R. v. Arrieta Date:, 2010 BCPC 87

Citation: R. v. Arrieta Date: 20100426 2010 BCPC 0087 File No: 4481 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK ANTHONY ARRIETA RULING ON APPLICATION OF THE HONOURABLE JUDGE E. C. BLAKE Counsel for the Crown: Ms. M. Murray, Q.C. Ms. J. Gillings Counsel for the Defendant: Mr. R. Neary Place of Hearing: Victoria , B.C. Dates of Hearing: October 20-23, 27-29, 2009; December 18, 2009; January 5, 18-22, 25-28, 2010; February 19, 22-26, 2010; March 2, 3, 5, 7, 2010 Date of Judgment: April 26, 2010

PART 1: INTRODUCTION [ 1 ] On July 23, 2009 I convicted the Defendant of the following offences: 1. The second degree murder of Philbert (“Phil”) Truong, contrary to s. 235 (1) of the Criminal Code ; 2. The attempted murder of Thuan Le involving the use of a prohibited firearm, contrary to s. 239 of the Criminal Code ; 3. The attempted murder of Robin Lepard involving the use of a prohibited firearm, contrary to s. 239 of the Criminal Code ; and 4. The discharge of a prohibited firearm in the commission of an indictable offence, contrary to s. 244 (2) of the Criminal Code .

[ 2 ] The Crown applied to have the Defendant sentenced as an adult with respect to the four convictions. The Defendant opposed the Crown’s application and a hearing has now been conducted pursuant to s. 71 of the Youth Criminal Justice Act (hereafter “the YCJA”). The hearing, involving extensive evidence and submissions, occupied 28 days of court time, spread over the five-month period from October 2009 to March 2010. [ 3 ] There is no doubt that the Defendant will be subject to a period of custody in this case.

Beyond that starting point, however, the consequences to be visited upon him vary significantly depending on whether he is sentenced as a youth or as an adult. It may be helpful if I provide a

summary of the sentencing alternatives at the outset. [ 4 ] If the Defendant is sentenced as a youth, his sentence for second degree murder is largely determined by either subsection 42(2) (q)(ii) or section 42(2)(r)(iii) of the YCJA. I say “largely determined” because, as will be seen below, the legislation does allow for the possibility of other sanctions referred to in s. 42(2) being imposed as well. Those other sanctions, which may fairly be described as much lesser in scope, may safely be put to one side for present purposes, however. [ 5 ] Sections 42(2)(q)(ii) and 42(2)(r)(iii) of the YCJA provide: 42. (1) ….

(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of

section 231 of the Criminal Code , the court shall impose a sanction set out in paragraph (

q) or subparagraph (r)(ii) and may impose any other of the sanctions set out in this sub-

section that the court considers appropriate. …. (

q) order the young person to serve a sentence not to exceed …. (ii) in the case of second degree murder, seven years comprising (

A) a committal to custody, to be served continuously, for a period that must not, subject to

section 104 (continuation of custody) exceed four years from the date of committal, and (

B) a placement under conditional supervision to be served in the community in accordance with

section 105; (

r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person ….

(iii) that is for a specific period that must not exceed, in the case of second degree murder, seven years from the date of committal, comprising (

A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed four years from the date of committal, and (

B) subject to subsection 104 (continuation of custody), a placement under conditional supervision to be served in the community in accordance with

section 105. [ 6 ] It is common ground that the preconditions set forth in section 42 (7) of the YCJA relating to an intensive rehabilitative custody order (a so-called “IRCS” order) have been met in this case, leaving that form of order open for consideration. [ 7 ] The maximum youth sentence that can be imposed for attempted murder, taken in isolation, is three years, comprised of a two year custodial term followed by a one-year period of supervision in the community: s. 42(2)(o).

The maximum sentence that can be imposed for the offence of using a firearm in the commission of an indictable offence, again taken in isolation, is two years, comprised of a custodial period followed by a period of community supervision half the length of the custodial term: s. 42(2)(n). [ 8 ] In the present case, however, the sentences for the offences of attempted murder and discharging a prohibited firearm in the commission of an offence cannot be viewed entirely in isolation. That is because of the provision contained in s. 42(15) of the Act. That

section reads:

(15) Subject to subsection (16) if more than one youth sentence is imposed under this

section in respect of a young person with respect to different offences, the continuous combined duration of those youth sentences shall not exceed three years, except if one of the offences is first degree murder of second degree murder within the meaning of

section 231 of the Criminal Code , in which case the continuous combined duration of those youth sentences shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder. [ 9 ] Subsection 42(16) has no application to the present case. [ 10 ] In short, s. 42(15) provides that when considering the overall custodial youth sentence which might be appropriate for the Defendant, the court is prohibited from exceeding the seven year maximum sanction applicable to the second degree murder conviction, even though the Defendant has also been convicted on three other extremely serious charges. [ 11 ] One final matter to take into account in this introductory consideration of the impact of a youth sentence is the effect of pre- sentence custody.

The Defendant has been in custody continuously since July 19, 2008, the date when the offences were committed. That is a period of approximately 21 months. [ 12 ] Section 38(3)(

d) of the Act provides that in determining a youth sentence, the court is required to take into account any time which the youth has spent in custody before the sentence is pronounced. As a result of the decision in R. v. R.R.J. , 2009 BCCA 580 (CanLII) , [2009] B.C.J.

No. 2519 (C.A.) , however, it is now clear, at least in this province, that taking into account pre-sentence custody does not necessarily involve making a specific deduction from the length of sentence. [ 13 ] Bearing in mind the decision in R.R.J. , the Defendant takes the position that if the court should otherwise determine that a youth sentence is appropriate in this case, that result should not be undermined by any perceived need to give credit for time spent in pre- sentence custody. Put another way, the Defendant acknowledges that in order to fit within the youth sentencing regime, it may be

necessary for him to sacrifice any credit for time spent in pre-trial custody. [ 14 ] I turn to the consequences that would follow from the imposition of an adult sentence in this case. The penalty imposed upon an adult convicted of second degree murder is life imprisonment, by virtue of s. 235 of the Criminal Code . Parole eligibility may be set to begin at any time between 10 years and 25 years in the case of an adult convicted of second degree murder, but the Criminal Code makes specific provision for a reduced period before parole eligibility in the case of young persons sentenced as adults. Specifically,

section 745.1(

c) states: 745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served …. (

c) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence. [ 15 ] Eligibility for parole, of course, does not in any way guarantee that parole will be granted. That is a matter for the National Parole Board. If parole should be granted, the offender remains subject to supervision for life, with parole suspension and revocation always existing as possibilities in the event of a breach of any condition of release. [ 16 ] There is one further Criminal Code provision which affects the parole eligibility of a young person sentenced as an adult to life imprisonment.

Section 746 provides that in calculating the period of time which must pass before the offender’s parole eligibility date in such circumstances, the time spent in pre-sentence custody is to be taken into account. Thus, the Defendant in this case would actually first become eligible for parole a considerable time before seven years has elapsed from the sentencing date. [ 17 ]

Section 239 of the Criminal Code sets out the penalty applicable to an adult convicted of attempted murder involving the use of a prohibited firearm. The maximum sentence is life imprisonment, although of course a life sentence is not mandatory. There is, however, a minimum penalty of five years’ imprisonment for a first offence. [ 18 ] The offence of discharging a prohibited firearm in the commission of an indictable offence is, likewise, considered most seriously when committed by an adult.

