the issue of whether an adult sentence should be imposed for one of three young men involved in robbing a donut shop, the Crown advised that S.A. received a three year sentence in addition to his presentence custody. The youth S.A. was 16, the other youth was 15 and the adult was 21 at the time of the offence. There are several distinguishing features of that case however.

The person with the gun was 21 years old. Most importantly, the firearm in that case was real and it was loaded. The adult pointed the gun at the clerk and worked the action of the Glock semi-automatic handgun to load ammunition into the chamber. He yelled at her to get down and that he would shoot her. She remained on the floor behind the counter while the other two youths took cash from the cash register. As they were fleeing, the adult then pointed the gun at a customer and threatened her as well. There was significant planning involved.

Fifteen minutes before the robbery, the three co-accused went into the donut shop and lingered. They left, but stayed outside. Although they had an opportunity to walk away at that point, they returned to execute their plan. After the robbery, they went to a nearby gas station, disposed of their jackets, called a cab and drove to the Winnipeg airport. They disposed of the handgun in a dumpster beside the Greyhound bus depot and purchased bus tickets to Portage la Prairie. Shortly after, at the Knowles Centre, S.A. bragged about the robbery to staff.

S.A. was on an undertaking not to possess any weapons or firearms at the time of the offence. He did not have a youth record at the time, however. He was also diagnosed with FASD and ADHD and borderline range IQ. He committed the offence while he was placed at the Knowles Centre, characterized as “a highly-structure and intensive treatment program”. He also experienced many Gladue factors, like C.P. [ 61 ] The case involved significant planning, including a getaway plan, and the actual robberies were more violent and protracted than the robbery in C.P.’s case.

Although the circumstances of C.P. and S.A. may be similar, the offences were not. [ 62 ] Some aspects of the experience of S.A. read like a cautionary tale in this case. S.A. had problems from the time of birth and was in the care of Child and Family Services (CFS), like C.P. He was finally placed in a foster home in rural Manitoba, where he had been doing quite well.

However, when his behavior became problematic, rather than putting additional supports in place, CFS removed him from the placement without discussion, and placed him at the Knowles Centre in Winnipeg. [ 63 ] In J.H.S. , the youth co-accused who was the getaway driver appealed a one-year open custody and community supervision sentence. J.H.S. and the co-accused youths were sentenced for four robberies, not one robbery. The last three robberies, taking place on one day, involved an imitation firearm.

The young person holding the gun received a three year sentence over and above the one year he had already spent in custody, upon a joint recommendation of counsel which was not under appeal. None of the co-accused had prior youth records. There is very little other information about the case in the appellate decision.

Other than a mention that the sentencing judge was aware that the getaway driver had ADHD, there is no mention of any other circumstances such as in this case which have reduced C.P.’s moral culpability: a low IQ, FASD, a history of serious mental health events for which he has been hospitalized, drug addiction, extreme Gladue sequelae and ADHD. [ 64 ] The defence filed the case of R. v. K.H. , 2019 ONCJ 525 , from Pickering, Ontario. The young person was sentenced for two armed robberies involving a loaded firearm. He was a young, black Canadian boy who had experienced many of the problems that C.P. has.

Taking into account his reduced moral culpability and moral sophistication, and his ethnic and cultural differences and special requirements, Justice Green noted two and one half months of presentence custody [1] and imposed two years of supervised probation. Accountability: A Meaningful Consequence, Promoting Rehabilitation and Reintegration into Society and Long-Term

Protection of the Public [ 65 ] For the past year, C.P. has either been in custody (38 days) or under what is colloquially known as “house arrest.” Having his liberty constrained in these ways because of committing these charges has therefore been a significant, immediate and meaningful consequence for him. [ 66 ] The provision in the YCJA that requires proceedings to occur in a timely fashion are in recognition of the fact that reduced moral culpability and development in young people mean that for consequences to be meaningful, they have to be close in time to the offending behavior.

That is more so when the young person suffers from one or more diagnoses that affect their working memory, as is the case for C.P. [ 67 ] He has been out in the community for the past year. He is not in Winnipeg. One of the conditions of his release has been to not be in the City of Winnipeg, except for court and under strict supervision for other necessary appointments. The reason for that condition was to place him away from methamphetamine and people who have had a negative influence on him.

Placing him in a youth correctional facility would place him with those very negative influences, including gang members, drug dealers, and young people who are more criminally entrenched. [ 68 ] The Crown argued that a non-custodial sentence would not hold him accountable.

I am not satisfied that is the case, when I look at the degree to which his moral culpability is affected by his life circumstances as a young Indigenous person, as well as the significant impact on his executive functioning and elevated impulsivity caused by his FASD and ADHD. [ 69 ] I am also not satisfied that it is necessary to give effect to the expression of denunciation of violent crime engendered by methamphetamine use by imposing a custodial sentence. [ 70 ] Sending him into a jail after being in the community on strict conditions for a year is not a meaningful sentence.

At best, it could engender cynicism and hopelessness in the young person. [ 71 ] At worst, housing him in a jail would reconnect him with the negative influences that caused these offences and he would be released more of a danger to the community. Moreover, he is now 18 years of age; at some point during his custodial sentence, corrections officials could bring an application to have him transferred to an adult facility. Indeed, he recently spent two days in an adult jail. [ 72 ] I must consider all sanctions other than custody.