The maximum term of imprisonment is fourteen years and there is a minimum penalty of five years’ imprisonment for a first offence. [ 19 ] With this general understanding of the comparative impact of the youth sentencing regime and the adult sentencing regime to the circumstances of the present case, I will next focus on the factors which are must be taken into account on a s. 71 hearing, which is, in effect, the lynchpin between the two sentencing regimes.

PART 2: THE PROVISIONS OF THE YCJA RELEVANT TO A

SECTION 71 HEARING [ 20 ] The YCJA is an intricate piece of legislation which is not always easy to fathom. Even if the principles and general themes emerge with some clarity, the specific provisions relevant to sentencing can only be applied to individual cases with great care.

That is especially so where the sentencing options presented to the Court bear such serious consequences, as is so obviously the case here. [ 21 ] It is important, therefore, that I take some time to impose some sort of order on the pieces of the statutory puzzle, and attempt to explain the manner in which I have invoked the various statutory provisions in order to reach a conclusion. [ 22 ] The test to be applied on an application under s. 71 of the Act is set forth immediately thereafter, in s. 72, in this way: 72.

(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other

factors that the court considers relevant, and

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b) (ii)and

section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. [ 23 ]

Section 72 thus directs the court’s attention initially back to the general principles set forth in section 3(1)(b)(ii) and

section 38 of the Act. [ 24 ] Section 3(1)(b)(ii) reads as follows: 3.

(1) The following principles apply in this Act: …. (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: …. (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. [ 25 ]

Section 38 deals with sentencing principles in the following way: 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is 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 his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out 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 has been con- victed 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; and (

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.

(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. [ 26 ] As others have noted, the various principles and sentencing provisions of the Act to which I have just referred seem, at least at first blush, to be calculated to send the court scurrying off in many different directions at the same time: See, for example, the comment of Phillips, PCJ in R. v. J.K.W. , [2006] BCJ No. 313 , at para. 152 . [ 27 ] There are, however, certain salient points which can be easily extracted from all the rhetoric.

The key point to note is that “accountability” is properly identified as the watchword for the sentencing of young persons. [ 28 ] In preparing these reasons, I have reviewed a plethora of cases which attempt to precisely define the word “accountability” and its companion phrase “holding a young accountable”, as those terms are used in the sentencing provisions of the Act. In the end, I have concluded, by way of general

summary, that the court may be said to have “held a young person accountable” for sentencing purposes when it has subjected the young person to proportionate and meaningful consequences, having regard to the general principles and specific statutory directions provided by the legislation. [ 29 ] Perhaps the most extended and helpful appellate court discussion of the principle of accountability is to be found in R. v. A.O. , 2007 ONCA 144 (CanLII) , [2007] O.J. 800 (C.A.) , between paragraphs 42 and 52 . In that case, the Court noted the clear parallel between accountability as a principle of youth sentencing and retribution as a principle of adult sentencing. At paragraph 46 of its

decision the Court stated: In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by Lamer, CJC In R. v.

M. (C.A.) (1996), 1996 CanLII 230 (SCC) , 105 CCC (3d) 327 (SCC) , at paras. 80 and 81 : Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender ’ s conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society ’ s condemnation of that particular offender ’ s conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender ’ s conduct should be punished for encroaching on our society ’ s basic code of values as enshrined within our sub- stantive criminal law. [ 30 ] The Court in A.O. then concludes, at paragraph 47: In our view, for a sentence to hold a young offender accountable in the sense of being meaningful, it must reflect, as does a retributive sentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender ’ s conduct.” We see no other rational way for measuring accountability. [ 31 ] The Court in A.O. recognized that any attempt at assessing the “normative character” of the offender’s conduct will involve a basic consideration of underlying community values.

The requirement for a youth sentencing judge to seek reference to societal values is apparent from the manner in which certain of the sentencing principles are set forth in s. 38 of the Act. I refer specifically to s. 38(2)(

c) as an example. It would be impossible, I think, to gauge the “seriousness of the offence” without having regard to societal values. [ 32 ] At the same time, however, the Court in A.O. was careful to point out that the sentencing of young persons is primarily “offender-centric”. In that respect, the Court’s opinion dovetails with the views expressed by the Supreme Court of Canada in R. v. P. (B.W.); R. v. N. (B.V.) (2006), 2006 SCC 27 (CanLII) , 209 CCC (3d) 97 . In that case, the Supreme Court of Canada held that neither

general nor specific deterrence formed part of the sentencing principles enunciated in the Act; in A.O. the Ontario Court of Appeal determined that denunciation played no part either. Both courts were of the view that in adopting accountability as the key determinant for youth sentencing, Parliament has essentially chosen to “exclude accountability to society in any larger sense”: R, v. A.O. , at paragraph 42. [ 33 ] The offending young person’s rehabilitation and reintegration into society are given prominence in the Act’s sentencing provisions, as one would expect. In the Supreme Court decision of R. v.

P.(B.W.); N(B.V.), to which I have already made reference, Charron, J. for the majority noted the careful way in which Parliament juxtaposed rehabilitative and reintegrative principles with the notion of public protection in the wording of section 3 (1) and again in section 38 (1) of the Act. At paragraph 31 of her decision, after referring to both sections, Charron, J. wrote: It is apparent from a plain reading of s. 38(1) that “protection of the public” is expressed, not as an immediate objective of sentencing, but rather as the long-term effect of a successful youth sentence.

Likewise, s. 3(1) sets out the three specific means by which sentencing is intended to “promote the long-term protection of the public”. [ 34 ] See also R. v. D.B. , 2008 SCC 25 (CanLII) , [2008] SCJ No. 25 , at paragraph 65 , concerning the emphasis on rehabilitation and reintegration in YCJA sentencing proceedings. [ 35 ] On this aspect of the matter, it is also important to note that the YCJA does not require the court to impose a sentence that will ensure the young person’s rehabilitation and reintegration into society, but only to promote that result as effectively as can be done.

This is a significant distinction, in my view, and one that is not always acknowledged in the case authorities. I find the following passage from the decision of Moreau, J. in R. v.

C.H.C , [2009] AJ No. 225 (QB) , at paragraph 84 , to be instructive: ….[A]s noted in O.(A.) at para. 58, the YCJA does not require that the sentence imposed on a young person be sufficient to secure his or her rehabilitation in the sense of ensuring the outcome, as in most cases, this would be virtually impossible to predict: There is no guarantee that any sentence, however skillfully fashioned, will ensure the rehabilitation of an offender.

What is required under the YCJA is that the sentence imposed has meaningful con- sequences for the affected young person and that it promotes his or her rehabilitation and reintegration into society. [ 36 ] Taking into account the essential principles to which s.72 directs the sentencing judge, and also having regard to the Act’s recurring theme of accountability as defined in the A.O. case, the Ontario Court of Justice in R. v. Lights , [2007] OJ No. 1516 proposed a short and workable

summary of the test which a sentencing judge might invoke when considering an application for an adult sentence. In that case, Trotter, J. wrote at paragraph 45: In short, an adult sentence should be imposed when a youth sentence would not be long enough to meaningfully address the seriousness of the offences, the offender ’ s role in them, and his or her rehabilitation and ultimate reintegration into society: see R. v. A.O. , supra ; R. v. J.M. , [2004] OJ No. 2796 (CJ) and R. v Ferriman , [2006] OJ No. 3950 (SCJ) . [ 37 ] I have found Trotter, J.’s

summary to be helpful. I have returned to it many times when considering what to make of all the material placed before me on the present application. I have also leaned very heavily on the Ontario Court of Appeal’s

summary, as set

out at paragraph 47 of the A.O. decision ( quoted above), regarding the essential factors to consider when assessing whether a Defendant can be held sufficiently accountable through the imposition of a youth sentence. [ 38 ] As a final comment concerning the statutory background to this application, I wish refer to the burden of proof applicable on a hearing held under s. 71 of the Act. [ 39 ] The offences of murder and attempted murder are “presumptive offences” as defined in s.2 of the Act.

By virtue of s. 62 of the Act, a young person convicted of either of those offences is subject to an adult sentence unless he can demonstrate that a youth sentence has sufficient length to hold him or her accountable. [ 40 ] In R. v. D.B. , 2008 SCC 25 (CanLII) , [2008] SCJ No. 25 , however, the Supreme Court of Canada held that the YCJA’s presumption of an adult sentence was unconstitutional. Accordingly, the burden now lies with the Crown to satisfy the court, in any case where an adult sentence is being sought, that a youth sentence does not have sufficient length to hold the young person accountable.

The Crown acknowledges that burden in the present case. [ 41 ] The standard of proof is not, however, the standard of proof beyond a reasonable doubt. As the Ontario Court of Appeal explained in R. v. A.O. (referred to above) at paragraph 34: Section 72 (1)(

b) requires the youth justice court to weigh and balance the enumerated factors and then to decide whether a youth sentence is sufficiently long to hold a young person accountable for his or her offending behaviour. That type of evaluative decision – making an informed judgment – does not lend itself to proof beyond a reasonable doubt. As McLachlin, J. explained in R. v.

M.(S.H.), supra, the court is not being asked to make findings of fact about past events nor to make a determination of whether a crime has been committed, which are the types of decisions for which proof beyond a reasonable doubt is normally required. [ 42 ] The Court in the A.O. case, at paragraph 37 , went on to expressly acknowledge, however, that a youth court justice should only make a decision to impose an adult sentence upon a young person after “careful consideration of all the relevant factors”, bearing in mind the extremely serious consequences that are likely to follow from any such decision. [ 43 ] To underscore this last point, it is helpful to refer once more to the Supreme Court of Canada decision in R. v.

D.B. In that case, the Supreme Court determined that young persons who offend against the criminal law have a fundamental right, acknowledged by international convention, to be presumptively tried and sentenced in manner that recognizes their special status and is separate and distinct from the adult judicial system. The presumptive right is based upon the accepted notion that young persons, because of their age and incomplete mental development, have a diminished state of moral blameworthiness.

At paragraphs 62 and 63 of the DB decision, Abella, J., on behalf of the unanimous court, wrote: 62 It is widely acknowledged that age plays a role in the development of judgment and moral sophistication. Professor Allan Manson notes that “[t]he general principle that applies to youthful offenders …. [is] that a lack of experience with the world warrants leniency and optimism for the future”. The Law of Sentencing (2001), at pp. 103-104). And Professor Bala describes the YCJA as premised on the recognition that to be a youth is to to be in a state of “diminished responsibility” in a moral and intellectual sense.

Adolescents, and even more so children, lack a fully developed sense of

moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without fore- sight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts.

Youths who are apprehended and asked why they com- mitted a crime most frequently respond: “I don ’ t know.” Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend….This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that accountability should, in general, be more limited than is the case for adults. ( Youth Criminal Justice Law , at pp. 3-4 (footnotes omitted)) 63 The following observation by Justice Gilles Renaud in Speaking to Sentence: A Practical Guide, at p. 10, is also apt: Stated simply, offenders who act out of immaturity, impulsiveness, or other ill-considered motivation are not to be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as more mature, reflective, or considered individuals.

The less elevated the degree of moral blameworthiness the greater the reach of leniency. By way of limited example, the relative youth of an offender will be emphasized in those cases in which an individualized disposition is selected. [ 44 ] Since the very existence of a separate justice system for young persons who offend against the law is premised on the notion that young persons have a diminished state of moral culpability, it follows that the imposition of an adult sentence upon a young person should only occur in situations where the Crown has demonstrated that the presumption has been rebutted.

It is therefore not surprising to read the following passage at paragraph 93 of Abella, J.’s judgment in the D.B. case: [Maintaining a separate legal system for offending youth] does not make young persons less accountable for serious offences; it makes them differently accountable. Nor does it mean that a court cannot impose an adult sentence on a young person. It means that before a court can do so, the Crown, not the young person, should have the burden of showing

that the presumption of moral culpability has been rebutted and that the young person is no longer entitled to its protection. (my italics) [ 45 ] It seems to me that viewing a s.71 as involving an attempt by the Crown to rebut the presumption of reduced moral blameworthiness fits particularly well with the formulation of the applicable criteria enunciated in the O.A. case (at para. 47) and the Lights case (at para. 45), which I have already mentioned.

PART 3: THE APPLICATION OF THE LAW TO THE EVIDENCE [ 46 ] Bearing in mind, then, the complicated statutory framework and its

interpretation by learned jurists in this country in recent years, I must now examine the particular circumstances of this case with a view to determining whether the Crown has established the grounds for the Defendant to be sentenced as an adult.

Section 72 directs the court’s analysis toward the following specific factors: - the Defendant ’ s age, maturity, character, background, and court history; - the seriousness and circumstances of the offences; - other factors that the court considers relevant. [ 47 ] As an introduction, I should say that I will address each of those factors, although not necessarily in the order in which they appear in the statutory provision. I should also say that while I consider it essential to consider all of the factors, I do not think it is not necessary, or even appropriate, that all factors be given equal weight.

Sentencing is an individualized process after all, and the sentencing court must retain the flexibility to assign appropriate weight to each of the factors as the particular circumstances of the case demand.

a) The Defendant ’ s age, character, background and court history [ 48 ] The Defendant was born on November 23, 1991. He was therefore approximately 16 years and 8 months old when he committed the offences for which he is now to be sentenced, and he will be about 18 years and 5 months old on the sentencing date. [ 49 ] The Defendant was born in Toronto to parents who had emigrated from the Philippines, independent of one another, some years earlier. The Defendant was the youngest of two children.

He has a sister who is about two years older than himself. [ 50 ] The Defendant’s parents are, by all accounts, hard-working and valuable contributing members of society. The Defendant’s father has, for many years, been employed as a technician involved in servicing certain types of banking equipment. According to the pre-sentence report prepared in September 2009, however, he is presently laid off and is taking a computer course.

The Defendant’s mother is trained as a nurse, although she has held many jobs in the past and has often held several jobs simultaneously. [ 51 ] During the Defendant’s early years, he was always well provided with the necessities of life, but his parents did not have the resources to provide luxuries for the family.

Extended family members stepped in to provide daycare when the Defendant was young, and they would also occasionally provide material “extras” for the Defendant and his sister. [ 52 ] The Defendant does not appear to have been raised in circumstances which could, by any stretch of the imagination, be described as material deprivation. Nonetheless, his family’s relatively modest financial status seems to have significantly affected him. He admits that he was jealous that other children his age had material items when he did not.