I must also consider the least restrictive sentence for C.P. that is capable of achieving the purpose of holding him accountable, that is most likely to rehabilitate and reintegrate him into society, promote a sense of responsibility in C.P. and an acknowledgement of the harm done to Mr. Kwon, his family, to the West Broadway community and to the larger community of Winnipeg. [ 73 ] C.P.’s prospects for rehabilitation are good. It will be a long path, but he has shown remorse and insight into his offences.

He has consented to remain in care, acknowledging that with the support of the agency, he is better equipped to stay on a positive path. [ 74 ] He is finally in a placement that is suitable to his needs, outside of the troubled places and people in Winnipeg that allowed and supported his criminal behavior. He has Ms. Backe, the Level 5 placement in her home, and all the resources to which Ms. Backe has access. There is 24-hour staffed supervision and care in the home. Both Ms. Backe and C.P.’s social worker, Mr.

Bird, came with him to court and both spoke at the sentencing hearing in support of his continued rehabilitation in this rural setting, with significant support and supervision. C.P. told the pre-sentence report writer that Ms. Backe has spent a lot of time talking to him about his choices and has taught him quite a bit, for which he is grateful. He believes he has learned manners, to grow up and to “treat people how you want to be treated.” He said that before the placement with Ms. Backe he “really didn’t want to listen”, but feels like the structure and routine and predictability at Ms.

Backe’s home has been helping him make better choices (at p. 7). [ 75 ] In his recent forensic assessment report, Dr. Hildahl stated the following about C.P.’s risk, prospects for rehabilitation and recommended structure and supervision: The current placement in rural Manitoba in a structured foster home has led to an improvement in many areas of [C.P.’s] functioning including a period of sobriety, a period of staying at home and not being active out in the community with negative peers, and an overall focus of planning for his future.

He has many underlying deficits based on his prenatal alcohol exposure and the ADHD and has had a number of negative experiences but nevertheless he can respond to interventions with improvements. I am supportive of the plan to maintain [C.P.] with Ursula Backe in a rural placement on an extension of care and am supportive of the plan for him to go back to school and complete a high school education. He will need to remain on psychiatric medications indefinitely and to be monitored by the mental health system.

His recounting of the circumstance of the charges before the Court was done with him taking responsibility for his actions in a genuine manner indicating he is developing a sense of accountability. He nevertheless is at risk for impulsive acting-out and will need ongoing guidance regarding his behaviour and his actions. (at p. 4) [ 76 ] C.P. has been abstinent from methamphetamine since his arrest, and is committed to remaining abstinent. He saw the school- based AFM worker in the school he was attending in the fall of 2019 and can continue to access those services.

As for the recent suggestion that he might be using marijuana, it is not surprising. He told the presentence report writer that his drug of choice is marijuana and that he used drugs to cope with depression, the pain of missing his loved ones and his feelings of guilt related to his mother’s death. He recognized that he needs to find other ways to cope. [ 77 ] He is enrolled in school. [ 78 ] He participated in the Southwest Teens at Risk (STAR) multi-agency team that coordinates services and identifies gaps in services so that they can be provided.

[ 79 ] He has a Keyworker through the regional health authority where he lives, to provide advocacy, education, support and service navigation to individuals with FASD and their families. [ 80 ] He has an extension of care through the child protection agency where he was a permanent ward and his social worker Mr. Bird has undertaken to continue to support him. He has, with Mr. Bird’s assistance, made an application to Community Living Disability Services (CLDS), to ensure ongoing funding and support due to his intellectual disability. Ms. Backe’s home is also licensed to house individuals supported through CLDS.

Sentence [ 81 ] I am satisfied that a non-custodial sentence and community work with strict conditions and directive rehabilitative measures properly balances the seriousness of the offence with C.P.’s degree of responsibility in committing it. I am also satisfied that such a sentence will hold C.P. accountable and promote his rehabilitation and reintegration into the community, with the long term goal of protecting the public. [ 82 ] A curfew condition will be imposed to express the court’s denunciation of the robbery on Mr.

Kwon. [ 83 ] The sentence will be as follows: [ 84 ] There will be a three year period of supervised probation concurrent on all the charges. [ 85 ] The conditions of his probation order are: − Report to Youth Probation Services within two days of this decision and after that as directed by your PO; − Abide by an absolute curfew for the first six months of the probation order, with exceptions to attend school, work and appointments with your PO or any programs directed by your PO to attend, and in the case of any medical emergencies; − Make yourself available for curfew checks by the R.C.M.P or their designate; − Perform 240 hours of community service work within the three-year probation period; 100 hours within the first year, 100 hours in the second year and 40 hours in the third year; − Attend school or work regularly; − See the AFM counsellor at school regularly, or otherwise participate in substance abuse programming; − Attend and participate in counselling related to family of origin issues, grief, and loss; − Abstain from all alcohol and illegal drugs and drugs for which you do not have a prescription; − Possess no weapons; − Do not attend the City of Winnipeg without the permission of your PO and unless you have supervision approved by your PO; − Have no contact or communication with Oh Sang Kwon; − Do not attend the Young Food Mart at 96 Young Street in Winnipeg. [ 86 ] If you breach any of the conditions of this probation order, you will face more charges and could be taken back to jail. [ 87 ] The following ancillary orders are made, attached to the robbery: −

Section 51 mandatory five-year weapons prohibition; − Subsection 487.051(1) DNA (primary designated offence) order; you must provide a sample of your DNA to the police within 60 days of today. “Original signed by:” C.A. DEVINE, P.J.