In speaking to Gloria Quarless, the chaplain at the Youth Custody Centre, and to others, he has vowed that he does not ever again wish to experience the “poverty” of his early years. Several of those who interviewed him in connection with the present sentencing proceeding have noted his affinity for money and for “things”, while at the same time remarking that his commitment to hard work may not quite match his material aspirations. [ 53 ] The Defendant met all of the usual developmental milestones in his childhood and adolescence, and he has no significant health challenges.

He is described as relatively athletic. Although the psychological testing procedures conducted while he has been in custody suggest that he may have some unusual cognitive deficits (as, for example, in visual processing speed and in numerical skills), overall he is described as being of “solidly average” intelligence. He does not suffer from any recognizable psychiatric disturbances. [ 54 ] The Defendant attended school in the Toronto area through to the Grade 9 level. At first, his behaviour and progress at school were unremarkable.

In his early years at school, he is described as “a happy boy”, as “quiet” and “cooperative”. [ 55 ] By about age 11 or 12, however, there were warning signs. In Grade 4, he was suspended from school for starting a small fire. A long report was written about him following his Grade 5 year, in which he was described as frequently disruptive, angry and disrespectful. A counselor was assigned to him, and his misbehaviour may at that stage have been related to the fact that his parents separated from one another for some months. They subsequently reconciled.

[ 56 ] By Grades 7 and 8, however, the Defendant was on a serious downhill spiral in terms of his school performance. His grades had slipped from average to barely satisfactory and truancy was a serious issue. In a Grade 7 self-assessment, he himself said that he should try to attend school more often; his Grade 8 teacher stated that she could not even assess his behaviour in the first term because he was absent so frequently. He was suspended twice, once for hitting a teacher and once for bringing a knife to school.

He denied or minimized those incidents in discussions with those who interviewed him in connection with the present sentencing proceeding. [ 57 ] By Grade 9, the Defendant was generally unsatisfactory as a student. He attended high school that year for the first time, but he was almost never there. His grades continued to plummet and he failed to acquire any credits for the year. [ 58 ] The Defendant’s worsening performance in school reflected the trajectory of his life generally during his early adolescence.

By about age 12 he had begun to sneak home at school lunch times to consume alcohol from his parents’ supply, and by age 14 (Grade 9) he was frequently drinking to the point of intoxication at weekends. He consumed marijuana from about the age of 12 and was smoking it on virtually a daily basis by age 14. His explanation for his frequent absence from Grade 9 was that he preferred meeting girls and smoking dope. He also admits trafficking in marijuana to some degree before he left Toronto. [ 59 ] Dishonesty and aggression were also issues for the Defendant.

By his own admission, he was engaged in perhaps 20 to 30 fights before he left Toronto (age 14) and, as he told the psychiatrist Dr. Paul Janke, he would fight to the point where he got “tunnel vision” and would have to be pulled off his opponent. He told the psychologist Dr. Schwartz that he stole “a lot”, meaning perhaps 50 to 60 occasions, from stores and from his peers when he was in Middle School (grades 7 and 8). Mainly, he stole “small items”, he said. [ 60 ] In fairness, it should be pointed out that the Defendant himself has been quite forthcoming in describing his youthful misbehaviour.

In the circumstances, it seems to me that there has been some overstatement in this Court of the Defendant’s unwillingness to be candid about his wrongdoing. [ 61 ] In view of the manner in which the Defendant’s life progressed after about the age of 10, it is not surprising that the diagnosis of conduct disorder has now been raised by the psychologists and psychiatrists who have interviewed him in preparation for this sentencing proceeding.

The only surprise to me is that the issue has not, apparently, been raised or debated earlier in this young man’s life. [ 62 ] There was much discussion in this Court about the definition and application of the term “conduct disorder”. As I understand it, the term applies only to persons of teenage years or younger.

The term “personality disorder” is not used with persons of such youth, because it is generally accepted that the human brain is still under construction until about the 20 th year and “personality” is not fully formed until then. [ 63 ] The term “conduct disorder”, according to material produced by the American Psychiatric Association and placed in evidence before me, refers to “a repetitive and persistent pattern of behaviour in which the basic rights of others or major age-appropriate norms or rules are violated”, as manifested by a number of specific listed criteria, and which causes “clinically significant impairment in social, academic or occupational functioning”. [ 64 ] Although Dr.

Schwartz and Dr. Waddell did not agree on whether the Defendant’s behaviour could be specifically characterized as “ early onset conduct disorder” (meaning that it appeared before the age of 10) they did agree that by the time he left Toronto (age 14) the Defendant could fairly be described as having severe and long-standing conduct disorder. Dr.

Janke did not feel comfortable describing the Defendant’s behaviour at that stage as necessarily meeting the criteria for conduct disorder, but it appeared to me that, in the main, his reluctance was caused by the fact that he did not have access to a full range of material from the Defendant’s early years. Based on all of the material that I have seen, I am satisfied that Drs. Schwartz and Waddell have made a fair diagnosis of long-standing and severe conduct disorder. [ 65 ] In the summer of 2006, the Defendant relocated to Victoria with his family.

The move was brought about by the father’s transfer of employment. [ 66 ] Not surprisingly, the Defendant was decidedly unhappy about the move. He felt that he was leaving all of his friends behind to take up residence in a place where he knew nobody. As will be discussed further below, by the age of 14 the Defendant had become emotionally distanced from his parents, such that he was no longer significantly influenced by their values and no longer took much direction from them.

In those circumstances, the move to the west coast must have seemed all the more unappealing to him, and the emotional gulf between parents and son must have yawned ever wider. [ 67 ] In September 2006 the Defendant attended at Spectrum School in Victoria for an interview with the principal, Ray Miller. Mr. Miller described that interview for this Court. He saw the Defendant as completely apathetic, to be just “going through the motions” of registering for school. [ 68 ] Mr. Miller’s impression was accurate. The Defendant made little or no effort during the 2006-2007 school year.

Early on, he was discovered sitting in the library highly intoxicated on marijuana, but a suspension was avoided when the Defendant’s father assured the school authorities that marijuana was surely a novel experience for the boy that day. By and large, the Defendant avoided further confrontations with his teachers and the school principal that year by merely absenting himself. His academic results mirrored his disinterest. [ 69 ] The Spectrum school authorities did not give up on the Defendant, however. In fact, they made heroic efforts to attempt to engage his interest.

In late 2006 and early 2007, significant efforts were made to prepare the Defendant to take up employment in the community as an alternative to attending school. A resume was completed and various interviews arranged. The Defendant did manage to obtain about four different paying positions, mostly in restaurants, but in each case he left the job within a few weeks. Sometimes it was the hours he objected to, on occasion it was the type of work, or the work environment, but in each case the result was the same. [ 70 ] Still, the school kept trying.

In the fall of 2007, although the Defendant had not attended class or been in the work force for some months, he remained on the school register, in hopes that something suitable could be found for him.

[ 71 ] Eventually, a program appeared that seemed to be a good fit. The Defendant became interested in the school’s culinary arts program, and he began the course in February 2008 with some enthusiasm. The course was run as if it were taking place in a commercial kitchen, with meals being prepared for the school population on a mass basis each day.

The practical program was also interspersed with academic work in what appears to me to be an admirable attempt to prepare students for long-term work in the food industry. [ 72 ] Unfortunately, the Defendant’s engagement in the cooking program proved to be stormy and short-lived. On two occasions, there were near-fights in the kitchen between the Defendant and other students, with the Defendant on each occasion utterly losing his composure due to the physical proximity of the others in the workspace. [ 73 ] The Defendant was allowed some latitude with respect to each of the physical incidents.

He was sent to a separate room to cool off and there were no formal consequences. His relations with the others in the program became decidedly frosty, however, and he was thereafter marked out by the other students as being “difficult”. [ 74 ] Eventually, though, the Defendant went too far. First, he was suspended for a few days for preparing and converting food to his own use in the kitchen, a violation considered serious in a working kitchen.

Then, within days after his return from suspension, he did the same thing again. [ 75 ] The second incident of improper use of the kitchen facilities occurred on April 24, 2008. That happened to be a day on which the regular culinary arts teacher was away from the school and a supply teacher was in charge. Upon discovering the Defendant’s violation of the rules, she immediately sent him, along with another offending student, to the principal’s office. Before Mr.

Miller, the principal, the Defendant and the other boy aggressively maintained their innocence, although it was obvious that they had been caught red- handed. Mr. Miller suspended the Defendant from school again, told him to collect his belongings, leave the school grounds, and arrange for a meeting at a later date, where his exact academic fate would be determined. [ 76 ] The Defendant did not leave the school grounds. Instead, with the other student, he went directly to the supply teacher’s office, where he proceeded to berate and threaten her in the most profane and aggressive manner.

He referred to her as a “snitch” and told her loudly to “watch her back”. She was dumbfounded and plainly felt that her safety was endangered. She was physically shaken when describing the incident in court, even though eighteen months had passed. The incident has significantly changed her teaching career. [ 77 ] The Defendant did not follow the school’s direction that he arrange a meeting to discuss his future involvement in the culinary arts program. Instead, he simply quit. Apparently, he sees it differently.

He told the psychologist Christine Schwartz, the school “had let him down” and he could not go back. [ 78 ] The Defendant’s ouster from the culinary arts program roughly coincided with his departure from his parents’ home. He had met a girl named Ashley Apolinario a few months after his arrival in Victoria, and she had become his girlfriend. In the spring of 2008, he decided to move into an apartment with her. [ 79 ] The Defendant could not have supported himself living independently had it not been for his entry into the world of drug trafficking in Victoria. Together with Ms.

Apolinario, he became an active member of a group of about 9 to 12 young people engaged in selling drugs, mostly crack cocaine, in the streets of the city. [ 80 ] The group’s emergence on the streets of Victoria coincided with police awareness that new and aggressive drug-selling strategies were being used in the city. The police had reports of individuals being offered free “samples” of crack cocaine, and of the use of a particular motor vehicle (a red Chevy Cavalier) in the course of “dial-a-dope” operations.

The members of the group communicated with one another through multiple cellphones and maintained several different residences, thereby reaching a level of internal cohesion previously unknown in the city. [ 81 ] Police in Victoria had a number of encounters with the Defendant in the months preceding the night of the tragic incident which is the subject of the present proceeding. [ 82 ] I will refer briefly to these encounters now, but I do so bearing in mind three significant reservations. [ 83 ] First, I emphasize that the Defendant only faced criminal charges on one occasion arising out of his dealings with the police in Victoria (as will be mentioned in some detail below) and he does not have any record of convictions, either in British Columbia or in Ontario. [ 84 ] Second, I bear in mind that in many instances the police were not asked to record details of their encounters with the Defendant until many months later, after they were aware that he was a murder suspect.

I sense the distinct presence of after-the-fact embellishment in some instances, whether deliberate or not. In other cases, the memory may have become somewhat dulled by the mere passage of time before the events were recorded. [ 85 ] Third, I am bound to say that the police may not have been above reproach themselves in their dealings with the Defendant, at least with respect to some of the incidents that were described in court.

On occasion, as in the incident of July 15, 2008, for example, they seem to have been remarkably loose in their understanding of the limitations on personal searches mandated by the Charter of Rights .

Given the nature of the proceeding before me, it is not surprising perhaps that these issues were not debated at length, but I find it difficult to entirely dismiss them from my mind when considering and evaluating the responses attributed to the Defendant in each case. [ 86 ] I approach this portion of my Reasons, then, with significant reservations, but I do think that there needs to be some reference to the Defendant’s encounters with the Victoria police, because they the incidents do demonstrate, at least in a general way, the Defendant’s character, and particularly his attitude to authority, over a significant period of time in the early part of 2008. [ 87 ] In the early morning hours of January 12, 2008 there was a near-riot near the intersection of Pandora Avenue and Broad Street in downtown Victoria.

A large number of young males were involved. Staff Sergeant Laur attended, surveyed the situation, and directed

other police officers who arrived upon the scene soon afterward. Staff Sergeant Laur identified the Defendant as a leader in the melee, not so much because he was engaged in the physical aspect of it, but because he was a highly vocal instigator. Very quickly, the Defendant’s angry attitude swung toward the police. He is described by Staff Sergeant Laur as “unusually hostile” and vulgar, and demonstrating profound disrespect for those who were simply trying to restore order. [ 88 ] In fairness, it should be pointed out that Constables Nystedt and O’Neill also testified about the melee on Broad Street that night.

They confirmed that the situation was ugly indeed, and they confirmed that they arrested the Defendant on instructions from Staff Sergeant Laur, but neither of them has any particular recollection of the Defendant causing trouble after he had been arrested. [ 89 ] On May 8, 2008 the Defendant, his girlfriend Ashley Apolinario and another male were travelling in a vehicle stopped by the police. The Defendant was in possession of $455 in cash, the other male had $200 and a spitball of cocaine. Two cell phones were found in their vehicle, and one of them rang repeatedly.

When the police answered it, several callers asked to buy cocaine. Police also found papers with names and telephone numbers, leading them to believe that the three individuals were involved in “dial-a-dope” trafficking. No charges were laid. [ 90 ] On May 14, 2008, the Defendant came to the attention of Cst. McKinnell, an undercover officer who was operating province- wide and specializing in drug investigations. In May 2008, Cst.

McKinnell was seconded to Victoria and noted the presence of new players in the drug trade here, as well as the more aggressive tactics being used than were previously known in the city. [ 91 ] Cst. McKinnell detained the Defendant in the red Chevy Cavalier which the police had by that time come to associate with the “new” drug trade in Victoria. The Defendant was a passenger in the vehicle, with Ms. Apolinario driving. The police officer was suspicious concerning the actions of both occupants and conducted a search of the vehicle. He found a cell phone in the vehicle with its battery removed.

When he installed a battery in the phone, he received a barrage of calls over a 20-minute period from persons seeking to buy drugs. He found no drugs in the vehicle, however, and as a result the Defendant and Ms. Apolinario were allowed to go on their way. The police officer did not note any particularly offensive behaviour on the Defendant’s part. [ 92 ] On May 18, police again stopped the red Chevy Cavalier, this time for a minor traffic violation. On this occasion, the Defendant and Ms. Apolinario were accompanied by two other young males, named Supena and Blanco.

Two police officers testified concerning this incident, and both considered it noteworthy for the abusive attitude displayed by the occupants of the vehicle, and most particularly by the Defendant and Mr. Supena. The officers recalled that Mr. Supena and the Defendant were both remarkably aggressive and demeaning to the police. Inspector Giesbrecht, one of the officers, recalled Mr.

Supena asking the following questions, apparently rhetorically: “Don’t you know who we are?” and “What are you going to do, shoot us?” These questions, posed in loud and facetious tones, seemed to delight and entertain the Defendant immeasurably. [ 93 ] On May 26, 2008 police again stopped the Chevy Cavalier. The Defendant, once more an occupant of the vehicle, was “immediately defensive” and accused to police of stopping him due to racism. [ 94 ] On July 15, 2008, just four days before the murder, the police were observing drug dealing in Centennial Square from a nearby observation post.

Staff Sergeant Laur saw the Defendant and three other young men approach a suspect trafficker, speak briefly to him, and then walk away. Suspecting that the three young men were “re-supplying” the trafficker with drugs, he directed other officers to stop them, identify them, and possibly to search them. [ 95 ] Constables Leblanc and Magee received Staff Sergeant Laur’s instructions and stopped the Defendant , with two others, on a nearby street. Both officers were struck by the high level of hostility demonstrated by all three, but most particularly by the Defendant.

Constable Magee described him as acting “larger than life”, speaking in gangster jargon and gesturing wildly. Constable Leblanc, as well, noted the exaggerated posturing and the overt hostility. None of the three young men was arrested. [ 96 ] I return now to one specific incident which I have not mentioned in the above recitation of the Defendant’s actions in the months immediately preceding the events of July 19, 2008.

I refer, of course, to the incident which occurred on Yates Street in Victoria in the early morning hours of May 3, 2008. [ 97 ] During the course of the sentencing hearing, the Crown sought to introduce evidence of the Defendant’s involvement as one of the main participants in the May 3 rd incident, but the Defendant objected to the admissibility of the evidence. [ 98 ] After hearing lengthy argument, I ruled that the evidence was admissible and relevant to an assessment of the Defendant’s character. I gave only brief reasons for my decision at the time, however, in order to avoid delaying matters.

I indicated that I would explain my ruling in more detail later. I will do so now, before embarking on a determination of whether, and to what extent, the Crown has actually proved that the Defendant was involved in the incident. [ 99 ] To place the matter in context at this stage, it is necessary to give only the briefest

summary of the May 3 rd incident and the prosecution which resulted from it. [ 100 ] The Crown alleges that in the early morning hours of May 3rd a drunken man was walking innocently on Yates Street when he was set upon by a group of youths. The youths savagely kicked and punched the man, who put up no resistance. The Crown alleges that one of the main participants in the beating was the Defendant. [ 101 ] The police apprehended the Defendant in the immediate vicinity soon after the incident and he was taken into custody.

The police took brief witness statements from bystanders, but did not at that stage consider that they had sufficient evidence to charge the Defendant with assault. Instead, they held him in custody for breaching the peace, in accordance with s. 3(1) of the Criminal Code . Although he was reasonably cooperative with the police and was not considered a risk to re-engage in breaching the peace that night, he remained in custody for about eight hours before being released. [ 102 ] Some months later, the Defendant was charged with assault causing bodily harm in connection with the May 3 rd incident. When

the matter proceeded to trial, he submitted that the charge should be stayed as a result of the eight hours of detention to which he had been subjected upon his arrest. [ 103 ] The trial judge found that the Defendant had been held in custody for the eight hour period solely as the result of a police policy which prevented the release of any young person except into the care of a parent or other responsible adult.

The trial judge found the detention to be a serious violation of the Defendant’s right to be free from arbitrary detention as described in s. 9 of the Charter of Rights , and he directed that a stay of proceedings be entered. [ 104 ] At the present sentencing hearing, the Crown submits that the evidence concerning the Defendant’s involvement in the May 3 rd incident is a proper subject for this Court’s considerations.

The Crown emphasizes that it is not seeking to indirectly punish the Defendant for the assault matter, but wishes to introduce the evidence solely in order to shed light on the Defendant’s character at a time close in proximity to the matter which directly concerns this Court. That general distinction has been recognized as legitimate on many occasions in the Supreme Court of Canada, and in provincial appellate courts across Canada: See , for example, R. v. Edwards (2001), 2001 CanLII 24105 (ON CA) , 155 C.C.C. (3d) 473 , at 490 (Ont CA) ; R. v.

Angelillo , 2006 SCC 55 (CanLII) , [2006] SCJ No. 55 , at paragraphs 4 – 5 ; and R. v. Jordan (1991), 1991 CanLII 203 (BC CA) , 69 C.C.C. (3d) 356 , at 363 (BCCA) . [ 105 ] Depending on the circumstances, evidence of the Defendant’s behaviour on one occasion may be admissible on a later sentencing hearing even if the Defendant was acquitted in the prosecution which arose out of the first incident: R. v. Shoker , [2004] BCJ No. 2826 (BCCA) , at paragraphs 20 – 21 ; R. v. G.P. , [2009] BCJ No. 956 (CA) .

The Defendant maintains, however, that the situation is different where a judicial stay of proceedings has been entered in the initial prosecution, indicating that the trial judge in that case considered the prosecution to have been tainted in a most serious way.

The Defendant submits that it would bring the administration of justice into disrepute if the Crown were now permitted to use evidence connected to a prosecution which was brought to an end in such ignominious fashion. [ 106 ] I do not accept the Defendant’s submission that the evidence in question must automatically be excluded from consideration in the matter before me by virtue of the judicial stay entered in the assault proceeding. In my view, that submission arises from a misapprehension about the nature of Charter relief in a criminal proceeding.

A trial judge grants a Charter remedy having regard to the particular circumstances of the case before the Court. The inclusion of the phrase “in all the circumstances” in s. 24(1) is not mere surplusage. When considering “all the circumstances”, one factor which a trial judge may take into account, for example, is the particular type of the offence before the Court.

It is easy to understand how some types of police misbehaviour could give rise to a judicial stay of proceedings in a shoplifting case, but would not necessarily produce the same result in a murder trial. [ 107 ] In Re Greater Transit Commission and Amalgamated Transit Union Local 1582 (1987), 1987 CanLII 4267 (ON SC) , 61 OR (2d) 565 , at page 580 (Ont Div Ct) Watts, J. dealt with the scope of judicial relief in this way: Finally, it should be noted that to some extent, s. 24(2) is self- defining in determining the scope of reach of the evidentiary exclusion for which provision is there made.

Exclusion is mandated if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The under- lined words make it plain that it is the impact of the reception of the constitutionally-tainted evidence in the proceedings in which it is tendered which must be assessed against the standard there described in order to determine the admissibility issue.

The existence or nature of other proceedings in which the self-same evidence may be tendered for admission upon different issues as between different parties and in satisfaction of a different standard of proof is nihil ad rem to the determination under s. 24(2). It would seem to follow logically from the discrete nature of a s.24(2) determination and, in particular, from the prominence assigned to the proceedings in which the evidence is tendered as a determinant in whether its reception would bring the administration of justice into disrepute, that any rulings so made are, of necessity limited

to such proceedings. Such a ruling, subject to appellate review, would be dispositive of the admissibility issue in respect of the subject proceedings only. [ 108 ] Watts, J’s comments were directed at identifying the scope of judicial relief granted under s. 24 (2) of the Charter , and do not deal specifically with the scope of a judicial stay, a form of relief granted under s. 24 (1). The principle is the same, however.

Charter relief is “discrete” in nature and its effect is limited to the proceeding in which it was granted. [ 109 ] On this application to exclude evidence, the Defendant has specifically not relied upon the doctrine of issue estoppel, recognizing, quite rightly, that the only issue that was decided in the assault prosecution was that the Defendant’s right to be free from arbitrary detention, guaranteed by s. 9 of the Charter of Rights , had been breached. Nothing was decided in that prosecution about whether the Defendant engaged in the form of behaviour which the Crown now wishes to present to this Court.

As the Supreme Court of Canada noted in R. v. Mahalingan , 2008 SCC 63 (CanLII) , [2008] 3 SCR 316 , issue estoppel only applies to specific issues or facts that have been decided upon at the first trial, either expressly or by implication. [ 110 ] Nevertheless, there is an obiter passage in the majority decision in Mahalingan that requires consideration in the present context.

At paragraph 77 in the Mahalingan decision, Chief Justice McLachlin, wrote: It is not necessary in this case to resolve the question of whether issue estoppel applies to situation where there is a disposition such as a stay at a first trial …. On the one hand, cases of stays often involve determinations not based on the merits, and thus may not give rise to any factual findings (or, as Professor Stewart points in relation to entrapment, factual findings contrary to the accused may have been made, since entrapment is not even considered until after a finding of guilt has been made (pp.389-390).

On the other hand, in many cases where a stay was issued for reasons such as abuse of process or unreasonable delay, the factors which led to the stay may still be compelling when an attempt is made by the Crown to use the evidence at a later proceeding. It may well be that a more flexible approach such as an abuse of process should be used for these cases, rather than issue estoppel. [ 111 ] The submission which the Defendant makes to this Court is indeed something like an abuse of process argument. In this particular case, however, I have concluded that that submission cannot prevail.

The Crown is not seeking to open a back door to a prosecution in circumstances where the front door has been closed as a result of a judicial stay. Rather, the Crown is seeking to place before the Court evidence of the Defendant’s behaviour which gave rise to the first prosecution, in the context of a sentencing hearing connected with an entirely different prosecution.

The link with the original prosecution is too remote, in my view, to give rise to any conclusion that the Crown is attempting to abuse the process of the Court. [ 112 ] The Defendant’s final submission is that the s.9 Charter breach was in any event so serious that it should lead to an independent grant of judicial relief on this sentencing hearing. In the present context, the Defendant argues, the appropriate judicial remedy for the breach should come in the form of an exclusion of evidence.

That submission brings into play the considerations referred to by the Supreme Court of Canada in the recent decision of R. v. Grant , 2009 SCC 32 (CanLII) , [2009] S.C.J. No. 32 . [ 113 ] Again, however, I must respectfully disagree with the defence position. I do agree that in accordance with the doctrine of issue estoppel the s.9 breach must be conclusively determined to have occurred. I also agree that the breach was relatively serious, as determined by the trial judge on the assault trial.

I disagree, however, that the appropriate remedy is to exclude the evidence which the Crown now seeks to elicit. [ 114 ] It is well established that at the sentencing stage of any prosecution, where the character and background of an accused person assume great importance, the Court is entitled to receive information from a much wider variety of sources than is the case when determining guilt or innocence. Thus, in R. v. Gardiner , 1982 CanLII 30 (SCC) , [1982] SCJ No. 71 , Justice Dickson, speaking on behalf of the unanimous court, stated: It is a commonplace that the strict rules which govern at trial

do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail….The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence.

He must have the fullest possible information concerning the background of the offender if he is to fit the sentence to the offender rather than to the crime. [ 115 ] The principle cited in the Gardiner case has particular application to a proceeding under s. 71 of the YCJA, where the Youth Justice Court is specifically directed to inquire into such matters as the character and background of the young person when deciding whether an adult sentence should be imposed. [ 116 ] To exclude the evidence which the Crown now seeks to lead would in my opinion be entirely inconsistent with the general principle enunciated in Gardiner , and repeated in many other decisions of the Supreme Court of Canada, that the courts should take an expansive view of the admission of evidence on a sentencing proceeding.

It is crucial to bear in mind that the reliability of the evidence was not brought into question by the Charter breach; the stay of proceedings was granted because the trial judge believed it necessary for the Court to distance itself from an ongoing police policy which involved depriving a young person of his liberty for completely inappropriate reasons. [ 117 ] To decline to grant the Defendant relief for the Charter breach in the present sentencing proceeding is not, of course, to rob the breach of its significance. The breach has already led to a judicial stay of proceedings in the assault prosecution.

Given the nature of the assault which the Crown alleged to have occurred in the May 3 rd incident, that result must be considered as a significant remedy indeed. [ 118 ] For all of these reasons, I ruled that the evidence concerning the May 3 rd incident was admissible in this Court, for the limited purpose of assisting to demonstrate the Defendant’s character.

That is a factor which this Court is specifically directed to consider at a hearing held pursuant to s. 71 of the YCJA. [ 119 ] It remains to consider whether the Crown has shown the Defendant to have been involved in the May 3 rd incident, and to what extent. It is common ground that the Crown is only entitled to use the May 3 rd incident as an aggravating factor on sentencing to the extent that it has proven beyond reasonable doubt the Defendant’s involvement in the incident. [ 120 ] There can be no serious dispute that the Defendant was involved to some extent as a participant in the incident.

The Crown witness Melissa Stuart described the incident for the Court, and I appreciate that in many respects her testimony has been called into question by the Defendant, as I will describe momentarily. But her testimony is absolutely clear on these points : 1. When the physical altercation ended, most of the youths who had attacked the victim Connor Macdonald ran off down Yates Street while two of them entered business premises called “The Lotteria”, adjacent to the scene of the fracas. 2.

When the police arrived on the scene very quickly thereafter, they were directed by several bystanders to apprehend the culprits in the Lotteria, and they did so right away. [ 121 ] Constable Ryan Young also testified for the Crown. He described, without contradiction, that upon his arrival at the scene, he and his partner were immediately directed into the Lotteria. Once inside, they determined that the business appeared to be closed and essentially empty. It is to be inferred from Cst.

Young’s testimony that the only two people inside the premise were the Defendant and another young man subsequently identified by the surname Becker. The two were removed from the Lotteria by the police, to the cheers of the bystanders outside. [ 122 ] Taking Cst. Young’s evidence, together with that portion of Ms. Stuart’s testimony which was not challenged, it is irrefutable that the Defendant was one of those involved in the attack upon Mr. Macdonald.

In any event, the Defendant’s general involvement as an active participant in the incident is surely resolved beyond reasonable doubt by the Defendant’s own admission to the psychologist, Dr. Christine Schwartz, at the time of the preparation of the pre-sentence report. That evidence is admissible in this proceeding on the authority of R. v. Jones , 1994 CanLII 85 (SCC) , [1994] SCJ No. 42 . [ 123 ] The proven fact that the Defendant was one of the participants in the attack upon Mr. Macdonald may, by itself, be some indication of the Defendant’s character. The Crown seeks to take the matter further, however.

The Crown asks this Court to conclude that the Defendant was one of the main aggressors in the attack, if not the main aggressor. It is the Crown’s insistence on that point that necessitates a much more careful analysis of the evidence before this Court, and particularly the evidence given by Ms. Stuart. [ 124 ] Ms. Stuart gave evidence incriminating the Defendant not just as one of the five or six young males who set upon Mr. Macdonald, but as the main aggressor in the one-sided affair. I view her evidence in that respect as giving rise to all of the concerns associated with eyewitness identification evidence.

[ 125 ] Eyewitness identification evidence has, of course, long been recognized as a weak link in the evidentiary chain, calling for the most careful scrutiny. The problem is that an identification witness may be absolutely honest and certain in his or her testimony, perhaps even becoming more certain with time, but may nonetheless be completely wrong. When assessing the weight to be given to the evidence, it is sometimes said that the Court should place the identification process itself on trial: R. v Atfield (1983), 1983 ABCA 44 (CanLII) , 42 A.R. 294 (C.A.) at para.3 .

If the process itself is found to be wanting, whether through an absence of an opportunity for the witness to make reliable observations, improper suggestions being put to the witness, or any other cause, the Court should not rely upon the identification provided, no matter how sure and persuasive the witness may be. [ 126 ] In the present case, Ms. Stuart did give her testimony in a most clear and convincing fashion. I have no doubt whatever that in identifying the Defendant as the main aggressor in the attack upon Mr. Macdonald she was honestly describing the events as she now recalls them.

But can it be said with reasonable confidence that her identification is objectively reliable? [ 127 ] In my view, Ms. Stuart’s identification evidence, while imperfect in some respects, does withstand careful scrutiny. [ 128 ] I begin by noting that Ms. Stuart witnessed an incident which occurred only a very short distance away from her. She had an unobstructed view of the confrontation from its onset, on a street which she described as “fairly well lit”. [ 129 ] There is no suggestion that Ms.

Stuart’s powers of observation were affected by any defects in her eyesight or by the ingestion of alcohol, even though the events occurred shortly after bar closing hours in Victoria. She conceded that she had consumed some alcohol that night, but alcohol consumption has not been put forward as a serious issue. [ 130 ] It is true that the assault upon Mr. Macdonald was over quickly. Ms. Stuart herself estimated that it lasted only three to five minutes. I have no way of verifying that time estimate, but I do accept that events unfolded quickly, allowing only a brief period for Ms.

Stuart to make observations about who precisely did what during the attack. It must also be kept in mind that there were either five or six assailants to be watched, and Ms. Stuart had no previous acquaintance with any of them. These are factors which tend to weigh against the reliability of any precise identification. [ 131 ] On the other hand, there was good reason for Ms. Stuart to quickly focus on the two young men leading the attack. In that respect, it is significant that she viewed the attack itself as being unusual and “alarming”.

She had a history of working in bars herself, and she was accustomed to seeing males become aggressive when under the influence of alcohol. This particular incident seemed to her to be of an entirely different character, however, in that it seemed calculated, clinically executed, and unusually vicious. She described how three or four of the attackers merely held Mr. Macdonald down, while the two apparent leaders went about inflicting well-aimed kicks and punches. [ 132 ] Viewing the assault as a most remarkable event, Ms. Stuart focused on those she perceived as the leaders.

She was thus able to describe those two individuals in some detail, while she said little about the others. She described both the clothing and the physical features of the two main aggressors. She went on to say that of the two young men she identified as leaders, the shorter, stockier darker- skinned one was the most aggressive. [ 133 ] When the attack ended, the most aggressive of the young men happened to pass directly by Ms. Stuart. He was close enough that she spoke to him, deriding him for his cowardice.

She got no verbal response, but noted that he flipped his hoodie up over his head and walked with apparent nonchalance into the nearby “Lotteria” premises. He was accompanied into those premises by the second aggressor. The others involved in attacking Mr. Macdonald ran off down the street, a scenario which seems consistent with Ms. Stuart’s perception as to who were the leaders in this calculated event, and who were the followers. [ 134 ] The description which Ms.

Stuart gave concerning the arrival of the police and the subsequent arrest of the Defendant and his companion Becker was corroborated exactly by the arresting officer, Constable Young. Both witnesses describe two male police officers entering the business premises together and coming back outside shortly afterward with the two suspects in tow. [ 135 ] Defence counsel points out that Ms. Stuart never participated in any form of police line-up designed to identify the main culprits in the incident.

Apparently, the police asked her to attend a line-up, but she had plans to go away camping at the time suggested by the police, and never did arrange for an alternate time. In the circumstances, I agree that her identification of the Defendant in the dock in this Court carries little weight. [ 136 ] In the absence of a police line-up or the use of any other early mechanism being employed to test the accuracy of Ms. Stuart’s identification, it is all the more important to carefully analyze the description which the witness gave in court concerning the two persons she described as the main culprits.

In each case, her description consisted of a description of clothing and physical features. [ 137 ] Ms.

Stuart’s physical description of the Defendant is accurate, as determined by reference to the corroborative evidence of Constable Young regarding the description of the Defendant at the time of his arrest, by reference to the photographic and video evidence generated later the same night at the police station, and also by reference to the Defendant’s general appearance before this Court. [ 138 ] Defence counsel made a point of noting the unlikelihood of the Defendant providing a detailed physical description of the Defendant for the first time, some eighteen months after the incident itself. Ms.

Stuart’s response, however, was plausible. She said that she had noted the Defendant’s features at the time, as she was accustomed to doing in her chosen line of work, but that nobody had ever asked her before this sentencing proceeding to articulate the features which she had observed. [ 139 ] Defence counsel referred to the evidence that Ms. Stuart gave concerning the Defendant’s clothing.

He noted, for example, that the witness seemed to place greater importance on the Defendant’s clothing than on his physical appearance when concluding that Constable Young and his partner, upon leaving the Lotteria, had arrested one of the main participants in the assault. [ 140 ] In answer to that objection, I must say that on careful review of Ms. Stuart’s evidence I simply do not accept that she focused unduly on the Defendant’s clothing at the relevant time. She referred to both the clothing and the physical features.

[ 141 ] More importantly, though, I am inclined to think that in the particular circumstances of this case it would not diminish the strength of the witness’ evidence if she did arrive at her conclusion about the propriety of the arrest based on her observations of the clothing. The evidence disclosed that two males went into the Lotteria premises after the altercation, two males were in the premises when the police entered moments later, and two males were brought back outside just moments after that.

The shortness of the time span, in view of the particular manner in which the events unfolded, makes it not unreasonable for Ms. Stuart to have concluded that the continuity of the clothing was an important identifying factor. [ 142 ] Referring further to the clothing evidence given by Ms. Stuart, the Defendant points out that the witness was inaccurate to say that the Defendant wore a black hoodie bearing a graphic design.

The photographic evidence and the video evidence generated later at the police station suggest that the hoodie was in fact multi-coloured, and that black was not necessarily the dominant colour. [ 143 ] Having viewed the photographs and the video, I agree that it is more accurate to describe the hoodie as being multi-coloured. At the same time, though, it is clear that the clothing item is indeed noteworthy for its design pattern, and also that black is one of the recognizable colours. The lining of the hood itself is black. I do not think the description given by the witness is significantly off the mark.

I note as well that the witness accurately described the Defendant’s pants and shoes. [ 144 ] Defence counsel took some time to attempt to discredit the witness by referring her to testimony which she had given at Becker’s trial in December 2008. Counsel focused on a passage in Ms. Stuart’s testimony during cross-examination at that trial in which she had agreed that she had told a police investigator, Constable Malinosky, that she could only identify one of the assailants, and that he was tall with a hoodie.

On the face of it, that obviously is an important qualification to her evidence, and it cries out for an explanation. [ 145 ] Ms. Stuart did provide an explanation. She agreed that she had made the concession at the Becker trial, but testified that she now realizes that she should not have done so. She was somewhat intimidated by the process, she said, never having been cross- examined before. She testified before this Court that she is now quite clear that she actually told the police investigator that one of the main assailants was tall, while the other wore a hoodie.

In other words, her present testimony is that she was always able to identify two

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